HL Deb 09 May 1961 vol 231 cc122-49

4.15 p.m.

Order of the Day for the Second Reading read.


My Lords, I beg to move that this Bill be read a second time. In commending the Bill to your Lordships, I think I should say a few words in an endeavour to clarify what, at first sight, may seem rather complicated provisions. This Bill is a useful one, and it deals with a subject of some importance to those members of the public who travel by air. It is an unusual Bill, in that it has one Schedule in French, and there is an English translation attached to the Schedule, The Bill is primarily' a ratification Bill. It seeks to enact into the law of this country the Hague Protocol of 1955, which amends the Warsaw Convention of 1929 relating to international carriage by air. In those circumstances, it might be useful if I first referred to some of the Articles of the Warsaw Convention and the amending Protocol set out in the First Schedule.

The intention of the old original Warsaw Convention was to unify the domestic law of the different high contracting States which related to carriage by air and particularly in respect of the carrier's liability for his passengers and his liability for freight, and to unify documentary procedure between the different States. The original Warsaw Convention was embodied in the British Carriage By Air Act, 1932, and under the Convention a carrier's liability in respect of passengers was limited to a sum equivalent to about £3,000. His liability in respect of freight was limited to a sum equivalent to about £2 10s. per lb. avoirdupois weight, in the absence of any special declaration of value. But under the Convention, both passengers and consignors received two valuable benefits. First, in the event of their suffering accident or loss, they could sue for damages in the courts of their own country, regardless of the fact that such damage or loss may have occurred in a foreign aeroplane travelling over a foreign country, provided, of course, that the aeroplane itself was operated by a nation who was party to the Convention. The second benefit that passengers and consignors received was the fact that the onus of proof was transferred from the claimant to the carrier. The carrier would have to prove that he had not been negligent, and the claimant would not have to prove that the carrier had been negligent. While I am not a lawyer, I think that is in conflict with the normal practice at Common Law in our courts.

The change in liability introduced by the Hague Protocol of 1959, which this Bill seeks to make law, is quite simply to double the maximum liability of air carriers in respect of their passengers: that is to say, to raise it from about £3,000 to about £6,000. It makes no change of liability in respect of freight. In the First Schedule of the Bill, Articles 17 to 24 set out the general circumstances of the carrier's liability, and Article 22 defines the limits of liability precisely. The 250,000 French francs referred to have nothing to do with the current new French franc: they refer to an obsolete franc, the old gold franc; but sufficient to say that 250,000 francs in those francs are the equivalent of about £6,000.

It may be suggested that £6,000 is a fairly modest limit on liability for a passenger's life, but there is nothing which we who support and sponsor this Bill can do about that. The £6,000 figure was the one negotiated at the Hague Conference: it may be that some delegates to the Conference would have preferred a higher figure of liability and that others would have preferred a lower one. It may be that there was an element of compromise about the £6,000. All we who support this Bill can do is to recommend the Hague Protocol as it stands. We have no power whatever to suggest amendments to detail of the Protocol now that it has been published. The fact that the Hague Protocol makes no change in the carrier's liability for freight meets, I think, the wishes of both carriers and their consignors. I understand that the consignors prefer to take a fairly low basic limit of damages which they can claim in the event of loss, because it tends to keep freight rates low; and there is nothing in the Hague Protocol, or in this Bill, which would prevent any consignor from striking a special bargain with his carrier, possibly by paying a slightly increased freight rate and getting extra cover. I think that is general practice.

Articles 3 to 16 of the First Schedule deal with documentation. I mentioned that the original Warsaw Convention of 1929 sought, among other things, to unify the documentary procedure between international airlines. Documents tend to be visible evidence of a contract, and it is helpful if the procedure for handling them and the form of the documents is uniform, fairly simple and standardised, to some extent, between all international airlines. These Articles in the Schedule set out the minimum basic requirements for documents, whether they be air-passenger tickets, baggage checks or air cargo weigh-bills.

Articles 25 and 25A in the First Schedule are important. Article 25 describes the circumstances in which a carrier's limit of liability may exceed £6,000. I think it would be a very rare set of circumstances now, and one that would demand an element of wilful misconduct—which in law is considerably stronger, of course, than negligence, or even recklessness. It would be a difficult thing to prove in the courts. Article 25A gives a carrier's agent or servant the same protection under the amended Convention as the carrier himself receives. I think this Article was inserted to deal with an anomaly which had existed under the old Convention. It is possible that, though carriers themselves had a limit of liability, their servants and agents did not do so, so there might have been some limitation under the old Convention for a claimant to sue not the carrier but the carrier's servant or agent. It was felt that the position was unjust. I do not know if it ever occurred, but this particular Article tries to put that anomalous position right.

All the points I have discussed so far are dealt with in the different Articles,of the First Schedule, which sets out the terms of the Warsaw Convention as amended by the Hague Protocol. I should like now to turn to consider some of the clauses of the Bill itself. At the present time, the unamended Convention has the force of law in Britain. It was amended in the Carriage by Air Act, 1942. Now that an International Conference has sat at The Hague to bring the original Convention up to date, particularly in the light of money values, it surely seems sensible that our country should be ready to co-operate, too. I say "ready" because the new Protocol does not come into force until 30 States have ratified it, and so far only about 18 have done so. It is thought, nevertheless, that fairly soon 30 will have ratified. I think it is urgent that we, too, in this country should ratify the Protocol. This Bill seeks to enable Her Majesty's Government to do just that by incorporating the amended Convention in our law, and Clause 1 is the relevant clause.

