§ 3.24 p.m.
§ Report stage resumed.
§ Clause 13:
§ Interpretation of Part 11
§ "interest," in relation to any patent, registered design or copyright, includes any rights conferred by a licence under the patent or registered design or as the case may be, by a licence in respect of the copyright;
§ LORD MANCROFT moved to leave out the definition of "interest." The noble Lord said: My Lords, Amendments Nos. 7 and 8 to Clause 13 march together. They are really only drafting Amendments. I have put them down following some criticism which was expressed at the Committee stage of the wide terms of the definition of "German enemy interest." I explained that under Clause 13 (2) of the Bill, claims by a 449 person claiming in right of an interest created out of a German enemy interest were to be barred, and I said that I believed this was doing no injustice. We have, however, decided that we ought to make it explicit (it is already implicit in the Bill) that a licence under a patent is not to be, regarded as an interest created out of the patent. I hope the Amendments make this clear. The position therefore is that a person in this country who holds a licence granted by the Comptroller General under the Patents, Designs, Copyright and Trade Marks (Emergency) Act, 1939, under a German-owned patent is not barred from prosecuting an action for infringement. It is really only a drafting Amendment and I think it is quite uncontroversial. I hope your Lordships will accept it. I beg to move.
page 15, leave out lines 9 to 12.—(Lord Mancroft.)
§ LORD LUCAS OF CHILWORTH
My Lords, this is only indicative of the extent to which the noble Lord has gone to help in every point that has been raised. This is, as he quite rightly says, a minor point; but although it is minor we are no less grateful to him for it. We accept it with pleasure.
§ On Question, Amendment agreed to.
§ Amendment moved—
Page 15, line 35, at end insert—
("(4) References in this Part of this Act to interests in a patent, registered design or copyright shall be taken to include any rights conferred by a licence under the patent or registered design or, as the case may be, by a licence in respect of the copyright; but for the purposes of subsection (2) of this section any rights so conferred in the case of a patent, registered design or copyright shall not be treated as being art interest created out of the proprietorship of the patent, design or copyright.")—(Lord Mancroft.)
§ On Question, Amendment agreed to.
LORD CHORLEY moved, after Clause 15, to insert the following new clause:
.—(1) Nothing in this Act shall so operate as to defeat any claim by any person who during the period from the third day of September, nineteen hundred and flirty-nine until the eighth day of May, nineteen hundred and forty-five was, on the ground of his or her race, religion, ideology or political conviction deprived of, or restricted in regard to, his or her liberty, or injured in respect of life and health.
(2) This Act shall not apply if the effect of its application would be that a person who did not at any time between the third day of September, nineteen hundred and thirty-nine until the eighth day of May, nineteen hundred and forty-five possess nationality of a state at war with His late Majesty's Government and who is at the time of the date of this Act a national of a foreign slate which was not at any time during the aforesaid period at war with His late Majesty's Government would thereby be deprived of any property, asset, title, right or other interest without receiving full compensation in respect thereof.
(3) Nothing in this Act shall so operate as to defeat any claim against any person who or whose predecessor in title has supplied false information to an authority purporting to act under the Trading with the Enemy Act, 1939, in connection with the payments withholding of payments or other dealings in respect of which the claim but for the operation of this Act would arise.
The noble Lord said: My Lords, this is an Amendment which I moved at the Committee stage and withdrew on the statement made by the noble and learned Lord, the Lord Chancellor, that the Government would make ex gratia payments, up to a certain point at any rate, to some of the persons whom the Amendment was designed to protect. I withdrew the Amendment stating that I should like to look more carefully at the wording of the noble and learned Lord's statement. I have put down the Amendment again in order to get, I hope, a further elucidation of that statement. The noble and learned Lord said that it had been carefully worded. It is a very cautious statement indeed. It reads:
Her Majesty's Government do not wish to rule out"—
I could have hoped for a rather stronger expression than that—
again, very vague—
of ex gratia payments of compensation being made exceptionally to British or Allied subjects where serious wrong has been done resulting in grave hardship.
It certainly is protected by a series of very strong adjectives at every turn. I do not know whether the Government would be prepared to be a little more generous. What I am particularly worried about is that it is confined to British or Allied subjects. My own Amendment was not so confined, and I should like the noble and learned Lord, or the noble Lord, Lord Mancroft, if he is going to reply, to say whether the promise would cover, for example, an
Israeli subject, who might very well be in this sort of position and who would, I think your Lordships would agree, have strong claims to reasonably generous treatment in the circumstances.
