ENEMY PROPERTY BILL [H.L.] (Hansard, 18 June 1953)

HL Deb 18 June 1953 vol 182 cc1063-148 1063

§ 2.35 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.—(Lord Mancroft.)

§ On Question, Motion agreed to.

§ House in Committee accordingly:

§ [The EARL Of DROGHEDA in the Chair]

§ Clause 1:

§ Circumstances in which sections 2 and 3 are to apply

§ 1. The two next following sections shall have effect as respects the making or withholding of payments as therein mentioned, and as respects other dealings with property as therein mentioned, at a time within the period beginning with the third day of September, nineteen hundred and thirty-nine and ending with the passing of this Act, where the payment was so made or withheld, or the property was so dealt with, either—

(a) by a competent authority purporting to act under the Trading with the Enemy Act, 1939 (hereinafter referred to as "the Act of 1939") or orders made thereunder, or by such an authority acting with intent to give effect, so far as practicable, to the purposes of section seven of that Act (which relates to the collection of enemy debts and custody of enemy property) or to prevent that Act from being contravened, or
(b) by any person in purported compliance with a restriction or obligation imposed by or under the Act of 1939, or by any person in pursuance of a direction or request of a competent authority given or made by that authority purporting to act, or acting, as mentioned in the foregoing paragraph.

§ LORD LUCAS OF CHILWORTH moved, in paragraph (a), after "competent authority" to insert, "acting in good faith and." The noble Lord said: Doubtless when your Lordships saw what seems to he a formidable array of Amendments to this Bill, some of them perhaps appearing to some noble Lords as wrecking Amendments, you were rather aghast. I think I should give briefly the reasons for these Amendments. Although the noble Lord. Lord Mancroft, on Second Reading did his best to explain this Bill to us, he said at least one thing with which we agreed 100 per cent.: that it was about the most intricate Bill that had ever been produced for your Lordships' consideration. Frankly, not only myself but also those who have been kind enough to advise me have failed absolutely to understand some of the clauses. Therefore we have put down a number of Amendments, which I think I may call probing Amendments, to obtain explanations from Her Majesty's Government.

§ As your Lordships will appreciate, this Bill is not a Party issue: there is no Party flavour at all about it. Let me say quite frankly that if my Party had been in power, we should have had to bring in a Bill of like description; but we feel that some of these matters should be ventilated and some of the powers which the Government seek to assume should be explained, not only to your Lordships' House but also to those people of this country who are interested enough to follow these proceedings. I expect there are many people concerned with this Bill who would like to see it go through, to use a colloquialism, "on the nod," but we on this side of the House believe that it is the duty of Her Majesty's Opposition to probe a Bill of this description and at least make the Government state their case for the powers they wish to assume. I do not think anybody sitting upon the Front Bench opposite will have the slightest disagreement with such a course.

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§ As I said on Second Reading, I think we have the right to assume that action taken under Part I of this Bill, which is action taken or purporting to have been taken under the Trading with the Enemy Act, is taken at least in good faith. That is the substance of the first Amendment that stands in my name upon the Order Paper. What I seek to do is, in paragraph (a) of Clause 1, following the words "by a competent authority," to insert the words "acting in good faith and." It is a small point, and it gets smaller and of less significance as we proceed through this Bill—a subject to which I shall return later. But let us start with the assumption that a competent authority purporting to do anything within the law, or, as the noble Lord, Lord Mancroft, with great frankness admitted in a speech which I commended then and commend now, said, "and outside the law," acted in good faith. This Bill provides an umbrella to validate any action by a competent authority or a person purporting to act in accordance with the Trading with the Enemy Act, 1939, or outside that Act, if the action was considered to be in the public interest and to further this country's war effort. I think we should start off by assuming that such a person or authority acted in good faith, and that is the reason for my first Amendment. I beg to move.

§ Amendment moved— Page 2, line 4, after ("authority") insert ("acting in good faith and").—(Lord Lucas of Chilworth.)

§ LORD MANCROFT
We on this side of the House readily agree with the noble Lord, Lord Lucas, that this is an appallingly complicated Bill. We also think that it would be quite wrong to allow a measure of this complexity and importance to go through "on the nod." In consequence, we bear no ill-feeling whatever to the noble Lord, Lord Lucas, for having put down an extensive list of Amendments; nor, indeed, do we regard thorn in any light as wrecking Amendments. We appreciate fully that the best Parliamentary way of obtaining an explanation, or art attempted explanation, as I am afraid it will be in my case, of an extraordinarily complicated subsection is to put down an Amendment to delete the subsection which causes the diffi- 1066 culty. With that we have no quarrel whatever. Nor, I am happy to say, have we any quarrel upon this first Amendment which has been moved by the noble Lord, Lord Lucas. He raised this point in his Second Reading speech, and I think the noble Lord, Lord Chorley, raised it as well. It seems to be a reasonable point, and we have much pleasure in accepting his Amendment.

§ LORD LUCAS OF CHILWORTH
I am grateful to the noble Lord.

§ On Question, Amendment agreed to.

§ LORD LUCAS OF CHILWORTH moved in paragraph (a) to omit all words from and including the second "by" to the end of the paragraph. The noble Lord said: Once again, this Amendment is really a probing Amendment. It seeks to leave out half of paragraph (a). This is my difficulty. Paragraph (a), with the Amendment which the Committee have just agreed to, reads as follows: by a competent authority acting in good faith and purporting to act under the Trading with the Enemy Act, 1939, (hereinafter referred to as 'the Act of 1939') or orders made thereunder. … Then follow these words, which by this Amendment I seek to omit: by such an authority acting with intent to give effect, so far as practicable, to the purposes of section seven of that Act (which relates to the collection of enemy debts and custody of enemy property) or to prevent that Act from being contravened. … On the simple principle that the greater includes the less, I should have thought that anybody who was "purporting to act under the Trading with the Enemy Act, 1939, or orders made thereunder," would also be purporting to act under anything that is in the second part of paragraph (a). Why is the second part of paragraph (a) necessary? Frankly, I cannot see a reason, but I feel certain that the Parliamentary draftsman would not have put it in for fun, to waste space or use paper; so what I do by this Amendment is to invite the noble Lord's comments. The words appear to be quite redundant, but perhaps he has a very good answer which I will await.

§ Amendment moved— Page 2, line 7, leave out from ("or") to end of line 11.—(Lord Lucas of Chilworth.)

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§ LORD MANCROFT
I think I can persuade the noble Lord that these words are not redundant and ought to be retained in the clause. Without the words proposed to he left out, many actions which were taken in 1940, when the need for action had become urgent, with the beginning of air raids on a heavy scale in London and also because the quantity of property that became enemy property at that time was enormously increased by the occupation of many countries by the German Forces, would not be covered by the clause. In consequence of the haste with which action about the year 1940had to be taken, the Board of Trade may not always have expressly purported to act at that time under the Trading with the Enemy legislation. In fact, there were many cases when the Board of Trade acted in the spirit of the law but, quite clearly, not within the letter. I think I remember mentioning one case to the noble Lord in my Second Reading remarks—namely, the Diamantis case, the sponges case. He will probably remember it as being one of the best examples of this series of cases. It is therefore important to cover actions taken to implement the underlying purposes of the Act of 1939, and of Section 7 in particular which were not technically taken within the letter of the law. That is the reason for the inclusion of these words. I think the noble Lord will realise, in view of what I have said, that they are not surplus but are definitely required within the clause. I hope that is a satisfactory answer to the noble Lord.

§ LORD SILKIN
I have listened sympathetically to what the noble Lord has said, but I remain unconvinced that these words are necessary. The first part gives an indemnity to the competent authority purporting to act under the Trading with the Enemy Act, 1939. The second part, the part we want to leave out, does the same thing for anybody who purports to act under Section 7 of the Act. Whilst I realise that a great many things were done in the urgency of the time which might not have been strictly within the compass of the 1939 Act, I thought that the first part—and the whole purpose of this Bill is to cover those people—in fact gave them the cover. The words are "any competent authority purporting to act under the Trading with the Enemy Act." I should be grateful if the noble Lord could 1068 explain what the second part adds to that. What further cover do they get?

THE LORD CHANCELLOR (LORD SIMONDS)
Surely it depends upon what meaning is to be attributed to the word "purport." I think that is what this comes to, and I think the noble Lord will agree that the words which are challenged as redundant at least cannot do any harm. They make it quite clear that cases are covered where the Board of Trade have acted in the spirit of the Act, but have not purported to act under it—that is to say, have not expressed such an intention. So many of the directions and orders made by the Board of Trade under the Trading with the Enemy Act expressed that the Board of Trade were so acting. In the hurry of 1940, much action had to be taken within the spirit of the Act which did not purport in that sense to be taken under it. It is for that reason, and after careful consideration and consultation with the Parliamentary draftsman, that we thought it desirable, in order to make the matter clear, that those words should be included.

§ LORD LUCAS OF CHILWORTH
I quite understand it now. In other words what this does is to extend the coverage for a competent authority who may go outside—if I may use that expression—the letter of the law.

THE LORD CHANCELLOR
The noble Lord will forgive me: I would not say going outside the letter of the law, but rather without expressly purporting to act within it. May I remind the noble Lord that his further Amendment which is to insert the words "acting in good faith and" will be accepted in this connection also. That brings the matter rather nearer.

§ LORD LUCAS OF CHILWORTH
I am grateful to the Lord Chancellor for giving me that information. It does soften me a little, and in view of the noble and learned Lord's explanation, if your Lordships are agreeable, I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ LORD LUCAS OF CHILWORTH
This Amendment again is in the same connection. It will make the relevant passage read: or by such authority acting in good faith and with intent"— 1069 and so forth. I seek to put in the words "in good faith and," and in view of what the Lord Chancellor has said, there is no need for me to waste your Lordships' time by saying any more. I beg to move

§ Amendment moved— Page 2, line 7, after ("acting") insert ("in good faith and").—(Lord Lucas of Chilworth.)

§ On Question, Amendment agreed to.

§ LORD LUCAS OF CHILWORTH
This again is really consequential. In paragraph (a) we were dealing with a competent authority. In paragraph (b) we are dealing with "any person." I will not waste your Lordships' time. This Amendment is based on the same principle which has now been accepted by the Government. The Amendment is really consequential, and I beg to move.

§ Amendment moved— Page 2, line 12, after ("person") insert ("acting in good faith and").—(Lord Lucas of Chilworth.)

§ On Question, Amendment agreed to.

§ LORD LUCAS OF CHILWORTH
I do not think I should be stretching it at all if I said that this Amendment also is consequential. I beg to move.

§ Amendment moved—

§ Page 2, line 14, leave out from the first ("or") to end of line 17 and insert— (c) by any person acting in good faith and in pursuance of a direction or request given or made by a competent authority purporting to act under the Act of 1939 or orders made thereunder or given or made by a competent authority acting with such an intent as is mentioned in paragraph (a) of this section."—(Lord Lucas of Chilworth.)

§ On Question, Amendment agreed to.

§ LORD LUCAS OF CHILWORTH moved to add to the clause as a new subsection: (2) For the purposes of those sections anything done by a competent authority, or by any person in purported compliance with a restriction or obligation imposed by or under the Act of 1939 or in pursuance of a direction or request of a competent authority, shall be deemed to have been done in good faith unless the contrary is proved.

§ The noble Lord said: I suppose I could say that this Amendment also is consequential. In this connection I quite agree with what, at least according to my interpretation, is the spirit of this Bill. I put forward this Amendment because I think it is right and proper for the purposes of this clause. I agree that you have to put 1070 the onus of proving that the person did not act in good faith upon those who bring proceedings. But as I shall hope to convince the Committee, all my good endeavours in regard to this Amendment up to date are to be swept away later on. But "sufficient for the moment is the evil thereof." I agree that this is the proper way that this should be achieved. My legal advisers tell me that this Amendment is a proper one, and without more ado I beg to move it.

§ Amendment moved— Page 2, line 17, at end insert the said subsection.—(Lord Lucas of Chllworth.)

§ On Question, Amendment agreed to.

§ Clause 1, as amended, agreed to.

§ Clause 2:

§ Provisions as to making of certain payments and withholding of payments

§ (2) Where, in the case of a payment made as mentioned in paragraph (a) or (c) of the last foregoing subsection, the payment (apart front 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 is 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
This Amendment is consequential. I beg to move.

§ Amendment moved— Page 2, line 30, leave out ("or (b)") and insert ("(b) or (c)").—(Lord Lucas of Chilworth.)

§ On Question. Amendment agreed to.

§ 2.55 p.m.

§ LORD LUCAS OF CHILWORTH moved to omit subsection (2). The noble Lord said: This is the first of what I have called the probing Amendments. I had better put before your Lordships my usual alibi—which I should think is getting a bit thin now—that I am not a lawyer. But I have two eminent lawyers sitting near me. That the noble and learned 1071 Lord, the Lord Chancellor, should come and sit on the Front Bench opposite on this Committee I take as a very great compliment. I am now arguing, perhaps with some ignorance—if so I hope your Lordships will forgive me. As I take it, Clause 2 covers the action of a person who pays creditors' money to the Custodian under the Trading with the Enemy Act thinking that the creditor was an enemy, when in fact he was not. It also covers the action of a person who withholds a payment properly incurred in a commercial transaction contracted with a debtor who he thought was an enemy but who in fact was not. I suggest to the noble and learned Lords that the umbrella covers a very wide area. Payment of a debt could be withheld in a great many circumstances. It could be withheld by a dishonest person to bring forward the defence that the reason he did not pay the debt was because he thought the man was an enemy, which in fact he was not.

§ I think the fog in this—if I may be allowed to use the term "fog"—is in paragraph (b) of subsection (1) of this clause. Paragraph (a) of subsection (1), which refers to "a payment…made by or on behalf of any person to a competent authority," and paragraph (c), which deals with "a payment made by a competent authority to or for…a person" are clear. But paragraph (b) uses these words: a payment was withheld whether by way of refusal or omission to make the payment by or on behalf of any person. Is not that very wide? Does it not leave out a competent authority? When you come to subsection (2) it omits any suggestion of that. What is the purpose of that? May I ask the noble Lord this question—I think this is perhaps the best way of putting it to him. Is the intent of subsection (2) to give the opportunity of redress for an obvious wrong, because we are now dealing with payments, with money. The next clause, in subsection (4), deals with property, and there is there an avenue of redress. But in this clause, which deals with money and not with property, there does not appear to me to be any redress for the man who acts, can I say, wilfully wrongfully. Will the noble Lord tell us how it works? It will help us, in our ignorance, if he will be kind enough to give us some illustrations of how it works. We have not the same 1072 difficulty with the next clause, when it comes to property, but here we are dealing with money paid wrongfully and withheld wrongfully, because it was purported that the individual was an enemy, and it was ultimately proved that he was not. I hope that I have made my point clear to the noble Lord. I beg to move.

§ Amendment moved— Page 2, line 37, leave out subsection (2).—(Lord Lucas of Chilworth.)

§ LORD MANCROFT
There is no need for the noble Lord to apologise for not being able to understand these two subsections; they are extremely difficult. About two o'clock this morning I thought I understood them, but whether I know them sufficiently to help the noble Lord in any way remains to be seen. Nor is there any need for him to apologise for not being a lawyer, though I wish he would refer to that as an excuse and not as an alibi—the noble Lord, Lord Silkin, sitting next to him will explain that if he asks. I shall try to explain what we are seeking to do in these two subsections. To do so I must go back to subsection (1), because the subsections do not make sense unless taken together. Subsection (1) sets out three classes of payments: paragraph (a) refers to a payment made to a custodian; (b) to a refusal to pay—for example, a refusal on the part of a company registrar to pay a shareholder whom he thought to be an enemy; and (c) to a payment by a custodian to a person thought to be the original creditor of a debt collected by the custodian. In the first case, the subsection gives the payer authority for the payment and discharges him pro tanto from his liability to the original creditor or beneficiary. In the second case, it absolves the debtor from any liability he would otherwise have for his refusal to pay. In the third case, it absolves the custodian from any liability he would otherwise have to make good the amount of a payment, on the ground that it had been made out of public funds in a way not authorised by law. It also absolves him from any liability he might conceivably have to make a payment over again to the real creditor.
Subsection (2) contains two qualifications which perhaps I can explain as follows—and I think this will answer the question the noble Lord put to me. If a debt due to a person who is an enemy has been paid to the Custodian, the 1073 Custodian has power, if so directed by the Board of Trade, to release the money to the enemy creditor under Article 3 (ii) of the Custodian Order of 1939. If, however, it turns out that the creditor was not an enemy at any material time, although subsection (1) validates the payment and discharges the payer, the power under Article 3 (ii) is not available because technically the debt has not been paid under the Custodian Order. That is the difficulty there. Paragraph (a) of subsection (2) enables the Custodian to reimburse the creditor in such a case, and paragraph (b) preserves the right of the Custodian to recover payments where, for example, he has been prevailed upon to release money by fraud or misrepresentation.
Let me try to help the noble Lord still further by giving him examples, which I think might assist him. Take a case under paragraph (a) of subsection (2). This would be where money was paid to the Custodian as being due to someone who was thought to be resident in Germany but who in fact had escaped from Germany before the outbreak of war. The paragraph gives power to repay the money to a non-enemy creditor. The money not having been paid over to the Custodian in the first place under the Custodian Order, the existing power to release contained in Article 3 (ii) does not apply. The second type of case, of fraud or misrepresentation, has cropped up sometimes. Somebody has approached the Custodian and said, "Look, I am the next-of-kin of Herr Schmidt and I am the right man to have this money paid over to me"; and the Custodian, after having made the best inquiries he could, has paid over the money. Later the man receiving the money has been proved not to be the next-of-kin of Herr Schmidt, to whom the money should have been paid over. That has sometimes happened in the past and may possibly crop up again.

§ LORD SILKIN
What happens in such a case under (b)?