As your Lordships will see, there are other clauses in the Bill. Most of them are fairly clear, and tend to explain themselves. But there are two clauses to which I should like to draw your Lordships' attention. Clause 10 is important in that it seeks to apply the provisions of the amended Convention to domestic air travel—that is to say, air travel within the United Kingdom, or between the United Kingdom and its Colonies and dependencies. It may be suggested that here again a £6,000 limit of liability for a carrier is too low. It may be asked: even if we have to accept that figure in regard to international air journeys, need it be accepted for domestic journeys? I do not, however, think that that criticism is altogether valid.

Clause 10 of the Bill says that Her Majesty may, by Order in Council, apply the amended Convention to domestic travel. The clause in no way fetters the discretion of the Minister concerned. He may apply the amended Convention, or he may presumably apply any other items he thinks fit. My own view is that he would be wise to apply the provisions of the amended Convention. This is not a new principle, because the original Warsaw Convention was applied by the Air Navigation Order, 1953, to domestic air carriage, and I am inclined to think that no serious anomalies would arise if we had one limit of liability for passengers travelling in the United Kingdom, and another limit of liability for carriers in respect of their passengers travelling on international routes. Surely some balance in equity should be struck between carriers and their customers. If a carrier's possible liability is placed very high—not just a limit of £6,000, but a limit of £20,000, or even £30,000—he would have to cover himself by increasing fares; and I think that the, majority of air travellers would prefer, a cheaper fare in return for lower damages in the event of their suffering accident or loss, or even death. But if particular passengers feel very strongly about this matter, the most sensible course for them to take is for them to take out a small insurance policy to give them any excess cover they require. These very simple policies can now be bought at all the airports and they cost, I think, about 2s. per £1,000 cover for 24 hours.

I would refer your Lordships to Clause 13, which seeks to apply all provisions of the amended Convention to the Crown. I understand that the Crown has never been bound by the original Warsaw Convention. It seems right that the Government, when acting as an air carrier, should be as much bound as private operators are. Some of your Lordships may remember, if you have travelled by Government aircraft on Government business, that you have been asked to sign a paper acknowledging that the Government do not accept unlimited liability for you as a passenger. I have not seen the paper myself, but I understand it says it accepts no liability. It is giving you a free passage. Whether the possession of such signatures will exonerate the Government in law I cannot say, but this clause in the Bill seeks to regularise a position which has in the past been confused and unsatisfactory. Finally, I would mention Clause 7 (2) which excludes purely military aircraft from the terms of the Convention. I do not mean just fighters and bombers; I mean transports.

My Lords, I think I have said enough to outline the main purpose and aims of this Bill. At the risk of some oversimplification, I might summarise them in this way. The main purpose of the Bill is to incorporate with the law of this country the provisions of the Warsaw Convention as amended by the Hague Protocol of 1955 relating to international carriage by air. The main feature of the amending Protocol is to raise the limit of liability of air carriers in respect of their passengers from about £3,000 to about £6,000. Air travellers are, I think, largely unaware of their rights at law in the event of their being unfortunate enough to have an accident in an aircraft. I must say that I do not think the airline operators go out of their way to explain to their customers what their rights are.

I should like to quote from a notice on a recent airline ticket. This is what it says: Subject to the provisions of the Carriage by Air Act, 1932, and Orders made thereunder, passengers, their luggage and belongings are carried on the terms contained in the Corporation's General Conditions of Carriage, Regulations, Timetables and Notices, which may be inspected at the Corporation's offices. Should a passenger decide, on reading such a notice, to go to the carrier's office, my guess is that he would be shown a very long schedule of notices in very small print, and by the time he had read and understood what his rights were in the event of an accident he would have missed his plane in any case. Air travellers will be wise, I think, to remember that if they initiate a claim against a carrier at the moment, the damages will normally be limited to £3,000. If this Bill is passed, and the new Convention ratified, the limit of damages will be raised to £6,000. I commend this Bill to your Lordships, and beg to move that it be read a second time.

Moved, That the Bill be now read 2ª.—(Lord Abinger.)

4.35 p.m.


My Lords, this is an important Bill, much more important, I think, than the Government have realised; and notwithstanding the amount of business that is still to come before the House, I should like to take up a few minutes, not in attempting to harry the noble Lord, Lord Abinger, who, like myself, is a layman, but to put some responsibility on the Government in this matter. The first question I would ask is why a Bill ratifying an international Convention should have to wait for the initiative of a Private Member in another place and then of the noble Lord in this House to bring it into effect. In this country we have always had the view that, however slow other Governments were in ratifying international treaties and conventions, we were never one of the sinners. But although 18 countries have ratified it, the first move towards this is from a Private Member in another place. This seems to me to be really an intolerable thing. It is not for me to comment on the proceedings in another place, but they are short enough of Private Members' time there without having to take it up with what can only be described as Government business.

This is not intended to be a reflection on the merits of the Bill, which I warmly support, or on the initiative of the noble Lord, Lord Abinger, but I would draw attention to the fact (I do this with some embarrassment, because the noble Lord, Lord Abinger, told me last week that this Bill was coming forward) that it appeared on the Order Paper on Thursday and we are giving it its Second Reading on Tuesday. There are some important principles of a legal kind, and I should have thought we needed the help of some Government lawyers. The noble and learned Viscount is not on the Woolsack to help us. My noble friend, Lord Chorley, will, I am sure, help us. There are some questions I should like to ask, and if the noble Lord, Lord Abinger, feels it is unfair for him to answer them, then I hope the noble Lord, Lord Jellicoe, as Government spokesman, will be able to guide the House.

