Lords Sitting of 25 May 1965

Preamble
The House met at half past two of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Ripon

LORD SOPER
The Reverend Donald Oliver Soper, having been created Baron Soper, of Kingsway, in the London Borough of Camden, for life—Was (in the usual manner) introduced.

SOUTH VIETNAM GOVERNMENTS AND BRITISH RECOGNITION
2.45 p.m.
LORD KENNET: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what the intervals have been between the installation of successive new Governments in South Veitnam since the overthrow of Ngo Dinh Diem and their recognition by Her Majesty's Government.]
THE PARLIAMENTARY UNDER-SECRETARY OF STATE FOR FOREIGN AFFAIRS (LORD WALSTON): My Lords, Her Majesty's Government recognised the Government of Nguyen Ngoc Tho on November 8, 1963, one week after the coup d'état began, six days after it was evidently successful and two days after we were formally requested to do so. The circumstances of subsequent changes in the Government did not require a formal act of recognition by Her Majesty's Government.
LORD KENNET: My Lords, I thank the noble Lord for his reply. That is a short period. Have Her Majesty's Government pointed out to our American
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Allies the apparent discrepancy between the shortness of the period needed for recognition of a Government and the maintenance of that recognition towards successive Governments in South Vietnam when none of these Governments has been elected by its people and none of them controls its own territory, and, on the other hand, the American reluctance to recognise the Government in China, which has been in undoubted control of its own territory for sixteen years?
LORD WALSTON: My Lords, I think that, without any interference or prodding from Her Majesty's Government, the United States Government are fully aware of the circumstances on the mainland of China.
LORD KENNET: My Lords, could I press the noble Lord for an answer? Have we pointed out to them the apparent discrepancy between these two specific acts, recognition and the absence of recognition?
LORD WALSTON: My Lords, to the best of my knowledge, we have not specifically pointed that out.
LORD BROCKWAY: My Lords, could the Minister reply to the Question in so far as it relates to the installation of successive new Governments since the overthrow of Diem?—I think there have been about twelve. Would the Government use their influence with the United States to secure the establishment of a national representative Government in South Vietnam, including representatives of the National Liberation Front, and so contribute towards peace in that territory?
LORD WALSTON: My Lords, there have been, or course, changes of Government in Vietnam, as there have been changes of Government, perhaps not sufficiently frequent, in other countries. That does not necessitate any specific act of recognition on the part of foreign countries. With regard to the second part of the noble Lord's question, I would suggest that that is an entirely different subject on which perhaps he would like to put down a Question at some later stage.

ROAD SIGNS
2.49 p.m.
LORD ALPORT: My Lords, I beg leave to ask the Question which stands in may name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether any research has been undertaken into the comparative effectiveness, from the point of view of traffic control and road safety, of signs and warnings incorporated in or painted on the road surface as opposed to signs and warnings on posts or brackets at the road side.]
THE PARLIAMENTARY SECRETARY, MINISTRY OF TRANSPORT (LORD LINDGREN): My Lords, the Road Research Laboratory has undertaken certain studies. In general these two types of road sign are complementary and not alternatives. Each has particular advantages in different circumstances.
LORD ALPORT: My Lords, may I ask the Minister whether it is not true that a good driver should keep his eye on the road in front of him rather than to have it distracted by signs at the side of the road? Is it not important, if we are changing all our road signs, to make certain that the new signs which are being introduced are the most effective from the point of view of road control and road safety, which may well be those which are incorporated in the surface of the road?
LORD LINDGREN: My Lords, as I stated in the original Answer, they are complementary. The noble Lord will appreciate that in certain circumstances, such as when mud or snow is on the road, one cannot read or see the signs which are at present on the road. They are an additional help to the erected signs. One sees a "Stop" or "Halt" or "Get into Lane sign painted on the road more quickly if it is on a side road, and perhaps it is more effective; but these signs are complementary in different circumstances.
LORD HAWKE: My Lords, is it possible for drivers to see road signs at all from some of the sports cars which are now on the market?

THE A.1 ROAD— STAMFORD TO GRANTHAM
2.50 p.m.
LORD ALLERTON: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what plans have been made for the conversion of the remaining 3-lane portion of the A.1 road between Stamford and Grantham into a dual carriageway.]
LORD LINDGREN: My Lords, this scheme has been included in the Government's trunk road programme. The date for the start of construction will depend on satisfactory completion of the engineering design, the statutory processes under the Highways Act, 1959, and negotiations for acquisition of the land.
LORD ALLERTON: My Lords, I thank the noble Lord for his reply. May I further ask him how many accidents took place on this comparatively short stretch of road—I think it is some seven miles—during the Easter week-end, and whether the number of accidents on this stretch of road was not considerably in excess of the national average?
LORD LINDGREN: My Lords, I cannot give the noble Lord the actual figures, but this is a dangerous stretch of road. It is a straight 33 ft. single-carriageway road on which, in theory, accidents should not happen, but on which there have in fact been many severe accidents. That is the reason why this scheme has been brought into the programme and why even, pending the road's reconstruction, there is a 50 m.p.h. speed limit on it. There are offset white lines on it and it is also a Clearway. We are doing everything we can to keep this 7½-mile straight stretch of road as accident-free as possible.

THE NUCLEAR POWER PROGRAMME
LORD SHERFIELD: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they are now in a position to make a statement about the next stage of the nuclear power programme.]
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM): Yes, my Lords, With the agreement of the noble Lord and with your Lordships' permission, I shall later this afternoon be repeating a Statement which my right honourable friend the Minister of Power will be making in another place.
LORD SHERFIELD: My Lords, I thank the noble Lord for his reply.

UNITED NATIONS COMMITTEE ON COLONIALISM
2.53 p.m.
THE EARL OF DUNDEE: My Lords, I beg leave to ask Her Majesty's Governernment the Question of which I have given Private Notice—namely, whether they have any information about the purpose of the United Nations Special Committee on Colonialism which has flown from New York to Africa, stopping in London for twelve hours on May 22, and whether members of this Committee will be permitted to visit Rhodesia, Basutoland, Bechuanaland and Swaziland.
LORD WALSTON: My Lords, the United Nations Special Committee on Colonialism is visiting Africa to hold formal sessions in Lusaka, Dar-es-Salaam and Addis Ababa between May 24 and June 18. With regard to the second part of the Question, their itinerary does not include visits to Rhodesia, Bechuanaland, Basutoland and Swaziland.
THE EARL OF DUNDEE: My Lords, may I ask Her Majesty's Government whether any official notice is being taken of the fact that, after this Committee had been entertained to lunch by the Colonial Secretary on their way through
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London on Saturday, one of its members, Dr. Gonzalez, informed the Press that the first objective of the Committee was to ensure the immediate return of British-occupied Gibraltar to Spain? May I also ask the noble Lord whether he is aware that the mischievous activities of this United Nations Committee have done more than anything else to bring about the victory of extremist elements on both sides in Rhodesia and elsewhere? Is he further aware That their constant endeavours to interfere with the domestic concerns of sovereign States are contrary to the terms of their own appointment by the United Nations? Instead of asking them to lunch when they pass through London, should we not ask them to go home and mind their own business?
LORD WALSTON: My Lords, with regard to the first part of the noble Earl's question, Her Majesty's Government are taking no official notice of the purported remarks of Dr. Gonzalez. He was, if he has been correctly reported, speaking in a purely personal capacity. Her Majesty's Government's views on Gibraltar remain as they were in the White Paper, and as stated in a short debate in your Lordships' House not long ago.
With regard to the second part of the noble Earl's question, I cannot in any way agree with the views that he has expressed. This Committee is a Committee of the United Nations, of which we are a member and which we support. We are also a member of the Committee itself—the Committee on Colonialism: the Committee of 24—and we believe that it is a correct function of the United Nations to interest themselves in all matters throughout the world which may—I do not say which do, but which may—cause injustice, and which undoubtedly in many cases lead to tension that tension potentially being a source of war. We therefore welcome the activities of the United Nations and, in general, the activities of this Committee. I cannot in any way subscribe to the views—I could not quite say that it was a question—expressed by the noble Earl, about this Committee and its activities being in any way responsible for extremist factions in parts of Africa.
THE EARL OF DUNDEE: My Lords, may I press the noble Lord on this

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matter? Is he aware that when the Committee on Colonialism was started in 1961, I happened to be the Minister in New York who had to announce in the United Nations General Assembly that we would give every support and all the information we could to this Committee, on the understanding that they did not interfere with the domestic concerns of any country? Since they have done practically nothing else since then, is the noble Lord seriously maintaining that they have not broken that understanding, and is it not time that we ceased to give them any countenance or information in the dangerously subversive work on which they have been employing themselves?
LORD WALSTON: My Lords, we have on many occasions made it clear that we consider the internal affairs of our Colonies our own responsibility, and I do not want to go back on that at all. For all that, we believe that it is correct for the United Nations to interest themselves in these matters, for the reasons I have already given—and I shall not repeat the reasons—and we are prepared, subject to the provisos which I have already mentioned, to co-operate to the best of our ability with any United Nations organisation.
LORD CARRINGTON: My Lords, may I ask the noble Lord, Lord Walston, whether he saw a report in the Sunday Telegraph last Sunday, that the spokesman of this Committee had said after the meeting that, if necessary, the United Nations could use force to help those still under colonial rule, which was but a disguised form of slavery? Would he take the earliest possible opportunity of dissociating Her Majesty's Government from that interpretation of the rôle of the United Nations?
LORD WALSTON: Yes, my Lords. We certainly do not believe that it is for this Committee to use force, or to advocate the use of force, in these matters. I think that noble Lords know perfectly well what are the functions, the responsibilities and the powers of the United Nations; and we adhere to them, and to no others.
THE MARQUESS OF SALISBURY: My Lords, will the noble Lord make that clear to the United Nations and the Com-
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mittee, as well as to your Lordships' House?
LORD WALSTON: My Lords, I think that it is already perfectly clear to the United Nations. Of course it is up to those who report these proceedings to decide whether they wish to make it even more clear than I have made it, or to spread still further what I have said to your Lordships to-day.
LORD FRASER OF LONSDALE: My Lords, may I ask the noble Lord whether we may all thank God that this lot are not going to Southern Africa?

BRITISH RAILWAYS BILL
Read 2a, and committed to the Committee on Unopposed Bills.
SAINT MARK, CAMBERWELL BILL
Read 3a, with the Amendment, and passed, and returned to the Commons.

HOUSE OF LORDS OFFICES COMMITTEE
3.0 p.m.
THE CHAIRMAN OF COMMITTEES (LORD MERTHYR): My Lords, I beg to move the first Motion which stands in my name on the Order Paper.
Moved, That the Lord Wade be added to the Committee. (Lord Merthyr.)
On Question, Motion agreed to.

PROCEDURE OF THE HOUSE COMMITTEE
LORD MERTHYR: My Lords, I beg to move the second Motion which stands in my name on the Order Paper.
Moved, That the Lord Wade be added to the Committee.—(Lord Merthyr.)
On Question, Motion agreed to.

HIRE-PURCHASE BILL [H.L.]
Read 2a (according to Order), and referred to the Joint Committee on Consolidation Bills.
HIRE-PURCHASE (SCOTLAND) BILL [H.L.]
Read 2a (according to Order), and referred to the Joint Committee on Consolidation Bills.
SALMON AND FRESHWATER FISHERIES BILL [H.L.]
Read 3a (according to Order), and passed, and sent to the Commons.

WAR DAMAGE BILL
3.2 p.m.
Order of the Day read for the consideration of the Commons Reason for disagreeing to the Lords Amendments.
LORD SHEPHERD: My Lords, I beg to move that the Commons Reason for disagreeing to the Lords Amendments be now considered. I suggest to the House that we take this Motion formally, and that the debate should arise upon the Motion which I shall move immediately afterwards. I beg to move.
Moved, That the Commons Reason for disagreeing to the Lords Amendments be now considered.—(Lord Shepherd.)
On Question, Motion agreed to.

COMMON REASON FOR DISAGREEING TO THE LORDS AMENDMENTS
[The references are to Bill [55] as first printed for the House of Lords.]

