Lords Sitting of 17 July 1952

Preamble
The House met at half past two of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers
The Earl Nelson—Sat first in Parliament after the death of his father.
The Lord Maclay—Sat first in Parliament after the death of his father.

ROCHESTER CORPORATION BILL
2.36 p.m.
THE CHAIRMAN OF COMMITTEES (THE EARL OF DROGHEDA): My Lords, I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read 2ª.—(The Earl of Drogheda.)
LORD ROCHESTER: My Lords, in view of what transpired in another place, I want to take this opportunity of thanking the Ministry of Housing and Local Government for the benevolent attitude they have adopted towards this Bill.
On Question, Bill read 2ª, and committed: the Committee to be proposed by the Committee of Selection.

BRITISH TRANSPORT COMMISSION BILL
Read 3ª, with the Amendments, and passed, and returned to the Commons.

BUSINESS OF THE HOUSE
THE SECRETARY OF STATE FOR COMMONWEALTH RELATIONS (THE MARQUESS OF SALISBURY): My Lords, I beg to move the Motion standing in my name.
Moved, That Standing Orders Nos. XXI and XXXIX be considered in order to their being suspended until the House adjourns for the Recess, and that Government business have, except with the consent of the Government, precedence over other Notices and Orders of the Day.—(The Marquess of Salisbury.)
On Question, Motion agreed to, and ordered accordingly.

VISITING FORCES BILL [H.L.]
2.39 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 Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly:
[THE EARL OF DROGHEDA in the Chair]
Clause 1:
Countries to which Act applies
1.—(1) The following sections of this Act shall have effect in relation to Canada, Australia, New Zealand, the Union of South Africa, India, Pakistan and Ceylon.
(2) Where it appears to Her Majesty, as respects any country not mentioned in the foregoing subsection, that having regard to any arrangements for common defence to which Her Majesty's Government in the United Kingdom and the Government of that country are for the time being parties it is expedient that the following provisions of this Act, or any of those provisions, should have effect in relation to that country, Her Majesty may by Order in Council direct that the provisions in question shall have effect in relation to that country, subject however to any adaptations or modifications specified in the Order.
(3) References in any of the following provisions of this Act to countries to which that provision applies are references to countries in relation to which that provision has effect (with or without adaptations or modifications) by virtue of subsection (1) of this section or an Order under subsection (2) thereof.
THE LORD CHANCELLOR (LORD SIMONDS)THE LORD CHANCELLOR (LORD SIMONDS) moved, in subsection (1), to leave out all words from the beginning of the subsection down to "Canada" and to insert:
"References in this Act to a country to which a provision of this Act applies are references to—
(a)"
The noble and learned Lord said: This Amendment which stands in my name is not really intelligible unless it is read in conjunction with the Amendments which stand next in the Marshalled List of Amendments after those which appear in the name of the noble and learned Viscount, Lord Simon. I have had the opportunity of discussing the matter with him, and a discussion has also been had with the noble and learned Earl, Lord Jowitt, and if it is convenient to the Committee, and if the Lord Chairman assents to that course, I should like to move at the same time the Amendment which

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stands first in my name and the Amendments which are numbered 4, 5 and 6, on the Marshalled List. I do not know whether the noble and learned Viscount, Lord Simon. will agree to that.
VISCOUNT SIMON: I think it will be most convenient.
THE LORD CHANCELLOR: The Amendments which I move are designed to give effect to certain objections which were taken by the noble and learned Viscount, Lord Simon, and by the noble and learned Earl, Lord Jowitt. If I may say so, there was force in their objections, and we are grateful for the assistance which they have given us. I think that the convenient course for me to adopt will be to read Clause 1 of the Bill as it will stand if the Amendments which are in my name are accepted by the Committee. Clause 1 will then read in this way:
"References in this Act to a country to which a provision of this Act applies are references to—

(a) Canada, Australia, New Zealand, The Union of South Africa, India, Pakistan or Ceylon, or

(b) any country designated for the purposes of that provision by Order in Council under the next following subsection,"