§ LORD MANCROFT
The Custodian row has a power to repay the money which he would not have had if it had not been included in the Bill. This is a very complicated matter, which I have explained as best I can. I sincerely hope that I have cleared away a little of the 1074 fog round this clause which the noble Lord, justifiably, said existed in his mind.

§ LORD DOUGLAS OF BARLOCH
I should like to raise one question. Paragraph (a) of subsection (2) enables the Board of Trade or a competent authority to repay to the lawful owner money which was wrongfully paid to a competent authority. However, it does not appear that a person whose money has been wrongfully paid to a competent authority has any right whatever to demand repayment of it, either from a person who wrongfully made payment on his behalf to the competent authority or from the competent authority itself. Subsection (1) says that the payment, whether it was legally made or not, shall operate as a discharge of the person—

THE LORD CHANCELLOR
The noble Lord will forgive me for interrupting. This matter is sufficiently complicated. I do not think the noble Lord is speaking to the Amendment, which is to leave out subsection (2).

§ LORD DOUGLAS OF BARLOCH
I do not know whether the noble Lord, Lord Mancroft, was entirely dealing with that either. He was endeavouring to elucidate this clause, and I want to elucidate it also, because it might then be more clear whether the Amendment which my noble friend has proposed is the right Amendment or not. However, I will raise my point on the Motion that the clause stand part.

THE LORD CHANCELLOR
I think that would be better.

§ LORD LUCAS OF CHILWORTH
The noble Lord, Lord Mancroft, made a convincing statement: whether he believed it himself or not I do not know; it half convinced me. I could have put this Amendment down in the form of deleting the whole clause, but I put it down in this way because all I want is an explanation. It will be very tedious on every clause I argued the whole clause on the question of whether the clause stand part of the Bill.

THE LORD CHANCELLOR
I did not mean to say anything discourteous to the noble Lord or to the noble Lord, Lord Douglas of Barloch, but it would be convenient if the course which he himself suggested were adopted—that is, to deal with this Amendment now, and then 1075 any part of the clause which is not the subject of the Amendment can be discussed on the Motion that the clause stand part. I hope that will meet with the noble Lord's approval.

§ LORD LUCAS OF CHILWORTH
I will confine myself to the Amendment. When payment is made or withheld by the Custodian, is a person other than the Custodian, purporting to act under the Enemy Property Act, allowed to do the wrongful act of withholding payment for an ordinary commercial debt to a person who he says is an enemy but who is proved not to be? Is he given coverage under this umbrella, if he is a person other than the Custodian, but is purporting to act under the Enemy Porperty Act?

§ LORD MANCROFT
I should like to look at that point a little more carefully, but my first impression is that the question of ex gratia payment would come in there. However, I will look into it and make certain that I fully understand the point the noble Lord is making.

§ LORD LUCAS OF CHILWORTH
In view of the noble Lord's explanation, and if we can have a discussion on this point—and may I interpolate that perhaps the noble Lord will on many of these things undertake, with the assistance of the noble and learned Lord, the Lord Chancellor, to discuss these points with us between now and the Report stage, because the replies we get will dictate our action on the Report stage—with your Lordships' permission, I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ On Question, Whether Clause 2, as amended, shall stand part of the Bill?

§ LORD DOUGLAS OF BARLOCH
Subsection (1) of this clause gives a release to a person who has made a payment on behalf of some other person to the competent authority, although that payment, in fact, should not have beer made. It therefore operates to discharge the person, who has made that payment wrongfully, of his obligation to the person on whose behalf it was purported to be made. Subsection (2) gives to the Board of Trade, or to the competent authority, a power of reimbursement, as I understand it, but does not impose upon the competent authority any obligation 1076 to make a reimbursement in those circumstances. Therefore, it appears that the resultant effect of those two subsections is to deprive entirely of any remedy whatever the person whose money was wrongfully paid away, and it leaves it merely to the competent authority to make a payment if it is so disposed to do. I should be glad if the noble Lord will explain whether that is the intention, and whether he thinks that is right.

§ LORD LUCAS OF CHILWORTH
Perhaps the noble Lord could answer my point at the same time. I think my noble friend has made a valid point. I am clear when it comes to the next clause, dealing with property. I think I see that, while there is the power in this clause for the Custodian to claim money back from a person to whom he has paid wrongfully, there does not seem to be any right of the person from whom he took the money, who was thought to be an enemy, but who now is not, to be paid back the money. I should be content—I do not know whether my noble friend would be—if the noble Lord would look into this matter at the same time in connection with the argument that I shall raise on the next clause.

§ LORD MANCROFT
Of course, I will look into this. But I think the answer to the noble Lord, Lord Douglas, is the same answer that I gave to the noble Lord, Lord Lucas. I stand to be corrected if I have it wrong, but I think it is not a matter of right, but a matter of an ex gratia payment. However, I will certainly look into it.

§ LORD LUCAS OF CHILWORTH
But there is nothing in the Bill.

§ LORD MANCROFT
I fully appreciate that.

§ LORD CHORLEY
I should like to ask the noble Lord a question arising out of what he has just said. I think I agree with him, so far as I understand this clause, that any payment made would be an ex gratia payment. The next step, paragraph (b), seems to indicate the possibility that it will be only in cases where the Board of Trade are able to get the money back from some person who may have made some fraudulent statement that they will make such ex gratia payment; otherwise the money is not available.

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THE LORD CHANCELLOR
That is not so. It is not the proper meaning of the subsection, nor is it the fact as a matter of administration.

§ LORD CHORLEY
Could the noble and learned Lord give us an assurance on behalf of the Government that these payments back will be made in proper cases, quite apart from the question of whether the Custodian can recover be money from the fraudulent person who may have induced him to pay it away? If we could have a fairly firm assurance, I think that would set at rest the minds of some of us who are worried that injustice may be done as a result of this provision.

THE LORD CHANCELLOR
I do not think this is a matter for assurance. The matter stands in this way. The administration of enemy property has proceeded now for many years upon the footing that if a wrong payment has been made, redress will be given. I do not think I need give any further assurance in the matter. I can, however, say this: that there is no connection between the repayment by the Custodian to a person whose money has been wrongly paid to him, and the collection by the Custodian of that money from some third party; the two things do not hang together at all.

§ LORD CHORLEY
I appreciate that. But surely the noble and learned Lord was inadvertent when he said that it was in cases when payment had been wrongly made under the Act itself.

THE LORD CHANCELLOR
I beg the noble Lord's pardon.

§ LORD CHORLEY
Surely, the Lord Chancellor was inadvertently making a mistake when he said these payments had been made under the principal Act in cases where they had been wrongly made. Surely, they were cases where the payments were, technically, rightly made, but there is a strong case in mercy.

THE LORD CHANCELLOR
I think the noble Lord is dealing with a different category of cases altogether. If he will read Clause 2 he will see the section to which it refers. It says: … notwithstanding that apart from this section it was not so authorised. … We come to a different category of cases altogether, which I believe the noble Lord 1078 has in mind, and is probably the subject of the Amendment he is moving later. I do not think we need keep up this discussion any longer. My noble friend and I will look into this.

§ LORD CHORLEY
I appreciate that this is a complicated point, and I should like to look at what the Lord Chancellor has said. Therefore, I will not pursue it any further at this stage.

§ Clause 2, as amended, agreed to.

§ Clause 3:

§ Provisions as to other dealings with property

§ (2) If the dealing in question purported to be a transfer of the property on a sale thereof, the property shall be deemed to have vested in the transferee for such estate or interest, and subject to the like incumbrances (if any), as it would have done if it had then been transferred to him on a sale by the owner thereof.

§ (3) If the dealing purported to be a transfer of the property on release from control, subsection (1) of this section shall have effect subject to the provisions of subsection (5) thereof; but subject to the said subsection (5) the property shall be deemed to have vested in the transferee as mentioned in the last foregoing subsection.

§ (4) If at the time of the dealing the property was not enemy property,—

(a) nothing in the foregoing provisions of this section or in subsection (3) of section seven of the Act of 1939 (which subsection validated certain dealings with property erroneously treated as enemy property) shall operate in relation to that dealing so as to prevent a person from recovering the property or any proceeds thereof from a custodian who for the time being has the property or proceeds in his possession or under his control, and

§ LORD LUCAS OF CHILWORTH
This Amendment is consequential on the Amendments that have been accepted by the Government on the previous clause. I beg to move.

§ Amendment moved— Page 3, line 14, leave out ("or (b)") and insert ("b) or (c)").—(Lord Lucas of Chilworth.)

§ On Question, Amendment agreed to.

§ LORD MANCROFT moved, in subsection (2), to leave out all words after "transferee" and to insert: in accordance with the terms of the purported transfer, subject however to any incumbrances to which it would have been subject in his hands if it had then been lawfully transferred to him in those terms on a sale by the person entitled to the property.

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§ The noble Lord said: Amendments numbers 10 and 11, together with the three later Amendments to Clause 5, which are consequential thereupon, are really no more than drafting Amendments. Their object is to get rid of the two technical expressions "owner" and "transfer of property on release from control," which are used only once in subsections (2) and (3) of Clause 3 and for that purpose have to be defined at length in Clause 5. The Amendments seek to achieve this object by rewriting subsection (2), so that it no longer uses the expression "owner" and subsection (3) no longer uses the expression "transfer of property on release from control." These are purely drafting Amendments. I beg to move.

§ Amendment moved— Page 3, line 24, leave out from ("transferee") to end of line 27 and insert the said new words.—(Lord Mancroft.)

§ On Question, Amendment agreed to.

§ LORD MANCROFT
I beg to move the next Amendment.

§ Amendment moved— Page 3, line 29, leave out ("on release from control") and insert ("by a custodian to or for the 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").—(Lord Mancroft.)

§ On Question, Amendment agreed to.

§ On Question, Whether Clause 3, as amended, shall stand part of the Bill?

§ LORD LUCAS OF CHILWORTH
Perhaps the noble Lord can help me in my understanding of this clause. I think I am right, but I say so with some trepidation. As I understand it, this clause operates in respect of property whereas Clause 2, which we have just been discussing, deals with money received or paid. As I understand it, this clause makes an honest man of the person who has transferred property wrongly and gives a good title to the man who has received it wrongly. Then, when we come to subsection (4), there is provision for redress. Perhaps I may be allowed to read what paragraph (4) (a) says: (a) nothing in the foregoing provisions of this section or in subsection (3) of section seven of the Act of 1939 … shall operate in relation to that dealing so as to prevent a person from recovering the property or any proceeds thereof from the custodian. … 1080 This illustrates the point raised by Lord Douglas of Barloch. The person who has been wrongfully dispossessed of property cannot get it back because the person who wrongfully possessed it has been given a good title. He can get the proceeds back. Why, therefore, is not the same provision made with regard to money? If the noble Lord will read on in this paragraph he will find that it says that he can recover the property or any proceeds thereof from a custodian—and these are the operative words: who for the time being has the property or proceeds in his possession or under his control. … The question I want to ask is this. Suppose he has not the property or the proceeds under his control? What happens? Exactly the same point was raised by my noble friend. The property is wrongfully vested in the custodian because it was thought to be the property of an enemy. The custodian sells the property. Under this clause he is covered, and the man who possesses it is given a good title. He has purchased it—spent good money on it—and the custodian has got the money. Now, if that money is in the custodian's possession at the time the claim is made, he has got to pay it over to the believed enemy who is now a friend. But suppose he has not got the money?
The noble Lord, Lord Mancroft, in his Second Reading speech, said that a good deal of this money had been dispersed. There has been a Distribution of Enemy Property Act, whereby the proceeds of a good deal of enemy property has been dispersed. Do I give the literal interpretation to these words when I say that they mean that the man who has suffered wrong can get the money back from the custodian only if he for the time being has the property or proceeds in his possession or under his control"? The noble Lord, judging by his nods, has agreed with me up to this point. I do not know whether the custodian now has all these hundreds of thousands of pounds. Suppose there is a claim by a man who has been proved to be a friend and not an enemy. Every wrongdoer has been covered by this umbrella, but the individual who has lost his property cannot get the money from the custodian unless the custodian actually has the money in his possession. Will the noble Lord please clear up this point for me?

1081

§ LORD MANCROFT
I must confess I had not looked at this matter quite in the way in which the noble Lord has put it. It seems to me that if he is right an injustice will be done somewhere. That is the intention neither of this legislation nor of the previous action taken. The matter is wrapped up with what has happened previously and with the point made by the noble Lord, Lord Douglas of Barloch. I will certainly look at the matter again because the noble Lord's reading of this clause is not quite the same as mine. But I must say he has put a little doubt in my mind now. I should like to look at it again and make sure that an injustice is not being done.

§ LORD LUCAS OF CHILWORTH
I am grateful to the noble Lord for that undertaking.

§ Clause 3, as amended, agreed to.

§ Clause 4:

§ Income from moneys invested by custodian

§ 4.—(1) Any income received by a custodian from moneys invested by him in pursuance of the Trading with the Enemy Investment Order, 1940, shall belong to the Crown and be paid into the Exchequer.

§ (2) The last foregoing subsection shall be deemed to have had effect as from the coming into operation of the said Order of 1940, so however that it shall not he construed as authorising or requiring the repayment of any sums paid by a custodian before the passing of this Act otherwise than into the Exchequer.

§ LORD MANCROFT moved, in subsection (1), to leave out "moneys invested by him in pursuance of the Trading with the Enemy Investment Order, 1940" and insert: the investment of moneys coining into his hands (whether in pursuance of the Act of 1939 or otherwise) in his capacity as custodian, being income received by way of discount on the purchase by him of Treasury Bills or by way of interest on other loans made by him to the Treasury or on moneys placed by him in his name on deposit or current account at a bank".

§ The noble Lord said: There are three Amendments down to Clause 4—two in my name, and one in the name of the noble Lord, Lord Lucas of Chilworth, to leave out Clause 4. I suspect that that again is not a wrecking Amendment but an inquiring one. If I am right in thinking that, perhaps I may be able to assist the noble Lord by explaining a little more generally what the clause and my Amendments mean. The object of 1082 Clause 4 is to ensure that moneys derived by the Custodian of Enemy Property from the investment of funds in his hands are paid only to the Exchequer, and to legalise payments that have already been so made. I understand that the money involved amounts to something like £1,500,000. Your Lordships may remember that I attempted to give some explanation for the necessity for this clause in my remarks on Second Reading. Perhaps I may summarise the main points as follows.

§ The Custodian's general funds were invested in Treasury bills, Ways and Means advances and placed on deposit or current account at a bank; and the proceeds were reinvested. The great majority of persons to whom moneys have been released by the custodian are allied nationals or their Governments on their behalf. By a concession, the Custodian will not have charged them the fee statutorily permitted for looking after their money in this country. If these moneys are not to go into the Exchequer their apportionment will entail a major job of work which will take years to finalise and require literally hundreds of trained accounting staff to deal with. That is obviously out of the question. It is necessary, therefore, to confirm the position set by the 1914–18 precedent.

§ Now, going back to my own two Amendments, Nos. 12 and 13, the object of No. 12 is twofold. On the one hand we want to make it clear that income received by the Custodian otherwise than under the Act of 1939 is within the scope of the clause, and, on the other hand, to limit it to income from certain specified kinds of investments only. While moneys which came to a Custodian in the circumstances mentioned in Clause 1 of the Bill—that is to say, in the spirit, though not in the letter, of the Trading with the Enemy Act—and other moneys which came to him in circumstances not related to that Act (the noble Lord probably remembers the royalties paid to the Custodian by licensees under the Patents, Designs, Copyrights and Trademarks (Emergency) Act, 1939) were invested by the Custodian, they were not actually invested by him" in pursuance of the Trading with the Enemy Investment Order, 1940" because that Order applied only to moneys received by or arising to a Custodian under, or by virtue of, an Order made under Section 7 of the, 1083 Act of 1939. Hence the clause as drafted at the moment does not achieve the object we desire so long as it is confined to moneys invested by a Custodian "in pursuance of the Trading with the Enemy Investment Order, 1940,"and the wider wording of the first two lines of my Amendment is really what we require.

§ When the clause is no longer confined to investments in pursuance of the 1940 Order, we think it is necessary not to go too far. The first of my Amendments is expressly confined to income received by way of discount on the purchase by the Custodian of Treasury Bills, interest on other loans made to the Treasury and interest on moneys placed by him in his name on deposit or current account at a bank. These were the only three ways in which the Custodians invested the general moneys in their hands and on their official accounts. The second of the two Amendments standing in my name is really consequential on the first. If your Lordships agree to the first Amendment, subsection (1) will no longer contain any reference to the Trading with the Enemy Investment Order, 1940. Apart from this formal point, however, it is clear that, if there is to be consistent treatment of all the income the Custodian has ever received from the three sources I have just mentioned, the clause must be retrospective to the date when the Trading with the Enemy (Custodian) Order, 1939, came into force—and that date was September 18, 1939. The reason for that, of course, is that the Custodians commenced their operations, including the investment of the surplus of their general accounts, from that date.

§ I apologise humbly for the extreme technicality of these two points, which are really accounting points, Treasury and financial points, quite beyond the comprehension of the man in the street; but I can assure your Lordships that they are technically necessary to perfect this clause. I hope that that slightly simpler explanation of the clause may have removed some of the fog which I am certain the noble Lord, Lord Lucas, justifiably thinks surrounds this clause as well. I beg to move.

§ Amendment moved— Page 4, line 26, leave out from ("from") to ("shall") in line 28 and insert the said new words.—(Lord Mancroft.)

1084

§ 3.33 p.m.