LORDS AMENDMENTS
Clause 1, Page 1, line 7, leave out ("whether before or")
Clause 1, Page 1, line 11, leave our ("was, or")
Clause 1, Page 1, line 12, leave out sub-section (2)
The Commons disagreed to these Amendments for the following Reason:—
Because it would be contrary to the public interest that further payments should be made out of public funds in respect of past war loss of the kind described in the Bill.
LORD SHEPHERD: My Lords, I beg to move that this House do not insist upon the Amendments to which the Commons have disagreed. For the majority of noble Lords this is a unique occasion. Certainly in my eleven years as a Member of this House I, along with other Members, have not been confronted with
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a serious clash of opinion, or a possible serious clash of opinion, between the two Houses. Therefore, it is a moment of very great responsibility—responsibility that falls upon us all. I have given very serious thought to how best I can serve the Government and the House in dealing with this matter. I could be brief, and speak merely to the Motion that I have just moved, but in view of the importance of this subject, and in view of the very wide publicity it has received, even up to this morning, I think it would be right for me to cover some of the rather well-trodden ground, to remind this House of the area of common ground that we have obtained, and then to explain the reasons why the Commons have declined to agree to the Amendments made by this House.
Prior to the House of Lords' decision in the Burmah Oil case, it was believed—and, to use the phrase of the noble and learned Viscount, Lord Radcliffe, it was "the unchallenged view"—that at Common Law, where the Crown acts lawfully in the defence of the realm and war damage arises, there should be no right of claim. And that was the understanding of the law upon which Government policy in the last war was based. I would ask your Lordships to keep that very much in mind during the course of this afternoon. Whilst there was no right of claim for damage, there was a moral responsibility on Government and Parliament to provide recompense, compensation or rehabilitation to those who suffered in war. I would suggest that this moral responsibility has been accepted and honoured by this country. The reason for this is that, where we take and destroy property in the defence of the realm, some areas are covered by Statute and agreement, but in the case of war damage arising in the face of the enemy we have a different situation. The circumstances under which it arises are difficult to pinpoint; in many cases impossible to define; and certainly impossible to cover by Statute.
In a major war we have massive damage caused. In the United Kingdom alone during the last war the cost of rebuilding destroyed factories and homes amounted to £1,500 million; and in South-East Asia, on the claims that were made, the cost amounted to £333 million. This massive damage is due to the increased fire-power and, above all else,

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to the increased mobility of the Forces. With the tides of war there is no known high-water mark. The tides of war ebb and flow, so that not only do you have damage arising in an attack by the enemy, but you incur damage when you reoccupy. You destroy property for tank obstacles; you flood farmlands to impede the enemy: and you destroy to deny comfort to the enemy. Sometimes you destroy by precision and sometimes by what is called "blanket" bombing. You may destroy large installations when those installations are only a small part of the assets of a company: you may destroy a property, such as a tin-mine, small in size but representing the sole assets of the people who own it. You not only destroy British property: you destroy the property of the people of a country which may not be immediately or closely involved in the war. My Lords, who may know the motives when we destroyed these properties? Massive damage was caused, as I have said. And in South-East Asia, the country with which we are particularly concerned, the damage was put at £333 million.
My Lords, it is clear, and I think it is recognised, that no victorious nation, let alone a defeated nation, is ever able to repay, to recompense in full, all the damage caused. Perhaps I may remind the Liberal Party, in particular, this afternoon of the words of Mr. Lloyd George on March 10, 1915. I remind them because I quoted these very words during the Second Reading debate. He said:
"Instead of 'business as usual' we want 'victory as usual', and you cannot have that unless everybody in the community is prepared to suffer all kinds of incovenience and, if necessary, sacrifice. I do not think you can therefore hope to have the same complete measure of compensation which you would enforce in time of peace, where you take one man's property for the benefit of the public. After all, this is for the general defence of the realm."—[OFFICIAL REPORT, Commons, Vol. 70, col. 1460.]
I would ask this question of the House: can there be—should there be—two classes of war damage, one assessed in one way and one in another? Remember the words of the Prime Minister during the war: that war was a common burden: it befell all of us, we were all involved. Surely that was the spirit of those days: that while there was a common burden, there should be equity, common treatment, fair treatment, to all those who
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suffered. I do not think there is any doubt that that was the spirit of those days. This House has, in fact, declared that what was understood to be the Common Law should be the Common Law in future, although it becomes statutory for the future. I am quite confident that if we had been called upon to make such a declaration in 1939 no Member of this House would have raised his voice in objection. That was the policy of the Coalition Government and Parliament right through the war. I will not labour this point because I think the House will accept it; but I have mentioned it so that the House will understand the reasons why the Government, and previous Administrations, have remained firm in this policy, why the Bill in its original form was introduced and why the House of Commons have declined to accept these Amendments.
This House agrees on what should be for the future; the problem arises as to what should be for the past. I spoke of what the Common Law was understood to be. The House of Lords, in its Judicial capacity, made this judgment on the Burmah Oil case:
"The taking or the destruction of property in the course of actually fighting the enemy does not give rise to any claim for compensation. But these demolitions did not fall under the heading of battle damage because although the enemy was approaching they did not arise out of military operations."
That is the Common Law to-day, and it was the Common Law as it applied in 1942 when the destruction took place. We have for the first time, therefore, two classes of war damage. There is the accidental damage that arises from the destruction of property by shelling, bombing, mining or defensive works in the face of the enemy. These sufferers, even under the Common Law, as decided by the House of Lords, will not receive, by right, compensation in our courts. But those who had their property destroyed on the orders of Government, or of the military authorities, in order to deny it to the enemy, will receive compensation, as decided by the courts.
It is interesting to note that in carrying out your duty as a citizen you may destroy your property to deny it to the enemy. But because you do it voluntarily you will not receive compensation; while the man who waits for the order will receive compensation. I will make no

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comment on the decision taken by this House, except to say a few words about how it affects public policy. This House has decided that in future, when this Bill is passed, where the Crown has acted lawfully, there shall be no right of claim for war damage arising in the face of the enemy. That is the policy we have accepted. Therefore, the decision taken by the House of Lords must in itself be contrary to what we consider is public policy. The Government maintain, as did previous Administrations, that the decision of this House must strike at the whole policy of equity between one claimant and another and therefore must be opposed to public policy.
Suppose that the House of Lords had made this decision in 1948, after the passing of the Crown Proceedings Act, 1947, to which the noble and learned Lord, Lord McNair, drew our attention. No company, certainly no English company, would have been time-barred. All companies which had suffered denial damage would have had a right, had this decision of the House been taken in 1948, to come to the English courts and to seek compensation. I would ask the House to remember the economic circumstances of this country immediately after the war. We were called upon to provide large forces overseas; we had to rehabilitate not only our homes but our factories; we had to place ourselves on an economic base, and we needed large sums of money to do this. The Government of the day decided—and this has never been challenged—to set aside £33 million for rehabilitation and compensation in South East Asia. The total claim in that area was £333 million. I have no figures for the total denial claims in the whole of South East Asia; but, certainly, they would have run into tens of millions. If we take Burma as a case in point, the total claims there were £67 million, of which £60 million were claims for denial damage.
If this House had decided this point in 1948, the Government and Parliament would have been faced with two alternatives: either to let the law proceed, or—and this is what the Government are now proposing—take retrospective action. I would ask your Lordships to consider what would have been the effect had we allowed the courts to proceed. The awards
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made by the courts would have been uncertain; for, as the noble and learned Viscount, Lord Radcliffe, asked:
"Has the law any principle for measuring compensation as a legal right when an act has been done in circumstances so special that the ordinary conceptions of property do not apply to it?"
Certainly, the legal proceedings would have been lengthy. It might have been that the cost of such cases would have been a deterrent to the smaller companies; but—and this is a fact—if the House had decided in 1948 as they have done now, it would have meant that every company in South East Asia which suffered denial damage would have had a right against the Crown for full compensation. Let us consider this in the case of Burma. If the courts had awarded 100 per cent. compensation the sum allocated by the Government of the day would have been insufficient to meet those claims. If the courts had awarded 50 per cent., all the sums which the Government had set aside would have been needed to satisfy the denial claimants in Burma, with nothing left for all the other war sufferers in the area.
The Government of the day could have come to the other conclusion. They could have taken retrospective action. I would suggest that the Government and Parliament of the day would have had to do this. If they had not done so they would have been faced with having to pay astronomical sums to satisfy these war claimants and to make contributions to those who had no right but had suffered damage during the war. I suggest they would have had to do that, if only to meet the declaration which was made in the House of Commons on the 18th February, 1943, that if the Colonial Governments were unable to meet the war damage claims, the British Government and Parliament would come to their assistance.
In those circumstances, would retrospective legislation be as evil as has been suggested in our previous debate? I do not believe it would have raised any opposition, other than as a general principle. I believe if the Government of the day had come forward with that legislation we should have had the full support of Parliament. I do not believe that in those circumstances, or even in the present circumstances, this House

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really believes that in time of war there should be two classes of war damage claimant. I have put a hypothetical question to your Lordships, but is the case less valid twenty years later? We had a moral principle, a moral right, to provide assistance, and we believe it was right to do it on a basis of equity. Therefore, I suggest that the principle behind this Bill is stronger and not weaker for it.
Companies and individuals throughout South-East Asia, all except twelve companies, accepted the awards of commissions and committees set up by their own local Governments. These local Governments allocated the sums of recompense and rehabilitation. With all those people having voluntarily and willingly accepted the difference between their rightful claim and what they received, as their burden in the war effort, would it be right to them to say that the twelve companies which stood out to the end should be treated on a different basis? I do not believe that this House, in its heart, would accept that.
It is for this reason that the House of Commons and the Government are determined to uphold the basis of equity about which I have spoken, and hence the need for retrospection in this Bill. We had very powerful, very sincere speeches made from all quarters of the House on the question of retrospection; on the power of the Executive over the Judiciary; on the bad example to other countries, and the general repugnance at retrospective legislation. I would suggest that these are opinions—strong opinions, but opinions none the less. I have listened to the speeches here and I have read the speeches that were made when the Indemnity Act, 1920, passed through your Lordships' House. The character and the force of the speeches were the same, but would anyone suggest that the character and the standing of our law, the respect for our law throughout the world, is any less for the passing of the Indemnity Act, 1920, or the passing of other retrospective legislation in 1960 and even later?
My Lords, retrospective legislation is repugnant, but there are times when it is necessary; and as the noble and learned Viscount, Lord Simonds, wrote in his letter to The Times to-day, "If it is unjust
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law, it must be remedied". I hope that your Lordships will take that view this afternoon. These points have been borne in mind in another place: first, what the law was thought to be and the law upon which all policy during the war years was based; the basis of compensation of all schemes in South-East Asia. The United Kingdom contributions have been based on the distribution through independent committees and commissions, and no one has attacked the method by which these sums were made available and the fact that the Burmah Oil Company has received £4¾ million, as I shall show later, on very much the same basis as other war claimants in the area.
There is no doubt that this money was compensation, although in correspondence it has been referred to as rehabilitation. The Company could have used that money as it wished. There were no strings to it. It could have distributed it to its members; it could have used it for pension funds; it could have employed it in India, Australia or New Zealand. Nothing was harried to it, and therefore, my Lords, I would say to you that this is undoubtedly compensation. Above all else, there is no basis, other than the change in the understanding of the law, by which the Burmah Oil Company or the eight other companies are entitled to special treatment.
I would have left this matter there, but your Lordships will be aware of the statement that was made on the 25th May by the Chairman of the Burmah Oil Company. This statement, enclosing a copy of an offer, was treated, at the request of the company, as confidential and was not disclosed to the House of Commons when your Lordships' Amendments were considered there. It would be interesting to know why, after the House of Commons had arrived at their decision, the Burmah Oil Company should then decide to make public what had been a confidential offer. I think there can be only one reason. It must have felt that this House would have the greatest impact for its document. Therefore, I wish to say one or two things about the terms of this offer.
First of all, I think it is right to confirm that the Burmah Oil Company has now set in train the amendment of its claim. The claim originally was for

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£31 million plus 5 per cent. It has now been amended to £12,666,799, and if one takes into account the £4¾ million, the net claim to-day is £7,969,345. I wonder why, in the very last hours of the Parliamentary proceedings on this Bill, the Company has decided to amend? It has had twenty years with this claim. I can only believe that this has been done to stiffen what resistence there may be in this House to the Commons Message to your Lordships.
The company also drew attention to the treatment of the Irrawaddy Flotilla Company, which received considerably more than the Burmah Oil Company. The Irrawaddy Flotilla Company was requisitioned by the Government during the war, in a like manner to the merchant fleets, and was subject to an agreement which included an indemnity clause—quite different from Burmah Oil. There were various kinds of agreement made during the war. We made one with the Anglo-Saxon Petroleum Company, under which we paid 20 per cent. of their claim. In the case of the Burmah Oil Company, we paid 27 per cent., so by that agreement the Anglo-Saxon Petroleum Company was treated worse than Burmah Oil.
The Burmah Oil Company also drew attention to the treatment of companies in other colonial territories. I would put to the House what the treatment of Burmah Oil would have been, if they had been in Malaya and not in Burma. In Malaya, they would have received 331 per cent. of their claim, as against the 27 per cent. they received in Burma; but the 27 per cent. came entirely from the British Government; and if they had been in Malaya they would have been forced to contribute to a scheme to make up the difference between the British contribution and what the companies received. Therefore, I suggest, the disparity between the 27 and 331 per cent. would have disappeared because of the imposition of this levy. I would ask the House to take into account all the facts I have given, and to understand that the House of Commons believes that the basis of equity should continue and that the British taxpayers should not be called upon to contribute any further sums to these 12 companies, when simi
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lar treatment is denied all other claimants, who have accepted the scheme.
In conclusion, may I say this? I would draw attention once again to the Motion I have moved, that this House does not insist upon its Amendments. The operative and important word is "insist". The Government recognise the strong and sincere views of noble Lords in all quarters of the House. I do not seek to ask them to change their opinions, but I do say to them this. You have recorded your opinions. Your names are recorded in our Division Lists. You have given the House of Commons a full opportunity of reconsidering this matter. I submit that, as a House, we have discharged our functions and have done our duty. The Government are now asking the House not to insist upon these Amendments, for this general reason: while it is perfectly proper for your Lordships' House to amend Bills, this House should not insist upon Amendments that have been made when the elected Chamber have specifically taken the contrary view. In this context, I would say to the House that it is open to all noble Lords, whether in Committee they voted with the Government or not, to accept this Motion to-day. I venture to say that in so doing they will be doing no violence to their consciences, but will simply be recognising that, whatever may be the view of this House, in the last analysis the will of the elected Chamber should prevail. I beg to move that this House do not insist on the Amendments to which the Commons have disagreed.
Moved, That this House do not insist on the Amendments to which the Commons have disagreed.—(Lord Shepherd.)
3.25 p.m.
LORD CARRINGTON: My Lords, I think it right to intervene shortly at this stage because I feel that some of your Lordships may wish to know what advice I, as Leader of the Opposition in this House, may give to those who sit on this side as to the course we should now take on this matter. I have not hitherto spoken on this subject, although I think that your Lordships will know that I took a different view from that of most of those who sit on these Benches. I do not intend to discuss the merits of

