§ 2.41 p.m.
§ Amendments reported (according to Order).
§ Clause 2:
§ Provisions as to making of certain payments and withholding of payments
§ 2.—(1) Where at a time within the period mentioned in the foregoing section—
- (a) a payment was made by or on behalf of any person to a competent authority, or
- (b) a payment was withheld (whether by way of refusal or of omission to make the payment) by or on behalf of any person, or
- (c) a payment was made by a competent authority to or for benefit of a person as being the person Who, but for the Act of 1939 or any order made thereunder, would have been entitled thereto,
431 then, if the payment was made or withheld in the circumstances specified in paragraph (a), (b) or (c) of subsection (1) of the foregoing section, it shall be deemed to have been authorised by the Act of 1939 notwithstanding that apart from this section it was not so authorised, and, in the case of a payment made as mentioned in paragraph (a) of this subsection, the making thereof shall be deemed to have operated, so far as the amount thereof extended, as a release of the person by or on whose behalf it was made.
§ (2) Where, in the case of a payment made as mentioned in paragraph (a) or (c) of the last foregoing subsection, the payment (apart from that subsection) was not authorised by or under the Act of 1939,—
- (a) if the payment was a payment to a competent authority as mentioned in the said paragraph (a), nothing in that subsection shall be construed as preventing that authority from paying the amount thereof, or any part of that amount, to or for the benefit of any person to or for whose benefit the amount or part could lawfully have been paid apart from this section;
- (b) if the payment was a payment by a competent authority as mentioned in the said paragraph (c), nothing in that subsection shall prevent that authority from exercising any right of recovery in respect of the payment, being a right exercisable apart from this section.?
§ LORD LUCAS OF CHILWORTH moved to omit Clause 2. The noble Lord said: My Lords, those of your Lordships who had the courage to sit through the Committee stage of this Bill will be fully aware of its great technical complexity. So mystified were the Opposition and those who advise us on the legal side of your Lordships' business as to the meaning of some of the clauses in the Bill that I felt it my duty to put down forty-eight Amendments, the majority of which, as I frankly admitted at the time, were probing Amendments, designed to get some statement from the noble Lord, Lord Mancroft, in charge of the Bill, as to what the Bill was all about. The noble Lord, Lord Mancroft, agreed with me about the complexity of the measure, and he also agreed that the only way in which we could get explanations on various points as to which we were genuinely concerned, was to put down a series of Amendments to delete passages or clauses which we did not understand. That brought forth from the noble Lord very helpful replies, which we have studied with great care, and your Lordships must, I am sure, be relieved to see only a very few Amendments on the Marshalled List for this Report stage, and only one of those Amendments is for the 432 purpose of obtaining from the Government further explanation.
§ The reason why there are no more Amendments of that nature is because of the courtesy and industry of the noble Lord, Lord Mancroft. On behalf of the Opposition, I should like to thank him for his courtesy and the great amount of work he has done between Committee and Report stages to help the Opposition to understand the Bill and to meet us on every possible point. It is most refreshing, and I feel bound to say is in marked contrast to the experiences which Her Majesty's Opposition have had in your Lordships' House on occasions during the past Session. That makes it all the more acceptable. But while the noble Lord has satisfied me regarding the points we raised, unfortunately that satisfaction rests between the noble Lord and myself. The only way I could get that entered in the official record of the House, so that those of the general public who are interested in this matter could also have the explanation, would be by putting down about fifteen Amendments on Report stage and arguing the matter all over again, as the noble Lord and I have argued it for the last three weeks, personally and by correspondence; but I know the objections your Lordships have to turning Report stage into Committee stage.
§ I should like to suggest to the noble Lord, and I hope he will convey it to the appropriate quarter, that it would be helpful to the House and to those interested outside in these highly technical legal matters, if a fuller Explanatory Memorandum were issued with a Bill of this sort, so that at least we could start off by knowing something about it. I must confess that my legal advisers have at times said to me, "We just do not understand what it is all about." All points except one, which arises in this first Amendment, have been satisfactorily dealt with by the noble Lord, Lord Mancroft. I will not say he has satisfied me completely on many of these difficult matters, but I feel that the balance of argument was in his favour; and that is why I refrain from wearying your Lordships with a series of Amendments to get the noble Lord to explain it all to the House with the meticulous detail with which he has explained it to me.