§ LORD LUCAS OF CHILWORTH
There is no fog in my mind about this Amendment. This is where I come out of the realms of law into hard commercial common sense, because nothing that the noble Lord has said really invalidates the argument that I was going to address to your Lordships on the details of this clause. I do not wish to get out of order, and I do not know whether I can now adduce on these two Amendments the argument that I was going to address to your Lordships on the deletion of the whole clause—I gather that I have the permission of the Lord Chairman to proceed. The arguments which the noble Lord has put forward I quite recognise are valid if his basic argument is valid. But my contention is that his basic argument is not valid.
On the Second Reading, the noble Lord, Lord Mancroft, said, with reference to Clause 4, in justification of the Custodian who had wrongfully—mark the word "wrongfully"—had money from someone who was alleged to be a German enemy but who eventually turned out to be a friend, that, while the Custodian had paid back the principal, he was under no obligation whatsoever to pay back any interest that had accrued while it was invested by a Custodian. This is what the noble Lord said in justification of this argument—I quote from the OFFICIAL REPORT, Vol. 182, Col. 402: The number of individual owners to whom money has already been returned by the Custodian may be well over 100,000. The accounting operation involved, if this argument proved right,"— the argument in question, I would interpolate here, was a comment in the courts—if I am not wrong, it was in a judgment—that the Custodian should pay interest— would be formidable and protracted, and scores of trained accounting staff would be required to deal with it. Quite apart from that, I am not certain that it is really in the interests of the country or of the taxpayer, because interest on investments comes out of the funds provided by the taxpayer, and I see no reason why that benefit should accrue to anybody else. With great respect, may I say that to convince me the noble Lord will have to think of a better argument than that, because the money does not come out of the funds provided by the taxpayer. The 1085 money comes out of the funds which the Custodian, quite wrongly, appropriated and that is not the taxpayers' money.
The Custodian has, quite properly, admitted his error and has paid back the principal. Why should the owner of the capital, who has recovered his capital, he denied the income from that capital all the time that capital has been in the custody of the Custodian? In common justice, surely that is wrong. May I make it clear that I am not asking that interest should be paid on money that was appropriated, quite properly, from people who were proved to be enemies, but these were people who had their property and assets appropriated by the Custodian, quite properly, and who subsequently proved to the satisfaction of the Custodian that they were friends and not enemies. The Custodian pays it back—the noble Lord says to about 100,000. He says, "I am not going to give you any interest. I am going to pay to the Treasury the interest that I have wrongfully obtained, by investing your money, wrongfully obtained." The noble Lord will have to put up a better argument than that to convince me that it is right.
It would be an easy thing, to do, because I do not suggest that every meticulous calculation of the interest should be worked out precisely. The average can be struck, and a simple ex gratia payment made. Sonic would gain, some would lose; but the noble Lord, in the course of his argument, used a very significant phrase, and I am sure that Her Majesty's Government want in cases such as this to be scrupulously fair. When we consider some of the people—I have not complained about it—who were thought to be enemies but who eventually turned out to be friends, surely we in this country to-day are not going to argue over a few footling pounds, and say that we propose to appropriate the interest earned by the Custodian in the investment of that money. I am not going to press this, but I would ask the noble Lord if he will be good enough to look into it.

THE LORD CHANCELLOR
I am sure the noble Lord will allow me to say this. He has proposed to delete this clause. I wonder what he would put in its place. To give effect to the proposals which he is now making, is not his proper remedy to move a new clause? I am not for a moment saying that Her 1086 Majesty's Government would accept it, but what he should do is to move a new clause to provide that, where there has been an ex gratia payment, there shall be not only an ex gratia payment of principal but an ex gratia payment of interest. I am not for a moment saying that what he suggests would be accepted by Her Majesty's Government, but perhaps he would think of it in that way. I say that it is quite impossible, as an administrative matter, to delete Clause 4 of this Bill, because the task of apportioning tins appropriate part of the income due to the monies paid—if you like, wrongly paid—in respect of any particular person would be a quite hopeless task. I would suggest that his true remedy is something different from that.

§ LORD LUCAS OF CHILWORTH
I absolutely agree with the noble and learned Lord, the Lord Chancellor. I can only say that my excuse or my alibi is that I could not think of an answer, and I have been waiting for the noble Lord, Lord Mancroft, or the noble and learned Lord, the Lord Chancellor, to reply to my argument I have said that I do not intend to press this Amendment, which was put down only to enable me to state the case I have stated, and for Her Majesty's Government to answer me. My noble friends and myself would then consider the appropriate Amendment to put down upon the Report stage, if we were not satisfied with the explanation given by Her Majesty's Government. I know that it is impossible to delete this clause, but I could not think of any other way to raise this argument, which I think is absolutely conclusive. If the noble Lord in charge of the Bill is impressed in any degree with my argument, I am quite willing to enter into consultations with him for an appropriate Amendment to be moved on the Report stage. I am sure we shall receive every help from the Government.

§ LORD SILKIN
I think: it has been clear—at any rate it has not been answered—that here is an injustice.

THE LORD CHANCELLOR
Do not for a moment take it like that. I do not think it is anything of the kind. I think we have followed the precedent of the legislation before the last war, and I was most careful to say that I can give no assurance of any kind t hat Her Majesty's 1087 Government would accept an Amendment in the form which I thought was the only possible form to meet what the noble Lord, Lord Lucas, suggested. If I have said anything which could be construed as the admission of an injustice, I wish to make it quite clear that I make no such admission.

§ LORD SILKIN
At any rate, the case has been made by my noble friend that there is an injustice here, and so far we have had no answer. There has been no suggestion that my noble friend was wrong.

THE LORD CHANCELLOR
I say there has.

§ LORD SILKIN
That is an assertion, but there has been no argument to establish that what my noble friend has said is wrong. As I understand the argument so far, it is that administratively it would be exceedingly difficult—I could put it higher than that and say, as difficult as you like to make it—to do justice. If we are right in our contention, that administrative difficulty cannot really be a conclusive answer. We on this side are in a dilemma, for we have not the resources to prepare a technical Amendment of the kind that would be appropriate to a Bill of this character. Surely it is for Her Majesty's Government, if, on consideration they come to the conclusion that there is an injustice here, to find a way out of it. I fully agree with my noble friend, who has suggested that it might be impossible to do meticulous justice to every single individual by calculating exactly how much interest he would be entitled to, if he is entitled to any, and that it might involve a labour far beyond what is practicable. But if we are right in our contention, something ought to be done, if only as a gesture; and I would respectfully suggest that in this case the onus should not be on this side of the House to prepare an Amendment which will do justice. That is a matter for Her Majesty's Government, if they come to the conclusion that something ought to be done. I hope that in the discussions which may take place between now and the Report stage Her Majesty's Government will look at it in this way, and not put on us an onus which it would be quite impossible for us to discharge.

1088

THE LORD CHANCELLOR
We will look into it again, upon the hypothesis which the noble Lord puts forward, that something ought to be done. But I cannot promise that we shall do anything.

§ LORD CHORLEY
I should like to support what has been said by the noble Lord, Lord Silkin, and to urge upon Her Majesty's Government that they should look at this matter again—

THE LORD CHANCELLOR
We have said that we would.

§ LORD CHORLEY
—because I feel rather upset that the head of the Judiciary and a very distinguished Member of an Inn which has been established in equity for hundreds of years should say that at any rate a prima facie injustice has not been done in cases where money has been taken from people from whom there was no right, either in law or in equity, to take it—money which has then been invested in Government stock, and where the proposal is that the interest on that money shall be taken back in the interests of the taxpayer. If it had been invested in commercial securities, presumably there would be no question at all that the interest or the dividend belonged to these unfortunate people, some of whom are very small people indeed, and to whom the loss of this money has been a real hardship—people who got away from Germany with very little means indeed. Surely it is rather mean.
I realise that as a matter of accountancy there may be such practical difficulties that to confer rights of litigation upon these people is perhaps to invite a good deal of expensive and rather unfortunate litigation. But for the Government to take power in proper cases to make ex gratia payments to these people was, I should have thought, more than a gesture; it was something which the Government themselves should have been only too anxious to do. The noble Lord, Lord Mancroft, in replying to the Second Reading debate, said that he could assure me that there was nothing whatever in this Bill of which we need be ashamed. I suggest that so long as this mean, niggling little provision remains in this Bill there is something of which everybody ought to be ashamed, and I hope the Government will look at this point between now and the Report stage.

1089

THE LORD CHANCELLOR
We have said that we will look at it, and I do not think the noble Lord has helped his case by the observations he has made.

LORD HAWKE
I freely confess that some of us on these Benches do not understand this Bill, which is incredibly difficult: but if the noble Lord, Lord Lucas, has expounded the position correctly we do feel that there would be a case for paying interest to these people. I should have thought that it would be perfectly possible to pay them a rate of interest without the difficulties which the noble and learned Lord's advisers have suggested, because presumably the rightful owners of the money have been on of their money for a specified time arid it must be known more or less what rate of interest the total balances of the Custodian of Enemy Property have earned overall. Therefore it should be perfectly possible to pay an overall rate of interest, of 2½ or 3 per cent. or something of that sort, to meet whatever suggestion of equity there should be. I hope that the noble and learned Lord will manage to draft something and offer it to us at the Report stage.

§ LORD LUCAS OF CHILWORTH
In view of what the noble and learned Lord, the Lord Chancellor, has said, I shall withdraw my Amendment. But may I make one observation? I do so in good faith. When we come to consider this point, please do not go on precedent. In this context there is no comparison between the state of affairs during and after the 1914–18 War and the state of affairs during and after the Second World War, which is still going on technically but which we all say is over. I am grateful to Her Majesty's Government for what has been said. Perhaps we can have consultations on this subject and see whether we can work out some appropriate wording which will suit both sides. I should now like to withdraw the Amendment.

§ LORD MANCROFT
Before the noble Lord withdraws the Amendment which he has not yet moved, perhaps he will allow me to deal with mine. It is really my fault. I allowed the noble Lord to speak on his all-embracing Amendment, No. 14, leaving over my two which come just before it. I may say that I will do everything which the noble Lord asks. 1090 We will look again most carefully at this matter, and we shall be happy to consult with him if we think that by such consultation we shall be able to assist him.

§ On Question, Amendment agreed to.

§ LORD MANCROFT
I beg formally to move the next Amendment.

§ Amendment moved— Page 4, line 31, leave out ("said Order of 1940") and insert ("Trading with the Enemy (Custodian) Order, 1939").—(Lord Mancroft.)

§ On Question, Amendment agreed to.

§ Clause 4, as amended, agreed to.

§ Clause 5:

§ Interpretation of Part 1 and provisions as to evidence

§ (2) References in this Part of this Act to the payment of money or transfer of property by an authority to or for the benefit of a person include references to the payment or transfer thereof by that authority to a person appearing to that authority to be authorised by the said person to receive it.

§ (3) For the purposes of this Part of this Act a certificate issued by or on behalf of the Board of Trade or the Treasury, stating—

(a) that, in the case of a specified payment or dealing with property by a specified authority, that authority was acting with such intent as is mentioned in paragraph (a) of section one of this Act, or
(b) that a specified payment or dealing with property by a specified person was a payment or dealing in pursuance of a direction or request of a specified authority and that the direction or request was given or made as mentioned in paragraph (b) of that section, or
(c) that a specified payment or transfer of property by a specified authority was made to or for the benefit of a specified person as being the person who would have been entitled to the property but for the Act of 1939 or any order made thereunder,

shall in any proceedings be sufficient evidence of the facts so stated except to any extent to which the certificate is shown to be incorrect.

§ 3.53 p.m.

§ LORD MANCROFT
This Amendment and the next two, which all stand in my name, are consequential on the early Amendments to Clause 3 which your Lordships have approved. I beg to move.

§ Amendment moved— Page 5, leave out lines 12 to 17.—(Lord Mancroft.)

§ On Question, Amendment agreed to.

1091

§ LORD MANCROFT
I beg to move the next Amendment.

§ Amendment moved— Page 5, line 24, at end insert (" 'transferee' shall be construed accordingly").—(Lord Mancroft.)

§ On Question, Amendment agreed to.

§ LORD MANCROFT
I beg to move the next Amendment.

§ Amendment moved— Page 5, leave out lines 25 to 29.—(Lord Mancroft.)

§ On Question, Amendment agreed to.

§ LORD LUCAS OF CHILWORTH
This is such a simple and self-explanatory Amendment that I do not think it is necessary for me to say anything. I hope that Her Majesty's Government will accept the Amendment. I beg to move

§ Amendment moved— Page 5, line 33, after ("appearing") insert ("on reasonable grounds").—(Lord Lucas of Chilworth.)

§ LORD MANCROFT
This is not quite so simple as all that, I am afraid. The effect of subsection (2), to which the noble Lord has referred in this Amendment, is that where references are made to the payment of money or the transfer of property by a Custodian to or for the benefit of, say, Smith, they are to be deemed—I apologise for using that dreadful word—to include references to its payment or transfer to someone appearing to the Custodian to be authorised by Smith to receive it. Under existing law as contained in Article 3 (ii) of the Trading with the Enemy (Custodian) Order, 1939, to which I have already made reference, the release of money or property (that is to say the removal from the money or property concerned of the effects of Trading with the Enemy legislation) is normally effected by the Board of Trade giving a direction to the Custodian to transfer the money or the property to or for the benefit of the person who would have been entitled thereto but for the operation of the Trading with the Enemy Act or any Order made thereunder or to any person appearing to the Custodian to be authorised by such person"— that is, by Smith— to receive the same. This subsection is therefore necessary because of the words used in the existing law.
1092 The Amendment of the noble Lord, Lord Lucas of Chilworth, would insert after "appearing" the expression "on reasonable grounds" but, as there is nothing in the existing law about the grounds on which the Custodian is to regard someone as being authorised by a person to receive the money or property, the subsection would, if the Amendment were made, fail in its purpose, which is to make the present Bill reflect the existing legal position. That is the legal position. The other position is this. The Custodian does not make any of these payments—indeed, he takes no action—except in the spirit which the noble Lord suggests; that is to say when it appears that there are reasonable grounds. I can see what the noble Lord is getting at. There is nothing to disapprove of in the sentiments which he did not express in moving his Amendment and which I thought that he would express. I ask him not to press the Amendment, first because it would lead to great legal complications, in that the Bill would not then reflect the existing law, which is what we want it to do, and, secondly, because I think the words are implicit in the conduct of the Custodian, and are therefore not necessary.

§ LORD LUCAS OF CHILWORTH
Surely the noble Lord has made my case. This subsection states: References in this Part of this Act to the payment of money or transfer of property by an authority to or for the benefit of a person include references to the payment or transfer thereof by that authority to a person appearing to that authority to be authorised by the said person to receive it. This covers the whole subject of payment of money or handing over of property. Where do ex gratia payments come in here? Surely the Custodian has a judgment in quite a lot of these matters. I am not saying that this would make any difference to the existing law where that existing law is precise. But the existing law is not precise. The Custodian has authority to make ex gratia payments—to whom? To the person he is satisfied is entitled to them, or on behalf of someone who he is satisfied should have the money. What about all these payments that have been made quite outside, where there is no question of the letter of the law? The purpose of putting in these words was so that the Custodian could I have the defence that the case made to 1093 him was made to him "on reasonable grounds." Time goes on with these things, and in the cases of some of the claimants, some of the people of whom we have been speaking, people who have had their property appropriated—if "appropriated is not an incorrect word—wrongfully appropriated, the error has been rectified. What process did the Custodian adopt in those cases, in the hundreds of thousands of cases where money wrongfully taken from supposed enemies has been paid back by the Custodian? The Custodian was satisfied on reasonable grounds, I take it. Earlier on, when I argued my second Amendment, the noble Lord, Lord Mancroft, said that this was only an embellishment. In my submission this Amendment does not invalidate any existing law. It makes certain that the Custodian will give this payment "on reasonable grounds" if the case is not covered by law, as he has had to do in the past and will have to do again many times in the future. I do not expect the noble Lord to make a snap judgment here, but I should like him to look at it again. If he convinces me that I am wrong, I will not press the Amendment.

§ LORD MANCROFT
I am sorry, but we cannot accept this Amendment. It is clear from Section 7 (3) of the Trading with the Enemy Act, that it was the intention of Parliament to rely on the Custodian's discretion and judgment in satisfying himself in regard to this. But I will look at this again to see whether I have been misinformed; but if I am right, I am afraid my argument must stand.

§ LORD LUCAS OF CHILWORTH
I have so much confidence in the fairness of the noble Lord that I am quite willing to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ LORD LUCAS OF CHILWORTH moved to omit subsection (3). The noble Lord said: In this Amendment we come to the first of the really important Amendments which are concerned with the system of producing certificates which the Government have put in this Bill. This Amendment deals with the first of four cases in the Bill. Subsection (3) reads: For the purposes of this Part of this Act a certificate issued by or on behalf of the Board of Trade or the Treasury stating—

(a) that, in the case of a specified payment or dealing with property by a specified authority, that authority was acting 1094 with such intent as is mentioned in paragraph (a) of section one of this Act, or
(b)"—

I shall not worry your Lordships about that— shall in any proceedings be sufficient evidence of the facts so stated except to any extent to which the certificate is shown to be incorrect. This is a matter which Parliament has contested, sometimes with success and sometimes without success, and which every Government has tried to "get away with." As I read it, if the Board of Trade or the Treasury issue a certificate to say that Mr. A or Department B took this action in good faith, purporting to act as Section 1 of this Act lays down, it is incontestable in law.

THE LORD CHANCELLOR
I do not wish to interrupt, but I do not think the noble Lord should proceed on a false basis. He used the word "incontestable." In one of these clauses the word "conclusive" is used and I think that is what the noble Lord meant.