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this issue. We had an exhaustive debate on the last occasion, and your Lordships have made up your minds as to the rights and wrongs in the matter. Indeed, I know that many of your Lordships feel that this is an issue of great public importance. Nevertheless, the consequences of our actions to-day go far beyond the actual terms of the Motion, for should your Lordships decide to insist upon the Amendments there would follow an open gap between the two Houses.
So far as I am concerned—and I think that this was borne out by the noble and learned Lord on the Woolsack on a previous occasion—this is not a Party issue. Nevertheless, we must in anything we do have regard to the political consequences of our actions. I take the view that on the previous occasion, when your Lordships decided to exclude the retrospective aspect from the Bill, the House was acting in exactly the way a Second Chamber should act. It was disquieted at a particular provision in the Bill and this House, whose composition admirably fits it to debate complicated legal matters of this kind, decided that the House of Commons should be given another opportunity, in the light of our debate and with the knowledge of what had been said by many notable Members of this House, of considering the matter.
In the debate on procedure which we had the other day I ventured to suggest that there were three rôles which this House could most suitably perform, and one of them was to consider and revise legislation which had gone through the House of Commons and to allow them an opportunity of second thoughts. This issue seems to me a classic example of that role. I should not have thought that anybody could complain of it. I must say that I think it deplorable that Mr. Hamilton, in his speech in another place, should have imputed dishonourable motives to those of your Lordships who differed from the Government view. The vote was on principle and not on the question of whether or not the Burmah Oil Company should get damages, and nobody who attended that debate could have been left in any doubt whatever about that.
The opportunity for reconsideration has been given. Once again a debate on the subject has taken place in the House of
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Commons and once again the view of this House has been rejected. There then comes the question what we should do next. If the House insists upon these Amendments, the Parliament Act will come into operation. In the procedure debate the other day I said that I thought there could be occasions, when measures were passed through the House of Commons on which the opinion of the electorate was not known, or in so far as it was known it was not thought to be favourable, when our delaying power might be used, and perhaps should be used, so as to enable public opinion to make itself felt. Is this one of those occasions? I am bound to say that I do not think that it is.
There has been a great deal of publicity given to the War Damage Bill. A great deal about it has been written in the newspapers and said on both radio and television. I do not myself see that, as a result of all this publicity, there has been any genuine or widespread interest among average persons in this country. It does not, therefore, seem to me likely that a further few months' delay will lead to any change in that attitude. If your Lordships insisted on the Amendment you would, it is true, be upholding a principle; but I venture to suggest that the House has already done that, and has made it perfectly clear what its opinion is on the matter.
Is this, then, the right issue on which to raise what undoubtedly will be regarded in many quarters as a grave constitutional matter? It may well be that in the future some issue may arise of such gravity and of such importance to the wellbeing of the country, as a whole, that it would be perfectly right and proper for your Lordships to use the powers which remain to you in order to bring home to the people of this country the gravity of that issue, and to give them time to understand its importance. But I must honestly say to your Lordships that I do not believe that this power can be used save in the most exceptional circumstances. If it were, I do not doubt that the whole future of two-Chamber Government, as well as the present form of this House, would be called into question. If I am right this is a grave decision to take.
There are, as we know, differences of opinion about this issue: differences, not only in Party, but among some of our

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most distinguished lawyers, as the letter by the noble and learned Viscount, Lord Simonds, in The Times this morning goes to show. But I do not think anybody has suggested that all retrospective legislation, in any circumstances, is wrong. We should not, if we voted, be voting for that proposition; we should be recording our opinion that retrospective legislation is wrong in this particular case. I doubt whether this narrower issue is of sufficient constitutional importance to merit a head-on clash between the two Houses. We shall recognise such an issue when it comes, and I do not think that this issue will be thought by the majority of your Lordships to be such an issue.
3.42 p.m.
LORD REA: My Lords, we have had two most interesting speeches, both supporting the Motion from the Government Front Bench, and I think perhaps it may surprise the noble Lord, Lord Shepherd, who gave us a most detailed account of the whole affair, if I tell him that we on these Benches support the Bill. We think it is a good Bill. No country can possibly afford to have astronomical damages, as it were, given against it, as the noble Lord said, and we think that legislation should be brought in to protect the country against such an event. But what we object to is the retrospective act in this particular Bill, for a particular litigant, and I do not think I need go into that again. We still support the Amendments which this House passed on April 13.
I hope that I am not misrepresenting the sense of your Lordships' House if I respectfully suggest that there is no real need for me, or perhaps the following speakers, to reiterate all the arguments for and against the Bill which were so clearly and ably put on both sides on the last occasion. In another place, the Government majority recorded on Second Reading was quite a big one; but it dropped significantly, as your Lordships know, from 50 to 10 when the Bill was returned there later for further consideration on this retrospective aspect, which we in this Chamber considered by a large majority to be undesirable. That, in itself, added to the, I think, considerable support which our Amendments received throughout the country, in the Press and else
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where, appears to me to be full justification for the vote which we recorded in this Chamber on April 13. I wonder whether the Government realise that their attitude in disagreeing to the House of Lords Amendments is widely regarded by many people as a rather unpopular and prejudiced move, dissociated, it seems, from the basic merits of the difficult problem involved, which in any event has not been put before the electorate for them to vote upon. In the Division in this House, your Lordships will remember that the Opposition Front Bench was put into a position which I thought was a little embarrassing; and I was sorry for them.
SEVERAL NOBLE LORDS: Not at all.
LORD REA: Then I need not be sorry for them; they like being in an embarrassing position. They were not quite sure whether or not they were the fathers of the Bill. They said they were. They were perhaps the putative father of this unfortunate orphan which had been adopted somewhere else. But, at the same time, they said that they had not supported the Bill, and had not even made it; they had only suggested to some draftsman that he might care to sketch out a Bill on these lines, and indicated in this Chamber later that it did not follow that that meant they were in favour of it. It was merely a whimsy that they like to try in this sort of thing. But they passed it over the Chamber to the other side. If I may say so with respect, I might almost say with affection, for the Opposition Front Bench, they were in a very difficult position. All we had was the spectacle of them loyally backing their own illegitimate child, so to speak, and going almost alone into the Lobby with a unanimous Labour Party, while about 100 of their followers went into the other Lobby with a unanimous Liberal Party.
The Government's objection to the Lords Amendments has been supported by certain arguments, among others, which I respectfully and humbly submit have no basis in fact, and indeed distort the true position; and I think they ought to be touched upon. First, it is suggested that this problem of the desirability or undesirability of retrospective legislation, quite honestly said to be in the national interest, which causes hardship or

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injustice to a successful litigant, constitutes a clash between the Lords and Commons. I do not agree. If it be seriously suggested that the majority Party, of any political colour, in the elected Chamber (and God save the elected Chamber!) is infallible, and that your Lordships' House is neither objective nor honest, then it is time that the Second Chamber was abolished and that we should proceed along totalitarian lines to a single-Chamber, or single-Party, or single-man Government. But, my Lords, the British Constitution is the servant, not the master, of the British public; and if the British public wishes to alter the Constitution it can and will do so constitutionally.
Meanwhile, the British Constitution, approved by the public until the public alters it, provides for a delay in legislation by the House of Lords, under the Parliament Act, and that delay is from time to time properly exercised, with a full sense of responsibility. It is part of the Constitution. The point of divergence between the apparent view of the Government and that of others of us is that the Government, it seems, regard this delaying function of the House of Lords as a privilege—probably an improper privilege—whereas we on the other side regard it as a very real duty of the Second Chamber to express what our conscience dictates that we should express. That is the function of this Chamber and of all its Members.
Under the Parliament Act we have two chances to ask the Commons to think again. We are not challenging them; there is no head-on challenge. We have asked them to think again; and as a result of our asking them to think again their majority dropped from 50 to 10. I think we should ask them to think again, and the majority may turn into a minority. This represents the majority view of this House, which I think is an honest House, honestly representing a view which it feels to be right.
If it be thought—as I think—that the present constitution of your Lordships' House is out of balance, then the proper way to rectify this defect is by way of a reform of the House of Lords, which is a matter far removed from to-day's subject matter; but it is certainly not justifiable to suggest, as it is being suggested,
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that this House is taking an improper stand in fulfilling its constitutional function of asking for reconsideration of legislation which, as a House, it considers to be ill-advised.
Secondly, it is suggested that your Lordships' House, which is predominantly a Conservative House, is influenced in the matter of this Bill by the fact that the litigant who happens to be chiefly and adversely affected by this proposed retrospective element is a capitalist litigant. We, who oppose capitalist privilege by conviction and by tradition, deny most strenuously that the status or wealth of anybody being deprived of a judgment, properly sought and properly obtained, has anything whatever to do with the deep principle of equity which is involved.
Thirdly, the last of these reasons. It has been suggested in some I think rather irresponsible quarters, which no doubt are an embarrassment to Her Majesty's Government, that certain noble Lords have betrayed their integrity by allowing a personal interest in oil company shareholding to influence their votes. The noble Lord, Lord Carrington, referred to this, I thought, with very proper disapproval. If this outrageous argument is supported by Her Majesty's Government, I would ask them to say so. To me, it is a contemptible argument, which only reflects very seriously upon the personal political outlook and standards of those who use it as if they would take that into account in their own judgment.
I have addressed my remarks to these accusations and misrepresentations because it seems that they underlie much of the Commons disagreement with our Amendments, and, indeed, they have all been expressed in another place. The Reason which we are debating this afternoon—the Reason which we are given officially—is that it would be contrary to the public interest to make a payment such as has been approved in law in the highest court in the land. That takes us straight back to the arguments put forward by both sides in this House, and I do not propose to deal with them any further. I would therefore respectfully suggest, if I may, that we banish from our minds these extraneous red herrings which have had cheap publicity, and confine ourselves to objective consideration of the Commons Reason which is before us (and I think it fits in quite

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well with the Motion of the noble Lord, Lord Shepherd): that is to say, whether we consider it our duty as a Second Chamber to maintain our stand in the true public interest as we conceive it to be, or whether, having once made clear our views with considerable effect, we should refrain from the further political action which is, of course, constitutionally absolutely proper.
I must make it plain that my noble friends and I on these Benches have in no way modified our opinion about the unacceptability of the retrospective elements in this Bill, and therefore we shall not, I am afraid, and cannot, support the Government if this matter should go to a Division this afternoon. If the Government would meet the objections to this Bill, or a few of them, by setting up a full inquiry into the whole matter of the Burmah Oil Company's position and its new offers of settlement, and, at the same time, would give an undertaking that retrospective legislation overriding the Judicature will be a very rare occurrence, reserved for a very few and very special cases, then I would advise my noble friends to abstain in the Division this afternoon. But, of course, for such an Inquiry to have any meaning or any effect, it would involve freezing this Bill and delaying its implementation, naturally until the results of the Inquiry were known and presumably acted upon. But if the Government cannot make this offer of compromise, then I regret that we, for our part, cannot conscientiously say that our views were right last month but wrong to-day. We believe that the wise view and (Parliamentarily perhaps more important) the majority view of those who have really studied this matter is opposed to the Government view; and accordingly I must say that we must record this in the Division Lobby if necessary.
3.53 p.m.
LORD PARKER OF WADDINGTON: My Lords, we are, I think, now nearing the end of our journey and I, for one, do not propose to go over all the ground which has been trodden so often on other occasions in your Lordships' House. I will therefore speak briefly and, I hope, with moderation. After very serious consideration, I have come to the conclusion
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that I must vote here in accordance with my conscience, which would be against this Motion. I do that not in any spirit of obstruction—and I hope nobody will suggest to the contrary—still less to provoke any constitutional issue. I really do not believe that there is a constitutional issue here. I think it is that we are dealing with a matter of such importance that a pause is what is needed, and that is why I shall vote as I propose to do.
It has been said in another place—incidentally by an old pupil of mine—that my only objection here is that there is retrospective legislation. Many of us dislike retrospective legislation—indeed, all of us do, if it can possibly be avoided. But my real objection here throughout has been the reason and the sole reason, for making this legislation retrospective, namely, to deprive a citizen of not merely an accrued, but a confirmed, right to such damages as he could prove; and, I would add—and I will come to it in a moment—without compensation. I am firmly convinced that if this Bill in its present form becomes law, then it will at the very best remain as a blot on the Statute Book; and at the worst it will be a precedent for future confiscatory legislation.
It so happens that quite recently another lawsuit attracted considerable attention and, indeed, ended in a decision of the Appellate Committee of your Lordships' House. Again, a citizen successfully asserted his right to damages; again, there were many who were surprised that the law turned out to be such as to enable him to recover damages; and once again there were many people who felt, and still feel, that the law in that regard ought to be altered. Yet no one suggested—indeed, I venture to say it was unthinkable—that any steps should be taken to deprive that successful plaintiff of his accrued and confirmed right. Yet is it so unthinkable in the future that some successful plaintiff, particularly if the defendant happens to be the Crown, will be treated in the same way as the plaintiffs in the lawsuit we are now considering?
It is no answer that compensation has been paid. If it is right to pay compensation—and clearly it was thought right—then where, one asks oneself, is there any provision for compensation in this Bill? This bit of paper, as I said, is a blatant piece of confiscation. There is