§ As a result of the publication of our discussions on this matter on Second Reading and the Committee stage, I have received a number of communications relating to the administration of the original Acts, the Trading with the Enemy Act and the Distribution of Enemy Property Act, 1949, which seem to me to indicate that this has not been conducted in quite the generous spirit which the noble and learned Lord claimed in the earlier part of his speech in reply to my own speech at the Committee stage. I am very anxious to secure that the concessions, limited and tied up as they are in regard to these ex gratia payments, will be administered in a rather less niggardly, indeed, in a more generous, spirit.
§ Let me take a concrete case of what I mean. I believe that the Inter-Allied Reparations Agency reached agreement that property of enemies who had been victims of Nazi persecution—religious, racial or other persecution—and whose property in this country had been sequestered, should have it returned to them. That was an ex gratia arrangement, and the noble and learned Lord very properly took credit for that policy. I will not read the words, but your Lordships will find them in the OFFICIAL REPORT, Vol. 182 (No.77), Col. 1145. Incidentally I think we ought to note that this is an agreed policy with other Allied Governments and that we in this country have not any monopoly of generosity in this respect. Indeed I am rather afraid that our own administration of this agreement has been a little less generous than that of at any rate some other countries. I pause at this stage to say that when the noble and learned Lord drew our attention to generosity in respect of the administration of this agreement, he did not, in fact, give an undertaking that a similar generosity will be applied to cases coming under this Bill. I imagine that that was inadvertence on his part, and I hope that I may take it that the generosity will be the same.452
§ LORD CHORLEY
On the assumption that that is so, I ask that the Government should extend these ex gratia payments not only to those sufferers from Nazi oppression who had a direct legal interest in the property which has been sequestrated, but also to those who had a beneficial interest. We are now getting into rather technical legal fields. I understand that the Board of Trade have ignored beneficial interests and have confined these ex gratia payments to those who had legal interests. I think this is a very important matter and I should be grateful if the noble and learned Lord would give his attention to it.
I will illustrate the point from a concrete case which has been brought to my notice and particulars of which I have roughly indicated in a note which I sent to the noble and learned Lord. It relates to the case of two Jews in Roumania, but the principle of the thing seems to me to be the same, whether they were in Roumania or in any other enemy territory, as Roumania was, of course, for a period during the war. These two Jews were in partnership and the partnership owned property in London, which property was sequestrated. If they had been individual citizens and had made claims these would have been met under the inter-Allied Agreement, but as they were in partnership I understand that the point was taken that by Roumanian law a partnership is a legal entity and therefore it was an enemy legal entity and that the arrangement did not apply to such; and these two Jews, one of whom had fled to Israel whilst the other had got away to France, have been refused the ex gratia payments, which they would have been entitled to if they were making individual claims and had not been a partnership. I am sure your Lordships will agree that that is a narrow and rather inequitable view to take of such a position. In English law, of course, a partnership is not a legal entity at all, and therefore this rather narrow ruling could not have been given.
Another and even more important application of the same principle is furnished by limited companies or corporations. A corporation may be of enemy nationality by virtue of the fact that it is registered in an enemy country, yet many of its shareholders may be British or Allied nationals, or individuals who have been the victims of Nazi 453 oppression. Nevertheless, I understand that since a corporation is a legal entity, the concession to individuals has not been applied, since the shareholders have no legal interest in the property which, of course, belongs technically to the corporation and not to its members, who have only a beneficial interest. I suggest that again the officials responsible hate taken a rather narrow, legalistic attitude in regard to this matter. A similar and even more unfair position arises in connection with a corporation which, while technically British because it is registered in this country, or Allied since the registration is in an Allied country, was enemy controlled because the majority of the shareholding and control were held in enemy territory. Legal members of your Lordships' House will remember the famous Daimler case, decided during the First World War, in which it was held that although the corporation was technically British it was to be treated as an enemy corporation. In this type of corporation there may be a substantial shareholding belonging to British or Allied nationals, or, again, belonging to victims of Nazi oppression; but again the technical point is taken that since it is an enemy controlled corporation these ex gratia payments cannot be made to those who have a beneficial interest of that kind.