§ LORD LUCAS OF CHILWORTH
I should like the noble and learned Lord to explain to me the words "except to any extent to which the certificate is shown to be incorrect." I do not know what they mean. Already we have provided in the Bill that anybody acting on behalf of a competent authority, acting in good faith, is not liable, and we have agreed to a further Amendment providing that the burden of proof of whether the competent authority acted in good faith is upon the appellant. This subsection provides that, if the Board of Trade issue a certificate that it acted in good faith, that shall in any proceedings be sufficient evidence of the facts so stated… When we debated the Distribution of German Enemy Property Bill, the noble Earl, Lord Munster, who was leading for the Government said this (OFFICIAL REPORT, Vol. 165, Col. 1212): This clause surely puts in the hands of the Executive or of the administrator final and absolute supreme power to decide highly important questions—and, indeed, questions upon which different views might well be taken. Then he went on to say: But is that any reason why His Majesty's Government should take upon themselves the sole right to decide the very difficult questions which must inevitably arise in the distribution of this German enemy property? 1095 The noble Marquess, Lord Reading, said in the same debate: … I should like strongly to reinforce the plea the noble Earl has just made for some form of appeal tribunal to which disputed cases could be referred. This is not a new point of principle so far as we are concerned, because there have been a number of Bills within the recent memory of all of us in which we have endeavoured, not always successfully, to insist that the last word should not be an administrative one. My mind goes back to the time when I had the responsibility of piloting through your Lordships' House the Patents and Designs Bill, 1949 and I remember the famous, or infamous, Clause 21 of that Bill, which was somewhat along the same lines and which provided that if any report from the Monopolies Commission said that anything had been done in contravention of one or two of the sections of the Act, that was conclusive evidence before the Court of Patents and therefore before the Patent Judge upon appeal. The noble and learned Viscount, Lord Simon, who was then leading for the Opposition, took me severely to task. This is what he said: (OFFICIAL REPORT, Vol. 161, Col. 775): If I am right in my reading, I cannot believe that your Lordships' House would not think that rather an extreme example of legislation: to permit a Government Department to do away with an individual's property and rights without the protection of the courts, without the protection of Parliament and, indeed, it may be, without hearing what he has to say."— and he went on to say that that was a very wrong thing. The noble and learned Viscount so succeeded in his argument, which he pursued with great vigour right through the Second Reading, the Committee stage and the Report stage, that the offending clause was radically amended by an Amendment which the noble and learned Viscount himself moved.

THE LORD CHANCELLOR
Can the noble Lord remind us of the Amendment?

§ LORD LUCAS OF CHILWORTH
I am afraid I cannot think of it now, but it did away with the provision that a report from the Monopolies Commission was conclusive evidence. I am trying to argue the case, but I do not want to repeat my arguments on every one of these five cases. They do vary. The noble and 1096 learned Lord quite rightly says that in one instance the provision is that a certificate shall be conclusive. The next one makes these Departments arbiters of what is in the public interest. The fact I am trying to establish is that, under this clause, if a certificate issued by the Board of Trade or the Treasury, says that an authority acted or purported to act in good faith in a certain case, then that must be accepted to be sufficient evidence of the facts so stated. I do not know what the subsection means by the words: except to any extent to which the certificate is shown to be incorrect. If the appellant can contest the correctness, why put it in? I do not see any purpose, unless it is to say—and perhaps this is the answer—that the appellant cannot challenge the statement; he cannot even see a certificate before it is produced, and he has no right of answer. I fall back on my alibi or excuse: I give not a lawyer's interpretation, but a common-sense interpretation.

§ LORD MANCROFT
It is the same thing.

§ LORD LUCAS OF CHILWORTH
Not always. If these words do not mean what I say they mean, why are they here? If we have an answer to this question, it may be that it will answer all the other four or five times that such a provision appears in this Bill. There is one occasion when it appears in Clause 12 (3) where it is perfectly right: a certificate issued by the competent authority saying that a certain territory was occupied by the enemy. That does not infringe on anybody's rights; it is a question of fact. But if noble Lords will read this subsection carefully, they will see that it means that anything the Board of Trade or the Treasury state, or put into writing, shall in any proceedings be sufficient evidence of the facts so stated. I shall listen to what the Government have to say with great interest. I beg to move.

§ Amendment moved— Page 5, line 35, leave out subsection (3).—(Lord Lucas of Chilworth.)

§ 4.14 p.m

THE LORD CHANCELLOR
The noble Lord is quite right in saying that this is one of several clauses which deal with the question of evidence. Perhaps what I have to say upon this clause will 1097 go a long way towards dealing with the other similar proposed Amendments. Let me make one thing quite clear—and I venture to think that the noble Lord was under some misconception. He used the word "incontestable"; I think he meant by that, "conclusive". There is all the difference in the world between making something prima facie evidence until it is displaced and making it conclusive evidence which is unchallengeable. I am glad to see that the noble and learned Earl the Leader of the Opposition is here. With great deference, I would ask him whether he has had an opportunity of considering this, whether he thinks it appropriate in this sphere and in this subject matter to do without this evidentiary provision which we find in several places in this Bill. I think that if the noble and learned Earl, Lord Jowitt, has had time to consider this, he cannot support the noble Lord, Lord Lucas, in saying that this is not a case in which this now familiar provision should be inserted in the Bill.

§ LORD LUCAS OF CHILWORTH
I did not say anything of the kind. I put up the case, and I said that I should listen with great interest to what the Government had to say. If the Government can convince us that they are correct, then I shall certainly withdraw the Amendment.

THE LORD CHANCELLOR
The noble Lord is fully within his right in moving what he calls a probing Amendment, but I think I am entitled to ask the noble and learned Earl, Lord Jowitt, whether he supports the suggestion—which was surely implicit in the speech of the noble Lord, Lord Lucas—that this was not a case where such a provision should be inserted.

§ EARL JOWITT
I am sure that If should support anything the noble Lord, Lord Lucas said, but I do not know what Amendment we have reached.

THE LORD CHANCELLOR
We are on Amendment No. 19, which proposes to delete subsection (3) of Clause 5 of the Bill. That is a clause which provides: For the purposes of this Part of this Act a certificate issued by or on behalf of the Board of Trade or the Treasury, stating—

(a) that, in the case of a specified payment or dealing with property by a specified 1098 authority, that authority was acting with such intent as is mentioned in paragraph (a) of section one of this Act, or

(b) that a specified payment or dealing with property by a specified person was a payment or dealing in pursuance of a direction or request of a specified authority.…"

given or made in the purported exercise of powers under the Act of 1939, or with intent to give effect to the purposes of Section 7, or to prevent the Act from being contravened, shall in any proceedings be sufficient evidence of the facts so stated except to any extent to which it is shown to be incorrect. That is a purely evidentiary production. It does not make a certificate conclusive, but provides merely that the certificate shall be prima facie evidence, which can be challenged and can be displaced. It is not "incontestable," to use the word which Lord Lucas used. It is a sphere in which, above all others, I should have thought that that now familiar provision should be included, because it depends upon matters which appear in the confidential files of the Department. Her Majesty's Opposition, surely, must rely upon the integrity of the Department to give a certificate only in the proper cases, and to do it upon the sufficient evidence which it has, but which it ought not to be called upon to produce in court—namely, the files—and often files which have been made by people who can no longer be easily found. Your Lordships will appreciate that we are referring now to matters that happened thirteen and fourteen years ago. If the certificate is in any respect wrong, it can be challenged.
This is a case in which I venture to think we ought to rely, to some extent, upon precedent. The noble Lord, Lord Lucas, adjured us not to observe precedent. I cannot help reminding your Lordships, however, that precisely the same position arose after the 1914–18 war, but in circumstances, in a sense, of lesser difficulty. There was not the same dispersion of records, and so on, because there was not the same bombing of London. Section 1 (3) of the Indemnity Act, 1920, is in terms of which I may remind your Lordships, because in substance, and allowing for the difference of subject matter, it is very much the same as the provisions which we have inserted in this Bill. It says: For the purposes of this section, a certificate by a Government department that any act, matter, or thing was done under the authority of a person so holding office or so employed 1099 as aforesaid, or was done in the execution of a duty, shall be sufficient evidence of such authority or duty and of such act, matter, or thing having been done thereunder or in execution thereof and any such act, matter, or thing done by or under the authority of a person so holding office or so employed as aforesaid shall be deemed to have been done in good faith unless the contrary is proved. That was in relation to a somewhat similar subject matter.
I would now refer the Committee to recent cases of Statutes in which the same sort of provision has been inserted—for instance, in the Crown Proceedings Act, 1947, which the noble and learned Earl, Lord Jowitt, will remember well and which the noble and learned Viscount, Lord Simon, will also remember. That was in 1947, and the conduct of that Bill lay on the noble and learned Earl who was then Lord Chancellor. Section 10, subsection (3) of that Act provides this: The Admiralty or a Secretary of State, if satisfied that it is the fact:—

(a) that a person was or was not on any particular occasion on duty as a member of the armed forces of the Crown; or

(b) that at any particular time any land, premises, ship, aircraft, vehicle, equipment or supplies was or was not, or were or were not, used for the purposes of the said forces;

may issue a certificate certifying that to be the fact; and any such certificate shall, for the purposes of this section, be conclusive as to the fact which it certifies. We do not go so far as that; we wish that the certificates shall be prima facie evidence which may be displaced, except in one instance to which I shall refer presently. But we went further in the Visiting Forces Act of last year. That Act goes a long way further, because we not only rely on the integrity of one of our own Departments of State for the validity of a certificate, but give the same force to what is done by an ally or a friend. Section 11 of that Act says: (1) for the purposes of this Part of this Act a certificate issued by or on behalf of the appropriate authority of a country, stating that at a time specified in the certificate a person so specified either was or was not a member of a visiting force of that country, shall in any proceedings in any United Kingdom court be sufficient evidence of the fact so stated unless the contrary is proved. I am not defending bureaucracy in any way, but it is quite obvious that an Act of this kind is quite unworkable unless you give to the certificate of the executive authority the validity of prima facie 1100 evidence. We do not say that it cannot be displaced, but we do say that it is necessary, and I am advised that this Act might be unworkable and create injustice if it contained no provision of this kind. In view of what I have said, I hope that the noble Lord will feel that this is in fact a necessary provision.

§ LORD CHORLEY
I should like to ask one thing of the noble and learned Viscount who has just sat down.

THE LORD CHANCELLOR
I am obliged to the noble Lord for my promotion—but I am afraid it is not yet.

§ LORD CHORLEY
I should have said "the noble and learned Lord who sits on the Woolsack." I quite appreciate that the object of this provision is to shift the burden of proof, and that it does not in any way make the certificate conclusive evidence. But I suggest that in this case it is a little unfair to the person whose property is, in effect, to be taken away by the provisions of this Bill that he should be put into the very difficult position of having to prove his case against a certificate, so to speak. Obviously, when you are dealing with matters which took place a considerable time ago there must be a good deal of difficulty in discharging the burden of proof, from whichever point of view you look at it. In these circumstances, I should have thought it was fairer to the man whose property has been taken away that he should be given the advantage.

§ EARL JOWITT
I think I shall advise my noble friend not to press his Amendment. Some clause of this kind is necessary. It is just as important that care should be taken now as it has been in the past in giving the certificates.

THE LORD CHANCELLOR
The noble and learned Earl well knows from his long experience how fully that would be in the tradition of the Civil Service.

§ LORD DOUGLAS OF BARLOCH
I should like to say a word about paragraph (a). I appreciate the arguments in favour of proving such matters as are mentioned in paragraphs (a) and (b) by means of a certificate, because this relates to official actions for which the Department takes responsibility. But paragraph (c) refers to … a specified payment or transfer of property…for the benefit of a specified person as being the person who would have been entitled to the property… 1101 Is the effect of the certificate merely that the Department believed that that person was entitled to the property, or is the effect of it evidence that he was in fact entitled to the property? These are two very different things, and we ought to be quite clear about it.

THE LORD CHANCELLOR
May I read paragraph (c) again? It says: … that a specified payment or transfer of property by a specified authority was made to or for the benefit of a specified person as being the person who would have been entitled to the property but for the Act of 1939… I do not quite follow the difficulty in the noble Lord's mind. The words payment or transfer of property … for the benefit of a specified person as being the person who would have been entitled seem clear enough, and I am afraid that I do not quite see the dilemma.

§ LORD DOUGLAS OF BARLOCH
Perhaps I may make my question a little clearer. The point I want answered is whether this certificate will be the proof of the title of the recipient to payment for the property, or whether it is merely proof that the competent authority believed that he was transferring the property to someone who had a title.

§ EARL JOWITT
In other words, if I may put it in this way, the payment was made to John Jones. Does it go on to say, "John Jones, whom we believed to be the person entitled to the property"? Or that the payment was made to John Jones who was in fact the person entitled to the property? Perhaps the noble Lord will look into that matter.

THE LORD CHANCELLOR
Yes, I will certainly do that, and if there is any ambiguity I will take it out.

§ LORD LUCAS OF CHILWORTH
I am very grateful to the Lard Chancellor. He has, if I may say so with great respect, given the very reason for which I put this Amendment down. He has now given the Government's view with, if I may say so, again with respect, conciseness and force. This, of course, is an everyday occurrence with lawyers: to shift the burden of proof on to the claimant. It also, if I understand the noble and learned Lord aright, prevents the Government representative from being cross-examined as to the facts. I am not going to say that the claimant cannot 1102 bring rebutting evidence; therefore, in so far as that is what the Bill says, the claimant is at a disadvantage in this matter. However, especially in view of what my noble and learned friend says, and as we have had this dictum now expounded by the noble and learned Lord, the Lord Chancellor, I beg leave to withdraw my Amendment—with this observation. As we come to the other four Amendments of a like nature would the noble Lord be able to tell us—I do not want to weary the House with a repetition of argument—whether his argument holds good in these cases. With these words I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ On Question, Whether Clause 5, as amended, shall stand part of the Bill?

§ 4.30 p.m.

§ LORD LUCAS OF CHILWORTH
I did not put down an Amendment here, but I want to raise what I consider to be a very important matter, something which I hope, when have been able to argue this to the best of my ability, the Government will seriously consider. In this clause we have on page 5, line 9, the definition of enemy and enemy subject; they have the same meanings as for the purposes of the Act of 1939. Now if we turn to the Trading with the Enemy Act, 1939, we see in Section 2 the definition of enemy: Subject to the provisions of this section, the expression 'enemy' for the purposes of this Act, means—

(a) any State, or Sovereign of a State, at war with His Majesty,

(b) any individual resident in enemy territory.…"

One of the reasons why I did not put put down an Amendment was because I could not think of one. I tell the noble Lord, quite frankly, that it is a desperately hard matter. But this definition in the Trading with the Enemy Act, was made before any of us had the slightest idea what conditions would be in enemy territory during the course of this war. The definition covers people who live in Germany, who are resident in Germany, who are resident in any territory ever occupied by Germany, whether enemies or friends; and it also includes—I want to impress this upon noble Lords—perhaps millions of people whose only crime—if I may borrow an expression used by the noble Marquess, Lord 1103 Reading, when we were discussing the Distribution of Enemy Property Act—was that they were born a Jew.
I know very well the difficulty of framing a definition of enemy which will take into consideration Nazis of the worst order and anti-Nazis of, if I may use the expression, the best order. This part of the 1939 Act deals with money, assets and property, and the definition of enemy is "any individual resident in enemy territory" at the appropriate times—for instance France. If a refugee had escaped from Germany to France, and was in France at the time France was occupied by the Germans, he was "in enemy territory." I know the noble Lord will be sympathetic to my case, and I sympathise with him in having to try not to cause hardship in this matter but the difficulty is no excuse for a country like ours, which has offered asylum to so many refugees over the ages—and it was argued with great strength by the noble Lord, Lord Chorley, and the noble Lord, Lord Jessel.
When we come to Clause 12, there is another definition of enemy which is different from this one. I can, to some extent, understand it, but this is one which I do beg the noble Lord to agree, without a great deal of argument across the Table this afternoon, to re-examine, to see whether it is possible to "soften up," if I may use that expression, a cast iron definition. I need not labour this point. I have made the point, and I hope the noble Lord will try to meet it. Whether he succeeds or not, let us have the satisfaction that, when we come to another stage of the Bill, we shall know that every effort has been made to ameliorate the hardship that it contains.

§ LORD MANCROFT
I readily agree, and I will examine the matter most carefully to see if we can do anything to meet the point made. I will read the noble Lord's words again carefully concerning the hardship he mentions. I can perfectly well sec the hardship from many aspects of treating, for instance, the Jew in Nuremberg, who was in prison and disappropriated a long time before the war; I can see the hardship of treating him from certain points of view like Himmler and the rest. One can see the insult to a Frenchman, in particular, in being regarded as on a par 1104 with a German. I can see the hardship of regarding Frenchmen in occupied territory as in the category of Himmler, because that is what would happen if this definition were taken out. But it applies only to this particular Bill. I am wondering, whether much injustice has come about in the twelve or thirteen years in which this state of affairs has existed—that is, much practical injustice. But I will certainly look at the point. If it had been physically possible to do what the noble Lord has in mind, I think, quite frankly, that the draftsman would have done it, because this point must have occurred to the draftsman, as it must to anybody who thinks for a moment about the matter. Without being in any way conclusive, I will look at the point the noble Lord has made. I realise his worry; I am sympathetic to it, and I will see if anything can be done to assist him.

§ LORD CHORLEY
The case I referred to on Second Reading concerned a Danish company which had a quantity of insulin in London and became a technical enemy by the overrunning of Denmark by the Nazi forces in 1940. The result was that their stock of insulin in London became enemy property. That is the sort of case to which the noble Lord, Lord Lucas, is referring. It might have happened to a Dane who had succeeded in getting away from Copenhagen or some other part of Denmark, and then disappeared in the Danish forces or fighting on the sea. If such a man had property in London it would have been taken over by the Custodian of Enemy Property, on the basis that this man was still living in Denmark. It would then come within the terms of this Bill and would furnish a powerful example of the sort of case which the noble Lord, Lord Lucas, has in mind. If the noble Lord can devise, between now and the next stage, some method of protecting that sort of situation, we shall be most grateful to him.

§ LORD SILKIN
In view of what the noble Lord, Lord Mancroft, has undertaken to do, perhaps nothing further need be said. I would, however, say this: that, as I understand what the noble Lord, Lord Lucas, said, we should like to cover certain types of cases. We should like to cover the kind of case that 1105 the noble Lord, Lord Chorley, has mentioned but, as I understand him, he is asking something which it may be difficult to do.