§ The reason for putting down this Amendment as an Amendment to delete 433 the whole clause is that I do not want to risk a rebuke for moving the deletion of what I might have thought to be the relevant subsection, but which is not. I thought that by seeking to delete the whole clause I should be on safe ground. Clause 2 deals with money which has found its way into the hands of the Custodian under the Enemy Property Act. Clause 3 deals with property which has found its way into the hands of the Custodian under the Trading with the Enemy Act, 1939. There have been cases where property and money have found their way into the hands of the Custodian from people who were thought to be enemies, but who upon investigation turned out to be friends. Under Clause 3 the person who has had his property wrongfully appropriated has legal measures open to him to obtain the return of that property, but, as the noble Lord has explained to me, property and money are dealt with differently, and if an alleged enemy has had his money transferred to the Custodian and the Custodian realises that it was wrongfully pissed on to somebody else, the Custodian can obtain the money back, but the unfortunate person who has been robbed by this process has no redress at all. It seems to me, in natural justice, wrong that a man should be wrongfully deprived of his money and have no redress, whereas if he is wrongfully deprived of his chattels he has redress. That is the simple point upon which I should like some further elucidation.
§ I feel certain that the noble Lord, Lord Mancroft, will recite to me a long legal argument, or a short legal argument, whichever he feels disposed to make. But I do not feel inclined at the present moment to accept a legal argument in this matter. I think it is common sense and natural justice that money should be treated in this particular case on the same level as that of property. Later on we shall come to an Amendment in the name of the noble Lord, Lord Mancroft, which bemuses me still more in relation to this point. That particular Amendment deals with interest accruing on money that has been wrongfully held but has been returned, and also interest accruing on property that has been acquired and sold. The noble Lord seems to recognise the equity of both cases in that Amendment, whereas here in Clause 2, in my view, he treats money differently from property. I 434 say that they should be treated in exactly the same way, and the person who has been wrongfully deprived of his money should be compensated in exactly the same way as the Government propose to compensate the individual who has been wrongfully deprived of his property.
§ I hope that that explanation is clear to your Lordships. I move to delete this clause, in order to give the noble Lord an opportunity of further explanation. If he is satisfied with the correctness of the argument I have advanced, I hope that he, with that diligence which he has so well shown up to date, may think of an Amendment to put down on the next stage. We, at least, shall have the advantage of listening to his explanation, and if we find ourselves still in disagreement with him we can take the opportunity of putting down a further Amendment in due course. Obviously, I do not propose to press this Amendment; I have put it down merely in order to raise the point. I beg to move.
Leave out Clause 2.—(Lord Lucas of Chilworth.)
§ 2.52 p.m.
§ LORD MANCROFT
My Lords, I should like to begin by thanking the noble Lord, Lord Lucas, for his kind references to my modest attempts help him steer his way through this Bill. It is a complicated Bill, and it is for that reason that the Government arranged a much longer interval of time between the various stages of the Bill than is normal, in order to allow those who had not the full benefit of professional advice to spend more time than usual upon its elucidation. But I do not think it is quite as complicated as the noble Lord makes out. Admittedly, I went into some considerable length of explanation on Second Reading, but I did point out that, although the principles of the Bill were straightforward and comparatively simple, it, was not a measure which lent itself to very clear and precise definition in its working There are many Bills such as that, and there are many Bills which do not lend themselves, even under the most expert draftsman's hand, to crystal-clear explanation. This, I am afraid, is one of them.
So far from being a badly drafted Bill, it is in my opinion one of the best-drafted Bills I have ever seen. If the noble Lord is going to reproach us, I would ask him 435 to look at some of the Bills which were laid before us when he sat on this side of the House. I would commend to him for light bedside reading, if he wants it, Section 7 of the Leasehold Property Act, 1951, or Section 61 of the Town and Country Planning Act, 1947. Both of those are very well drafted sections but are extraordinarily difficult for the layman to understand. I will certainly convey to the proper quarter the request of the noble Lord that in future, with Bills such as this, we should have a fuller explanatory note. But I must, if I possibly can, defend the draftsman against any accusation of over-complex draftsmanship.