The first question I would ask the noble Lord, Lord Jellicoe, is why we have had to wait five years for this Bill, and I am almost tempted, if it would not have been out of order, to ask how many other treaties there are waiting for action by the Government to be ratified. The arguments in favour of the Convention and of the Bill, which have been so very clearly deployed by the noble Lord, Lord Abinger, are quite overwhelming. It is highly desirable that the £3,000 should be raised to £6,000. The change in the time limit for making claims in respect of damage to property also represents an improvement.

I would take up the point made by the noble Lord, Lord Abinger: it is a fact that the general public have absolutely no idea of the extent of this Convention. There are large numbers of people who probably insure themselves under the impression that there is nothing coming, anyway, if they are killed, and there may be others who have inflated ideas of the damages it may be possible in the last resort to get out of a carrier. I would suggest that we ought to consider at Committee stage perhaps putting in an Amendment requiring that some sort of intelligible digest is displayed in airports of the application of the Convention so far as passengers are concerned. Perhaps the noble Lord could tell me whether that is done. It would seem to me to be right. We take great trouble in regard to the Factories Acts to make sure that workers in factories know certain conditions, and again in the shops and other places wages council orders are displayed. I see no reason why, in this country at any rate, the Ministry should not take steps to see that the relative provisions are drawn to the attention of the public.

I am a little bothered, as possibly other noble Lords are, by the existence of a French section to this Bill. I realise that we cannot amend it, even if we could understand it, because it is part of the Protocol, but here I am a little bothered also by the fact that certain sections of the Protocol defining the High Contracting Parties are missing. I imagine they are available in the Library, but since this French text is included with the admirable object of producing a comprehensive Bill—and again I congratulate the sponsors on having put the French text into the Bill—I am wondering whether in fact we ought not to republish the whole Convention. There may be a reason why that should not be done.

I was interested in what the noble Lord, Lord Abinger, said about the application to the Crown. I am not quite clear how far the Government can, by Order under this Bill, in fact avoid the application to the Crown. It seems to me that there are clauses which we shall be examining on Committee stage under which in fact it will be possible to avoid the application to the Crown. If this point can be dealt with, then I am delighted to think that in future we shall no longer be called on to sign blood chits; the difficulty about getting insurance if we are flying in a Service aircraft will not apply, and we shall be safe for £6,000, or whatever the figure will be if it is altered in the future.

As I understand it, this Bill and the Convention will apply only to those countries which are signatories and which ratify the Convention. But there is provision in Clause 10 by which the Minister can, by Order, make the terms of the Convention, with suitable modification, applicable not only to countries which are not parties to the Convention but also to internal travel. Although I appreciate that this has been the practice since the 1952 Air Navigation Order, it seems to me to raise important issues to which we in this House ought to give some attention. Is it right, with the increasing amount of internal air travel, with the large number of operators who are coming into the field, that liability should be limited as it is now to £3,000, and as it will be when this is ratified, to £6,000? Equally, would it not be possible for the Minister not to wait for the Convention to be ratified but immediately to raise the limit, by Order, so far as internal travel in con- cerned? Again, this is not a matter on which we can discuss the extent to which the subject was debated in another place, but it is quite apparent that, following the narrow balance on a particular decision there, it was expected that we in this House would do something to clarify some of the difficulties which were then raised.

I think we should properly accept that the level for insurance of freight should be that in the Convention. It is perfectly possible for individuals to increase that insurance, to take on special insurance in regard to valuable freight; and there is no reason why that should be spread over all those who wish to send freight by air, which would happen if the level were raised. But I cannot for the life of me see why, so far as internal travel in this country is concerned, in regard to passengers the limit should be only £3,000 or £6,000. This seems to me to be carrying international tidiness rather too far. We know that if somebody in civilian life is killed in an accident where negligence can be established—there are limitations again in certain directions—the damages may be much higher. Before the application of the 1932 Convention and the 1952 Air Navigation Order I understand that the airlines proceeded by way of ex gratia payments. I do not know whether they were smaller or larger than the amounts that are at present proposed. But if this is to be done, and if we are to give power to the Government to do this sort of thing—that is what we are doing—I think it ought to be done not by Order but by the Bill itself.

Your Lordships are as well aware as I am that there are difficulties in dealing with Orders; they are not susceptible of amendment. Yet in Clause 10 we are proposing to give great powers to the Minister, which I admit he has had in the past and which he exercised in the 1952 Air Navigation Order. But this is an opportunity, I should have thought, to deal with it properly in legislation. Again, if I may say so, it is through the negligence of the Government that we have had to wait all this time and only due to the energy of the Private Members concerned that we have had an opportunity to discuss this subject.

I hope this Bill will not go through too quickly on Committee stage. I hope we shall have the benefit of some legal advice on these points. In particular, I should like to know how far certain changes which the Bill introduces and which were not contained in the original Convention ought to be the subject possibly of some additional schedule or protocol to the Hague Convention. For instance, I believe that in Clause 5 there is a provision by which certain liability in terms of time is extended to carriers' servants or agents. That was not in the original Convention. It was explained by the mover of the Bill that no doubt this had been overlooked at The Hague. But ought it not now to be made of general application? Will this have validity, or shall we not be putting our own nationals at a disadvantage in this matter? Will the agents and servants of British carriers still be exposed in foreign countries? These are all matters of a kind on which certainly I am not competent to express an opinion, but on which, none the less, before this Bill passes into law we ought to have some advice and help from the Government.

4.47 p.m.


My Lords, I should like to follow up some of the remarks which have just fallen from my noble friend Lord Shackleton with regard to this matter. In the first place, I should like to support what he said in congratulation of the noble Lord who has moved the Second Reading of the Bill this afternoon and of Mr. Ronald Bell who brought it forward in another place. This is a most important Bill. It deals with a rapidly developing area of transport which is of the greatest importance to hundreds of thousands of people, their lives and limbs, and also to the transporting of a great deal of exceedingly valuable merchandise.