This next following subsection, subsection (2), follows the terms of the original Bill, except that we shall omit the words
"subject however to any adaptations or modifications specified in the Order,"
which appear in the original subsection (2), Subsection (3) is a new subsection and runs thus:
"Her Majesty may by Order in Council provide that in so far as this Act has effect in relation to any country designated under the last foregoing subsection, it shall have effect subject to such adaptations or modifications as may be specified in the Order."
Then there is a new subsection (4) which reads:
"No recommendation shall be made to Her Majesty in Council to make an Order under the last foregoing subsection unless a draft thereof has been laid before Parliament and approved by resolution of each House of Parliament."
The clause, as thus amended, gives effect to the suggestions and objections which were made both by the noble and learned Earl, Lord Jowitt, and by my noble and learned friend Lord Simon. As
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now drafted, it will have this effect: that in regard to any country in respect of which it is proposed to apply the terms of this Bill by Order in Council in the words of the Bill, it will be unnecessary to obtain an Affirmative Resolution of both Houses of Parliament. But objection was justly taken, that if it was proposed not only to adopt the terms of the Bill itself but to adopt them subject to adaptations or modifications, then Parliament should have an opportunity of expressing an opinion upon the matter. To that objection we have given effect by providing in Subsection (3), that Her Majesty may by Order in Council provide for the application of the Bill, with adaptations or modifications, and by subsection (4) that, if that course is adopted, then there must be an Affirmative Resolution of both Houses. I think that gives explicit effect to the objection taken by the noble and learned Earl, Lord Jowitt, and also satisfies my noble and learned friend. I think I need do no more than commend the Amendment to your Lordships, and move accordingly.
Amendment moved—
Page 1, line 7, leave out2/8/2007 from beginning to ("Canada") in line 8 and insert the said new words.—(The Lord Chancellor.)
VISCOUNT SIMON: I am grateful to the noble and learned Lord the Lord Chancellor for what he has said. So far as I am concerned, I willingly accept the form of words which ho has just explained to us and shall not de sire to move my own Amendment instead. As the noble and learned Lord has said, to a large extent these are two different ways of expressing the same thing. The Second Reading of the Bill raised at once this question, which arises on this essential Clause 1. Although it is not in terms a Bill which applies to. he parties to the Atlantic Treaty, it note the less will no doubt be applied in due course to all of them, if all goes well. But as the clause appeared in the Bill, it attempted to do at once two things which were not capable of being wisely done at one and the same time. One thing was that it provided for an Order in Council which would bring in, for example, the United States of America or any other parties to the Atlantic Treaty. The second thing it did was to provide at the same time that

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the Executive, without any leave from Parliament at all, might make an Order in Council bringing in other States with the right to send their visiting forces here under their own law; and not only that, but that after doing so the Executive might make that Order in Council subject to adaptations or modifications.
It was my noble and learned friend Lord Jowitt who first of all took the point on Second Reading and I ventured to support him. We said that it would not do, because it would mean that we should hand over to the Executive, without any further authority from Parliament, the right to introduce into this country the forces of some other foreign State not a party to the Atlantic Treaty at all; and not only so, but it would mean that we should give the Executive that power with the right to make any adaptations or modifications specified in the Order in Council. It did not seem to me that that was quite right, and I think the noble and learned Lord the Lord Chancellor, on reflection, felt as I did. Naturally, he has now a form of words which meets that point entirely.
I ought to say that I had an opportunity this morning of speaking to the noble and learned Earl. Lord Jowitt, about the Amendment and he agreed with me that the right course now would be to accept the Lord Chancellor's form of words and be content with them. I am the more obliged to say this because the Amendment I have put on the Marshalled List was put down in consultation with my noble and learned friend Lord Jowitt, and he himself would have been here at this moment to confirm what I say and accept the Lord Chancellor's proposal, were it not that he is compelled to be elsewhere. As Chairman of the Tate Gallery, important and urgent duties detain him. Therefore we come to a happy conclusion by general agreement on this occasion, and I am glad to think that the Amendment which I put down, No. 7 on the Marshalled List, is word for word the same as part of the Amendment which the noble and learned Lord has put down, No. 6. Therefore, for my part, I accept the Amendment and advise the House to accept it, and when the time comes I shall not seek to move my alternative form of words.
On Question, Amendment agreed to.
Amendments moved—
Page 1, line 9, leave out ("and Ceylon") and insert—
("or Ceylon, or
(b) any country designated for the purposes of that provision by Order in Council under the next following subsection")
Page 1, line 11, after ("in") insert ("paragraph (a) of")
Page 1, line 17, leave out from ("Council") to end of line 5 on page 2 and insert ("designate that country for the purposes of the provisions in question.
(3) Her Majesty may by Order in Council provide that in so far as this Act has effect in relation to any country designated under the last foregoing subsection, it shall have effect subject to such adaptations or modifications as may be specified in the Order.
(4) No recommendation shall be made to Her Majesty in Council to make an Order under the last foregoing subsection unless a draft thereof has been laid before Parliament and approved by resolution of each House of Parliament.")—(The Lord Chancellor.)
On Question, Amendments agreed to.
Clause 1, as amended, agreed to.
Clauses 2 to 8 agreed to.
Clause 9:
Settlement of claims against visiting forces
9. The Minister of Defence may make arrangements whereby claims in respect of acts or omissions of members of visiting forces, or of other persons connected therewith to whom the arrangements relate, being acts or omissions of any description to which the arrangements relate, will be satisfied by payments made by the said Minister of such amounts as may be adjudged by any United Kingdom court or as may be agreed between the claimant and the said Minister or such other authority as may be provided by the arrangements; and any expenses of the Minister of Defence incurred in satisfying claims in pursuance of any such arrangements or otherwise in connection with the arrangements shall be defrayed out of moneys provided by Parliament.
On Question, Whether Clause 9 shall stand part of the Bill?
THE LORD CHANCELLOR: I do not want to move any Amendment on Clause 9, but in view of what took place upon the Second Reading of this Bill, I think it is proper that I should give your Lordships some further explanation of what is meant by this clause. It is a clause which provides for settlement of claims against visiting forces: it does not deal with criminal jurisdiction, but with the settlement of civil claims. It provides that:
"The Minister of Defence may make arrangements whereby claims in respect of