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not a suggestion here of the payment of compensation. Where are the provisions for that payment? Where are the rules setting out how that compensation is to be determined? Where is the tribunal set up to assess that compensation? In other words, where in this so-called War Damage Bill is any provision made for payment which would have accrued to the subject if our War Damage Act happened to apply to the circumstances of this case?
I venture to repeat what I said on an earlier occasion. We have no written Constitution within the framework of which Parliament must legislate. Parliament is supreme. But just as the courts owe an undoubted duty to uphold the expressed intentions of Parliament, so, surely, there must be some reciprocal duty on Parliament, not merely to act equitably, but to uphold the standards of justice which the courts administer. As I said before, I am going to vote in the way I have indicated because I think this is an occasion for a pause—a pause to enable passions to die down; a pause to enable further consideration to be given to the drafting of this Bill; to provide some measure of compensation and the determination of that compensation, and to keep open the chance of any amicable settlement which would avoid the necessity for any retrospective legislation at all.
4.0 p.m.
LORD MCNAIR: My Lords, I shall be brief. On the last occasion when we debated this matter, we from these Benches made a full statement of our case. We have nothing to withdraw, and very little to add. I must confess to surprise, if not shock, at the method adopted by the noble Lord, Lord Shepherd, in seeking to test the validity of this decision last year, by making the purely hypothetical assumption that it was being dealt with in the year 1948. That is to me a new kind of way of considering the validity of a decision. His speech was also notable in this respect. He made no attempt whatsoever to deal with the aspect of this Bill which influenced so powerfully so many of your Lordships in your votes on the last occasion—namely, the threat to the proper administration of justice which this whole incident has involved. That is to me, and still remains for me, the gravest aspect of the whole business, and
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it is not right that that should be covered up and smothered by consideration of this or that argument put forward by the Burmah Oil Company and so forth.
I would ask any one of your Lordships to put himself in the position of a Judge who comes into court and is told on the authority of the Crown which appointed him, "If you decide this case against the Crown, one of the parties to the case, legislation will be introduced to overrule your decision." That is what happened in this case. I will read you the words of Lord Kilbrandon, the Judge of first instance in Scotland—this comes from his Judgment:
"At the beginning of the hearing there was laid before me a letter which had been written by the Deputy Treasurer Solicitor to the pursuers … The letter was written for the purpose of informing the pursuers that Her Majesty's Government had been advised that the pursuers' claim was wholly unfounded in law, but that in the unlikely event of their succeeding in their claim legislation would be introduced to indemnify the Crown against that claim."
Imagine the position of the Judge who goes into court and is confronted with an intimation from the Crown, not to him directly but for obvious communication to him: "It does not matter what you do. You may hear the arguments of both sides, but if you decide against the Crown legislation will be introduced to overrule your judgment". That is a travesty of justice. That is the outstanding fact.
In my opinion that fact is more important than all these questions of millions of pounds, because it is only by slow and painful steps over the centuries that we have built up the system of administration of justice of which we are proud. It is only by those same slow and painful steps that we have built up the position which produces a fair balance between the rights of the Crown and the rights of the subject. And this particular Bill is a challenge to those two achievements that have taken so many centuries to bring to fruition. Therefore, if I may say so in all humility, I am absolutely 100 per cent. in sympathy with what the noble and learned Lord the Lord Chief Justice has just said, and I do not see how this House can ignore the statement that he has just made to us. I know that there are some lawyers who, by reason of political obligations and

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Party commitments and so forth, have to defend this Bill.
VISCOUNT DILHORNE: My Lords, I hope the noble and learned Lord is not referring to Lord Simonds, and I hope he is not referring to me. I certainly voted on the last occasion, but I did not vote out of Party obligations but because I thought the course I took was right.
LORD MCNAIR: My Lords, I am quite certain the noble and learned Viscount, Lord Dilhorne, voted in accordance with his conscience and that the noble and learned Viscount, Lord Simonds, wrote in accordance with his conscience. That does not alter the fact that certain lawyers are in this position. Events of the last few years have culminated in the position that they are hound to act in a particular manner. But my experience among lawyers on this topic is that I have not found any lawyer who had a good word to say for this Bill. It offends the legal instinct. And I suggest to your Lordships that, in view of the part played by the legal profession in building up our system of the administration of justice, it is very hard for you to overlook what I believe to be the sentiment of the majority of the members of the legal profession. So I am quite unrepentant. I shall follow the noble and learned Lord the Lord Chief Justice into the Lobby.
I am undeterred by this attempt to alarm us on the subject of clash and the invocation of the Parliament Act. Many of us in this House are old enough to remember the passing of the Parliament Act and the events that preceded it. We had had a Government which had been elected in 1906, with a majority of 365 in the other place, a majority which was reduced in two Elections in 1910. Bill after Bill was being sent up by the other place to this House—Bills that had appeared upon the programme of the Government time after time. One saw those Bills being massacred wholesale by your Lordships' predecessors in this House. Those were the circumstances, and that was the atmosphere, when the Parliament Bill was produced and eventually became law. But here my suggestion is that we are in a completely different situation. Here we are dealing
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with the subject matter of a Bill which has never appeared upon any Party's programme, which has never formed the subject of Party political endorsement, and I fail to see how, on a matter like this, you can blow up a difference of opinion between the two Houses into a grave constitutional crisis. At any rate, I am not going to be deterred or frightened by that threat.
The whole history of the relation between the Crown and its subjects teaches me, at any rate, that in constitutional matters the price of liberty is eternal vigilance. When an important question of principle is involved, it is rash to listen to those who say, "This is quite exceptional this can never happen again". If this Bill in its present form becomes an Act, it will, sooner or later, be invoked as an argument for some further invasion of the rights of the subject against the Crown.
Your Lordships will recollect that the constant refrain in most of the few speeches made on behalf of this Bill is, "Precedent, precedent, precedent. We have done this before: therefore we can do it again". I do not admit that we have ever done anything so flagrant as this before, but, as sure as your Lordships sit here to-day, if this Bill becomes an Act the day will come, although perhaps not in my lifetime, when another noble and learned Lord sitting on the Woolsack will invoke it as a powerful precedent for enabling the Crown to stop actions pending against it. If this can be done in the case of a wealthy company, how much easier will it be to do it against a humble individual seeking a remedy against the Crown in reliance on the Crown Proceedings Act, 1947?
It is not enough to look at the immediate consequences of this Bill. One must look backwards and forwards. My deepest legal instinct, after a lifetime spent in the law, in teaching, in practice and in judging, tells me that this Bill carries sinister implications for the future, both international and in this country; and I strongly urge your Lordships to insist upon your Amendments.
4.14 p.m.
LORD SHAWCROSS: My Lords, I had not thought to take up your Lordships' time in speaking upon this matter, but I have been encouraged, I will not say

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provoked, into doing so by the fact that in another place, without any prior notice to me and without any request from me for information about the matter, it was suggested that I had a pecuniary interest in the result of this Bill, and that I, and certain of my noble friends, had been lacking in integrity in voting in favour of your Lordships' Amendments without declaring an interest—a thing which, incidentally, there is no procedure in this House to do.
THE LORD PRIVY SEAL (THE EARL OF LONGFORD): My Lords, may I interrupt for a moment? It is certainly the custom here that if one takes part in a debate one does declare an interest. And, since the noble and learned Lord is going into this in some detail, I would point out that there are one or two other points that should be brought to his notice if he wishes to pursue this particular matter.
LORD SHAWCROSS: My Lords, I shall not be deterred by the noble Earl, Lord Longford, from pursuing this matter, and pursuing it in some detail. What I said, as the noble Earl would know if he had done me the courtesy to listen to me, was that in this House we have no procedure for declaring an interest before voting. In speaking on matters in this House, certainly it is the custom, if there is an interest, to declare the fact. But I will refer to the rulings that have been given on this matter, and if the noble Earl—
THE EARL OF LONGFORD: My Lords, if I may again interrupt the noble Lord, since he has laid down something so categorical, perhaps I may quote from Erskine May a passage which appears to apply to both Houses, where, besides mentioning the disclosure of any personal interest when taking part in the debate, it is assumed—and I now quote Erskine May:
"that the personal honour of a Peer will prevent him forwarding his own pecuniary interest by his votes in Parliament".
I hasten to say that I am not reflecting in any way upon the noble Lord, but—may I be allowed to finish, as the noble Lord is going to speak on this matter at some length?—it would be wrong to say that there is no guidance from Erskine May about casting votes. If they were large
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enough, I am sure they would be covered by this.
LORD SHAWCROSS: My Lords, the noble Lord is again taking a completely false point. It hardly needs to be said that if anyone considered that his personal honour was involved he would refrain from voting in a matter in which he had any interest. The statement that I made, and which the noble Earl consistently seeks to avoid, was that there is no procedure for declaring an interest before voting. If a noble Lord feels that he has an interest, obviously he refrains from voting. That, I should have thought, went without saying and did not require a quotation from Erskine May of the 19th century.
The position that I am in here is that I do not own, and, indeed, I regret to say, I have never owned, any shares in the Burmah Oil Company. On the other hand, as is publicly known, I am a director of the Shell Company, one of the companies in the Shell Group. In another place the matter was stated in this way. First of all, it was said in terms—and the matter was one that could have been ascertained beyond doubt in the easiest possible way—that millions of Burmah stock are owned by Shell. That statement is totally untrue. None of the Shell corn panics, nor even their Pension Fund, which is a completely independent organisation, has ever owned any shares, any stock, in the Burmah Oil Company. Then it was said—and there was more technical justification, although no significance at all, for this statement—that there were certain pending actions by subsidiary companies of the Shell Company which turned upon the result of the Burmah Oil case. As I said, there is, or was, some technical justification for that statement, but no significance in it, and it could not possibly have created the kind of pecuniary interest which would disqualify a Member of this House from voting.
When the Burmah Oil Company initiated its proceedings in the courts of Scotland, writs were issued on behalf of certain Shell subsidiary companies in order, as is quite commonly done, to keep the matter open pending the decision in the Burmah case. When the Burmah case had been dealt with on the point which was decided in the

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Judicial Committee of your Lordships' House, the matter was taken under advisement again. The Shell cases had a quite different legal status from the Burmah case. Among other things, the Shell Company is an English company, whereas the Burmah Company was a Scottish registered company, sueing in the Scottish courts. Moreover—and I say this quite frankly—twenty or more years having gone by, there were serious difficulties to be faced in actual proof. So it was concluded that, whilst it was a lawyer's holiday—a thing to which I am by no means opposed—to go on with this litigation, the prospects of success were not sufficiently good to make the continuance of the litigation a business risk from the point of view of the Shell shareholders. Consequently the actions were abandoned, and the Crown has now been so informed.
The really significant point—if the point has any significance at all—about this is the amount involved in these actions. The total amount claimed on behalf of the Shell subsidiaries was the sum of £145,000. At the moment the market value of the Shell capital is £2,000 million. Those who saw fit to attack my noble friend Lord Southborough and myself seem to have had the charming, amiable, and indeed benevolent idea that if we had recovered the £145,000 or some part of it, Lord Southborough and I would have been able to put the whole amount in our own personal pockets. If that had been true, I would concede at once that some personal pecuniary interest might have been involved. But alas! that was not the position. Had the Shell Companies proceeded in their litigation and recovered £145,000 (it is a little unlikely that they would have recovered that; litigants rarely recover the whole amount that they claim, and usually at the end of the day there is a considerable item of costs to be deducted from what they do recover) that would have made possible a distribution to the shareholders of.0125 of one penny—one and one-half hundredths of one penny per share. I think it was the late Mr. Horace Walpole who said that every man has his price, but, poor as I am, I should not like it to be thought that the price of my vote or voice was quite as low as that.
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In any event, it has been repeatedly ruled that a shareholding of this nature does not disqualify from voting on a Bill dealing with general public policy. That ruling had been expressly given by the Speaker in another place before these attacks were made on the integrity of various noble Lords and of myself.
Having said that about my own personal position, perhaps I may say that as a lawyer, and still more as a citizen, I have a very strong personal interest in the future of this Bill. I do not know what your Lordships feel about these questions of bias and interest which have been suggested in this case. I myself have always felt during my political life that it was usually fair, and indeed generally accurate, to attribute to one's opponents the same sincerity and honesty of motive as one claimed for oneself; "Evil be to him who evil thinks". But we live in very cynical days, and there has perhaps been a tendency in recent years on both sides—I am not for a moment making a Party political point; indeed, I do not belong to any Party—to attribute to one's political opponents base motives of one kind or another. It was suggested in a debate in this House only the other day by the noble Earl—suggested, of course, in the most charming possible way—that businessmen had a bias about business matters. Businessmen come to this House with knowledge and information which enables them to vote perhaps more correctly than those who have not that knowledge and information. It is always thought to be one of the strengths of your Lordships' House that we number among our Members people with special experience in all sorts of different fields who come here when matters concerning their particular field are under discussion and who are able to vote about it in an informed way. Voting with knowledge, voting in an informed way, I hope will not be generally thought to constitute bias.
THE EARL OF LONGFORD: My Lords, as the noble Lord has referred to me, may I put in one simple question which involves an attack on nobody's integrity? Would the noble Lord regard the farming community, who are presumably expert on farming, as capable of giving a dispassionate opinion on the Farm Price Review?
LORD SHAWCROSS: If the noble Earl asked me that question, I should say most certainly that I would expect any Member of your Lordships' House, coming to speak upon a farming matter, a business matter, a matter of penal reform, or any of the other matters in which the noble Earl is interested, as quite capable of giving an honest opinion and voting in an honest way.
THE EARL OF LONGFORD: Will the noble Lord give way?
LORD SHAWCROSS: Once more.
THE EARL OF LONGFORD: Well, this is the last time. The noble Lord is utterly confusing, or seeking to confuse, our minds by saying that a vote is dishonest because it is biased by the way one earns one's living.
LORD SHAWCROSS: I thought that I had made my position perfectly clear on this. One may have particular knowledge, particular experience and particular information about particular matters; one votes with that knowledge, that experience and that information. But I hope it is true—I had thought that it was true of the Party to which I once belonged, and I hope it is still true of that Party—that when they bring their minds to speaking in this House on matters of importance and voting in this House, they vote without bias in these matters and vote according to their consciences and what they believe to be right.
If I may adopt a phrase which was used in another place, I think rather inelegantly but I am sure in jest, if the truth is that we all "hate each other's guts", then no doubt we all do suspect each other of the basest possible motives in our political life. But if that is the image which the noble Earl wants to give of Parliament to the country, I would only say that it does not at all reflect the nature of political conflict and opinion in the country itself, and that that image will serve only to detract still further from whatever confidence and whatever respect Parliament still commands among the ordinary people of this country.
LORD FISHER OF LAMBETH: My Lords, may I ask one question? I belong to a profession which is often very harshly treated. I am constantly told in
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the Church that they must not bring Christianity into politics. Those who speak for the Church are experts in the Christian faith and knowledge. Would you say that we are really unwise to bring our Christian experience into politics?
LORD SHAWCROSS: I was seeking to say exactly the opposite. I have evidently made my point of view very unclear to noble Lords, but I suspect that when the noble Lord, Lord Fisher of Lambeth, and the noble Earl come to vote on matters on which they no doubt have experience and feel strongly, they vote as they believe, without bias and according to their conscience. I should hope that that was true of all Members, both of the other place and of this House. In the other place we used to call each other, and still do, "honourable Members". In this House we call each other "noble Lords". I should be sorry to think that those were completely empty epithets. I think we use these adjectives in a traditional way as conveying to each other and to the public that, though we may disagree violently, even passionately, with each other on matters of Party politics, and although we may realise that we see the light far sooner than the chap on the other side, yet we credit him, with stupidity, perhaps, but with the same honesty and sincerity in pursuing his unenlightened courses as we have and claim for ourselves in pursuing our own.
Although, as I say, I have no pecuniary interest in the result of this Bill I have an interest as a lawyer, and still more as a citizen; and before I sit down, in a very few moments, I should like to make one or two comments on what has been said about the subject matter and merit of the Bill. The noble Lord, Lord Shepherd, in addressing your Lordships' House at the beginning of this debate, referred to the Crown Proceedings Act. I had the privilege, as the principal legal adviser of the Crown at that time, to introduce that Bill into the House of Commons, and I remember that, in introducing it, I said that its purpose was to put the Crown in exactly the same position as the subject under the law. This Bill puts the Crown—and by the Crown, of course, I mean the Executive—above the law. That seems to be the point, if I may say so, with the greatest respect, that was missed in the important letter in