This is one of the most important transport Bills that has ever been before Parliament, and I entirely agree with Lord Shackleton that it is quite inexcusable that the Government should have allowed it, so to speak, to stand still for all this period of time. The sum of £3,000 as the maximum that a person can recover under the rules as they stand at present is quite ridiculous in the light of the depreciation in currency which has been taking place since the end of the war. After the Convention in relation to increasing the figures in the Merchant Shipping Act had been agreed, the Government acted with great promptitude and vigour to get that Bill on to the Statute Book three or four years ago. Why they should have taken this extraordinarily dilatory attitude in regard to this particular matter passes comprehension. It is true, in a way, that shipping is much more important to us than air travel. But air travel is becoming more and more important, and the lives and the valuable property of the people who use air travel ought not to be dealt with in this cavalier fashion, with the whole business ignored in this way.

I suggest to your Lordships that a Bill of this importance and complexity is not suitable to be dealt with as a Private Member's Bill. I entirely agree with what my noble friend Lord Shackleton has said on this particular point. This is a Bill of outstanding importance; and, much as one admires the initiative shown by Mr. Bell, in another place, and by the noble Lord, Lord Abinger, here, that does not, I think, in any way excuse the Government for taking up this supine attitude in regard to this matter.

My Lords, I have always felt that a mistake was made with the Carriage by Air Act, 1932, in introducing this limitation policy at all. It is a policy of very dubious wisdom. It has, of course, been used in connection with sea transport for some hundreds of years, but this country introduced it only after very considerable delay and doubt in the eighteenth century because provisions of this kind had been put upon the Statute Book by our great carrying rivals, the Dutch and Hansa towns, in the early seventeenth century; and that was followed by the French. Eventually, in order to protect our own interests, to protect our own shipowners and carriers by sea, we had to follow suit. But there is obviously a very great deal to be said against limitation rules of this kind, because they mean that the right of a man to recover against the transporter is seriously curtailed. While the noble Lord is no doubt right to say that in respect of personal injury it is possible to take out an effective policy of insurance to get more, assuming that you think about it, that does not, of course, apply to insurance of goods, because that is an indemnity insurance, and the insurance company with which you are insured is entitled to stand in your shoes in regard to claims against the air transporter who is carrying the goods. The difference between an insurance of goods, which is an indemnity contract, and an insurance of life, which is not, is of course well known to lawyers. It seems to me that it is rather unfortunate that limitation has been extended in this way.

I would remind your Lordships that, in regard to carriage by railway and other forms of land transport, there has never been any question of introducing this. A man who is carried by British Railways and who is injured in a railway accident is entitled to full compensation, and will get very heavy compensation indeed. In the old days, juries awarded very heavy damages in cases of this kind: and in recent cases some outstanding damages have been awarded by Judges—in my recollection, three or four times as much as the new maximum obtainable for a man who goes by air and is injured instead of going by railway and having the misfortune to be injured in a railway accident. That, of course, applies to carriage in coaches and all sorts of other forms of transportation by land.

Why should there be this difference? Because, as the noble Lord, Lord Shackleton, says, this international limitation of liability has been introduced into internal transport by air in this country by the Minister's Regulation of 1952. I confess that I do not remember its going through. I feel a certain sense of shame at not having noticed it at the time and at not having protested against it. I think that this is very much one of the matters which ought to be gone into in the Committee stage. As my noble friend Lord Shackleton has said, while we may be giving, and are very ready and anxious to give, this Bill a good reception in general terms, there are quite a number of points in regard to which we ought, I think, if we do our duty effectively, to pay very close and careful consideration when we come to the Committee stage.

One such point was referred to by my noble friend Lord Shackleton: it is in. Clause 5, which introduces a new limitation period to protect the servants and agents of the carrier. There has been a, great deal of cutting down of limitation periods during my time in the law, which has resulted in an extraordinarily complicated situation, so that it is very difficult for an ordinary practising lawyer to carry all these limitations periods in his head. And here we are proposing to introduce another one by Clause 5. Why should it be in one case two years, and in another case six years, or in another case some other period? And it is a very short period in terms of enforcing a legal obligation. It is easy for two years to slip away before the parties have realised that the time has gone. If the writ is not issued within the time limit, then the right is lost altogether. So, there again, I think we ought to pay careful attention to this matter.

Of course, there is this point which I have already discussed and which my noble friend Lord Shackleton has emphasised: the question of whether it is really in the interest of the citizens of this country as a whole that we should continue this limitation policy, which was initiated in 1952, in regard to inland air transport. There are, of course, arguments on the other side, but I think that they would be much better made and dealt with when we come to deal with the Bill clause by clause at the Committee stage. As your Lordships have a great deal more work before you this evening, I will not pursue the topic any further than to say that, subject to the points I have indicated, I welcome the Bill.

4.58 p.m.


My Lords, may I say a word in support of what my noble friends Lord Shackleton and Lord Chorley have said? This is a most important Bill affecting the liabilities of all the air companies. In so far as there is an International Convention to raise the limit of liability from £3,000 to £6,000 it is excellent to give it the force of law in this country, and I am glad that it was a former pupil of mine who brought this Bill forward in another place. But the important clause in the Bill, towards the end, is concerned with how an Order in Council can be made by a Minister here, applying it to inland transportation by air, which in effect is a limitation which the airlines can put on limiting liability to £6,000 for any individual. That is far less than would be recovered in an accident in any other form of transport. It is done by Order in Council. Under our ordinary law, if a contract is to be made limiting liability there has to be fair and reasonable notice of it in the contract. Indeed, there have been many complaints as to the way in which notice is given.