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acts or omissions of members of visiting forces…will be satisfied by payments made by the said Minister.…"
When the matter came before your Lordships on Second Reading, my noble and learned friend Lord Simon, the noble and learned Earl, Lord Jowitt, and the noble Viscount, Lord Bridgeman, wanted the clause further elucidated. I considered whether the best way to do that would be to issue a White Paper dealing with its subject matter, but it appeared to me that that was rather an elaborate course, and I thought it might satisfy your Lordships if I were now to read a statement amplifying Clause 9, which will then be in the pages of Hansard, and so on record. With your Lordships' permission, I will read the not very short statement which I have had prepared, which deals with the subject matter of Clause 9 and which, I think, will be of interest to anybody who has, or may have, a civil claim against members of visiting forces. What I say assumes that those who read the statement—and perhaps it is rather a bold assumption—are already familiar with the provisions of Article VIII of the Status of Forces Agreement, which is an Agreement made by what I may call the parties to N.A.T.O. The statement is as follows:
This clause (Clause 9) deals with civil claims against a visiting force. The necessity for the clause, and for the arrangements referred to in it, arises from the fact that a foreign State is, by the law of nations, immune from proceedings in the courts of another State. The Status Agreement of 19th June, 1951, therefore contains in paragraphs 5 to 10 of Article VIII the arrangements agreed to by all the contracting States for dealing with claims against members of a visiting force, and the arrangements contemplated by this clause are based upon the provisions of Article VIII. These provisions will, however, be supplemented by other Agreements on procedural matters to be negotiated with the States who have visiting forces in this country. The United States and Canada each have a visiting force in this country at the present time, and Supplemental Agreements are being discussed with representatives of those two countries.
In the course of the Second Reading debate the noble and learned Viscount, Lord Simon, asked me to consider the issue of a statement containing the general
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nature of the arrangements contemplated. On consideration I do not think it appropriate to take this course at the present stage, but I can give the House this assurance: that when the Bill is passed and the Status Agreement is ratified, and when any necessary Supplemental Agreements have been made, appropriate steps will be taken to give public notice of the procedure to be followed by persons having claims against a member of a visiting force. In the meantime I will explain to the House in general terms what arrangements are contemplated and what the procedure is to be.
In the first place, it is to be noted that Article VIII of the Status Agreement does not apply to contractual claims. It applies only to claims in respect of wrongful acts, that is to say torts, committed by members of the visiting force or of a civilian component of that force, and different considerations apply according to whether the act complained of was committed in the course of official duty or otherwise, as I shall explain in a few moments.
The House will, I think, be glad to know that it has been arranged that all claims in tort against a member of a visiting force, whether committed on or off duty, will be dealt with by the British War Office, Claims Commission. The Claims Commission, as is well known, has for some years dealt with claims against the Armed Forces and other officials in Government service in this country, and during the war it dealt with claims against the United States forces then in this country. The Claims Commission is therefore particularly well equipped to deal with claims against members of visiting forces and it is, I think, fortunate that it has been possible to make this arrangement.
The result is that as soon as the Bill is passed and the Agreement is ratified, any person who has a claim in tort against any member of a visiting force will be able to make his claim to the War Office Claims Commission without the necessity of communicating with the authorities of the visiting force. The Claims Commission will deal with the claim as it deals wilt claims against British Government Departments. If the claim is admitted and the damages agreed, those damages will be paid by the Minister of Defence under the authority of this Bill. If the claim is not