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The Times this morning over the signature of my noble and learned friend Lord Simonds. The point, surely—and it is the point to which one might have hoped he would direct his attention—is that in this case the Crown has chosen to put itself in the position of a litigant, has fought as a litigant right through the heirarchy of courts, and then, having lost as a litigant in the highest court in the land, has said: "Now we will use our power over Parliament to secure the reversal of this decision."
My noble friend Lord Simonds committed himself, as have some noble Lords on the Government side of the House, to a somewhat emotional reference to those who had lost life or limb during the war. It is hardly a matter which has much relevance to the matter in hand here. But the noble Viscount's proposition seemed to be that, as there are many cases in which it is impossible to pay compensation, therefore compensation should not be paid at all in the cases in which it is possible to pay it. That seems to me a curious non sequitur, but perhaps it was based on a misconception of the position by the noble Viscount.
He said that if it had been realised during the war that a distinction would be made between war damage and denial damage, legislation would have been passed to deal with it. But that is not correct. The right to compensation was fully recognised. Sometimes denial damage had to take place at very short notice, almost in the actual course of battle; sometimes it was planned quite a considerable time in advance. When it was planned in advance the question of compensation was recognised and considered. In those cases of which I know, connected with my own group of companies, in which these denial measures were planned in advance (I am referring now to the case of Sarawak), there was an actual written agreement which provided for the payment of compensation, under exactly the same heads as damages would have been payable if the matter had been dealt with under Common Law.
The noble Lord, Lord Shepherd, referred to what I think he described as the hypothetical situation that might have arisen if this matter had been considered in 1948. I would simply say to that that,
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if the matter had arisen for consideration in 1948, what the Government of the day would certainly have done would have been to pass a general Act of Indemnity, but not themselves to assess the damages for the wrong which they had done. They would have set up a general claims tribunal to assess appropriate damages in the circumstances of the case.
I hope that your Lordships are not going to be misled by the arrogant, the impertinent, suggestion which has been made to your Lordships again to-day, that this Bill simply restores the law to what it was previously considered to be. The law of this country is not—I was going to say unfortunately, but fortunately—an exact science. There are many matters of argument and many matters of doubt which can arise. That is why people go to the Bar, that is why we have an elaborate appellate structure to deal with these problems. But Sir Stafford Cripps at that time expressly said that he realised there were two views on the law relating to this matter, and he contemplated the courts' passing upon it.
For myself I have never doubted that the Burmah Oil Company were entitled to compensation. Fifteen years ago I had occasion to study in some detail the problem of the Crown's prerogative in time of war in connection with another case—not on all fours with this case; I am not suggesting that for a moment—in which the Crown's then advisers had taken an altogether exaggerated view, as the courts eventually found, of the Royal prerogative. I am bound to say that I formed the view then that this sort of case, the Burmah Oil case, was a case in which Common Law rights arose. The highest at which this matter can be put (I do not think there is much advantage, in putting it one way or another, but it has been put the other way) is that this Bill restores the law to what some lawyers who had not thought about the matter, had not studied the matter, or who, if they had studied it, had reached erroneous conclusions, mistakenly thought it was before the House of Lords finally pronounced on the matter.
I hope that your Lordships will not be misled, either, by the rather spurious precedents which have been paraded before your Lordships. I want to say

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only two things about them. The Act of 1920 indemnified the Crown, certainly, against wrongs committed by the Crown; but it did not proceed to enable the Crown to assess what, if any, damages should be paid, or to say that no damages should be paid. On the contrary, it established a general claims tribunal to assess damages in all these cases. That Act did not apply outside the Dominions, but there was an express provision in the Act itself to apply it, should the necessity for it arise, to the Dominions. A case like this one, the Burmah Oil case, never arose at that time, and for that reason the Act was not applied. In regard to the other so-called precedents, it can be said that none of them altered the position of those who had acted in the faith of what was previously supposed to be the law; on the contrary, they validated it. This Bill will have exactly the opposite effect.
Last week I was writing a little leaflet for a Government Department on the present implications of Magna Carta to be distributed overseas. Your Lordships will remember the famous language of Chapter 40:
"To none will we delay, to none will we deny, right or justice."
I could not help thinking that it was passing strange that in one breath Her Majesty's present advisers should wish to boast—and quite rightly—about this great tradition which we have maintained for 750 years, and in the next breath should do that very thing—because this Bill will deny right and justice as established by your Lordships' House. My Lords, I shall not be intimidated by any view that any great constitutional issue arises here between the two Houses of Parliament. If this House does not, on this completely non-Party matter, vote as it is right to vote, it will completely stultify itself.
4.40 p.m.
LORD SILKIN: My Lords, I am very glad indeed to have the opportunity of following the noble and learned Lord who has just spoken. I have known him for well over 40 years, and I believe that I had the honour of introducing him into public life. Nobody who has known him as I have will for a moment credit the fact that he could have, in any way, at any time, acted improperly. I am
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very glad that he disclosed quite fully to the House the interest that he has or has not in the matters under discussion. I do not think he need have concerned himself about this House. Nobody would have credited for a moment the fact that he would speak or vote on a matter in which he had a definite pecuniary interest without disclosing that fact. But it is as well—because I agree with him that things have been said in another place—that he made his position quite clear; and, as I say, I am very glad that he did so.
Up to that point, my Lords, I agree with him and sympathise with everything he has said. But I now want to discuss this matter not on its merits at all. We have already had a very full discussion upon the merits—and may I say that, in the fifteen years that I have been in this House, at any rate, I have never known a better discussion than that which we had in Committee. I want to say particularly to the noble and learned Lord, Lord McNair, that I have never heard a better exposition of a case than I heard from him on that occasion. If I may, I will go further and say that I was in complete agreement with the point of view that he put forward. If I had been free to vote, I should have voted for the Amendment; but I was not able to be present at the time of the Division, and I did not vote. Therefore, it cannot be said that I myself am lacking in sympathy for the point of view that a number of noble Lords have expressed to-day—and may I say to my noble and learned friend Lord Shawcross that nobody is trying to intimidate him into voting one way or another? We know that it would be a perfectly hopeless task, anyway; but this is not a matter of intimidation.
I myself to-day take the view that the merits of the case have been exhausted. We have dealt with them. I would not agree with my noble friend that it is a question of pure black or white. I can see that the case for the Bill as it stands can be argued, and well argued. I would, for instance, put to him the position in a case where the Government are convinced that the situation on a matter which is pending in law is completely unsatisfactory, inequitable and against the public interest. Might it not be right for them to issue a warning, saying, "If you

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go on with this case, and if you happen to be successful—we do not believe you can be, but if you happen to be successful—we take the view that we should be right, in the public interest, to reverse any decision that you might get."? I think that would be a tenable position for a Government to take up in exceptional circumstances. I am not sure that in this particular case it would have been so clearly against the public interest if the Burmah Oil Company had been successful, but at any rate, it is a tenable view to take, and therefore, although I should have supported the Amendment, I feel that the arguments were fairly balanced and that it was a matter of judgment upon the part of any noble Lord as to which side he took.
LORD SHAWCROSS: My Lords, I wonder whether the noble Lord would forgive my interrupting on this question of the warning letter, to which he referred. If the Government of the day had thought it right to take their courage in their hands and, before or immediately upon the commencement of the litigation, introduce a Bill about the matter, indemnifying the Crown, I think little objection could have been taken to the matter. I might then—I do not know—have taken quite a different view. But the objection I venture to press upon my noble friend is that the Crown did not do that. It sought, first of all, to put itself in the position of a litigant, under the law; and then, having lost as a litigant under the law, it sought to take advantage of its majority in another place to alter the law in its favour. That, I think, is the real objection to what was done.
LORD SILKIN: I think that possibly the Government of the day would have been better advised if they had introduced of short Bill at the time when the proceedings were commenced in the Scottish courts. They did not do so, and it is not for me to give the reasons why they did not. I think that possibly they thought it was a hopeless case. But, be that as it may, the position is still, I think, that in certain circumstances a Government may be justified in taking the view taken by the Government which wrote that letter. I therefore feel that it is not entirely a question of black or white. But I do not want to say more on the merits. We
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have discussed those, and this House took a certain view—and I want to say that it was perfectly entitled to take that view. If we had not taken that view, I think most people's respect for this House would have gone down very greatly. If we, by our composition, are not in a position to take strong views on matters of this kind, then, as I said on an earlier occasion, I think we might as well close down, because we should be completely ineffective.
I fully appreciate the point of view of the noble and learned Lord, the Lord Chief Justice, and the noble and learned Lord, Lord McNair, in feeling very strongly about it; but to-day the position really is different. We have expressed our opinion; and I take the view that the noble Lord, Lord Carrington, has put the position very fairly and clearly before the House. We have expressed our view; we have done our duty; and we have made it very clear to the other place what our views are. They now disagree with us. I think we must accept the fact that, under the Parliament Act, the view of the other place, in the end, prevails. That was the intention when the Parliament Act was passed: it is still the intention to-day.
All we can do is not to change the views of the other place, but to impose a period of delay. Now what is the purpose of that delay? Some people say that it is to deal with cases where the Government of the day are acting without a mandate, and clearly and manifestly against the views of the general public. This is certainly not such a case. The general public have no particular views, and, frankly, are not in a position to form them. There can be no mandate; and this is not a purely Party political decision. It is a decision which was formulated by previous Governments, and the present Government are just following on, accepting the decision of previous Governments.
Is there, then, any other advantage in postponing a decision? The other reason put forward for postponing such a decision is that it gives time for further consideration. I think the noble and learned Lord, Lord McNair, talked about "passions cooling down"—I think that was the expression he used.
A NOBLE LORD: "Dying down".
LORD SILKIN: There is no passion about this, except possibly in the noble and learned Lord's own case, which is understandable. But I doubt whether noble Lords who voted one way or the other need to let their passions die down.
LORD REA: My Lords, the passions died down from 50 to 10 in the House of Commons.
LORD SILKIN: My Lords, I do not know whether or not the noble Lord wants me to answer that intervention. This is not a case where it is necessary, or even desirable, that we should give a certain amount of time for the feelings of this House and of the other place to cool down, with a possibility that we might come to a different conclusion or that the other place might do so. This is not that kind of case at all. This is the kind of case where I suppose we must agree to differ, accepting the doctrine of my noble friend that we are, all of us, honest—those who have taken the view of the majority in this House and those who are against it.
This is only a difference of opinion about a very important matter; and, ex hypothesi, in a difference of opinion of this kind, under the Parliament Act it is the view of the other place that must prevail. Therefore, the question we have to ask ourselves is: are we going to accept the policy and principles of the Parliament Act and let the view of the other place prevail, whatever our own views may be, however much we may disagree with them? Are we going to accept the position to-day, or are we going to wait for the next Session of Parliament and then, whether we like it or not, be forced under the Parliament Act to accept those views?
I feel, as the noble Lord, Lord Carrington, said, that there may be some noble Lords in this House (though I have not yet met them) who are spoiling for a fight with the other place. If they are, they are not choosing the best ground from their own point of view. This is not an issue which is going to stir the country to its depths, either for or against the House of Lords. It is not that kind of issue; and I can see no point in deferring a decision on this matter and leaving the country (and even the Burmah Oil Company) in a state of uncertainty.
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May I just say, in conclusion—and this has nothing to do with the Motion which is before the House—that I hope, when this has been cleared out of the way, the Government may be prepared to listen to the Burmah Oil Company and to consider the views they put forward in regard to a loan, or any other form of assistance, on its merits. I hope that the Government will not feel prejudiced against the Burmah Oil Company because of what has happened, but will be prepared, if a reasonable case is put forward by them, to look at it to see whether or not the proposal is in the public interest; and, if it is, to deal with it in that way. This has nothing to do with the Motion, as I have said. I hope that this House will choose its ground very carefully before deciding to get into conflict with the other place.
4.55 p.m.
LORD ALPORT: My Lords, I do not think I shall be misrepresenting the noble Lord, Lord Silkin, if I said that the speech to which we have just listened was not an easy one for him to make. I hope your Lordships will accept that the speech I am going to make is at least equally difficult for me, for a number of reasons. In the first place, this is the first lay speech to follow a series of speeches by distinguished lawyers; secondly, the point I wish to make has already been covered far more eloquently than I can hope to cover it by the noble and learned Lord, Lord McNair; and thirdly, I am the first Back Bencher on this side of the House to speak in this debate; and I have to do so confessing that I cannot accept the advice given by my noble Leader, Lord Carrington, and saying that I intend to vote against the acceptance of the House of Commons views. I hope, therefore, that your Lordships will bear with me for a few mintues, while as shortly as I can I shall try to describe my reasons.
I have never been a juror, I have never been exposed to the eloquence of a great advocate, and I therefore listened to the speech of the noble and learned Lord the Lord Chancellor on the Committee stage on April 13 with rapt attention, realising that he was putting the case in a way which only a skilled and experienced advocate of the highest competence could. I think it worth while recalling to your Lordships the arguments he pursued, for