As the noble Lord, Lord Abinger, said, would it not be a good thing in regard to contracts for air transport at least to ensure that the limitations of liability are publicly known and notified, so that people can see there is a need to insure themselves further and be apprised of the position? Indeed this Bill, affecting as it does the liability of airline companies throughout international transport, and which can be applied by Order of a Minister to inland transport, certainly needs careful scrutiny. But it must be much welcomed. The limitation of servants' liability to a period of time of two years, less than our ordinary period of three years, also needs scrutiny. Whether they can be limited in liability, I do not know. So, while welcoming the Bill, I would suggest that it needs very careful consideration.

5.0 p.m.


My Lords, I wish first, on behalf of the Government, to congratulate my noble friend Lord Abinger on the way in which he moved the Second Reading of this important Bill. It is a somewhat complicated one, as a number of your Lordships have mentioned. Not being a lawyer, I must confess that I have found parts of it not particularly easy to understand. I am sure that those Members of your Lordships' House who, like me, are not altogether at home with legal language, will be grateful to my noble friend for the clarity of his exposition. He has explained the purposes of the Bill so clearly and comprehensively that he leaves me, I hope, very little to do. For this, I am duly grateful. Further, I feel I am right in expressing your Lordships' gratitude to the noble and learned Lord, Lord Denning, for his contribution to this debate this afternoon.

The object of this Bill, as my noble friend has explained, is to enable Her Majesty's Government in the United Kingdom to ratify the Hague Protocol of 1955 by giving effect to the Warsaw Convention of 1929 as amended by the Protocol. The amended Convention is attached as the First Schedule to the Bill now before your Lordships. The original Warsaw Convention of 1929, which at present governs international carriage by air, was given effect to by being embodied in a Schedule to the Carriage by Air Act, 1932. That Act will be repealed and replaced by the present Bill if and when it is enacted and comes into force. As your Lordships know, the present Bill has already received a Third Reading in another place.

Before turning to the Bill itself, I should first like to deal with a point made by a number of speakers in this debate: was it appropriate for this important Bill, covering (as it were) an International Convention, to be introduced into Parliament by a Private Member rather than by the Government? It is true that the 1932 Act began its life as a Government Bill; but, my Lords, it seems perfectly fitting to the Government that this Bill should have been introduced by a Private Member. It is undoubtedly an important piece of legislation, but many important Bills have been introduced in both Houses of Parliament by Private Members. The Bill before your Lordships to-day undoubtedly also deals with an International Convention, but, so far as I know, there is no convention (of another sort) that Private Members should not introduce Bills of this nature. Indeed, there is a very recent precedent in the Merchant Shipping Act, 1958, which gave effect to the Brussels Maritime Convention of 1957 on shipowners' liability. Moreover, in so far as this particular Bill touches closely the rights and liabilities of individuals and commercial enterprises, it seems peculiarly fitting that it should have been introduced in this way.

I must say that this particular line has somewhat surprised me, seeing how jealous Members of Parliament justly are of the rights and responsibilities of Private Members, and in view of the fact that, so far as I know, a Private Member's Bill has constitutionally no less weight and no less authority than a Government Bill. Another reason why I have been surprised by this particular line is because of the Godparents of this particular Bill in another place. They included, from the Party opposite, Mr. Geoffrey de Freitas, Sir Frank Soskice and Sir Lynn Ungoed-Thomas—a Front Bench spokesman and two former Law Officers.


My Lords, may I interrupt the noble Earl? Why is he picking on "the Party opposite"? This is not a Party issue at all. The matter was raised from both sides, and not just the Opposition.


I am dealing merely with your Lordships' debate this afternoon. In this House this afternoon the point has been made, so far as I know, only from the opposite Benches, and I was merely referring to the fact that what was good enough for two former Law Officers in another place is apparently not good enough for the. Benches opposite here to-day.

May I now turn to the reasons why your Lordships are being asked, as I understand it, to give this Bill a Second Reading? The first reason, as I see it, is a negative one. The amended Convention is due to come into force under the provisions of Article 22 of the Hague Protocol when it is ratified by 30 States; and, in answer to the noble Lord, Lord Shackleton, the reason why the Government have not acted up till now is that 30 ratifications are required and, so far, only 17 or 18 have been obtained. Up to now, therefore, there really has not been this vast degree of urgency attached to ratification. However, it has now been ratified by 18 Governments, or 17 if the German Democratic Republic is excluded—which, as your Lordships know, we do not recognise. The ratifying Governments include countries like the Soviet Union, France, Australia and the Netherlands, which are important in the international civil aviation field.

The President of United States has recently recommended ratification to the United States Senate. It is not for me to predict what the United States Senate will do about it, as its ways, like the ways of your Lordships' House, are sometimes a little inscrutable. However, if we are realistic, I think we can be fairly certain that if and when the Americans do ratify the Convention a lot of other States are likely to follow suit possibly enough to bring the amended Convention into force. Should it come into force without the United Kingdom being a party to it, we might find ourselves in a pretty awkward position. Take, for example, the North Atlantic air route—possibly the most important air route in the world. If the United States ratify the Protocol and we do not, the question would arise whether carriage between this country and the United States would be governed by the provisions of the original Convention, of the amended Convention or of no Convention at all. I leave it to your Lordships to imagine the chaos which would result from the litigation in either or both countries—or, indeed, in a third country—unless some answer to that question could be found.