§ LORD MANCROFT
Very difficult indeed.

§ LORD SILKIN
If we are going to cover the case of all those countries which were occupied by the Germans, and take them out of the Bill it is going to be very difficult. I take it that the undertaking applies even to that. That may be difficult, but what I hope the noble Lord will look into is the case that the noble Lord, Lord Lucas, stressed—that is, the case of a person in Germany or in France who was hostile to the German Government, who was oppressed—

§ LORD MANCROFT
How are you going to prove that?

§ LORD SILKIN
In some cases, it is proved by the fact that he was put in a concentration camp. That would be prima facie evidence, unless the contrary were proved. I assume that a person who was in a concentration camp for the greater part of the war was not there because he was a friend of the German regime, but otherwise, because he was a Jew or a Socialist. That is the kind of case that we should like looked at, although the other does fall into a separate category. The noble Lord may find he can do something about the one case, if he cannot about the other. I should not like it to be thought that the whole thing stands or falls together. That is really the purpose of my intervention.

LORD REA
Would the noble Lord forgive me for suggesting that he should not overlook a rather unusual and not altogether small category—that is, the men and women who actually went into enemy-occupied territory during the war for the specific purpose of serving the Allied cause?

§ LORD MANCROFT
The very point that the noble Lord has made accentuates my difficulty. If we were to stop for ten minutes and all think of a hard case, I suppose we could all produce an almost unanswerably hard case. How are we to separate the hundreds of different examples there will be of various stages of virtue? I will not take up more time on 1106 the point now. I see the noble Lord's difficulty; I hope he sees mine, too.

§ LORD SILKIN
I said so.

§ LORD MANCROFT
I will do my best to see that somebody will produce a better answer than I have thought out. I see very great difficulty in meeting the noble Lord on his particular definition.

§ LORD LUCAS OF CHILWORTH
I am grateful to the noble Lord. Perhaps we can get together. If we fail, then we fail, but do not let us fail through lack of trying.

§ Clause 5, as amended, agreed to.

§ Clause 6:

§ Infringements of copyright

§ 6.—(1) The following provisions shall have effect where at any time within the war period—

(a) a person acting on behalf of the Crown, or a person authorised by a person so acting, did anything the doing of which was an infringement of the copyright in a work, or
(b) a person acting on behalf of the Crown or on behalf of a Power allied with His late Majesty, or a person authorised by a person so acting, brought into any part of His Majesty's dominions, without infringing copyright, or brought into the territory of any Power allied as aforesaid, a work in which copyright then subsisted or a copy of such a work,

and at the time of the taking of the action described in paragraph (a) or (b) of this subsection, as the case may be (in this section referred to as "the relevant action"), there subsisted in the copyright an interest which either was then a German enemy interest or was properly treated as a German enemy interest by the person by whom or under whose authority the relevant action was taken:

§ Provided that the said provisions shall not have effect if the copyright in question came into existence on or after the twenty-ninth day of March, nineteen hundred and forty-nine.

§ (4) For the purposes of this section an interest in the copyright in a work shall be deemed to have been properly treated by a person as a German enemy interest if, at the time when the relevant action was taken, the work or a copy thereof was in that person's possession or under his control in consequence of the removal of the work or a copy thereof from Germany:

§ Provided that an interest shall not be deemed to have been so treated if the relevant action was taken in circumstances affording reasonable grounds for believing that the interest was not a German enemy interest.

§ (5) For the purposes of this section a certificate issued by or on behalf of the Minister or Board in charge of any Government department stating, as respects the doing of anything 1107 specified in the certificate in relation to a work so specified,—

(a) that it was done by or under the authority of a person acting on behalf of the Crown or of a Power so specified, or
(b) that it was done as aforesaid and that at the time when it was done the work or a copy thereof was in the said person's possession or under his control in consequence of the removal of the work or a copy thereof from Germany

shall in any proceedings be sufficient evidence of the facts so stated except to any extent to which the certificate is shown to be incorrect.

§ (6) In this section the expression "copy," in relation to a work, means any document or thing recording or reproducing, in any material form whatsoever, the whole or a substantial part of that work.

§ LORD LUCAS OF CHILWORTH
This Amendment is similar to an Amendment of mine that I moved earlier. I do not want to weary your Lordships unnecessarily. I beg to move.

§ Amendment moved— Page 6, line 13, after ("acting") insert ("in good faith").—(Lord Lucas of Chilworth.)

§ On Question. Amendment agreed to.

§ LORD LUCAS OF CHILWORTH moved, in paragraph (a) of subsection (1), after "Crown" to insert "and authorised so to act." The noble Lord said: This, again, I hope, will appeal to the noble Lord as being a very simple Amendment. I think it makes better drafting, although I always hesitate to set myself up as a Parliamentary draftsman. The Amendment is self-explanatory. I do not think I need say any more, but I hope the noble Lord will accept it. I beg to move.

§ Amendment moved— Page 6, line 13, after ("Crown") insert ("and authorised so to act").—(Lord Lucas of Chilworth.)

§ LORD MANCROFT
It is very regrettable to me that the more naively and innocently confident the noble Lord, Lord Lucas, is in the validity of his arguments, the more distressing I find them. I think he must have his tongue in his cheek in seriously suggesting that this Amendment should be acceptable. Would he just consider for a moment what would be its results? Under the clause as drafted, the relevant action must have been taken by a person acting on behalf of the Crown or on behalf of an Allied Power or by some other person authorised by him. For a person to be said to be 1108 acting on behalf of the Crown, he must have some authority for so acting, and such authority would either be expressed or implied. The Amendment that the noble Lord has put down might very well be construed as meaning that evidence would have to be given of the possession at the time of some formal authority, particularly as no corresponding Amendment has been proposed to subsection (5). But the point is that in most cases that would not have been possible, so far as I can see. The noble Lord, possibly, can think of one or two cases, but in the vast majority it would not be possible and it is even less possible to-day. I really think that if the noble Lord will "work that one out," he will see that his drafting not only is unnecessary but might lead to embarrassing consequences if carried out.

§ LORD LUCAS OF CHILWORTH
I am afraid I do not agree with the noble Lord. I am sorry I am getting naive. I have been accused before of many things, but never of that. This is a Bill dealing with a very difficult set of circumstances. May I just go back to Clause 1 (a), where we find the expression that anybody "purporting to act" in a certain way is covered by this Bill. It does not say that he must have any authority—he purports to act. In Clause 6 we are dealing with copyright, and anybody can say, "I was acting on behalf of the Crown." The clause does not say that he must have some authorization; he need not even be a competent authority.

THE LORD CHANCELLOR
Is not this bound up with subsection (5)?

§ LORD LUCAS OF CHILWORTH
I do not know. I will listen to the noble and learned Lord. I do not want to stress this point, but I am coming to an Amendment later on which I think will illustrate my difficulty here. There may be many people who were acting in Germany and who innocent people thought were authorised to do things. In fact, they may not have been authorised and they are not covered under this Bill. I am going to cite a case later on. I want to make certain that no innocent person is caught by—can I say—an impersonator, and therefore I submit these words should read: a person acting in good faith on behalf of the Crown and authorised so to act. 1109 I do not think that is going to complicate matters. I believe that in the last analysis, these words are going to help. I know that the noble Lord's advisers always have a vested interest in the wording of these things and do not like people to come along and suggest something that may be better drafting, but I sincerely hope that the noble Lord himself will not take that view. I think this is better drafting and will safeguard many people who may be subject to action but are not covered by this Bill. The umbrella that you have erected is very wide, and I do not think this widens it much more. Before the noble Lord turns the Amendment down completely, I would ask whether it can be the subject of discussion, because perhaps the further arguments that will be raised on some of the other clauses may throw a different light on the question. I will withdraw the Amendment for the time being, if the noble Lord will give me his undertaking that it can form the subject of discussion; and if the noble Lord convinces me that it is no good, I shall not press the matter further.

THE LORD CHANCELLOR
May I convince the noble Lord? It is a question of fact—namely, was the man acting on behalf of the Crown or was he not? This is linked up with subsection (5). It is a matter of evidence whether or not he was so acting. Under the subsection we make a certificate that he was so acting. It is not conclusive but is prima facie evidence that he was so acting. You do not need anything more than that.

§ LORD LUCAS OF CHILWORTH
The noble and learned Lord, the Lord Chancellor, has convinced me, and I shall withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ LORD LUCAS OF CHILWORTH
This is consequential. I beg to move.

§ Amendment moved— Page 6, line 17, after ("acting") insert ("in good faith").—(Lord Lucas of Chilworth.)

§ LORD MANCROFT
We accept that Amendment.

§ On Question, Amendment agreed to.

1110

§ 4.51 p.m.

§ LORD LUCAS OF CHILWORTH moved to omit the proviso to subsection (1). The noble Lord said: This is a simple point. I want to ask the noble Lord how the date March 29, 1949, was arrived at. In my view, March 29, is one of the red letter days of the calendar—it happens to be my birthday; but that is no good reason for putting it in this Bill. I expect there is a simple explanation. I have tried to find out what is the significance of that day. I expect the noble Lord has a good answer. Would he please tell me? I beg to move

§ Amendment moved— Page 6, line 31, leave out lines 31, 32 and 33.—(Lord Lucas of Chilworth.)

§ LORD MANCROFT
I have, and I will. It was, alas! not the noble Lord's birthday that I had in mind, but had I known that, of course, I should have had extra weight to this argument. The significance of the date March 29, 1949, as referred to in lines 32 and 33, is that copyrights in new works of German authors created after that date have net been subjected to control under the Trading with the Enemy (Authorisation) (Germany) Order, 1949. In line with this, the proviso which the Amendment would leave out preserves from the operation of Clause 6 a claimant's rights in respect of such works. It merely makes things easier for the Germans. I am quite certain that that is an explanation which meets with the noble Lord's approval.

§ LORD LUCAS OF CHILWORTH
The coverage ceased on March 29, 1949?

§ LORD MANCROFT
On this particular point.

§ LORD LUCAS OF CHILWORTH
Then I beg leave to withdraw this Amendment.

§ Amendment, by leave, withdrawn.

§ LORD LUCAS OF CHILWORTH
Again, perhaps the noble Lord has an answer to this question. Should not the words in subsection (4), "For the purposes of this section" read "for the purposes of subsection (1) of this section"? What effect has this subsection on subsections (2) and (3)? The noble Lord may have an answer to that, but it appears 1111 that subsection (4) is intended to apply only to subsection (1) of this clause. I cannot see that it relates to subsections (2) and (3). It is a small point, but perhaps the noble Lord has some reason for relating it also to subsections (2) and (3). I beg to move.

§ Amendment moved— Page 7, line 4, after ("of") insert ("subsection (1) of").—(Lord Lucas of Chilworth.)

§ LORD MANCROFT
The noble Lord is quite right. We accept his Amendment willingly.

§ On Question, Amendment agreed to.

§ LORD LUCAS OF CHILWORTH moved to omit subsection (5). The noble Lord said: This is another of what I might term the certificate Amendments. If the noble and learned Lord, the Lord Chancellor, will tell me that the argument that he adduced on a previous Amendment is applicable to this I will not repeat my argument. I beg to move.

§ Amendment moved— Page 7, line 14, leave out subsection (5).—(Lord Lucas of Chilworth.)

THE LORD CHANCELLOR
Yes. Although this is a different subject matter, the argument is precisely the same. Here, too, the Committee will see that the certificate is not made conclusive but prima facie evidence of the facts so stated.

§ Amendment, by leave, withdrawn.

§ LORD LUCAS OF CHILWORTH moved, after subsection (5) to insert: (6) For the purposes of this section any person who, in doing or authorising the doing of anything, was acting on behalf of the Crown or of a Power allied with His late Majesty shall be deemed so to have acted in good faith unless the contrary is proved.

§ The noble Lord said: Exactly the same considerations apply to this Amendment as applied to the Amendment in relation to the other Part of the Bill. I beg to move.

§ Amendment moved— Page 7, line 28, at end insert the said subsection.—(Lord Lucas of Chilworth.)

THE LORD CHANCELLOR
We accept that.

§ On Question, Amendment agreed to.

§ Clause 6, as amended, agreed to.

1112

§ Clause 7:

§ Infringements of patents and registered designs

§ (2) The last foregoing subsection shall not apply to an infringement of a patent sealed, or of the copyright in a design registered, in pursuance of an application made on or after the eighth day of April, nineteen hundred and forty-eight.

§ LORD LUCAS OF CHILWORTH moved to leave out subsection (2). The noble Lord said: This again is simply a probing Amendment. Would the noble Lord tell me why the date April 8, 1948, was selected? I beg to move.

§ Amendment moved— Page 7, line 41, leave out subsection (2).—(Lord Lucas of Chilworth.)

§ LORD MANCROFT
The significance of this date, April 8, 1948, is that it was the date on which German enemies were enabled once again to take out patents for inventions, and to register designs in the United Kingdom Patent Office under an Order of that date.

§ LORD LUCAS OF CHILWORTH
I withdraw that Amendment.

§ Amendment, by leave, withdrawn

§ Clause 7 agreed to.

§ Clause 8:

§ Crown use of patented inventions and registered designs

§ (3) The last foregoing subsection shall not affect any claim in respect of the use of a patented invention or of a registered design, if the relevant patent was sealed, or the design registered, in pursuance of an application made on or after the eighth day of April, nineteen hundred and forty-eight.

§ LORD LUCAS OF CHILWORTH moved to leave out subsection (3). The noble Lord said: In moving this Amendment I assume that the explanation which the noble Lord gave as regards the date also holds good here. I just want to know why the date April 8, 1948, was chosen. Perhaps the noble Lord will give me that assurance. I beg to move.

§ Amendment moved— Page 8, line, 35, leave out subsection (3).—(Lord Lucas of Chilworth.)

§ LORD MANCROFT
I can and will give the noble Lord that assurance.

§ Amendment, by leave, withdrawn.

§ Clause 8 agreed to.

1113

§ Clause 9 [Disclosure of information about inventions, etc., in breach of contract]:

§ LORD LUCAS OF CHILWORTH moved to leave out subsection (2). The noble Lord said: We now come to another of the certificate Amendments, but this is slightly different. This is the one which the noble and learned Lord the Lord Chancellor said brings in the words "shall be conclusive evidence of the facts so stated." This is the clause dealing with disclosure of information about inventions, and this is what subsection (2) says about the certificate: 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 to any person any information, model or 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. If the noble and learned Lord the Lord Chancellor will again tell me that it is absolutely necessary to safeguard all the interests, and that he is perfectly satisfied that it does not go too far, I do not think I shall argue the case any more. I beg to move.

§ Amendment moved— Page 10, line 8, leave out subsection (2).—(Lord Lucas of Chilworth.)

THE LORD CHANCELLOR
I am much obliged to the noble Lord for what he has said. The distinguishing feature here is this. The clause deals with a case where a person disclosed or supplied any information, model and so on, relating to an invention, design or process and did so at the request of a Government 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.… It must be conclusive. The view which the Department takes upon those facts must be conclusive and not open to challenge. There cannot be any evidence to displace it. It is for the Department to say whether it appeared to the Department to be: in the interests of the defence of the realm or otherwise in the public interest. 1114 Therefore, we thought—and I venture to put it to the Committee—that this is a case where you can have a stronger form of clause making a certificate conclusive. That is very much on the lines of the procedure which I read out from the Crown Procedure Act, 1947, where a similar provision was accepted. I think this is a case where the stronger form of provision is justifiable and, indeed, necessary. The noble Lord asked me if I think it necessary, and I answer that I do.

§ LORD LUCAS OF CHILWORTH
I am not going to argue with the noble and, learned Lord on the question of necessity. I agree with him. But there is one thing I do not like about this—I hope I am not saying anything remiss, but I do not like the words: on behalf of the Minster or Board in charge of a Government department. I think the burden of issuing a certificate like this should be on a responsible Minister of the Crown, perhaps a Secretary of State. What is a Government Department? This is a very serious matter. I am convinced by the noble and learned Lord's argument about the question of evidence of the facts so stated, but I do not think the authority can be too high. Would he consider putting down an Amendment to the words to which I have just referred?

THE LORD CHANCELLOR
I take it that the noble Lord refers to the words: a certificate issued by or on behalf of the Minister or Board in charge of a Government department.

§ LORD LUCAS OF CHILWORTH
That is so.

THE LORD CHANCELLOR
I will gladly consider that.

§ LORD LUCAS OF CHILWORTH
In view of that undertaking I will withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 5.3 p.m.

§ On Question, Whether Clause 9 shall stand part of the Bill?

§ LORD LUCAS OF CHILWORTH
I wish to ask the noble Lord again whether he will be so kind as to tell me whether I am right in my belief as to the meaning 1115 of the expression "German enemy covenantee" in Clause 9 (4). I take it that a German enemy covenantee must be—f I may use the expression a legitimate German enemy. He cannot even be someone purporting to be a German enemy If that is so, and if someone, perhaps a Dutchman, an American or another Englishman in Germany, had obtained the sort of information with which the clause deals and had passed that information on to an English manufacturer, and the English manufacturer disclosed it and started manufacturing or producing under it, the real, original holder, the German covenantee, I assume, could obtain redress, because the intermediary had put himself out as something which he was not—a German enemy. In other words, the Bill does not give that coverage. I feel certain that the noble and learned Lord will agree that this is something which he should look into. I hope I have made my point clear. It may be that someone in this country whom the Bill seeks to cover can be liable to action because he has taken a non-German enemy to be a German enemy and, under this clause, a German enemy covenantee. Would the noble Lord look into that point between now and the next stage of the Bill?

§ LORD MANCROFT
I must confess that I lost track of the noble Lord's argument half way through. No doubt that was my fault and not his. I will look at the noble Lord's point and if there is anything in it it shall be met, if possible, or at least an adequate answer shall be given to him. I am afraid that at the moment an answer cannot come from me.