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I believe they form the kernel of the case for the proposed legislation in the War Damage Bill. He dismissed, for instance, as being rather whimsical and irrelevant, the idea that something done here by our Parliament in its relation to the Judiciary might either have repercussions on British interests overseas or be damaging to the reputation of the legal tradition of this country in the world at large.
Then he went on to describe a series of precedents. The noble Lord, Lord Shawcross, has already expressed some doubts about their relevance to the particular issue; but to me, listening to that speech the other night, they were very convincing indeed. Noble Lords will remember the Indemnity Act, 1920, and how the Lord Chancellor said that in 1920 only 28 Members voted against it in the House of Commons. Then he referred to the War Charges Validity Act in respect of which an Amendment that it should be "read 2a this day six months" was negatived without a Division in this House. Then he mentioned the interesting case of the fortunate and persistent Mr. Pratt—fortunate, because he established his rights at law; persistent because he took them to the House of Lords to do so.
Your Lordships will remember that earlier in his speech the Lord Chancellor said—and he made a point of it, I thought—
"The point of this case, at the end of the day, is really the same:"—
he was referring to the Limitation Act of 1920—
"is it right that in the last war, in which we could not possibly afford to compensate everybody to the full, these companies, because they took a 1,000 to 1 chance (which the poorer litigants could not have afforded to do, in going to the House of Lords) should receive at the end of the day a different measure of compensation from the others?"—[OFFICIAL REPORT, Vol. 265 (No. 64), col. 341, April 13, 1965.]
I am not aware that Mr. Pratt had any great wealth; so far as I know, he was a workman, endeavouring to assert persistently his legal rights. He was able to go to the House of Lords. It would be a bad comment on our legal system, I should have thought, speaking as a layman, that either the pursuance of a case or of a claim to the House of Lords should be regarded as a sort of lottery of
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a 1,000 to one chance, or that, alternatively, the impression should get abroad that only the great corporations were able to have recourse to the highest court of appeal in this land. However, the point, when it was made by the Lord Chancellor, was a very telling one; and the inference was that rich companies could get advantages over poor people and would do so if we passed this piece of legislation. The noble and learned Lord also said, in referring to the case of the persistent and fortunate Mr. Pratt, that his legal rights and those of thousands of other workmen were taken away by "a Parliament of employers". It seemed strange—and I say this with great seriousness—that a noble and learned Lord should use a precedent of an unjust action by a Parliament which he described as "a Parliament of employers" against the legal rights of a large group of working people here in Britain, to justify what I regard as an unjust action of the present House of Commons to take away the rights of another litigant, even though that litigant may be a great and powerful corporation.
Then the noble and learned Lord went on to say that in the case of Mr. Pratt there was no Division, no Committee stage, no debate on Third Reading. Admittedly it was 1940 and there may have been other pre-occupations at that time. The whole of the build-up of all these precedents gave at the end to me, at any rate, and I think to others of your Lordships as well, the impression that in this case we were trying to make a mountain out of a molehill, and that great names in the law in the past, Pollock, Sumner, Simon, Lord Birkenhead and Lord Kilmuir had all been in favour of retrospective legislation: that the House of Commons and the House of Lords in various intervals of time had not paid any great attention to the rights and wrongs of a situation which was claimed to be parallel with the present one.
My Lords, I shall vote against the House of Commons answer to our Amendments and to exclude our Amendments from the Bill, not because I believe it is going to prevent it from becoming law, because we know perfectly well that it will become law in about January of next year, but to make certain that no Lord Chancellor and no Minister can come before your Lordships' House on

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another occasion and, when he propounds some legislation of this sort to take away the legal rights—whether it be of a great corporation or of an ordinary workman like the persistent Mr. Pratt—be able to use as justification a long series of precedents of Parliament, not taking an interest in what (and I cannot quote his words but we heard them this afternoon) the noble and learned Lord, Lord McNair, has referred to as one of the essential freedoms upon which the whole of our legal system is based.
I will end by illustrating my point in one way. A Finance Bill is going through the other place at the present time. It is, I suppose, the most complicated Finance Bill in history. It may go through on the guillotine. Whether it does or not, it will not come before your Lordships' House. When it has passed the House of Commons it will go straight to the Statute Book. I do not believe that, even with the best will in the world, it is going to be possible to foresee the full implications of the provisions of that Bill, or the effect that it will have on the interests of great federations, on the one hand, and on the interests of ordinary, humble people, on the other, dealing with and perhaps damaging irreparably their legitimate legal interests, at any rate so far as they themselves can see.
I think it will be inevitable that in respect of that particular piece of legislation cases will come before the Judicial Committee of your Lordships' House, as they have with regard to other Finance Bills and other pieces of legislation in the past. It may well be that the Government of the day thought that a particular provision in a Finance Bill meant a particular thing and were advised that such was the case by their legal advisers. It may well be that, as in this particular case, they thought that that was the law but somebody, a persistent workman or a great corporation, may decide that they have different views and fight this rule, and it may be at the end of the day that your Lordships' House will decide that the meaning of a particular section of that Bill is quite different from what the Government thought. It may well be that £10 million of public money will be involved, or £393 as in the case of Mr. Pratt, and it may well be that very important issues of public policy will be involved.
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I use this just to illustrate the dangers of the situation as I see it. If, after the money that is necessary to bring a case like that to the House of Lords has been expended by a litigant, at the end of the day it becomes public policy, a matter of expediency for the Government of the day—whether it be Labour, Conservative or Liberal does not matter—to introduce legislation to do exactly what we are being asked to do at the present time, to establish the law for the future and for the past as everybody thought it was and also to save the Government certain financial expenditure, then it may well be that somebody will come down to this House in the future and cite our actions this afternoon. They may be cited as a precedent for what will be called the unimportant and routine nature of that future form of retrospective legislation. Or it may well be that the Government of the day will be prevented from doing that because we shall have voted for a second time to make certain that, although we cannot prevent this Bill from becoming the law, the House and the country—which understands it, if I may say so with respect, far better than your Lordships perhaps realise—will be preserved from the situation to which I have referred. They will then support what we intend to do, and will realise that what we are doing is not dealing with something which is just a lawyers' quibble or something done in the interests of a great corporation or powerful interest, but is in fact in the interests of the continuing tradition of freedom in British law.
5.8 p.m.
LORD CONESFORD: My Lords, this Motion is to the effect that we should not insist on our Amendments. As it was I who drafted these Amendments and was associated in support of them with the noble and learned Lord, Lord McNair, I think it is right that I should give my views to the House.
The matter was fully debated on the Second Reading of the Bill on March 25 of this year, and in the Committee stage on April 13. On both those occasions I supported, and was very proud to support, the noble and learned Lord, Lord McNair, who made an outstanding contribution to both debates. To-day, though I still agree with him on the merits of the Bill, I have formed a

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different view about the action which I think the House should take. I tell your Lordships quite frankly that I have never found it more difficult to make up my mind; and I am quite modest, I assure your Lordships, in commending the view which I intend to put forward. I may be wrong, but I have formed a different conclusion: I believe that, on balance, we should accept the Motion that has been moved.
On the merits of the Bill, I shall not weary the House by repeating the arguments that I put forward on the two earlier occasions. No consideration subsequently put forward in support of the Bill and its retrospective provisions that we struck out has caused me to change my view. I have little doubt that the great majority of the House still hold the same view on the merits which they expressed when they carried the Amendments. We wish, indeed, that the cogent arguments, put forward with such a weight of judicial authority behind them, had commanded more attention, and, I might add, a little more understanding in another place; but the problem that we have to face this afternoon is that the Commons have considered our Amendments and, by a direct vote, have rejected them.
Before weighing the rival merits of the two courses between which we must choose to-day, I would make two comments, if I may, on the proceedings in the Commons. The Financial Secretary to the Treasury, Mr. MacDermot, made the principal speech against our Amendments. I should like to make a brief comment on a passage in his speech, in which he mentioned me by name and purported to deal with something that I had said. He thought that I had been alone in challenging the view that the decision of your Lordships' House, sitting Judicially, in the Burmah Oil case upset an almost universally held view about the law on the subject. In that he was wrong, as those who heard the speech of the noble and learned Lord, Lord Guest, well remember.
I pointed out the true position to the House and the Committee on the previous occasions as the noble and learned Lord, Lord Shawcross, has pointed it out this afternoon. I quoted the words that Lord Dunedin had uttered in the de Keyser
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case, the view expressed by Sir Stafford Cripps, as reported in the minutes of a meeting, and passages in the proceedings in the various courts in this case. Mr. MacDermot said that Lord Dunedin was dealing with the right of compensation when there had been a requisition of property, and he then went on to use these words:
"I think that all hon. Members—lawyers and non-lawyers—will agree at once, that there is a ready distinction to be made between a case where the Crown has seized property in war to make use of it, requisitioned property for that purpose, and the case where property has been destroyed in order to deny its use to the enemy."—[OFFICIAL REPORT, Commons, Vol. 712 (No. 113), cols. 534–5.]
I quoted Lord Dunedin in the de Keyser case with a full knowledge of the subject matter of that case, and the passage I quoted from Lord Dunedin I quoted with exactly the same purpose and effect as the noble and learned Viscount, Lord Radcliffe, had in quoting it in his celebrated speech in the Burmah Oil case.
But what astonishes me is the concluding words, showing not only that Mr. MacDermot assumed that there was no ground for my assertion, repeated by the noble and learned Lord, Lord Guest, on the other occasion, and by the noble and learned Lord, Lord Shawcross, this afternoon, that the state of the law was in real doubt, but also that he thought that what Lord Dunedin had said would not have the effect which I sought to give it, on the ground that there was a distinction between requisitioning property for use and destroying it. The reason why Mr. MacDermot's words astonish me so much is that nearly every Law Lord in this case which we are considering stated expressly that this point, which Mr. MacDermot said made so much difference, made no difference whatever. Let me quote what the noble and learned Lord, Lord Reid, said.
"I may say at this point that it was rightly not argued that the fact that the property is taken for destruction and not for use can make any difference."
The noble and learned Lord, Lord Hodson, used these words:
"Much of the debate which has taken place has related to the taking of property and not to its destruction. This distinction can be disposed of shortly, for the Crown—
the Crown, mark you!—
"does not argue that it is in any different position because the property of the Appellants was destroyed and not only taken over or confiscated."