The other main reason why the Government support this Private Member's Bill is a more positive one. It is because we feel that the new Convention has definite advantages over the old Warsaw Convention of 1929. It is therefore to our positive advantage to ratify it, and thus to encourage other Governments to do it. Of course, like all International Conventions, this is a product of a good deal of give-and-take. From our point of view, it may not in all respects be ideal, but it does have clear advantages, the Government feel, over the earlier Convention. I think that those advantages have been fully rehearsed by my noble friend Lord Abinger in introducing this Bill. I do not think I need say anything from the Government's point of view about what I may call the subsidiary advantages.

I should just like to dwell for a moment on what we consider to be the most important advantage, as my noble friend made clear: that is that Article 22 of the new Convention doubles the maximum liability of the carrier from about £3,000 to about £6,000 in the case of the injury or death of a passenger. Some of your Lordships may feel that a maximum liability of some £6,000 is not sufficient: that many of your Lordships' lives and limbs are worth a lot more than that. Indeed, the noble Lord, Lord Chorley, tended to query the whole principle of the limitation of liability. I should just like to explain that, as I understand it, the principal reason for limiting liability in such a case is that, but for some limitation, the less valuable passenger in an aircraft would find that he or she was paying a part of his or her fare for the insurance of the airline against the enormous potential liability of other, more valuable passengers—like Miss Sophia Loren or, indeed, one of your Lordships. An incidental advantage is that a reasonable limit results in the avoidance of litigation, because the airlines and their underwriters are usually willing to dispose of the case by paying the limitation sum. At the same time, the Convention requires a passenger to be warned that liability may be limited, so that he has every opportunity of taking out any additional insurance which he thinks is necessary to cover his or her particular circumstance.

The noble Lord, Lord Shackleton, made the point that it might be very desirable, when (I hope it is a case of "when") the amended Convention comes into force, that its main provisions should be well publicised at airports. I shall be very glad to bring that suggestion to the notice of my right honourable friend the Minister of Aviation, but I would express some slight scepticism as to whether the average air traveller, rushing for his aeroplane, would spend very long in studying the detailed provisions of this very complicated Convention. However, I am sure the suggestion has merit, and I shall be glad to convey it to my right honourable friend.

So much for the Convention itself, my Lords. In the interests of brevity, I should like to confine my remarks on the Bill to a couple of points of substance. The first concerns subsection (2) of Clause 1, to which the noble Lord, Lord Shackleton, referred, which provides that, in the event of any inconsistency, the French text scheduled in the Bill shall prevail over the English one. There are, of course, many precedents for this in International Conventions. What is different in this Bill is that it actually schedules the French as well as the English text. To those of your Lordships who have an antiquarian bias, there will be nothing specially unusual about this. The early Statutes of Parliament were, as your Lordships know, in Latin, but during the second half of the thirteenth century, French was used as often as Latin, and after 1310 much more often. However, my researches, such as they are, seem to show that there appears to be no instance since 1485 of an Act, or part of an Act, appearing in the French language. The last was an Act of 1484, annulling the letters patent made to Eliza, wife of Sir Joseph Grey.

Why, in this instance, have we reverted to this somewhat earlier precedent? I think the explanation is quite simple. It is to enable lawyers and their clients to have immediate access to the French text. It would appear that if the French text had not been scheduled, courts of law would still have referred to it, but there would then have been the disadvantage that it would not have been readily available as part of the Act. But, that said, I should like to make it quite clear that this is an exceptional circumstance and is by no means to be regarded as a precedent for the scheduling of all future Conventions.


My Lords, may I interrupt my noble friend for a second? He said that the French text would be followed at law. I may be wrong, but with regard to Article 13, subsection (2), the French text and the English text do not seem to have exactly the same meaning. For example, one is the question of "stipulation", and the other the question of "agreement". As I understand French, when you stipulate something, there is no question of previous agreement.


I am grateful to my noble friend for pointing out that sometimes there are inconsistencies, or may be inconsistencies, between the French and the English texts. It is precisely for that reason that there is a master text, as it were.


Would the noble Lord say which prevails?


The French.


Notwithstanding that the claim arises here?


Notwithstanding. Finally, I come to Clause 10, to which a number of noble Lords, Lord Shackleton, Lord Chorley and Lord Denning, have referred. This clause replaces section 4 of the 1932 Act, with two principal changes. It enables the rules of the Convention to be extended not only to non-international carriage, as under the 1932 Act, but to any carriage not covered by the Convention. This would include carriage free of charge by someone other than an airline—for example, in Crown aircraft, as my noble friend has explained. Secondly, under Clause 10 an Order in Council is required to be laid in draft before both Houses of Parliament, and will be subject to Affirmative Resolutions. This is also an innovation and, I am sure your Lordships will agree, an improvement.

Some speakers in another place, and indeed some of your Lordships here, have been inclined to question Clause 10 on the ground that it could limit the maximum liability of the domestic carrier on a domestic flight to the maximum of about £6,000. Indeed, as your Lordships probably know, another place divided on this matter, with two Members voting both ways. I do not wish at this stage to argue the pros and cons of this matter. It seems to me, at least, more suitable for a later occasion, but I should like to say this. In the first place, there is a considerable different of opinion as to whether £6,000 is or is not a reasonable maximum for liability on domestic flights. If the maximum were raised, it would almost certainly, as my noble friend pointed out, entail an increase in domestic air fares. An individual can, of course, increase his own personal insurance cover, in the same way as a consignor can increase his (might I so call it?) insurance cover on baggage and cargo. Again, as has been pointed out, it would certainly create serious anomalies and complications if we were to introduce what one might term a two-tier system of liability.

Secondly, Clause 10 of the Bill, as at present drafted, provides for considerable flexibility. An Order in Council could, if it were thought expedient, raise, or indeed lower, the maximum liability foreseen in the amended Convention. Apart from this, any such Order will, of course, be subject to the Affirmative Resolution machinery. Therefore your Lordships can revert to this particular charge at that stage, if you so desire, rather than possibly pre-judging the question now or at the Committee stage. Of course, it can 'be gone into more thoroughly, as I feel is probably your Lordships' wish, at the Committee stage.