§ LORD SILKIN
That is an interesting suggestion, and I welcome it. But it is not the length, so much as clarity in the Memorandum that we are concerned about. I recognise the importance of technical language and the necessity for it in a Bill. But in an explanation could we not have non-technical language, so that we can get an idea immediately as to what it is all about?
§ LORD MANCROFT
I will certainly consider that. I have not read recently the Memorandum to this Bill, and the copy of the Bill I have in my hand does not contain it. However, I will look at it again. So far as I remember, it was not very complicated. I will certainly bear the point in mind and see whether, in future, the Memorandum attached to a Bill of this nature cannot be made as simple as possible.
To turn to the point of the Amendment which the noble Lord, Lord Lucas, has put before us this afternoon, I quite appreciate what worries him, and I know that it worries the noble Lord, Lord Douglas of Barloch, as they mentioned it together on the Committee stage—namely, this difference between the rights of a non-enemy whose money had been paid to the Custodian and those of a non-enemy whose property wrongly came into the Custodian's hands. I will try and give the explanation asked for; it will not be legal and it will not be long. As the noble Lord rightly said, the main reason for the difference is the difference between the legal position in the case of dealings with money and in the case of dealings with property. For example, if a bank wrongly pays the Custodian money held for the account of Herr Schmidt who, in spite of his name, was 436 never an enemy, he might have had a remedy against the bank but not against the Custodian. On the other hand, if the bank were holding, say, jewellery in the name of Herr Schmidt, and had transferred it wrongly to the Custodian, Herr Schmidt could recover the jewellery from the Custodian. Clause 3 (4) (a) recognises this position and preserves these existing rights.
This is the whole point of the matter, and I hope that in a sentence I can satisfy the noble Lord on it. Whilst I admit that the difference between the two does look to the layman a little odd at first sight, this is the explanation. It has always been the practice of the Board of Trade to direct the Custodian to release moneys wrongly paid to him. I can give the noble Lord the assurance that this practice will most certainly continue. Clause 2 (2) (a) has been expressly inserted in the Bill to allow of this. The point is that the practical position as between Herr Schmidt and the Custodian with regard to his money and with regard to his jewellery is, in point of fact, exactly the same in both cases. I hope that that explanation, which I like to think has been neither long nor legal, will satisfy the noble Lord that no injustice will take place.
§ LORD DOUGLAS OF BARLOCH
My Lords, I understand from the explanation which has been given by the noble Lord, Lord Mancroft, that in fact the Board of Trade intend to treat a wrongful disposition of money in the same way as wrongful dispositions of other property. But I am still quite unable to understand why that should not be included in the Bill, and why it should remain merely a matter, strictly speaking, of an ex gratia payment by the Board of Trade. That is a distinction for which I am still at a loss to find a reason. I know what the historical distinctions are between money and chattels or, to be more exact, between balances in a bank and chattels, because the law with regard to money, as a tangible, identifiable thing, consisting in coins or banknotes, is, as I understand it, exactly the same as the law with regard to other kinds of movable property. In modern times, of course, money which is paid into a bank is not identifiable as such any longer; it is merely an operation which creates a debt owing by the bank to its customer. In that sense, of 437 course, it is no longer analogous to any kind of tangible movable properly. But the practical effects of these operations are precisely the same, and I do not see why, in the one case, there should be a legal right to recover the property, and yet not to recover the money, in the other.
§ LORD LUCAS OF CHILWORTH
My Lords, the noble Lord, Lord Mancroft, has only increased the dilemma. His reply was neither legal nor lengthy. As is his usual practice, the reply was concise and clear, but he said, in effect, "We shall not treat chattels and property any differently." As my noble friend Lord Douglas asked: "Then why not say so? However, we will look at this, and we will consider what the noble Lord has said. I am grateful to the noble Lord for giving us the undertaking that, in effect, the property in Clause 3 and the money in Clause 2 are to be treated in exactly the same way, so that no hardship will be caused. If that is so, I am surprised that it has not been put into the Bill and not just treated as a matter for an undertaking. Moreover, we now have it on the record, and perhaps that will satisfy us. Therefore, for the time being, at least, I beg your Lordships' leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 [Income from moneys invested by custodian]:
§ 3.3 p.m.