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I could quote from the noble and learned Lord, Lord Pearce, in similar terms.
The reason why I remind your Lordships of this is that in this measure the Government are crudely setting aside a judgment not only for the future but retrospectively. When we knocked out the retrospective provisions, the Bill had to go back to another place for reconsideration, and it appears that the Minister who made the principal speech, in many ways a very able speech, in favour of the rejection of our Amendments had not acquainted himself with the elementary facts which I have just put before the House.
There is another matter, which I very much regret, about the procedure in another place. It has been mentioned both by my noble friend Lord Carrington and by the noble and learned Lord, Lord Shawcross. An attack was delivered upon many noble Lords in this House on the ground that they should not have voted since they were shareholders in the Burmah Oil Company. I am not a shareholder in the Burmah Oil Company or in any other oil company but before we had any debate on this subject a number of noble Lords asked me, as a friend, whether I thought there was any reason, in the mere fact that they were shareholders, why they should not vote on this issue, on which they felt honestly and strongly.
What did I do? I, of course, referred them to the relevant passages in Erskine May, which, as the noble and learned Lord, Lord Shawcross, has perfectly properly pointed out this afternoon, make the position abundantly clear. It has been clear since the locus classicus of a ruling by Mr. Speaker Abbott in 1811 that this possession of shares in a company where the matter before the House was a matter of State policy constituted no reason whatsoever why they should not vote. Of course, it is true that a noble Lord is on his honour not to vote if he has an interest inconsistent with voting in that way, and voting in accordance with his view of the merits. But the procedure of both Houses has always provided this, and it is set out in Erskine May in the clearest possible way:
"An objection to a vote, on the ground of personal interest, cannot be raised except upon a substantive Motion (which must be made as soon as the Division is concluded),
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that the vote given in a Division be disallowed, and cannot be brought forward as a point of order."
As one who served for some twenty years in the House of Commons, and loved that place, I wish to express my regret and disgust that such an unworthy attribution of motives against Members of your Lordships' House should have been made by anybody in another place.
My Lords, those are the only remarks I wish to make on the proceedings in another place. But perhaps I may add this. There is shortly coming before this House another Bill passed by another place by a small majority, called the Trade Disputes Bill. I very much wonder whether it is quite certain that no trade unionist who might conceivably be engaged in a trade dispute and who might benefit from the passage of that Bill into law took part in the proceedings and voted in any Division. I merely put that forward. I do not suggest for one moment that there would be anything improper in their having voted on that Bill. I have always credited Members on all sides in both Houses with a proper sense of personal honour. But if there was an objection to a noble Lord, because he was a shareholder, voting on the merits of retrospective legislation in the present Bill, on the same principle nobody who might benefit by an immunity conferred by the other Bill I have mentioned against being found liable to damages ought to have taken part in the voting in the other place.
The difference between the two Houses on the merits of the Amendments is now established. That difference can be resolved in either of two ways. It can be resolved by our insisting on those Amendments, in which case the Bill can only be passed under the Parliament Act next Session: or, alternatively, we can resolve the difference by agreeing, while still maintaining our own views of the merits, to let the Common's view prevail. What I wish to say to the House is that either of those methods is a perfectly proper method to adopt. No noble Lord ought to be attacked because he takes one view rather than the other. I am going to advocate the second. I am going to abstain in the Division at the end of the debate, and I should advise my noble friends to do the same. But I fully understand and respect the decision of

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any noble Lord who comes to the other conclusion.
I should like to remind the House of this. The Parliament Act, 1949, is a modern Statute, introduced and carried by a Socialist Government. It enables this House to impose a short delay, and nothing more. If we insist on the right of imposing this delay (I now quote from memory, but I think I am right), one year has to elapse between the Second Reading in the Commons in the first Session and the Third Reading in the Commons in the second Session. That is the utmost delay that this House has power to impose under the modern Socialist Statute. Now, my Lords, if there is to be a Second Chamber at all—and we know that the Communist Party and those who agree with them do not think there should be—it is inconceivable that that Chamber can be given a smaller power of delay than that which we have under the 1949 Act. In other words, the power of delay imposed by that Act is one which can properly be used in a sufficiently important case, and no one has any right to object on constitutional grounds to its being used.
But although we are entitled to use that power of delay, we are not bound to do so, and I very much object to the idea that we are necessarily being weak because we do not insist on going through that form. I found myself in general agreement with the conclusion of the noble Lord, Lord Silkin, on this. I do not budge from a single thing I have said on the merits, or, rather, the demerits, of the Bill as it will stand with these retrospective provisions. But in the very difficult question of deciding whether to advise the House to insist on these Amendments or to allow this Motion to prevail, I have myself been affected by an argument which has not yet been put forward and which noble Lords may think has no merit at all. I can only say that I believe it has some merit, and, since it has influenced my own mind, I venture to put it forward.
I believe that it has been one of the main fears of all noble Lords who have debated these retrospective provisions in all three debates—that the result of this measure going on the Statute Book may be very adverse to the interests of this country. I dare say we cannot avoid that,
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in any event. But the argument I wish to put forward is this. The effect may be more adverse if the measure is passed under the Parliament Act than it will be if we allow the Motion now before us to prevail. My reason for saying that is this. If this Act is put on the Statute Book, there will be a great deal of discussion of the Statute in learned journals, among lawyers of many countries, among international lawyers, and in the business community. I fear, as I say, that the influence of this Act being placed on the Statute Book may be adverse. But I think that the main hope of its not having too serious an effect is this: that many may suggest it is really not such a great departure from precedent as we think, but that it is somehow in line with the Indemnity Act, 1920.
I thought, frankly, nothing of the other examples which the noble and learned Lord on the Woolsack—with brilliant advocacy, I admit—gave as precedents for retrospective action in this case. But the Indemnity Act, 1920, does have points of relevance. Many of us have drawn great distinctions between that Act and the present measure. I entirely agree with what the noble and learned Lord, Lord Shawcross, said about it this afternoon (and others of us have made the same point on a previous occasion) that the 1920 Act provided for the assessment of damages by somebody other than the executive Government of the day. Nevertheless, I think that there is some hope, if we accept this Motion this afternoon, that national and international comment may associate this Bill, when it becomes law, with that Act of 1920, which I agree with the noble and learned Lord on the Woolsack did not damage our international reputation.
I fear that there will be very serious repercussions from this Bill, whichever line we take, but I honestly believe that we shall reduce, rather than increase, the dangers of the effect of this Bill on the national interest if we do not compel the Government to use the Parliament Act to enact it. If we take that step, I believe that will be accepted abroad as an endorsement of the view that there really is no sustainable argument in favour of these retrospective provisions. I believe that if we accept this Motion there will be an outside chance of diminishing the damage to the national interest.
5.33 p.m.
LORD SALTOUN: My Lords, after what has happened, I should like to start with a declaration, which I make perfectly seriously and from the bottom of my heart. It is that I am perfectly convinced that every noble Lord who has spoken in favour of this Motion and in favour of this Bill in its original form is fully as honourable as I hope I may become in the few years that are left to me, After saying that, I should like to say that I have read the judgments and I have read the letter in The Times this morning of the noble and learned Viscount, Lord Simonds, but I have not read any of the documents which have been showered upon me, on wonderfully good paper, by the Oil Company.
I should like also to add that, no matter which Government had introduced this Bill, I should have voted against it. I have been forced in the course of my life to realise, or to consider at any rate, that Parliament can do wrong, and can make legislation which is morally bad. I have been at some pains, when I was able to do so, so to order my life that my sense of what was right did not come into direct contest with what Parliament had laid down by legislation; and I think a good many people may have had to do that. This is a case in point.
May I turn for a moment to what the noble Lord, Lord Carrington, said, which moved me very much, and what the noble Lord, Lord Silkin, said. The speech of the noble Lord, Lord Carrington, was directed to suggesting that we avoid a direct contest between the two Houses on this Bill. We are not divided over this on Party lines at all, and if the Government choose to make this a cause of such a difference, we cannot stop them. When I was young in the nursery, or not very much out of the nursery, I was taught a fable of Æop about the wolf and the lamb. I learned from that that where a quarrel is sought it is quite impossible to avoid it. The noble Lord, Lord Silkin, reinforced that in a curious way, because he reminded us of the Parliament Act, which I fully accept as part of the constitution of Parliament, and he suggested that we should run away from it. I would never run away from the Parliament Act. It is the law of the land, and I accept it.
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I think this is an occasion when we should use the Parliament Act to save our honour, or what I feel to be our honour.
Now if I may say what I feel about this Bill very shortly, it is this. I adopt every word that the noble and learned Lord, Lord Shawcross, said about it. The other day I was talking to a friend of mine—a real friend of mine—who is a strong supporter of Her Majesty's Government. I said to him that this measure reminded me of a man who, seeing bankruptcy approaching, outside the statutory period transferred all his goods to his wife. My friend said to me: "But that is perfectly legal". I make Her Majesty's Government a present of that argument if they want to use it, but that is the way I feel about this Bill. It is a case where Parliament seems to me to be doing something that is directly wrong, and, therefore, I propose to vote against it.
There is one thing I should like to say in conclusion. I do not want your Lordships to feel that I am standing up like some Cato as an honest example of an honest man. I am not. I know only too well how often I can be wrong. But in matters of this kind we are all like people who are driving at night: you have to go by your own lights, however poor they are, because other people's lights are very little good to you.
5.38 p.m.
LORD FRASER OF NORTH CAPE: My Lords, I, as your Lordships know, am a military, unlearned and destructive Lord, rather like my noble and gallant friend Lord Slim who destroyed this property and caused all this trouble in Burma. What to my mind, as a military man, we are missing to-day, is that we seem completely to have lost the object of the exercise. I thought the object of the exercise was purely to ask: Is this method of compensation right or wrong? That is a very simple thing to decide. But now our legal and judicial Lords have raised all sort of hares, like a good commander-in-chief does, about constitutionalism and all that sort of thing, to delude your Lordships from the real object. That is where I think we have gone adrift. So I am going to declare a strategic war on the legal and judicial Lords—I do not say a tactical war because I should be outwitted every time. I am

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joining in because I had to destroy an oil field, too, like Lord Slim. On the passage of my fleet from Ceylon to the Far East we were asked my the Government to destroy the oil fields at Palembang in Indonesia, which we did with carrier-borne aircraft. The only difference was that these assets were then in enemy hands.
So to my mind there are three categories of war damage. The first is assets destroyed by us before they fall into the hands of the enemy; the second is assets destroyed by us after they have fallen into the hands of the enemy; and the third is damage by the enemy. And I think that, as well as oil fields, merchant ships come into all those three categories. To my mind the companies which lose those assets are all exactly in the same boat. It does not matter how they were damaged. They have just lost all their assets, and that is all you can say about it. Surely the only method of compensation can be equity all round. That is the only fair and proper method.
Now two Governments, and two Lord Chancellors, have decided that the present method is not fair and reasonable. I think that myself, from my own experience. So something must be done, and this War Damage Bill is brought in to put that right. But unfortunately you cannot put war damage right unless you do it retrospectively; otherwise we have been talking nonsense for the last fortnight, just wasting time. We hope there will not be another war in the near future. As I say, I am no judicial man, but I think that if this Bill operates retrospectively it will in no way reverse the decision of the House of Lords. I say that because surely the House of Lords' judicial task is to interpret the law as it stands. It has no say whatsoever in whether a law is fair or just. That is entirely the responsibility of Parliament; it must be the responsibility of Parliament.
If there had been another law, then the House of Lords would have given another decision. Nobody argues that the House of Lords decision is wrong. Everybody says its decision is a correct interpretation of the law and the House of Lords is always correct, always has been. No one argues about it. It is the law which is wrong, and if the Government of the day did not change the law they would be in
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neglect of duty in not doing so. Personally I do not grudge money spent in compensation. What I should grudge would be to see my taxpayer's money distributed in any other manner than with equity for all. So I hope that we shall accept this Motion this afternoon.
5.44 p.m.
VISCOUNT BLEDISLOE: My Lords, on the last occasion on which this Bill came before your Lordships' House your Lordships by a large majority amended the Bill so as to remove its retrospective provisions. I feel not the smallest doubt that those of your Lordships who voted for the Amendments voted on a matter of principle. What is the principle, or what are the principles? It appears to me that two principles are at stake. The first principle is that the Crown and its subjects are equal before the law and that once issue is joined they are both bound by the decision of the judge, and that stems from the Crown Proceedings Act, 1947. That, I would suggest respectfully to your Lordships, is the most important principle.
The second principle is this, that a subject ought not by retrospective legislation to be deprived of the fruits of successful litigation against the Crown. With the notable exception of my noble and learned friend the Lord Chancellor—and he dealt to some extent with the second of those principles but not, I think, with the first—the supporters of the unamended Bill have throughout endeavoured to obscure the question of principle and to create the impression that the question in issue is whether or not the Burmah Oil Company have been fairly treated financially. That is not the question at issue. The Burmah Oil Company case was merely the event which bred this Bill, and considerations of the details of the Burmah Oil case are, I respectfully submit, very largely irrelevant. The Bill has now come back for your Lordships' reconsideration, but there is one thing that is perfectly certain: nothing has happened to alter the principles involved.
May I say a few words to your Lordships on the first principle?—and I will, if I may, quote from the words of the noble and learned Lord, Lord Devlin, which appeared in his article in the Observer on May 16 last:
"Litigants often feel that the law has been hard on them. Sometimes they are told so by