I submit that to expropriate the holdings of such people is to take a purely legal and formalistic view of the situation, and to shut one's eyes to the real equity of the matter and to the economic position. Indeed, this seems to have been recognised up to a point, because in certain agreements which were entered into between this country and Allied countries—such as the one with the Netherlands—specific provision was made for covering points of this sort; which makes it all the more unfortunate, I think, that it should have been taken against these unfortunate people in other cases. I understand that in the United States non-enemy interests in German-tainted corporations (whose assets in America are subject to confiscation) under the amended Trading with the Enemy Act are exempted from confiscation. This has been recognised in two important and well-known decisions in the Supreme Court, which I dare say are known to the noble and learned Lord—one is the 454 Kaufmann case and the other is the case of the Oberzee Finance Corporation. I do suggest that we in this country should take at any rate as generous a view as has been taken there. It is disturbing to find this more legalistic, narrow, inequitable view taken by officials who are administering this legislation in this country.
Of course, I appreciate that officials have to administer according to the letter of the law, and have to leave it to their political chieftains to take a rather wider and more generous view. I understand that when the Distribution of Enemy Property Bill was before Parliament, the Parliamentary Secretary of the Board of Trade then gave an undertaking that he would personally look at the cases where it was claimed that a more generous view ought to be taken. I have not had time to find the reference to that, but I suggest that something of the same kind might well be done in connection with this Bill. It may well be that in some of these cases there are legal rights which could, in fact, be enforced in the courts. I do not know about that. I understand that there are possibilities of some actions being brought. But many of these claimants are small people living in far away places like Israel. They are refugees from Germany and enemy territories, and for them to find the sinews of war for legal action is really quite impossible.
I am inclined to agree with the noble and learned Lord when he contended that a situation of this kind is best dealt with by liberal administration rather than by actions in the courts consuming large sums of money. I hope that be will impress upon the Board of Trade the necessity for liberal and generous administration of the kind that I have indicated, and that if it is not felt that such payments could properly be made within the spirit of the Inter-Allied Reparations Agreement, the Government should consider setting up some compensation fund out of which it could be done. I should like to pray in aid for a moment the position which exists in connection with enemy prizes taken at sea. Very often, when an enemy ship is taken at sea it is found that there is a beneficial interest of some British or Allied citizen who may have a mortgage on it or something of the kind. It has been laid down in the Prize Court time after time that 455 that is no reason why the vessel should not be declared prize. But the British mortgagee or other person with a beneficial interest, even a neutral, is, I understand, always given compensation out of a fund which exists at the Admiralty. I suggest that, since this situation is essentially similar, a similar policy should be pursued in this case.
As I said on the previous occasion, the policy of expropriation pursued in this Bill is exceedingly dangerous for a country such as our own. The citizens of this country have property all over the world—there are few countries in which British citizens do not own property. Moreover, it is particularly dangerous at this particular point—that of the beneficial interests of the British investors in shares in corporations which are registered in foreign countries. I have already referred to the case of the Anglo-Iranian Oil Company. Many of these corporations own other property, such as railways, tram services, mines, and other important assets which the Governments of the countries concerned may well deem it in the national interest at some stage or another to take over. As we all know, in a number of cases they have already done so. I believe it is generally accepted as a principle of International Law that such corporations should not be expropriated without compensation to the individual shareholders. If we in this country, in the administration of this enemy property legislation, disregard the beneficial interests of the individual shareholders in companies of this kind, we can hardly expect foreign Governments to respect the rights of our own citizens when similar cases occur in those countries. Therefore I hope that on grounds not only of justice but of expediency the Government will give careful attention to this matter.
There is one further point which I should like to ask about. I appreciate that I have taken up rather a lot of your Lordships' time but I think these are matters of some importance. I understand that the policy of ex-gratia payments to victims of Nazi oppression has been limited, in this country at any rate, to cases where the victimisation was on racial or religious grounds, and has been denied to victims of political oppression. The noble and learned Lord, the Lord 456 Chancellor, in answering me at the Committee stage, said that if the first part of my Amendment were accepted, the only people who would gain from it would be Communists—at least, I understood that that was what he was saying. I do not think it is likely that many claims by Communists will be received by the Board of Trade. I understand that there have been a number of claims by Social Democrats, and that the officials of the Board of Trade have taken the view that the Inter-Allied Agreement applies only to cases of religious or racial persecution, and have rejected their claims. I have not been able to obtain actual details of cases of that kind, but I am assured there have been such cases. Obviously it is very unfair if it is so. I should like to ask the noble and learned Lord, the Lord Chancellor, if he would look into this matter and give me an assurance that such cases will not be rejected on the grounds that a man is a victim of Nazi oppression because he was a Social Democrat rather than because he was a Jew. I beg to move the Amendment.