§ LORD MANCROFT moved, at the beginning of subsection (1) to insert, "Subject to the provisions of this section." The noble Lord said: My Lords, this Amendment, and Amendment No. 4, which really go together, are the Government's attempt to meet what we felt was a very real uneasiness expressed by noble Lords opposite on this particular clause. Both my learned and noble friend the Lord Chancellor and I were, if I may say so quite frankly, impressed with the anxiety displayed by noble Lords opposite, but we have been at some considerable pains to try to produce a solution to this problem which we hope will meet the difficulty.
§ I must confess that they are rather a formidable collection of Amendments, and they are, by and large, designed to meet the pressure brought against us on the 438 point that interest should be allowed to persons whose moneys have been wrongly paid to the Custodian and who have since had them back. This is the point to which the noble Lord, Lord Lucas, recently referred. The noble Lord made it clear to me that he was not asking that interest should be paid on money that was appropriated quite properly from people who were proved to be enemies, and that he was talking only about people who had their properly appropriated and who subsequently proved that they were not enemies. The noble Lord, Lord Chorley, had the same type of case in mind, I imagine, when he referred to cases where money had been taken from people from whom there was no right in law or equity to take it. The noble Lord, Lord Lucas, suggested that the possibility of making ex gratia payments at an average rate of interest to such people should be considered, and this my noble and learned friend the Lord Chancellor undertook, on behalf of the Government, to do. We have gone into this matter carefully, and we have now tabled these Amendments.
§ Briefly, their effect is this. Where money was paid to de Custodian as being due to an enemy, or the proceeds of property were transferred to the Custodian as being enemy property, but the money was not, in fact, due to an enemy, or the property was not enemy property, the person whose money is released to him by the Custodian is to be entitled to receive interest on it at the rate of three-quartets of 1 per cent. per annum for the period during which it was in the Custodian's hands, provided that, if the money has already been released, he makes a claim for the interest within a year of the passing of the Bill. Your Lordships will see, I hope—I particularly hope that the noble Lord, Lord Lucas, will see—that on one point at least we have gone even further than he asked us to go. We were asked to consider paying interest ex gratia. Under the Amendment, however, there is to be a statutory right to receive interest in the circumstances I have described. There have been many occasions on which, from both sides of the House, when we were variously in Government or in Opposition, that splendid clarion call "Put it in the Bill" has been made, and on an 439 equal number of occasions the Government have refused to "put it in the Bill." This is one of the rare occasions where the Opposition has not said, "Put it in the Bill," but where the Government have done so.
§ Your Lordships will probably think that it is unnecessary to give details of this, but perhaps I should say one word as to why the rate of three-quarters of 1 per cent. has been decided upon, because at first appearance that is not a princely rate. It is as nearly as possible what the Custodian's general investments earned, on the average, in Treasury Bills and Ways and Means Advances. It seemed to be proper that the non-enemy should have what the Custodian earned. That is all there is to it. I should be grateful if the noble Lord, Lord Lucas, would accept these Amendments in the spirit in which they are offered—namely, as a genuine attempt to meet what we felt, and still feel, was a genuine anxiety. I beg to move.
Page 4, line 39, at beginning insert the said words.—(Lord Mancroft.)
§ LORD LUCAS OF CHILWORTH
My Lords, I am indeed grateful to the noble Lord, because there was a strong case against the Government's intentions in this Bill to withhold interest from innocent parties who have been deprived of their income by the appropriation of their principal. The Government had admitted that the principal should be returned, but in the original clause they said, "We are going to pay no interest." My noble friend Lord Chorley, my noble friend Lord Silkin and the noble Lord, Lord Hawke, all joined in protest. We said that it was far from being fair, and I must confess that I was rather shocked when the noble and learned Lord on the Woolsack went to the length of denying that there was a prima facie case of injustice. I think there was a case of gross injustice, and this Amendment does the Government great credit. Again, I am grateful to the noble Lord and his advisers, and to the noble and learned Lord on the Woolsack, for recognising the injustice and putting it right.