§ Clause 9 agreed to.

§ Clause 10:

§ Property allocated by way of reparation from Germany

§ For the purposes of this section a certificate issued by or on behalf of the Minister or Board in charge of a Government department (in this subsection referred to as "the certifying department") with respect to any property specified in the certificate, being property which at the date of issue of the certificate is in the possession of the certifying department or has before that date been disposed of by that department, stating that the property was allocated to His late Majesty's Government in the United Kingdom on a date so specified, with or without the further statement either that the property was at the 1116 date of allocation thereof in the possession of the certifying department or that the property came into the possession of that department on a date so specified in consequence of its having been so allocated, shall in any proceedings be sufficient evidence of the facts so stated except to any extent to which the certificate is shown to be incorrect.

§ (6) This section applies to the following descriptions of property, that is to say,—

(a) plant, equipment, ships, aircraft and other chattels; and
(b) currency (in the form of notes or coins) of any of the following countries, namely, Sweden, Portugal, Switzerland, Turkey and Spain.

§ LORD LUCAS OF CHILWORTH moved to leave out subsection (5). The noble Lord said: This is just another of the "certificate" Amendments. If the noble and learned Lord will again give me the assurance that he is satisfied with this subsection, on the same grounds as before, I will not press the Amendment. In the meantime, I beg to move the Amendment.

§ Amendment moved— Page 11, line 31, leave out subsection (5).—(Lord Lucas of Chilworth.)

THE LORD CHANCELLOR
There is a very strong case for a provision of this kind. The clause, as a whole, deals with property which has been allocated from Germany by the Inter-Allied Reparation Agency. It is therefore necessary, before any property can be brought within the scope of the clause, to prove that it was allocated by I.A.R.A. on a particular date and to a particular Government. Without a provision of this kind there would be considerable difficulty. This is not a case where a certificate is made conclusive. I can certainly give the noble Lord the assurance for which he has asked.

§ LORD LUCAS OF CHILWORTH
In view of the noble and learned Lord's explanation, I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ LORD LUCAS OF CHILWORTH had given Notice of an Amendment, in subsection (6), to leave out paragraph (b). The noble Lord said: Since I put this Amendment down I think I have stumbled upon the answer. Am I right in saying that the currencies of Sweden, Portugal, Switzerland, Turkey and Spain 1117 are mentioned in this subsection only because they were neutral countries? I do not propose to move the Amendment.

§ LORD MANCROFT
The noble Lord is correct in his assumption—with the exception, of course, of Turkey, which did come into the war at the end. I will not weary noble Lords by explaining the point further.

LORD HAWKE
Can the noble Lord tell us why other currencies, such as American currencies, are not specified? There is a lot of American currency on the Continent. I wonder why that has not been specified.

§ LORD MANCROFT
These are currencies which have been treated by the Allied High Commission as German external assets, and have been made available as reparation in accordance with the Potsdam Declaration.

§ On Question, Whether Clause 10 shall stand part of the Bill?

§ LORD LUCAS OF CHILWORTH
Clause 10 applies to property allocated by the Inter-Allied Reparations Agency to any Allied Government. May I ask the noble Lord whether there is corresponding legislation in other countries to cover this point? Does this apply to property allocated to this country only? What happens to property allocated to an Allied Government which sold that property so that it has now found its way to this country? Is that point covered?

§ LORD MANCROFT
So far as this Bill goes, it applies only to property allocated to His late Majesty's Government. The case which the noble Lord has mentioned raises quite a different point, and one which is certainly not covered by this Bill.

§ LORD LUCAS OF CHILWORTH
I want to be clear on this matter. German property can find its way into this country via an Allied country. That is not provided for in this Bill. Has the noble Lord considered whether any hardship would be caused in this way?

§ LORD MANCROFT
I have not considered that case at all. It has not arisen so far, but I certainly will consider it. It is not covered by the Bill.

§ Clause 10 agreed to.

1118

§ Clause 11:

§ Other property seized from Germany

§ (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 with respect to any property specified in the certificate, being property which at the date of issue of the certificate is in the possession of that department or has before that date been disposed of by that department, stating that the property was on a date so specified imported into the United Kingdom by or under the authority of that department as property seized from Germany, shall in any proceedings be sufficient evidence of the facts so stated except to any extent to which the certificate is shown to he incorrect.

§ LORD MANCROFT moved, in subsection (1), after "property" (where that word first occurs), to insert: of any description to which the last foregoing section does not apply, and as regards property of any description to which that section does apply but.

§ The noble Lord said: This Amendment and the next go together. They are designed to remove a doubt which has arisen since Second Reading. The expression "property" is defined in Clause 15 (1) as haying a very wide meaning except where the context otherwise requires. In Clause 10, however, the word "property" has a restricted meaning, and as Clause 11 is in a sense tied up with Clause 10, a doubt has been expressed whether it has a similar restricted meaning in this case. The Amendment makes clear that it has not, and that the clause covers all property as widely defined, provided, of course, that it has not been allocated by I.A.R.A. I think that point is clear, but it is as well to put it in the Bill to make it absolutely clear.

§ Amendment moved— Page 12, line 29, after ("property") insert the said words.—(Lord Mancroft.)

§ On Question, Amendment agreed to.

§ LORD MANCROFT
This Amendment is consequential. I beg to move.

§ Amendment moved— Page 12, line 30, leave out ("the last fore going section but") and insert ("that section, being in either case property which").—(Lord Mancroft.)

§ On Question, Amendment agreed to.

§ LORD LUCAS OF CHILWORTH moved to leave out subsection (2). The noble Lord said: This Amendment is the 1119 last of these certificate Amendments. If the noble Lord again will give me an assurance upon this, I will withdraw the Amendment, but in the meantime I beg to move.

§ Amendment moved— Page 13, line 1, leave out subsection (2).—(Lord Lucas of Chilworth.)

THE LORD CHANCELLOR
I can give the noble Lord the same assurance. This is precisely the same point, and here also the evidence is not made conclusive but only prima facia.

§ LORD LUCAS OF CHILWORTH
I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ LORD MANCROFT
This Amendment is required because, with the lapse of time and the destruction of records, it is not always possible for Government Departments to be certain now of the exact dates on which particular property was imported into the United Kingdom by or under their authority as property seized from Germany. Sometimes only the approximate date is known while in other cases not even this is recorded and all that can be said is that the property was imported before a terminal date. The effect of the Amendment is that where the exact date of importation cannot be stated it will suffice to state two dates between which importation is known to have taken place. These dates, of course, will have to be after September 3, 1939, and before the date of the passing of this Bill, if the benefit of this clause is to be obtained. I think this Amendment is uncontroversial, and I hope your Lordships will agree to it. I beg to move.

§ Amendment moved— Page 13, line 7, after ("specified") insert ("or at a time between dates so specified").—(Lord Mancroft.)

§ On Question, Amendment agreed to.

§ LORD MANCROFT
The object of this Amendment is to provide a ready means of proving a negative. Where a particular item of property—a machine tool, for example—of a description to which the former Clause 10 applies, was taken out of Germany without being allocated by I.A.R.A., it will be necessary to establish the fact of non-allocation if the benefit of Clause 11 is to be obtained. The easiest way of doing this is by providing that the certificate to be given by 1120 the Department may state that the property has not been allocated. Such a statement would he made on the basis of the I.A.R.A. allocations, which will be in the possession of Departments. I think that is a reasonable administrative procedure. I do not think it involves any point of controversy. I beg to move.

§ Amendment moved— Page 13, line 9, after ("Germany") insert ("with or without the further statement that the property has not been allocated as mentioned in subsection (1) of the last foregoing section").—(Lord Mancroft.)

§ On Question, Amendment agreed to.

§ On Question, Whether Clause 11, as amended, shall stand part of the Bill?

§ LORD LUCAS OF CHILWORTH
Again I am a seeker after information. This clause deals with other property seized from Germany. The property can be seized from Germany under the authority of a Government Department even after the war, and even though it was done wrongfully. Surely the umbrella is very wide here. I should like to ask why the coverage terminates "at any time after the third of September, 1939, and before the passing of this Act." Surely, as this clause is drafted, the property seized from Germany does not even have to be German property—it could be American or any other property, because the clause says: "property seized from Germany." If my interpretation is right, surely the Government do not want to cover that kind of thing. Perhaps it is a slip. I hope the noble Lord will agree with me that, as the Bill is drafted, the property need not be German enemy property it has only to be "seized in Germany." Will the noble Lord look into that?

THE LORD CHANCELLOR
I think the noble Lord has put his finger upon a point. This refers to property which has been seized. I do not know whether the noble Lord has in mind any case or example of any property which was not German property that was seized "by or under the authority of a Government Department." We have not heard of any such case, and I do not know whether the noble Lord has; but we will look into this and, if necessary, in order to make the matter quite clear, we will take the necessary steps. I think the noble Lord, with his eagle eye, has spotted what may be a flaw, though I do not think it is a practical one.

1121

§ LORD LUCAS OF CHILWORTH
Unfortunately, the noble and learned Lord the Lord Chancellor has not had the experience of the noble Lord, Lord Mancroft, and myself. Some weird and wonderful things have found their way out of Germany. I should not like to say, in the strict letter of the law as the noble Lord would regard it, that this was done in any instance with the connivance, consent or under the authority of a Government Department, but it is a loose term and that sort of thing has been going on since the war ended. I think this clause is loosely worded, and that the noble and learned Lord will feel that, as we are dealing with enemy property, we had better make sure it is enemy property. I thank the noble and learned Lord for the assurance he has given to look into the point.

§ Clause 11 agreed to.

§ Clause 12 [Meaning of "German enemy" and "German enemy interest"]:

§ LORD LUCAS OF CHILWORTH
I beg to move this Amendment. Again I think the scope of the Bill is a little wide here, and far wider than the Government intend. The words used in subsection (1) are: … and the expression 'German enemy interest,' in relation to any time within the war period, means an interest then belonging to, or held on behalf of, a German enemy"— then come the words which I seek to strike out— or belonging to, or held on behalf of, two or more persons of whom any one was then a German enemy. If a Britisher, or two Britishers, or three Britishers, or twenty Britishers were in partnership with one German enemy, they lose their property. Surely, the Government do not mean that, but that is how I read this. If I am wrong, what is the reason for including the words which I seek to omit? Surely, that would cause considerable hardship to a legitimate British interest. Perhaps I am wrong in my reading of and if so, no doubt I shall be told. I beg to move.

§ Amendment moved— Page 13, line 34, leave out from ("enemy") to end of line 36.—(Lord Lucas of Chilworth.)

§ 5.22 p.m.

§ LORD MANCROFT
I can quite see the noble Lord's difficulty—this is not an easy matter—but I think I can satisfy him. It is directed largely to the patents 1122 and copyrights we have just been discussing. I will put it this way. Supposing that one of two or more co-owners of an interest was at any time within the war period a German enemy, as defined, the effect of the definition in the Bill is that all the co-owners are disqualified from claiming in respect of that interest. If a United Kingdom patent were owned jointly by two companies, one incorporated in Germany and the other in South America, a British manufacturer who had infringed the patent during the war period would therefore be protected against an action, whether the German brought it directly or indirectly through the South American company.
This line has been taken advisedly, arid the point of view which the noble Lord has put forward has been considered. British manufacturers may well have infringed patents which were owned jointly by German enemies and others during the war period in the bona fide belief that no licence was required. Indeed, the difficulty of deciding, without litigation, whether a patent has been infringed is one of the main reasons for Clause 7 of the Bill. If it has been, they should not be exposed to the risk of a claim being made simply because a particular patent was jointly owned by a German and a non-German. The Amendment the noble Lord has down would expose them to this risk, if the Amendment were carried, although I appreciate that it is largely a probing Amendment. The practical effect of accepting it would be that in cases of interest owned jointly the Bill would apply only where all the owners were German.
There is another point to be borne in mind. A claim made by a German partnership, of which only one of the partners is a German enemy, as defined, could, as the Bill stands, be resisted on two grounds. First, it could be said to be a claim made in right of an interest belonging to a body of persons, whether corporate or unincorporate, being a body incorporated or constituted in or under the laws of Germany. If this could not be maintained because a partnership was held not to be a body of persons, it could, secondly, be held to be a claim made in respect of an interest belonging to two ormore persons of whom any one was a German enemy. If, however, the Amendment were accepted, this second line of defence would no longer exist. Let 1123 me give an example, which I think will show what I am trying to get at: a patent owned jointly by, say, the German who invented it and the Englishman who exploited—it I think that is a good example of an interest belonging to, or held on behalf of, two or more persons, of whom one was a German enemy. What we do not want to do is to allow a German to use a neutral or a non-German partner, or fellow business associate, as a catspaw to get for him rights or privileges which he could not himself get purely in his capacity as a German. I appreciate the difficulty the noble Lord has in mind, but I think it is more apparent than real, and that no great hardship, as he envisages, could or would arise out of the Bill as it now stands. I hope that that explanation will satisfy the noble Lord.

§ LORD SILKIN
The answer of the noble Lord is, of course, a partial answer, and, in so far as we are dealing with patents, I think it is a good answer. But this part of the Bill goes much wider than patents—it deals with many more subjects. While it may be perfectly valid when we deal with patents, it seems to me that it can operate harshly where the interest concerned is largely British, or largely neutral, and only to a small extent German. Therefore, I would respectfully suggest that this is a case where this definition might be looked at again. I personally should be perfectly prepared to give the noble Lord his case on patents, because I can see the difficulty; but as regards the other property, I think it is well worthy of consideration to see whether we cannot deal with it on the basis of "a substantial interest," or some thing of that sort.

§ LORD MANCROFT
Of course, I will look at it if the noble Lord still feels worried. I must confess that I was directing my argument largely towards patents, because that is what we were discussing previously. I can see the point that any matter other than patents requires a little more careful investigation, and I will certainly look into it to see if we can meet the noble Lord in some way.

§ LORD LUCAS OF CHILWORTH
While I appreciate that the noble Lord's argument was conclusive for 50 per cent., 1124 it was not for the other 50 per cent. Perhaps we can discuss this. On that undertaking, I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ On Question: Whether Clause 12 shall stand part of the Bill?

§ LORD LUCAS OF CHILWORTH
This is where we come to the other definition of "German enemy." When it comes to patents and copyright I do not think I have a great deal to quarrel about, although I do not really like it. The clause refers to a "German enemy" as:

"(a) the German State;

(b) an individual being a German national—

(i) resident in Germany or in enemy territory other than Germany …"

That, again, is all-embracing. I will content myself by asking the noble Lord to look at this, as he has promised to look into the other definition of "German enemy." I do not think we need have a long debate on this. I am conscious of the difficulties of the noble Lord—I think really I am being far too kind to him. If he will undertake to look into this point, subject to anything any of my noble friends may have to say I am prepared to leave it at that.

§ LORD MANCROFT
I will certainly look into it, without making any further promise.

§ Clause 12 agreed to.

§ Clause 13:

§ Interpretation of Part II

§ 13.

§ (2) In relation to an interest which at a time relevant for the purposes of any provision of this Part of this Act was a German enemy interest, references in that provision to a person claiming in right of that interest include references to a person claiming in right of any interest created immediately or derivatively out of that interest, whether before or after the passing of this Act, except any interest so created—

(a) before the beginning of the war period, or
(b) before the earliest time within that period at which that interest was a German enemy interest.

§ (3) Where any provision of this Part of this Act has effect in relation to an interest as being an interest properly treated as a German enemy interest as therein mentioned, the last 1125 foregoing subsection shall apply for the purposes of that provision in relation to that interest, but shall so apply as if paragraph (b) of that subsection had been omitted.

§ LORD LUCAS OF CHILWORTH
This Amendment, again, is only to ask the noble Lord: Did the war end on July 9, 1951? Subsection (1) says: 'The war period' means the period beginning with the third day of September, nineteen hundred and thirty-nine and ending with the ninth day of July, nineteen hundred and fifty-one. My only reason for putting down this Amendment is to question the date. I expect the noble Lord has a good reason for it, but I should like to hear it. I beg to move.

§ Amendment moved— Page 15, line 6, leave out from ("the") to end of line 7.—(Lord Lucas of Chilworth.)

§ LORD MANCROFT
July 9, 1951, was the date on which the state of war with Germany was formally terminated, and therefore the period in question, September 3, 1939 to July 9, 1951 is the period that would normally be covered by a waiver of claims in a peace treaty.

§ LORD LUCAS OF CHILWORTH
I am grateful to the noble Lord. If I had consulted my noble friend Lord Henderson, no doubt he could have told me, but I omitted to do that. I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ LORD LUCAS OF CHILWORTH moved to leave out subsection (3). The noble Lord said: This Amendment was put down in order to get some explanation of this subsection. I do not know what its effect is. Can the noble Lord tell me why it provides that paragraph (b) of subsection (2) shall be omitted? I cannot read it intelligently. I expect that is my fault and that there is a very simple explanation, but I should be grateful if the noble Lord would tell me why paragraph (b) is omitted.

§ Amendment moved— Page 15, line 18, leave out subsection (3).—(Lord Lucas of Chilworth.)