This is admittedly a complicated and difficult issue. As a result of the debate in another place, the Government are already discussing it in some detail with the airways corporations, with the independent operators, and, indeed, with the insurance market; and I can assure your Lordships that what has been said in the House to-day will certainly be borne in mind in those discussions. I think I can also assure the noble and learned Lord, Lord Denning, who asked (if I understood his question aright) about the warning on the ticket for domestic flights, that any Order in Council made under Clause 10 would include provision for adequate warning, probably corresponding to that required, in the case of international tickets, by Article 3 (1) (c) of the Schedule to the Bill.

My Lords, I am sure that I have detained you for long enough. I can only, in conclusion, express the hope that I have helped to convince your Lordships that the Bill moved by my noble friend is a useful one, and one which should receive a Second Reading this afternoon.

5.18 p.m.


My Lords, I do not think the noble Earl, to whom we are indebted for the courtesy of his reply to the observations of my noble friends, has adequately covered the point as to the application of the Convention by the Order in Council to internal air traffic in the United Kingdom. It is true that there will have to be an Affirmative Resolution, but that is not particularly exceptional, and it means that this not altogether simple International Convention will be applied, or can be applied, by Order in Council as domestic law within the United Kingdom. Presumably it will be applied in the French language, because the French text is to have precedence over the English text in the Convention. So far as it is the Convention which is applied to the United Kingdom, presumably our courts will have to try the case taking account of the fact that the law, in this instance, is in the French language. Let us hope that the judges, and juries (if any), the plaintiffs and the defendants, are all experts in the French language. There is no guarantee of that. It may not be so.

But there is another point which is perhaps even more important. It strikes me as extraordinary that this matter should be dealt with by a Private Member's Bill. The noble Earl defended this on the ground that three Members of the Opposition in the House of Commons had been found to put their names on the back of the Bill. With great respect to him and to my honourable and right honourable and learned friends in the other place, that argument does not impress me greatly. Members of the House of Commons like to see their names in print. That is not uncommon in politicians, of all colours. We all like to see our names in print, because it shows that we are being remembered and taken notice of, and that is very pleasant. There is nothing easier than for a Private Member to go to the other side of the House and get somebody to put his name to a Bill. It is an old technique, perfectly easy. He is bound to find somebody simple enough to put his name to the Bill.

But the Opposition in the House of Commons, like all Oppositions, is partly concerned in delaying the Government's business, and what have these simple souls done in this case? The Law Officers (I am quite ready for them to be simple souls) and one other Member, very honourable and meritorious, all three of them, put their names on the Bill and have persuaded three members of the Opposition to do likewise—which shows what charming, Christian, simple souls British politicians are! It does not impress me a bit that three members of my Party in the House of Commons have put their names on the Bill. I have great respect for all three and I understand their motives, which are honourable, courteous and decent; but nevertheless they were simple souls to do it How do Private Members' Bills originate in the ordinary way? A Member of Parliament, either in another place Of in this House—I had better not put all the criticisms on the little customs of the House of Commons—may have a bee in his bonnet about something and may think that a Private Member's Bill would be a good way of ventilating it. There is all the excitement of being the father of possible legislation, of bringing it in and debating it and possibly of getting fair publicity for it. That is perfectly natural. Some Private Members' Bills are good and useful; some are controversial and some would be described by some people as silly, though that is a matter of opinion. There are Private Members' Bills which are promoted by some well-meaning, honourable and public-spirited societies representing good causes. They are often in the queue to persuade Members of one House or the other to bring in a Private Member's Bill on their behalf. That is all right. Usually they are successful, and the Member is grateful to them, because they save him the arduous task of drafting a Bill and they give him advice.

There is a third device for bringing in a Private Member's Bill (in which, let me say, I have taken part as a former Leader of the House of Commons), when the Government have a nice, innocent, quiet, little Bill for which time cannot be found in the Government's legislative programme, and are glad if some honourable Member took it on as a Private Member's Bill. This is commonly known. Such Bills are directed by the Whips and the Leader of the House, and are useful to the Government Departments concerned. But they are usually small, restricted, innocent Bills, desirable in themselves, which the Department concerned want to get through but could not get past the appropriate Committee of the Cabinet and into the legislative programme. That is all right. But when it comes to Bills of substance, including such a Bill as this, which ratifies and put into legal form an important and complicated International Convention, I think that it is an abuse of governmental procedure that the Government should land this on to a Private Member.

This is a matter which essentially ought to be Government responsibility. A precedent has been quoted of some other Convention. I would say that in regard to any International Convention to which the Government are a consenting party it is for the Government to get the legislation consequent upon that International Convention through Parliament, and they ought not to farm it out to a Private Member simply because they have a lot of objectionable legislation which they want to push through Parliament. They are farming out this Bill, which ought to be a Government Bill, to a private Member, with the acquiescence of three Members of the Opposition, and as a result are lightening their own legislative programme. This is too important a Bill to be a Private Member's Bill. It ought to be brought in not by a Private Member but by a Minister of the Crown, with the Law Officers in attendance and with all the influence and accountability of the Government behind it.

I am sorry to speak with such emphasis, because I know that your Lordships do not always like emphasis, but I feel strongly that this is an abuse of Parliament and it ought not to be done in this way. I hope that we may hear something from the noble and learned Viscount on the Woolsack, who is an important member of the Cabinet, about how this procedure has been adopted. I think that it is open to objection as an abuse of Private Members' legislation, which ought to be really Private Members' legislation. I do not believe that this is Private Members' legislation at all. I believe that it is Government legislation which has been pushed through Private Members' channels.