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admitted, the claimant will have the right to bring proceedings in the courts of this country against the member of the visiting force concerned, for whom the Treasury Solicitor will be authorised to act. Any judgment obtained will be discharged by the Minister of Defence, and if a settlement is arrived at without proceeding to trial, payment of the agreed sum will also be made by the Minister. So much for a claim in respect of acts committed during the course of official duty.
Where the act giving rise to the claim is not committed during the course of official duty, the claim may still be made to the Claims Commission, and the Agreement provides that, while no legal liability can be accepted, the visiting force will be prepared to consider the making of an ex gratia payment of compensation. What will happen is that the Claims Commission will examine the claim and make a report upon it to the visiting force, taking into account all the circumstances of the case, including the conduct of the injured person, and making an assessment of fair and just compensation. On receipt of that report the visiting force will decide whether or not to make an ex gratia payment, but if an ex gratia payment is offered and is accepted in full discharge of all liability, payment will be made by the visiting force. If, on the other hand, no offer is made, or the offer is not accepted, the claimant will be free to pursue his remedy in the courts of this country against the member of the visiting force concerned, but no responsibility for any judgment will in those circumstances be undertaken either by the Minister of Defence or the visiting force.
These are the main provisions of the arrangements contemplated, but there are two other important matters which I ought to mention. First, there may in some cases be a dispute as to whether or not a member of a visiting force was on duty at the time of the commission of the alleged tort, or as to whether the use by him of a Service vehicle was authorised by his superior authority. Arrangements have been made that disputes of this kind shall be referred to the arbitration in this country of a person who holds, or has held, high judicial office here. Secondly, the noble and learned Earl, Lord Jowitt, on the Second Reading
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raised the question what would happen if an injured person were unable to identify the member of the visiting force whom he thought to be responsible for his injury. Cases of this kind will also be submitted to arbitration, the parties to the arbitration being the claimant, on the one side, and someone representing the visiting forces or the Minister of Defence, on the other, without naming any individual tortfeasor. As the noble Viscount, Lord Simon, will remember, this was the procedure adopted when similar difficulties arose here before the passing of the Crown Proceedings Act.
I think I should also call the attention of the House to paragraph 10 of Article VIII of the Agreement in which the contracting States have agreed to co-operate in the procurement of evidence for a fair hearing and disposal of any claims with which they are concerned. The working out of the arrangements has not been easy, and this is perhaps not surprising when one remembers that the countries concerned have different systems of law and different methods of dealing with claims against the State. The representatives of the countries concerned have shown the greatest good will in all the negotiations, and I have no reason to doubt that the arrangements which I have mentioned are such as to ensure that justice will be done.
I am grateful to your Lordships for allowing me to detain you by reading that somewhat lengthy statement, but I think it will give satisfaction to those who have been concerned with the terms of Clause 9 of the Bill. If I may say so, I think it reflects great credit upon those on both sides who have been concerned in the negotiations.
VISCOUNT SIMON: I think we ought to be extremely grateful to the Lord Chancellor, and to those who have been assisting him, for the statement he has just read to us. I am sure that I was right in the opinion I ventured to express on the Second Reading, that this was a serious and complicated matter, about which people would like, if possible, to have a little more information. Looking at what I said on the Second Reading, I see that I observed:
"If I may say so with respect, it would greatly assist the public, and I think probably some other people who claim to be specially instructed in this matter, if at an appropriate