The noble Lord says that this is a case where they have put it in the Bill without its being demanded by the Opposition. The noble Lord has scored 440 his boundary before the ball has been bowled, because that was the intention of the Amendment which I have on the Order Paper. I was going to say that I should divide your Lordships' House: we were going to ask you to put it in the Bill; so I am afraid that the noble Lord's middle stump is now reclining at a somewhat drunken angle. However, I am quite satisfied as far as I am concerned. Whether the noble Lord, Lord Chorley is, I do not know. The noble Lord has met our point accurately and adequately. I have no complaint about the twelve months period but I do not like the three-quarters of 1 per cent. I can assure your Lordships that the gentleman who sits in the Treasury and who can get only three-quarters of 1 per cent. on his investments is not going to handle much of my money, if I can help it. He had better take lessons from the noble Lord, Lord Hawke. Perhaps I can assist, and together, perhaps, we can see how we can get a little better than three-quarters of 1 per cent. But if that is the average amount earned by the Custodian, in the admittedly restricted field of his allowable investments, I am quite happy. May I once again thank the noble Lord very much. It reflects great credit on the Department that they have recognised this point, and we on this side of the House accept their Amendments with thanks.
My Lords, I thank the Government for accepting the suggestions made on this point from both sides of the House. I rise on only one small point. Speaking extempore and loosely at the time, I suggested a figure of 2½ per cent. or 3 per cent. as being the sort of interest that might be payable. That, of course, was quite wrong. On reflection, I consider three-quarters of 1 per cent. is quite proper as the rate which the Custodian's balances must have been earning at that time. I hope that any would-be recipients who happen to read the Report of our debates will not feel that they have been defrauded by getting, only three-quarters of I per cent. when I originally suggested 2½ per cent.
§ LORD CHORLEY
My Lords, I, too, should like to thank the Government. I felt very shocked at what seemed to me rather shabby conduct, but it has been put right and I think it is much better that the concession should appear specifically in the Bill, rather than in the shape 441 of an undertaking. But while one ought not to look a gift-horse in the mouth, there is one point I wish to make, and that is the short limitation period attaching to claims. Twelve months is a very short period for such claims. There may well be cases in which the man whose property was appropriated is dead, and there may be difficulty over his personal representative stepping in; so that the period may be up before they know where they are. I would suggest to the Government that they might give a discretion, in proper cases, to have the period lengthened. That is quite a common thing, as the noble Lord knows, in these limitation cases. The noble Lord knows well that twelve months soon slip away, and therefore I hope the Government will take a discretion to lengthen, in proper cases, the period of twelve months.
§ On Question, Amendment agreed to.
§ Amendment moved—
Page 5, line 6, at end insert—
( ) Where a custodian, whether after or before the passing of this Act, pays or has paid to any person a capital sum on the footing that—
the person to whom the capital sum is or was paid shall be entitled to receive from the custodian interest thereon at the rate of three-quarters of one per cent. per annum from the date on which the custodian received the money referred to in paragraph (a) of this subsection or the proceeds referred to in paragraph (b) thereof, as the case may be, to the date of payment of the capital sum:
§ Provided that—
- (i) where the payment of the capital sum was made before the passing of this Act, the right to interest thereon under this subsection shall not arise unless a claim for it in writing is made to the custodian within one year from the elate of the passing of this Act and there is produced to the custodian such evidence in support of the claim as the custodian may reasonably require; and
- (ii) where in such a case the person to whom the capital sum was paid has since died, or any other event has occurred whereby the right to the interest, if vested in him immediately before that event, would thereupon have vested in some other person, the right to claim the interest shall be treated as having devolved as if that right had been vested in him immediately before his death or immediately before that event,
442 as the case may are, if the right is duly exercised, the interest shall be paid to the persons claiming under him accordingly.