§ LORD MANCROFT
I will try to fulfil the noble Lord's request, but I will not guarantee any success, because this, again, is a particularly complicated clause. I think one of the best explanations I can give is by referring to the preceding subsection—subsection (2). The object of 1126 subsection (2) is to ensure that in seeking power to bar proceedings by a person claiming in right of a German enemy interest, proceedings by a person claiming in right of an interest derived out of the German enemy interest are also barred. The justification for so doing is that anyone who after the war acquired an interest which was created out of the interest of a German must be presumed to have known that he was engaging in a transaction in respect of which claims for loss or damage might be barred by Allied legislation if Germany lost the war. There could be no justification, however, for making this presumption about persons who acquired interests from Germans before the beginning of the war, or about persons who acquired interests after the beginning of the war at a lime when the superior interest was not German-owned, though it subsequently became so. Hence, the two exceptions to the subsection.
Subsection (3) then applies the principle of subsection (2) to persons claiming for infringement of copyright in right of an interest derived out of an interest which was properly treated for the purposes of Clause 6 of the Bill as a German enemy interest. It is impossible to apply the test of the earliest date on which an interest became a German enemy interest in a case when ex-hypothesi the interest never was a German enemy interest, and the subsection accordingly provides that paragraph (b) of the preceding subsection is not to apply in this case. Subsection (2) of Clause 13 refers to interests created immediately or derivatively out of a German enemy interest. An example of the former would be a charge—for example a mortgage or a lien created by way of security on a German-owned patent. An example of the latter would be a sub-licence granted by a licensee of a German-owned patent. Let me give a further example. Supposing a German, A, grants a mortgage in favour of B. Normally the effect is that such action—not only the claim of A but also the claim of B—is affected if the mortgage was created after the beginning of the war period or after the date upon which A became an enemy or derived his title from some non-enemy. This is complicated, I agree, but I have been through it very carefully and checked it in order to make certain that no injustice is being 1127 created. I hope I have satisfied the noble Lord, but even if he has not been able to follow this complicated explanation he will agree that this is a fair and just provision and one that should be allowed to stand.

§ LORD LUCAS OF CHILWORTH
I am grateful to the noble Lord for going to so much trouble. I am not saying that I see the point, but at least I think I have some slight glimmering. I will study what the noble Lord says in consultation with my advisers; and in the meantime I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ Clause 13 agreed to.

§ Clause 14 agreed to.

§ LORD LUCAS OF CHILWORTH moved, after Clause 14 to insert the following new clause:

§ Cessation of enforcement of charges under the Treaty of Peace Act, 1919

§ ". No charge imposed or purported or sought to he imposed by the Treaty of Peace Act, 1919, or any order made thereunder upon any property rights or interests belonging to persons who were at the date of any such Act or order or had at any time previously since the 4th August, 1914, been German nationals shall after the commencement of this Act he enforced or have any effect."

§ The noble Lord said: I should like to deal now with Amendments Nos. 46 and 47 standing in my name on the Paper. The reason may appear to some of your Lordships somewhat unusual. It is this. When I had the honour of being a member of His late Majesty's Government and sat on the other side of the House I was responsible for piloting through this House a Distribution of German Enemy Property Bill—which, again, was a somewhat complicated Bill, though I do not think it was so complicated as this one. During the passage of that Bill through the House the noble and learned Viscount, Lord Simon, moved an Amendment to it, to insert a new clause to the following effect: That the Treaty of Peace Act, 1919, is hereby repealed and any Order-in-Council made under it is cancelled, and no charge imposed or purported or sought to be imposed by the Treaty of Peace Act, 1919, or by any Order made thereunder upon any property rights or interests belonging to German nationals within the meaning of such an Act or Order and not already enforced shall, after the commencement of this Act, be enforced or have any effect.

1128

§ My reply, on behalf of His late Majesty's Government—I need hardly say, on instructions—was to thank the noble and learned Viscount for his Amendment and to point out to him that I thought it went further than even he intended; but I undertook to have the matter re-examined by the Department concerned, and by the Law Officers of the Crown and other interested parties. We acknowledged that there was a grievance—or an injustice: perhaps that is the better term to use—which we sought to remove, and said that we would proceed with the consideration as soon as we possibly could. Lord Simon, on that assurance, withdrew his Amendment. Now, it was considered by the Law Officers of the Crown, who immediately got into some difficulties—I think I am right in saying this—that never, throughout the consideration of this matter, was it denied that under the Treaty of Peace Act, 1919, hardship could be caused. But there was a substantial difference of opinion as to the way it should be overcome. In the middle of these consultations the Government changed. I believe that the existing Law Officers of the Crown have had this matter under active consideration and—again I can only speak from what I have been told—that they have come to the same conclusions as the previous Law Officers.

§ It was said that the matter might be dealt with when legislation dealing with Germany enemy property was before Parliament, but as no public pronouncement has been made about this matter and my undertaking still stands upon the records of your Lordships' House, I felt some responsibility. Therefore I thought it might be in the public interest, if this Bill was going to rectify and could rectify this unfortunate injustice, that I should obtain advice as to the right way to do it. I was advised that the Amendments that have been put on the Order Paper are the right Amendments to make. I am also advised that the long title to the Bill might have to receive some slight amendment.

§ I am not going to argue the merits of the Amendments because—I again fall back on my stock excuse—I am not a lawyer. However, I thought it proper, and in the public interest, to give Her Majesty's Government the opportunity of making an authoritative statement, so that the matter could be settled. I expect—indeed I hope 1129 —that the noble and learned Lord the Lord Chancellor will think fit to express an opinion. He can state the law far better than I can. So, having explained to your Lordships the reason why these Amendments are on the Order Paper—perhaps it is to vindicate my personal honour, if that is not putting it too high—I will now move the Amendment.

§ Amendment moved— After Clause 14, insert the said new clause.—(Lord Lucas of Chilworth.)

§ VISCOUNT SIMON
The noble Lord, Lord Lucas, has explained his concern with this matter, and it does no doubt arise because of a statement which he made when he represented the Board of Trade in the last Government and when I moved the Amendment to which he has referred. But I should explain that I moved that Amendment because my attention was called to what appeared to be an injustice, certainly a very unfortunate result arising from a will. The will in question was the will of Sir Ernest Schiff, who died in November, 1918, just when the first war was closing. He had the shrewd idea that there might be legislation in this country which would affect the rights of the beneficiaries under his will to enjoy his bequests. Therefore, in his will he made a curious provision which, as it turns out, does not confer the benefit upon a particular beneficiary which he no doubt intended, but would have that effect if the noble Lord's Amendment were adopted.
I will just read the clause in the will. It states: If, as a result of legislation in Great Britain owing to the present war"— it was just before the end of the First World War— any of the beneficiaries under this my Will who are German subjects are precluded from taking such interests as I have by this my Will bequeathed to or for their benefit, then I direct that the interests which they would, but for such legislation, have been entitled to take shall be held by my Trustees upon trust to pay the income if such interests consist of income and the income of the capital of such interests if the same consists of capital to my said nephews and nieces who are not German subjects in equal shares until such time as the said beneficiaries who are German subjects are able by reason of any further legislation to take their interests under this my Will. This was a very ingeniously drawn clause, and the effect of it was that other persons, not the beneficiaries whom he intended to 1130 benefit, got the advantage of the provisions of his will so long as there was legislation in Great Brtitain by which the beneficiaries who were German subjects were precluded from taking their interests.
I believe the gentleman who was concerned in this matter was Mr. Noehring, who was a German subject on January 10, 1920, when the Peace Treaty came into force. The contention was raised on his behalf in the Court of Chancery many years afterwards, in 1948, that really the condition in this clause was satisfied and that the time had arrived when the beneficiaries who are German subjects"— which is what at the, time Mr. Noehring was— are able by reason of any further legislation to take their interests under this my Will What was relied upon to establish that was that there was entered into in the year 1929 what was called the London Agreement, and the London Agreement—I have a copy in my hand—was an Agreement made between His Majesty's Government and the German Government which brought an end to the charges which the Custodian had over German property so far as that property was not already liquidated and disposed of.
The interest which Mr. Noehring was given under this will was held under this charge by the Custodian, and the contention in the Chancery Court was, "That is now got rid of, because of this Agreement." The learned judge before whom the case came said, in his judgment: It would seem that the aim and object of Clause 23 in providing for the restoration of German subjects' rights has been substantially achieved as from that date. I have now, however, to consider whether it was achieved by reason of any further legislation. That was the condition contained in the clause.
To that question I feel myself compelled with some reluctance to give a negative answer. Of course, the decision was quite right because the fact that we made an Agreement with Germany, ratified the Agreement and accepted it, is not the same thing as legislation. What was intended was legislation which put an end to the operation of the Treaty of Peace Order after the First World War, and not merely an Agreement of a diplomatic character with the German Government. 1131 That was why I put down my Amendment and why I have no doubt I got the highly favourable and encouraging answer from the noble Lord, Lord Lucas, speaking for the then Government, who expressed the thanks of the Department for my having called attention to this matter. He described it as an injustice which ought to be remedied and, as I understood it, said that the Department would undertake to remedy it. It is no fault of his that that was not done, because the Government for which he spoke did not continue in power.
But here we have a new Trading with the Enemy Act. The clause which is now being moved would have the effect which Mr. Justice Vaisey regretted he could not say had been produced by entering into this diplomatic agreement with Germany. I therefore support what the noble Lord has said, because it seems to me that, it being admitted that it really is unjust that this property should still be under this ban, it is eminently fair and right that we should say, "It is true that this will be required as a condition that there should be further legislation which would remove the charge. There has not been further legislation; there has been only an international Agreement made and ratified. But here is the opportunity of carrying the thing through by means of further legislation." If this clause is included in the Bill, it will not operate to affect the previous situation, except in this sense: that it will produce the desired result by legislation and not merely by an international Agreement which has been ratified and which is accepted by Her Majesty's Government.
It seems to me very hard indeed that a man who is a beneficiary under a will, be he a German or be he not a German, should be told, no doubt quite rightly, by our courts that he is not entitled to claim this benefaction, the proceeds of this legacy, because there has been no further legislation to remove the charge which the Custodian had under the original Treaty of Peace. It seems very odd that in the year 1953 we should be discussing this, because we are here referring, not to the results of the last war but to the results of the war before. I quite understand a possible objection to this Amendment being "It is outside the scope of the Bill, because this Bill 1132 deals only with the charges that were created after the Second World War." But we cannot proceed in this purely technical atmosphere. The subject is difficult enough anyhow, but if it be the case that there is somebody living now who finds he cannot get the benefit which he was plainly entitled to get under this gentleman's will, because it can be truly said there has been no further legislation, then let us make the further legislation, and thereby give him his rights which he obviously was intended to have. Then everybody, I hope, will be satisfied.
There is an alternative relief which is suggested. It is said, "This is a subject for Private Bill legislation. You should promote a Private Bill and, if you do, it will not be opposed"—at least, so I understand. It is a perfectly idle offer. At this period of the Session, it is impossible to carry through both Houses a Private Bill of this sort. Here is an opportunity of doing what is the fair thing in an Act of Parliament dealing with this particular subject. It does not alarm me to be told that it would require alteration of the Long Title of the Bill. Well, alter it. It is quite simple, and if that is done, then it seems to me we shall be dealing fairly with this gentleman. I know nothing about him. I have no interest whatever in the matter, except that my attention was called to it, and I thought it right in the time of the last Government to put down my Amendment. I then received from the noble Lord, Lord Lucas, a very encouraging reply, in which he admitted that there was a case here to be met, and assured me that steps would be taken to meet it. I am not in the least reproaching the noble Lord that it was not done, but I do say that Parliament, having those assurances before them, ought to see to it that this is now done by the Amendment which the noble Lord very properly and honourably moved.

§ 5.56 p.m.

THE LORD CHANCELLOR
This is not an Amendment which Her Majesty's Government can accept. The noble and learned Viscount, in the manner of the great advocate that he was and is, has referred to the fact that it is entirely outside the scope of the present Bill. He said, in effect, that that does not matter:—"Alter the Title to meet it." But surely it is a relevant consideration that what is 1133 now proposed is something absolutely alien to the purpose of the present Bill. We are dealing with indemnity for acts done in the course of the war of 1939 to 1951, when it came to an end. What the noble Lord seeks to do by this Amendment is to introduce, in effect, a repeal of the legislation giving effect to the Treaty of Peace of Versailles. This is something so utterly alien to the purpose of this Bill that I am rather astonished that the noble Lord has the hardihood to seek to introduce it.
Nothing could exceed the candour of the way in which this Amendment has been introduced, but the Amendment itself is not really a very candid Amendment for under cover of a general release of property, the single aim of it is to remedy what is alleged—and I say "alleged"—to be an injustice to a particular individual. Have your Lordships looked, I wonder, at the terms of this Amendment which is proposed? I will read it: No charge imposed or purported or sought to he imposed by the Treaty of Peace Act, 1919, or any order made thereunder upon any property rights or interests belonging to persons who were at the date of any such Act or order or had at any time previously since the 4th August, 1914, been German nationals shall after the commencement of this Act be enforced or have any effect. Anybody reading that would suppose that there was a substantial class of persons in regard to whom public policy demanded that those charges imposed by the Treaty of Peace should be released. No case is made for that at all. All we are told is that there is a particular person who, by reason of the terms of a particular will, has suffered, it is said, some injustice. But, in fact, the charges imposed by the Treaty of Peace of 1919 have not been exhausted. Although the charge dates, I should say, now from 1920, all the known property which is still subject to it has not yet been collected and realised, and this process cannot be completed until certain reversionary interests fall in. The repeal of this charge under the old Peace Treaty which is still extant is to be effected, according to this Amendment, without any argument at all, except that a particular person has suffered an injustice.
Now I have been trained in the belief that one should not assert, still less decide, that a particular person has suffered an injustice until one hears the 1134 other side; and in this case this particular gentleman alleges that legislation should be passed in his favour, which will have the effect of depriving other beneficiaries under the will of Sir Ernest Schiff of income which they, under his will, are at present enjoying. There may be very good reasons which they can adduce why such legislation should not be passed, as a matter of general policy, to give particular relief to him. And who is there to speak for them? We hear of an injustice. Are they suffering from an injustice? Perhaps theyare—I do not know. But I venture to think that it would he entirely wrong for this House under the colour of a general provision in favour of which no argument has been adduced, to give relief to a particular person at the expense of other particular persons whose plea your Lordships have not heard. That would be the result of passing such legislation as this.
I fully sympathise with the position of the noble Lord, Lord Lucas. The words that he used on the earlier occasion—and I cannot but think that my noble and learned friend Lord Simon must hake been surprised and gratified at the sympathy which he gained—were that the Law Officers of the Crown and other interested parties would look into this matter, and that it would be thoroughly studied with a view to proceeding somewhat upon the lines which the noble and learned Viscount wished. Well, it was looked into, and I understand that as a result of its being examined, by both the Ministers and the Law Officers of the last Government, it was said that the Government would not introduce legislation but, subject to certain necessary safeguards, they would not themselves oppose the introduction of a Private Bill, and if there were such a Private Bill, the other private persons interested in the income of this property would have an opportunity of appearing and presenting their views to the Committee of the House. Nobody will suggest that the noble Lord has in any way failed in any undertaking that he gave. He suggested that some attack might be made upon his honour. I am sure nobody would dream of doing anything of that kind. He has done everything that he could, and my only criticism, if I ventured upon one, would be that he went rather further than he might in his answer to the noble Viscount. 1135 But I suggest that it would be utterly wrong to introduce an Amendment of this kind into this Bill in general terms affecting many people, for the only purpose of remedying a supposed injustice to a particular person and at the risk of doing substantial injustice to other persons who are at present enjoying the income which he seeks to enjoy. Accordingly, although having some sympathy with this gentleman, I cannot possibly advise that this Amendment should be accepted.

§ VISCOUNT SIMON
I am much obliged to my noble and learned friend the Lord Chancellor, for explaining the point of view which he has just expounded. I shall not seek to argue with him, but I would just invite the Committee to consider these two further facts. When I introduced my proposal I said that my attention had been called to a decision of the Chancery Judge, the effect of which was to deprive this gentleman of his property on the ground that there was, as yet, no legislation which satisfied the terms of the will—because it was not by reason of any further legislation that the charge disappeared, but because there had been an Agreement, which I have here. The London Agreement binding the Government, was made on December 28, 1929, and was ratified on May 8, 1930; and it contains the proviso that the Government of the United Kingdom will release and where necessary re-transfer to the original German owners, or to the persons deriving title through them, the property rights and interests originally belonging to them and now subject to the charge created in pursuance of the Treaty of Versailles in so far as such property rights and interests shall not be already liquid or liquidated or finally disposed of … That Agreement bound His Majesty's Government and their successors and was, in itself, a removal of the clog on this gentleman's claim. He therefore, very naturally, thought that he would now be entitled to enjoy this property. But the answer was: "No, you are not entitled to enjoy it, as the Chancery Court have decided" (I have no doubt rightly), "that the release of your property has not been secured by reason of any further legislation."
I will not comment on that distinction, which is a genuine one, and on which I 1136 think the Chancery Judge was quite right in insisting; but it is not surprising that the gentleman then looks to us in a legislative capacity to make good that which His Majesty's Government have already promised and, indeed, done in their diplomatic capacity. That was the reason that the noble Lord, Lord Lucas, used the language which he did. Having called attention to this particular case, I see from the OFFICIAL REPORT (Vol. 165, Col. 1490), that he assured me that his reply was going to be even more satisfactory than I could ever hope for. My noble friend went on to say: We are going to express to the noble and learned Viscount our grateful thanks for having drawn attention to something that does need rectifying. That is the statement made by the Government of the day, and now I seek to support the proposal to rectify it. I admit the observation that it is seeking something for the sake of one individual, and that it would not therefore be appropriate to a Bill of this sort, which deals with the results of the Second World War. I should have thought, however, that it was possible to take the view that in this matter we really must make assurances good. We must really see to it that somebody who has asked for an assurance and has been given it, finds that assurance is satisfied.
It is quite true that you should not decide in favour of one man if other people with opposing interests would be injured but the London Treaty has removed anything of that sort. The rivals to this gentleman who are suggested to have a conflicting interest cannot have an interest because there is a Treaty which has put an end to the charges so far as not yet carried out under the Treaty of Peace. For those reasons, I should have thought that there was a great deal to be said, in common sense and in common justice, for including a clause such as Lord Lucas has proposed. I hope the Committee will excuse me for emphasising those two considerations, because I feel, as I am sure the Committee do, more concerned to see that Parliament does what is fair and right in things of this sort than that we should reject such proposals on what are perfectly good grounds in themselves, but are not necessarily the grounds which should move us in endeavouring to deal with a man who is suffering from a grievance.