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time the Lord Chancellor could give us a little more information in regard to the way in which this will work."
That he has done, and, if I may say so, done very clearly and adequately. I was particularly interested in what he said near the end of his statement in respect of the claim that may be made where the claimant is not able to identify the individual member of the visiting forces who might be held responsible. It is a well-known difficulty of procedure, and it would not be satisfactory simply to say that a claimant has the right 10 bring an action against the member of the visiting forces responsible unless there were some method by which he could find out, in case of need, who that individual was. As I follow it, what the Lord Chancellor has just said covers that point, and I think it is a very ingenious and satisfactory way of doing it.
There is only one other point to which I need refer. I do not think that, when the Lord Chancellor spoke just now, he said in tetras that he hoped to publish the Agreement which will be arrived at with some particular State in respect of its visiting forces, without necessarily waiting for formal Agreement with all the other foreign States. I have no doubt, however, that it is his intention, when arrangements are made and an Order in Council is passed dealing with the visiting forces of one particular country, as soon as may be to make available the arrangements which have been negotiated and arrived at with that country, without necessarily waiting for the others to come in.
THE LORD CHANCELLOR: I certainly think that would be so.
VISCOUNT SIMON: In those circumstances, what has just been said by my noble and learned friend will be of great value, and I think it is just as good as if a White Paper on the subject had been issued. It is only a special section of the public which will be concerned, and I think we may be assured that what has now been stated will be available if they want to study it.
LORD KERSHAW: I have no doubt that if mo noble and learned friend Lord Jowitt were here, he would be glad to express his gratitude to the Lord Chancellor for what he has said. One point
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occurred to me—and this is not a point raised by my noble and learned friend—as the Lord Chancellor was speaking. I remember that years ago, when a subject had not the right against the Crown or a Dominion, a good many ex gratia payments were made in dealing with these problems which the Lord Chancellor has mentioned. The Canadian Government put a limit of £1,000 on the amount that local representatives of that Government could offer in settling a claim. I was wondering, in passing, whether any such limit has been considered in connection with the proposal which the Lord Chancellor has just made.
THE LORD CHANCELLOR: I am sorry, but I cannot answer that point without having it looked into. I will certainly have it looked into, and I will communicate the result of it to the noble, Lord, Lord Kershaw. Off hand, however, I just cannot answer that.
Clause 9 agreed to.
Clauses 10 to 13 agreed to.
Clause 14 [Evidence for purposes of Part II]:
THE LORD CHANCELLOR: There are two very short Amendments which stand in my name to Clause 14. They are both of a technical character to give effect to the law of Scotland. Your Lordships will notice in Clause 14 (a), line 15, that a certain certificate is to be
"admissible without proof as evidence of the making of the request and of the effect thereof."
As we are advised, it would not be sufficient in a court in Scotland merely to say that something should be accepted as evidence. It might be evidence, but it would not be sufficient evidence without corroboration. I speak with diffidence in the presence of the noble Earl, Lord Selkirk, who is an expert in the law of that country, but that is what we are advised. Accordingly, I propose that the clause should be amended by the introduction of the words, after the word "evidence."
"and in Scotland sufficient evidence."
The point occurs in line 15 and in line 23—that is to say, the document shall not only be evidence but shall require no corroboration; it shall be sufficient

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evidence by itself. I commend these Amendments to your Lordships, and move accordingly.
Amendment moved—
Page 13, line 15, after ("evidence") insert (",and in Scotland sufficient evidence,").—(The Lord Chancellor.)
On Question, Amendment agreed to.
Amendment moved—
Page 13, line 23, after ("evidence") insert (",and in Scotland sufficient evidence,").—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 14, as amended, agreed to.
Remaining clauses and Schedule agreed to.
House resumed.

MAGISTRATES' COURTS BILL [H.L.]
Reported from the Joint Committee on Consolidation Bills, with Amendments, and re-committed to a Committee of the Whole House.
TOTTENHAM CORPORATION BILL [H.L.]
Returned from the Commons, agreed to with Amendments: the said Amendments considered and agreed to.
NORTH WALES HYDRO-ELECTRIC POWER BILL
The Queen's consent signified, and Bill reported, with Amendments.