After Clause 15, insert the said new clause.—(Lord Chorley.)
§ 3.45 p.m.
THE LORD CHANCELLOR
My Lords, perhaps it will be convenient if I deal with this Amendment also as I dealt with the matter on the Committee stage. On the Committee stage, I endeavoured to answer fully the case which the noble Lord made for this Amendment. He has put it down again. I do not feel that it would be fair to your Lordships to inflict upon you the speech which I made on that occasion. In fact, it appears to me—if I may say so, with great respect to the noble Lord—that what he has done is to put down an Amendment and then to make a speech which really has no relevance to the Amendment at all. This is an indemnity Bill, a Bill providing for indemnity for persons who have dealt with the property of persons who were not enemies on the footing that they were. It provides indemnity for those people. That is the substance and the nature of the Bill. The Amendment which the noble Lord has put down provides that nothing in the Bill which is an indemnity Bill, for the purposes and with the provisions that I have described, 457 shall operate so as to defeat claims—by whom? By enemies who happen to be enemies bearing a particular characteristic—that they have suffered by reason of their ideology or their faith, or something like that. Therefore, the Amendment is wholly irrelevant to the Bill. I think if accepted it would effect nothing at all.
Upon that Amendment, the noble Lord proceeds to deal with the question of ex gratia payments. With great respect to the noble Lord, the Amendment is irrelevant to the Bill, and his speech is irrelevant to the Amendment. When the matter was before the House at the Committee stage, realising the sincerity of the noble Lord—indeed, sharing many of his feelings in the matter—I went out of my way to explain (although it was irrelevant) what this and the preceding Government had done in the way of making ex gratia releases. I went on to make a carefully prepared statement as to what Her Majesty's Government would do in the future. Beyond that I am not prepared to go one jot. Of course, everything the noble Lord has said will be conveyed to the appropriate quarter, and if it is thought wise to extend the system of ex gratia releases, which both by the preceding Government and by this has been consistently adopted, since 1946 when the Agreement was made with the other Allied Powers, to which the noble Lord has referred, if it should be thought fit to depart from that practice, then no doubt a departure would be made. It would be quite wrong for me to give the noble Lord any assurance that any such departure will be made.
It is true, as the noble Lord has said, that the Agreement was made in 1946. Rules were drawn up—I will not say rules which were to be binding, but rules which were recommended for the treatment of those German nationals, those enemies who were thought to have suffered for their faith. Special arrangements were made by all the Allies as to the way in which they were to be treated. It is true that, in this country at least, individual enemies have been treated in a different way from the treatment of enemy corporations and partnerships. I 458 think that was probably entirely due to the great difficulty of administration, when it is a case of attempting to ascertain what share in a corporation beneficially belongs to a particular individual, and soon. That, I believe, is the reason for it. At any rate, that was the practice adopted in 1946 by the late Socialist Government, and which has been adopted and carried out by this Government. Though I fully appreciate the depth and sincerity of the noble Lord's feelings in this matter, he cannot expect me, in respect of an Amendment which is wholly irrelevant to this Bill—but which might very well be relevant to the 1949 Bill which dealt with the distribution of enemy property—to give him such assurances as he has suggested. Although, as I have said, what the noble Lord said will be conveyed to the proper authority, I cannot accept this Amendment, nor can I give the noble Lord such assurances as he has asked for.
§ LORD CHORLEY
My Lords, I cannot agree that this Amendment is altogether irrelevant to this Bill. The Bill is directed not only to indemnifying officials but also to legalising the taking away of property from certain people. The Bill is directed to sequestrating the property of a certain class of people, and an Amendment such as this, directed to taking a certain group of people out of that is, in my submission, perfectly relevant. My main object was, as I hoped, to obtain rather more generous assurances from Her Majesty's Government. I am very sorry that I have not been able to do so. Whether it was the last Government or this Government who do it, I submit that it is completely unjust to treat the owners of beneficial interests in corporations and partnerships in any other way than individual owners of property rights are treated. The sooner such an unjust system is brought to an end the better. At any rate, I have had an opportunity of ventilating this matter in public and I hope, now that it has been admitted that this has been going on, pressure will be brought to bear on the Government to bring this iniquitous system to an end. I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.