1137

§ LORD DOUGLAS OF BARLOCH
I am puzzled by this case. If I correctly understood the noble and learned Lord, the Lord Chancellor, one of his arguments was that there would be a number of other cases which would be affected if this Amendment were carried. But if I understood the noble and learned Viscount, Lord Simon, aright, in fact all the other cases have been dealt with by the Treaty between this country and Germany, and it would seem that there is only this one isolated case remaining. If it is true that there is only this one isolated case, and it exists by the chance that it was not necessary to have any legislation in order to implement the Agreement of 1928, surely there is a case for accepting either this or some other Amendment which will have legislative effect and will enable the bequest to be carried out.

THE LORDCHANCELLOR
I have made further inquiries, and I have explicit information that although the charge dates from 1920, all the property known to be still subject to it has not yet been collected and realised; that this process cannot be completed until certain reversionary interests fall in, and that the repeal of the charge before this stage has been reached would represent a loss to the Exchequer. It is clear that a number of persons will be affected, and that this provision will cover them, although no word of argument has been said in favour of it. If it is intended to deal with the case of this gentleman only, why not have it in the Bill? Why not put it in the Bill that Mr. Noehring—if that is his name—shall have his property released from the charge? I do not think anyone would venture to do it.

§ VISCOUNT SIMON
May I venture to intervene for a moment? This is not, of course, a matter on which I am going to get heated. But surely the noble and learned Lord, the Lord Chancellor, cannot have examined the London Agreement.

THE LORD CHANCELLOR
I have read the London Agreement over and over again.

§ VISCOUNT SIMON
May I be permitted to read again just one sentence from Article I?
The Government of the United Kingdom will … release and where necessary re- 1138 transfer to the original German owners, or to the persons deriving title through them, the property rights and interests originally belonging to them and now subject to the charge created in pursuance of the Treaty of Versailles in so far as such property rights and interests shall not be already liquid or liquidated or finally disposed of, on the date on which this Agreement comes into force. There cannot be any question of applying the Order to release German property which was affected at the end of the First World War now, because if it is property in that position it is not property which is already liquidated. Therefore this is really, as my noble friend opposite said, a case which can be met by general legislation, though it will operate only in a particular case.

THE LORD CHANCELLOR
If that were the case, it would be much better to put it in that form. I have made further inquiries, and I know that there has been a great deal of discussion between the two Governments as to the effect of the words "liquid" and "liquidated." It is the fact—I assure your Lordships of this, for I have made inquiries from the Department concerned—that there is a quantity of property still subject to the charge which has not been collected or realised. Whether it is "liquid" or "liquidated" is another matter. But that is the fact. And it is also the fact that this Amendment, if accepted, will affect a number of persons with regard to whose cases no argument has been heard. I can only tell your Lordships this upon information from the Department which is officially concerned—and indeed I know it to be so. The answer I think is that after the London Agreement of 1929, speaking from a rather dim memory (I had a good deal to do with this branch of the law at the time, as the noble Lord will remember), my recollection is that there was a good deal of discussion as to the meaning of the words "liquid" and "liquidated" after that Agreement had been signed. I feel your Lordships should hesitate extremely to come to any conclusion upon this matter upon any other assumption than that the authoritative information which I have is correct, and that this clause in its terms will cover—I will not say a great number for I do not want to use a big expression—a number of cases. Play I, with great respect, ask the noble Lord responsible 1139 for the Amendment, if he really aims only at doing justice to a particular gentleman, why not let the Amendment deal with that particular gentleman?

§ VISCOUNT SIMON
Would not that make this a somewhat hybrid Bill? I think if anyone put forward an Amendment which was manifestly designed to release one gentleman, the answer which the authorities who advise the Lord Chancellor would give would be, "This makes the Bill a hybrid Bill."

THE LORD CHANCELLOR
The noble and learned Viscount may be right about that, but it could not really make it a more curious Bill than this Amendment would, for it would then deal with two wholly different subjects. As I have said, whether or not the Attorney-General has given an undertaking, I am not sure, but as I understand it, his present idea is that if a Private Bill were put forward he would not oppose it on behalf of the Government. It might, of course, be opposed on behalf of the other beneficiaries, but that is another matter. In view of all these considerations I hope that the noble Lord will not press this Amendment.

§ LORD LUCAS OF CHILWORTH
What I was seeking to do was not for the particular benefit of any particular individual. I was seeking to obtain from Her Majesty's Government the statement which the noble and learned Lord, the Lord Chancellor, made at the end of his first speech. I wanted those matters made public. I wanted publicity given to the reasons why the Government of the country had not done anything. On the statement I made the Government undertook to do something. I hope that the noble and learned Lord, the Lord Chancellor, will not mind my saying this. I think he was rather hard upon me in implying that this was hardly a straightforward Amendment. This Amendment was drawn up by one of the most eminent firms of solicitors in London, and it was designed only to serve that one particular purpose. I told Her Majesty's Government, I told the Lord Chancellor himself, and I told the noble Lord, Lord Mancroft, that I was going to move this Amendment. I explained the purpose I had in moving it. I explained all that 1140 I wanted to do. Whether the Amendment would confer benefits on a single person or on 60,000 people is no concern of mine.
There is another thing which I think I must correct. The noble Lord said that perhaps when I gave this undertaking I went too far. The noble Lord and all your Lordships know that, perhaps with the possible exception of the reigning Lord Chancellor, anyone has to take instructions from the Law Officers of the Crown upon these very highly technical legal points. I can assure the noble and learned Lord the Lord Chancellor that I did not say anything except that which I was instructed to say, though I wrapped it up in a very nice way because I wanted to succeed in doing the one thing in which I was, in fact, successful in doing—that was to get the noble and learned Viscount, Lord Simon, at that time to withdraw his Amendment. If that does not appeal to the noble and learned Lord, the Lord Chancellor, as a lawyer, it will appeal to the noble Lord, Lord Mancroft, as a politician. The matter has now been settled so far as I am concerned. I should never dream of expressing an opinion as between the noble and learned Lord the Lord Chancellor and the noble and learned Viscount, Lord Simon. I feel it is hard that the noble Lord should say that he is surprised I had the hardihood to put down this Amendment. I now have the hardihood to withdraw it. I hope that the flurry that has gone round my head will be beneficial to the general public. No doubt it will remain food for the legal profession for many years to come. I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ Clause 15 agreed to.

§ 6.21 p.m.

§ 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 thirty-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 1141 September, nineteen hundred and thirty-nine until the eighth day of May, nineteen hundred and forty-five possess the 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 state 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 art 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: This Amendment is an attempt to set right what appeared to me to be injustices which I pointed out when this Bill was being given its Second Reading. I think the points more or less explain themselves and I will not take up a great deal of time by going over them in detail, but there are a few remarks that I think I ought to make. This may appear to be rather a strange part of the Bill in which to insert this new clause. I had some difficulty in deciding where lo put it in, and if the Government feel that they can accept it, or any part of it, I hope they will feel themselves free to put it in a more appropriate part of the Bill if they, with the assistance of the learned draftsman, feel that this is not the right place. There are three different categories of cases dealt with in the proposed Amendment, and it might be thought more convenient if they were dealt with in three separate clauses. Here too, if the Government feel they can accept the Amendment, or one or other of the different parts of it, I shall be glad if they will deal with it in the way they think fit. I do not pretend to be a Parliamentary draftsman, and it may well be that there is something in this Amendment which the Government are prepared to accept but which they would prefer to redraft or put in some other part of the Bill. If so, I should be glad to withdraw it and put it down again in a way which they would indicate as being more appropriate.

§ The three different classes of case to which the Amendment refers overlap to some extent. The first is an attempt to safeguard the interests of those people who were refugees from Nazi oppression 1142 on grounds of race, religion ideology or political conviction. A great deal of sympathy was expressed during the Second Reading with people who are in this situation, but it was suggested that there had not been claims by such people. I cannot say of my own knowledge that there are people in this position, but I have had the advantage of discussing this matter with an eminent Jewish lawyer who has a considerable practice in international cases of this kind, and he assures me that he knows of a number of cases which fall clearly within this category. I am sure that at this time when the present German Government has been behaving with some degree of liberality towards these people in that country, we do not wish to shut them off here from their just rights. I think I need say no more in support of this part of the Amendment.

§ The second part should have support not only on the ground of justice but also on the ground of expediency. It refers to cases where the operation of the Bill would result in the -violation of the rule of international law according to which foreigners may not be expropriated without full and effective compensation. Even if the Government are not moved by feelings of justice, I should have thought they would have been moved by feelings of expediency, because at the present time this is a matter of great concern in view of the expropriation of British rights in Persia. This point has played a great part in legislation in connection with the claims of the Anglo-Iranian Oil Company. This part of the Amendment is designed to preclude the charge in proceedings of that kind that this country does not recognise the existence of that rule. I believe the effect of passing this. Bill in its present state, without some such provision as is suggested in this Amendment, would be disastrous. I hope Her Majesty's Government will be able to see their way, if not to accept the precise words of this subsection, to give an indication that they are prepared to put something down to safeguard this important matter.

§ Although I have no personal knowledge of any cases of neutrals or of people who have become neutrals during the war or just before the war by leaving Germany and becoming naturalised in other lands, and who are hit by this Bill, I believe 1143 there are quite a number of such cases. There are also, I understand, cases among people who became technically enemies as a result of German armies invading their countries—countries which subsequently became our Allies—which fall within the compass of this part of the Amendment. I believe, for example, that there are a number of Dutch nationals who are very much affected by this Bill. I am sure everybody would feel it wrong if people in that state should find themselves deprived of property rights as the result of this legislation at any rate without being given the right to recover compensation.

§ The third part of the Amendment is intended to prevent claims from being defeated by the Bill where transfers have resulted from the fact that people have given untrue information to the Custodian and have in that way been able to reap the benefits of the operation of the Trading with the Enemy Act. The cases I have in mind are those where the informants have induced the Custodian to believe a person who was not an enemy to be an enemy, and caused the Board of Trade to make a vesting order, afterwards succeeding in acquiring the property from the Custodian for themselves. I think cases of that kind should be excluded from the operation of this Bill. The Trading with the Enemy Act was not intended to operate to the advantage of persons who, with a view to furthering their own interests, or negligently, supplied false information to the authorities. We should put safeguards in the Bill which would prevent that sort of thing happening. It may well be that there are not a large number of cases of that kind. But there, again, the information which I have, which comes from the same source, is that there are undoubtedly a certain number of cases falling within that category. Therefore, I hope the Government will be able to see their way to accept this Amendment. I beg to move.

§ Amendment moved— After Clause 15, insert the said new clause.—(Lord Chorley.)

§ 6.30 p.m.

THE LORD CHANCELLOR
I am sure that everybody has sympathy with what the noble Lord feels and says in this matter, but this Amendment which 1144 he proposes cannot possibly be accepted. I wonder if he appreciates—for he has used a good deal of rather harsh language about the Bill being dishonourable, and so on—the extent of the generosity with which Her Majesty's Government and the late Government have acted in this matter. I should like him to remember, particularly in regard to the Jewish refugees from Nazi tyranny, and others in similar cases, what the Government have done. They have formally agreed to accept a reduction of their share of reparation for the benefit of victims of Nazi persecution and their immediate families and dependants. In the second place, since the cessation of hostilities—and this applied to the late Government even more than to the present Government, because the time was longer and the cases were more numerous—the Board of Trade have administered under discretionary powers a policy of ex gratia release of the money and property of victims of Nazi persecution which has been approved by Ministers of both the last and the present Government. That is something which can be done by way of ex gratia administration but it is perfectly impossible to administer in the courts the sort of provision which the noble Lord proposes.
Let us see what is the task which he would impose upon the courts, as a matter which would have to be subject to legal scrutiny and legal test. Who is it that he wishes to be excluded from the operation of the Bill, when it becomes an Act? It is those who, on account of "race, religion, ideology or political conviction, have been deprived of, or restricted in regard to, their liberty, or injured in respect of life and health." What a task that is to set the courts! And that is the task which the courts would have to perform to determine whether or not such a person was excluded from the operation of this Act. The one person who would clearly get the benefit of it, I suppose, would be the Communist, who, expelled from Nazi Germany, sought refuge from behind what we now call the Iron Curtain. He would be a person, maybe, who suffered as a result of his ideology. He would be a person who would now be entitled to come and say, "I am not touched by this Act. My property has been seized. I claim to have it returned to me." That is the sort of case which might have to be decided in the courts. 1145 This has been administered in a very generous way by Her Majesty's Government, and by His late Majesty's Government; and that is the way, and the only way, in which the matter can be dealt with. The test is so arbitrary that it can he exercised only by means of an executive act. So much for subsection (1) of the new clause proposed by the noble Lord.
Subsection (2) deals with persons 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 the nationality of a state at war with His late Majesty's Government. … I should have thought that a more accurate way of putting it was, "at war with His late Majesty." I do not quite know whom the noble Lord has in mind. There again, there has been a system of administration which has gone as far as possible to mitigate the rigour of the letter of the law in favour of such persons. I am authorised to say this, which may give some comfort to the noble Lord—and I choose my words carefully; they have, indeed, been chosen for me. Unlikely though the need may be, Her Majesty's Government do not wish to rule out the possibility of ex gratia payments of compensation being made exceptionally to British or Allied subjects where serious wrong has been done resulting in grave hardship. Should an exceptional case arise, therefore, in which the provisions of the Bill are found to work harshly and to do injustice, I am authorised to say that Her Majesty's Government would be prepared to consider making an ex gratia payment of compensation, provided, of course, that Parliament agrees to the necessary funds being made available for the purpose. I cannot go further than that. As I say, the present Government and the last Government have exercised a merciful generosity in this matter, and I doubt whether, though the noble Lord purports to speak on behalf of a number of persons, there is, in fact, such a number of persons. If there are cases of hardship, they will be brought to the notice of Her Majesty's Government.
The last part of this proposed new clause is one which it is quite impossible to accept. I do not think the noble Lord appreciated—indeed, he could not have done—that the earlier clauses of the Bill would be so amended as expressly to pro- 1146 vide that only the acts of persons acting in good faith would be franked by this Act. If, indeed, There is a person—and I have heard of no suchperson—who has deliberately given false information to the Custodian or to the Board of Trade in order that the property of some person might wrongly be vested in that Custodian or in the Board of Trade, then he will not be saved by the operation of this Act, because he will not have acted in good faith. If, on the other hand, acting in good faith, he has given inaccurate information, with the result that property has been vested in the Board of Trade or in the Custodian which ought not to have been vested, he ought not to suffer for that. It is only if he has acted in ill-faith that he ought to suffer.
We all know what was the position of confusion and doubt in the early days of the war, as to whether property belonged to an enemy or did not belong to an enemy; whether the particular place where the owner of property lived had been overrun by the enemy, and so on. There may well have been mistakes made and false information given to the Custodian or to the Board of Trade. But you must not penalise a man for that. In such cases the property has probably already 'been restored, or the proceeds paid to the proper owner. But no such omnibus clause as this could possibly be accepted; indeed, I do not know how it would work. Therefore, while I hope I have been able to give some comfort to the noble Lord, both in my statement of what has been done and in my undertaking of what we are prepared to do, I cannot go further than that, arid I cannot advise the Committee to accept the Amendment.

§ LORD CHORLEY
I am grateful to the noble and learned Lord for the quite sympathetic way in which he has dealt with my Amendment. I cannot agree with him that there is any special difficulty in deciding whether a person is a refugee from Nazi oppression. It was, in fact, done by the tribunals in thousands of cases, and many of those people still have the certificates which were granted to them and which I should have thought we could have used. However, I will not pursue that.
I am grateful to the noble and learned Lord for having given me an assurance on behalf of Her Majesty's Government 1147 that an ex gratia payment may be made in appropriate cases. I feel that that is quite an important concession—I will not say to have wrung from the Government, but for the Government to have made. But I felt that it was rather tied up in an unnecessarily strict way. I realise that in financial promises one has to be very careful, and I assure the noble Lord that I am grateful for what he has said. I shall look at his statement very carefully. It has struck me that it might have been a better way of dealing with this problem for me to have put down an Amendment providing that in cases where people were penalised as a result of this Bill some provision should be made for their compensation. It is one of our cardinal doctrines in this country that where people have their property taken from them they should receive compensation. Certainly, that is a policy which noble Lords on the opposite side of this House have advocated time after time. But it may well be that in cases of this kind it is more satisfactory, provided generosity can be shown, to deal with the matter by way of ex gratia payments than by giving an actual legal right.
As regards the third point, the noble and learned Lord is quite right. At the time that I put down this Amendment, I was not aware of the other Amendment. If he will look at my Second Reading speech he will see that I said that the noble and learned Lord continually used the expression "acquired in good faith." I went on to say that I could not find those words, and I asked whether the noble and learned Lord would tell me 1148 in his reply where they were. He did not do so at that time, no doubt because they were not in fact there. I am glad that he has to a certain extent met the point proposed in the third part of the Amendment. I should like to look at this again between now and the Report stage. Meanwhile, I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ Clause 16 agreed to.

§ Clause 17 [Operation of Act as respects pending proceedings, etc.]:

§ 6.43 p.m.

§ LORD SHEPHERD
On behalf of my noble friend, Lord Silkin, I beg to tender to the Committee his apologies for having had to leave the House, owing to a very pressing engagement. The debate has gone on rather longer than he expected, and he was very sorry that he could not remain. I wonder whether I dare ask the noble and learned Lord opposite to indicate by a nod or shake of the head whether the Government are prepared to accept the Amendments standing in the name of my noble friend Lord Silkin. I see that the answer is in the negative; and in view of that, I beg leave, not to withdraw the Amendments but to abstain from moving them to-day, and to say that they will be put on the Order Paper again on the Report stage, when Lord Silkin will be present.

§ Clause 17 agreed to.

§ Remaining clause agreed to.

§ House resumed.

§ House adjourned at fourteen minutes before seven o'clock.