5.27 p.m.


My Lords, I respond with great alacrity to the remarks of the noble Lord, Lord Morrison of Lambeth? May I say how much pleasure it gives me to reply to him once again? We both look back to many happy opportunities, when one or other rose to answer the points of the other, and I should like the noble Lord to know that it gives me real pleasure to be doing it once more.

The noble Lord has raised two points. The first is with regard to Clause 10 and the application to air transport, other than international air transport, of the provisions of the Convention by Order in Council. May I direct his attention to the last line and a half of subsection (1), which say: … subject to such exceptions, adaptations and modifications, if any, as may be so specified. I think that, on reflection, the noble Lord will see that any terrors which may be in his mind about the difficulties of the French tongue can be eliminated by that method on any grounds that are necessary. I hope that the noble Lord, Lord Shackleton, will forgive me, but I had to leave the House for a quarter of an hour on an important appointment and missed his speech. I was courteously informed that he had indicated that legal consideration should be given to his points. I want to assure him that I shall read his speech carefully, and I will consider the points he has raised, and also the points raised in this regard by the noble Lord, Lord Chorley.

I come to the point of the noble Lord, Lord Morrison of Lambeth, with regard to Private Members' Bills. I have heard that speech several hundred times in the last 26 years. I have always heard it from a member of the Government who wanted to damp down the ardour of a Private Member introducing his Bill. Finding it difficult to bring any other arguments against the Private Member's Bill, he fell back on that time-honoured chestnut: "this is no subject for a Private Member's Bill".


Has the noble and learned Viscount, within his recollection, heard a Minister of the Crown oppose a Private Member's Bill on the ground that it ought not to be a Private Member's Bill, and that the House had better not carry it; that it should be a Government Bill and should be considered in that light, "but we are making no promises"? If it be a sin to put forward that argument, it is a sin that is committed by Ministers of the Crown, as well as by other people.


It is a sin that is committed by Ministers of the Crown. My point is that it is a sin to which Ministers of the Crown are unduly prone when they are short of other arguments against the Bill. I wanted to put this to the noble Lord quite seriously, but not too seriously—he will understand what I mean. I think that the development in Private Members' Bills which has taken place since 1945 is one of the most valuable developments in our Parliamentary life. If the noble Lord will refer to a book dealing with Parliament 50 years ago, written by Hilaire Belloc, on the Party system—and after all, there is no greater authority on the Party system than the noble Lord, Lord Morrison of Lambeth—he will find that one of the great complaints of Parliament made by Hilaire Belloc and his coadjutor was the great difficulty that Private Members had in playing a full part in politics. I have spent at least half of my 26 years out of office, and I believe it is important that private Members should be encouraged to play a full part.

Looking back to the period between the wars, I think, with great diffidence, that one of the troubles about Private Members' Bills was that they fell within the category which the noble Lord, Lord Morrison of Lambeth, desired, and to which he would like them to be restricted. They were then used largely for one of two reasons: first, by the Party in Opposition to make a gesture as to their programme or an attack against the Government; and secondly, by those (I do not want to be unkind and call them "cranks") whose ideas did not find general approbation. The result was that many of the Fridays on which we used to discuss Private Members' Bills were—I will not say wasted, but not occupied as profitably as they could be. Since the war Private Members' Bills have taken a new turn. They have consisted largely of efforts to supplement the legislative programme of the Government of the day on most useful and practical lines.

I want to urge this upon the noble Lord. I enjoyed his flourish this afternoon, but he must remember that he is regarded as one of the serious thinkers in this country on the functioning of Parliament and our machinery of Government. He knows me too well to think that I am saying that in a fulsome way: I have read his books, and I state it as a fact. I think that someone in his position should, at any rate, give thought to the other point of view. I say that Private Members' Bills have been used as an adjunct in putting forward serious and practical measures. The noble Lord knows two things. One is that in the modern State, with its greater complications, and in a period of scientific advancement it is an inevitable consequence that any Government must govern and legislate over a wider sphere. That is common ground, although there would be arguments about how far the sphere should extend. That means that in the very restricted period—which, apart from the Finance Bill and various matters that have to come up every day (my noble friend Lord Margesson will correct me if I am wrong), permits something in the nature of 60 days, more or less, for the legislative programmes of any Government—it is more and more difficult for a Government to do more than their main-programme Bills. On the other hand, every Government sets up Commissions, sends delegations to international Conferences and is then faced with the problem of putting their recommendations into effect.

Although the Royal Commission was set up by the late Lord Jowitt, the Report of the Morton Commission on Marriage and Divorce, under my noble and learned friend Lord Morton of Henryton, came to me. The Commission put forward a large number of proposals, many of which have reached the Statute Book, largely owing to the efforts of Private Members who have supplemented our legislative programme; and I have done my best to help them along the way. There is a great deal of legislation to-day which is not Party political but is generally desired by the people of this country and is helpful if it is brought to the Statute Book. I feel that the efforts of Private Members in the extended field that they take are a healthy and sound development in our Parliamentary life.

I am sorry to have occupied so much time, but I would always do the noble Lord the honour of replying to a remark of his. Apart from the pleasure it gives me to make yet another reply, I should be grateful to him, in his position, as an old colleague and foe in both Government and Parliament, if he would consider that point seriously. We shall no doubt have another chance of returning to it, but I hope he will do me that honour; and that after my reply noble Lords opposite will give a Second Reading to the Bill, on the understanding that the important points raised are thoroughly examined and threshed out in Committee.

On Question, Bill read 2ª, and committed to a Committee of the Whole House.