( ) For the purpose of making payments of interest under the last foregoing subsection a custodian who at the passing of this Act has in his hands, or thereafter receives, any income such as is mentioned in subsection (1) of this section shall set aside out of that income such sums as the Treasury may from time to time direct; and out of any sums so set aside the custodian shall pay any interest becoming payable by him under the last foregoing subsection and shall pay the balance thereof (if any) into the Exchequer.
( ) In this section the expression "money due to an enemy" means money which would, but for the existence of a state of war, have been payable to or for the benefit of a person who was an enemy within the meaning of the Act of 1939."—(Lord Mancroft.)
§ On Question, Amendment agreed to.
LORD LUCAS OF CHILWORTH had given notice of an Amendment to add to subsection (2):
or as preventing the payment of a sum in lieu of interest in respect of any moneys the payment of which is authorised or permitted by this Act.
§ The noble Lord said: My Lords, I do not wish to move this Amendment, but I should like to support what my noble friend has said. I quite understand the reason far the twelve-months period, but will the noble Lord give us an assurance that that time limitation will be used with discretion? This is a case where we are not seeking to have it put in the Bill, but when lawyers get on to these matters twelve months is but an hour. If the noble Lord can give us that undertaking we shall appreciate it very much. I do not intend now to proceed with this Amendment because the point has been so well met by the noble Lord in Amendment No. 4.
§ LORD SILKIN
My Lords, I think, as a matter of fact—the noble Lord who speaks on behalf of the Government will correct me if I an; wrong—that if the time limit is twelve months there is no discretion to extend it. If the noble Lord is impressed with the point, as I hope he is, the Amendment may need some modification.
§ Clause 9:
§ Disclosure of information about inventions, etc., in breach' of contract
§ (2) For the purposes of this section a certificate issued by or on behalf of the Minister or Board in charge of a Government department stating that, in disclosing or supplying 443 to any person any information, model for document specified in the certificate, a person so specified was acting at the request of that department, and for a purpose which appeared to that department to be in the interests of the defence of the realm or otherwise in the public interest, shall in any proceedings be conclusive evidence of the facts so stated.
THE LORD CHANCELLOR (LORD SIMONDS) moved, in subsection (2) to leave out all words from and including "issued" down to "stating" and to insert, "signed by a Minister of the Crown." The noble and learned Lord said: My Lords, this is a matter with which I dealt on the Committee stage, and perhaps I might move this Amendment now. The Amendment is designed to meet a point raised by the noble Lord, Lord Lucas of Chilworth, on the Committee stage. Your Lordships may remember that there was some discussion as to the certificates to be given by the Minister or by the Department in order to prove certain matters which were not easily susceptible of proof, and there was some discussion as to whether such certificates should be merely sufficient evidence or should be "conclusive evidence." On Clause 9 of the Bill, which deals with disclosure of information about inventions, it was suggested by Lord Lucas that the certificate, which must, I think, admittedly be conclusive evidence of the facts stated in it, should be issued not simply
by or on behalf of the Minister or Board in charge of a Government Department.
but should be signed by a Minister of the Crown himself. I undertook to look into that, and I have come to the conclusion, and have so advised Her Majesty's Government, that this is a case in which that form of certificate should be accepted. Accordingly, this Amendment provides for leaving out in subsection (2) of Clause 9 the words after "certificate"
issued by or on behalf of the Minister or Department in charge of a Government Department.
and for substituting the words
signed by a Minister of the Crown.
There is a drafting Amendment at line 24 on the same page to give effect to that Amendment. I beg to move this Amendment.
Page 10, line 20, leave out from ("certificate") to ("stating") in line 22 and insert the said new words.—(The Lord Chancellor.)
§ LORD LUCAS OF CHILWORTH
My Lords, may I express my thanks to the noble and learned Lord for meeting us on this particular point? He is quite right; on the Committee stage we accepted the noble and learned Lord's arguments as to the necessity for this. He made it quite clear to us, and all we wanted was the lucid explanation which we received. We felt, however, that in these cases, where the certificateis to be conclusive, it should be authorised by the highest authority, a Minister of the Crown, and we are grateful to the noble and learned Lord for meeting us in this way. We accept the Amendment with pleasure.
§ On Question, Amendment agreed to.
Page 10, line 24, leave out ("that department") and insert ("a Government department so specified").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.