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the judge. Sometimes it is the Crown which rests on its legal rights although the merits seem all the other way. Yet, the defeated litigant has to accept as final the decision of the last court of appeal. The Crown is in this case the defeated litigant and what it is doing is to institute Parliament as a supra final court of appeal to which alone it has access, which will decide the case on the merits and not according to the law, and which will take its views on the merits from the Crown itself.
No doubt it will be said that this is a very exceptional case involving a lot of money and that the Crown is not likely to bother about small claims affecting the humble citizen. Yet no one who listened to the Lord Chancellor piling precedent upon precedent in defence of the Bill can doubt that quite soon one of his successors will push the new precedent further. In fact it needs no pushing to establish the principle that it is in accordance with our Constitution for the Crown, if it wishes, to have any dispute between itself and its subjects settled by a vote of the House of Commons with the Whips on."
That is a terrifying proposition. That is the first principle. As I say, so far as I am aware, nobody has made any attempt to justify a departure from that principle.
In relation to the second principle, my noble and learned friend the Lord Chancellor has said that as a general proposition retrospective legislation is wrong and contrary to the rule of law. I personally was delighted to hear him say that. But he went on to say, however, that he could not think of any single principle which does not become nonsense if you apply it 100 per cent. He then proceeded to call your Lordships' attention to a number of Statutes which operated retrospectively I can think of a principle to which I venture to think there are no exceptions—namely, two wrongs do not make a right. And the fact that a few precedents can, by a process, mind you, of scraping the barrel dry, be found for retrospective legislation is no reason for adding to their number. But even if it were accepted that there are exceptions to the retrospective principle, this case is certainly not one of them.
I am not going to take up your Lordships' time by dealing with all the Statutes with retrospective effect which have been referred to, but I should like to say a few words about the Charitable Trusts (Validation) Act, 1954. I pick out that Act because my noble and learned friend Lord Dilhorne has described it as perhaps the most signal application of the principle; so perhaps
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I am taking the strongest case. Our laws relating to charitable trusts are complicated, and they are not readily intelligible to the layman. Your Lordships may recall that, whilst a gift for charitable and benevolent objects is a valid charitable gift, a gift for charitable or benevolent objects is void—that was the well-known case of Re Diplock. What the 1954 Act was designed to do was to validate gifts of that kind, in instruments taking effect before December 10, 1952. That date was the date of the Report of Lord Nathan's Committee. The object of the 1954 Act was to give effect to what?—to the intentions of testators and settlors in cases where these intentions had been defeated by the operation of our complicated laws relating to charitable trusts. The result, no doubt, was that in certain cases residuary legatees or next of kin lost a windfall which they were never intended to have.
But the Crown was not directly concerned in the change of the law effected by the 1954 Act. Indirectly, that Act operated disadvantageously to the Crown, because, as your Lordships will appreciate, by validating charitable gifts the Crown tended to lose income tax, since a charity is exempt from income tax while an individual has to pay it. Moreover, since a charity cannot die, the Crown would also tend to lose estate duty on the death of the residuary legatee or next of kin. How different is the present Bill. Here, the Crown was a party to the Burmah Oil proceedings, and the retroactive provisions to which this Bill is designed to give effect operate wholly in favour of the Crown, one of the parties to the litigation. It is therefore an attempt by one party in legal proceedings to enrich itself, after judgment has been given, at the expense of the other party. This is something which I suggest your Lordships will not tolerate; and to quote the Charitable Trusts Act as the best example to justify this Bill, appears to me to be a very long shot indeed.
I am going to ask your Lordships to consider for a moment where the acceptance of these retrospective provisions can lead us. The courts in this country are constantly having to decide whether a subject is or is not liable to pay income tax, surtax or death duty. Such cases involve the construction of provisions in the Income Tax Act, 1952, or in some

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Finance Act. If the principle contained in this Bill is to be accepted, what is to prevent the Crown, possibly after despatching a suitable warning, later to subject a taxpayer to tax for which, under the law as it stands, he is not liable, by passing the appropriate retrospective legislation? If this principle is taken to its logical conclusion, your Lordships will see that there will not be any need in the future for taxing legislation—we shall all have to pay such taxes as the authorities see fit to demand from us.
Consider, again, the precedent that this Bill will be setting. If this Bill is allowed to pass, this will be a powerful precedent for any future legislation. We shall hear no more of such Acts as the Charitable Trusts (Validation) Act, 1954. The precedent that will be called in aid will be this Bill, and it is difficult to imagine any future retrospective legislation which will not pale into insignificance when compared with what will no doubt be known as the Burmah Oil Act. The truth of the matter, I suggest, is that, once you start making exceptions to a principle, it results in destroying the principle itself.
I believe that some of your Lordships who voted for the Amendments on the Committee stage are inclined to take the view that this House has expressed its views, and that it would not be politic to insist on the Amendments. Surely this is wrong. I venture to think that it is unwise to sacrifice important principles to political expediency, and I sincerely hope that those of your Lordships who voted for the Amendments on the last occasion will do so again and will stick to their guns.
5.57 p.m.
THE EARL OF LYTTON: My Lords, I have been wondering whether, out of respect, I should declare my interest in the survival of your Lordships' House, because I am going to vote against the Motion, in order to provide time for further dialogue to continue. The wording of the Reason remitted to us permits us to infer that Her Majesty's Government acknowledge a legal debt to the oil companies, but deem themselves entitled in equity to decide not to pay that debt.
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Time and again, Her Majesty's Government have dwelt heavily on the vastness of the sum, but at no time have I personally been able to make it probably larger than one-twentieth part of the current Budget surplus revenue. The smaller it appears to get, the more vexed Her Majesty's Government seem to get, and annoyed with the oil companies for having diminished their claims. I had thought earlier at some time of asking Her Majesty's Government to say whether, if the claim went down to zero, they would still persist in the retrospective clauses of this Bill. That is almost what seems likely to happen, and I wonder whether we are not on the brink of some sensible agreement which would save us any further argument.
Certain arguments behind the wording imply enmity towards the companies, not only for their success after seventeen years of litigation but for going to law at all. The litigation for the first fifteen years was on the advice, and with the agreement of a Labour Government; for the last two, it was in spite of threats by a Tory Government. The Parties have now exchanged hats, and the Labour Administration bids us carry out Tory threats. I personally should have thought that this was an occasion, non-political, not excessively urgent, but of great importance, neutral, where there was no constitutional passion likely to be excited by our voting as we think fit.
Her Majesty's Government argue that the verdict of our supreme court of appeal is a legal fluke, or miscarriage of justice, grave enough to invalidate an agreement between the Crown and a subject to settle their differences by reference to a court of law. They ask us to accept that this Act restores the law to what everyone thought it was, and puts denial and all other kinds of damage where they say they ought always to be, in the category of battle damage. In making my twelve-minute effort at refutation. I rely mainly on the Opinions given in the House of Lords judgment by the noble and learned Lord, Lord Reid, whose views seem to have been neglected somewhat in favour of the noble and learned Viscount, Lord Radcliffe, whose views I also make use of. From them it is clear that taking property for defence, whether for use or destruction, can fall into one of three

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legal realms: the realm of Statute or written law, the realm of necessity which knows no law, the realm of the Common or unwritten law.
Of Statute law Lord Reid said:
"The taking of property for defence purposes was authorised by statute not only in the last war and in the 1914 War but also in the Napoleonic Wars, and it could only be taken subject to compensation."
He also said—and for a second time in debate I am quoting the same learned authority as the noble and learned Lord, Lord Conesford:
"There is no difference in principle between taking for use and taking for destruction."
About acts of destruction in the realm of non-law, that is the battlefield, Lord Radcliffe said:
"There is no legal right to stop them in advance and there emerges no legal right to compensation."
Of the Common Law brought into operation by the exercise of the prerogative powers of the Crown, Lord Reid said, quoting Lord Dunedin:
"In the whole statutory series there is no trace of any claim to take under the prerogative and not to pay."
And again, quoting Lord Atkinson:
"There is no trace of the Crown having, even in the time of the Stuarts, exercised or asserted the power or right to take the land of the subject (by virtue of the Royal Prerogative) without paying for it … it seems to me to be almost inconceivable that the Crown should claim the right to do such things as prostrate fences, take possession of the great industrial works mentioned or cause any buildings to be destroyed without being bound at law to pay compensation to the owners therefor."
Lord Reid then quoted Lord Moulton, tracing the change in public sentiment during the past three centuries until it came to be felt
"equitable that burdens borne for the good of the nation should be distributed over the whole nation."
Lord Radcliffe's negative, already quoted in this House, seems to be the obverse of comprehensive cover by Statute law. He ended:
"I suppose the Crown's acts of destruction in Burma can be spoken of as prerogative acts …"
But he drew no conclusion about compensation.
The judgment of the House of Lords in the Burmah Oil case, taken as a whole, suggests that while the legal link be-
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tween prerogative taking and compensation may still be in doubt, yet three centuries of compensation under Statute Law without any traceable exception point to a positive conclusion: that the verdict of your Lordships' House is in line with centuries of public sentiment and centuries of Statute Law. Indeed, the legal fluke seems to be on the other leg. The Act before us will put the momentum of three centuries in reverse gear. It will make the prerogative harsh and ungenerous by comparison with any and every emergency Statute. It will put the Common Law sharply at variance with the long-standing custom expressed in successive Statute laws. It will prescribe for the Crown a mandatory licence to take something for nothing. It will not restore the law to what we all thought it to be.
I infer from the judgment that denial damage can and does occur in any one of the three realms of law. Indeed, a false antithesis between battle damage and denial damage has been contrived during the course of our debates. We all know indeed that denial damage is a regular feature of retreating armies for the purpose of making their pursuers' advance more difficult. The blowing up of bridges to deny their use to the enemy is a tactical operation which many of us handled whilst still at school, albeit without explosives. This belongs to the realm of non-law if it is done when hostile forces are in contact and when the destruction is a necessity of combat. This denial damage is not distinguished in these circumstances from offensive or accidental damage inflicted by either combatant. Outside the realm of battle, though not necessarily outside the arena of battle structures for future battles, much property is taken for defence purposes and much of it is damaged if only by change of user. It is then taken and paid for under Statute law.
All the sites for temporary defence works constructed in this country during the invasion scare of 1941 were taken and paid for under Statute Law. All the sites for the Battle of Britain installations were taken and paid for under Statute Law. Training and other accommodation for the D-day Normandy invasion forces including artillery ranges was taken and paid for under Statute Law. The compensation took into account rent, damage,

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reinstatement. It did not distinguish between taking for use and taking to destroy. It did not distinguish between different purposes in taking for destruction. How is it possible, let alone fair, to distinguish one kind of Crown taking from another in allowing a right of compensation to the subject?
Imagine a row of seaside bungalows taken during a threat of invasion such as that of 1941. Some are taken to house members of the Observer Corps. Others are demolished to give the defenders a better field of fire. Still more are demolished to deny their use to the enemy. Others still are cunningly fortified as pill-boxes. So long as we operate under the umbrella of our usual emergency Statutes the Act before us will change nothing. Compensation, including rent, damage and reinstatement, is payable in every case. But imagine the confusion when the particular umbrella for some reason will not open and when one attempts to apply the Common Law. Years later the Government of the day will have to set up a "Lands and Buildings (Ambiguous Purposes) Tribunal" to sort it all out.
The march of history has provided us with one plain distinction, the distinction between necessary or unavoidable damage in battle and non-battle damage. It may be an absurd distinction, it may lapse when most of us are vaporised, but it is hallowed by centuries of usage and we must resist as unreasonable those to-day who select one property out of millions taken during a past emergency in order to say of it
"This cannot be in a category with rights to compensation because there exists another category where men are trampled, women bereaved. little shops knocked flat and the homes of many blown up without such rights."
Surely this is not fair argument but an emotional mixture of two separate situations, the controlled and the uncontrolable.
In the case of the Burmah Oil Company, the evidence of the Governor of Burma in The Times and of the noble and gallant Viscount, Lord Slim, has clarified the application of categories. The destruction was not a soldier's decision; only the timing was delegated to him. Unlike blowing up bridges, it did not help the
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withdrawal. It endangered the last phases of evacuation by revealing the extent of our military weakness. There was a legal right to authorise it or to prohibit it. Therefore it did not measure up to the definition of Lord Radcliffe. It was not a necessity for the salvation of the people of Burma who were highly indignant and said: "This is the kind of independence you give us." Salus populi summa lex did not apply to them for it deprived the Burmese economy of its wealth and Burmese labour of gainful employment. It was an act with no bearing whatever on the battle in progress, though no doubt having a bearing on the industrial capacity of battles elsewhere and in years to come. Legislation aimed at altering the historic categories does not seem likely to help us in the future. The public interest would be better served by an indemnity in every hard case. In this case, however, the Government and the owners agreed to refer to the impartial judgment of the courts. Unilateral abrogation of that agreement should surely be unthinkable.
The decision has not been invalidated by a long list of precedents which do not relate to the breaking of an agreement of that kind, nor by the story of double-speaking attributed to Sir Stafford Cripps; the expression, "They can whistle for it" having been used. Nor is it invalidated by the ex parte claims of any number of Chancellors of the Exchequer that something around is. in the £1 is a fair settlement. The case can however be settled out of court by agreement. This Bill, I suggest once again, illustrates the old legal maxim that hard cases make bad laws, but surely there is room for agreement on this matter at this stage. I have dwelt on the positive impacts on the future; and surely it is desirable that more time is spent on that subject. It has scarcely been debated in this House. We have concentrated almost exclusively on retroactive clauses. However, if the matter is put to the vote, I feel that I must vote against the Motion.
6.11 p.m.
LORD GRIMSTON OF WESTBURY: My Lords, I think that almost everything that can be said has been said upon this subject in the debates that we have had. Therefore I make some apology to your Lordships for intervening, though only

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for a short time. But as I take, I am sorry to say, a view which is quite opposite to the advice which my noble friend Lord Carrington gave earlier on, I feel that I owe it to myself to put that view before your Lordships.
In all these debates we are really discussing, in my view, a very great question of principle, and unless the Amendment which your Lordships previously passed is upheld, a complete precedent for retrospective legislation in the future will be established. This precedent as I see it, as a layman, will be that a subject, be he corporation, be he trade union or be he individual, can obtain judgment from the highest court in the land only to have that judgment overruled and taken away from him by the Government. A future Government will be able to quote this precedent as justification for annulling any court decision which it does not like. Some of your Lordships may think that this is an exaggeration, but as we have watched precedent after precedent, each again increasing the breach in the rule of law as we go on, I do not believe that I am exaggerating in saying what I believe can happen in the future under this one.
By insisting on the Amendment to take out the retrospective effect your Lordships started to make a stand, and to stick to it or not is really the question before us to-day. We have been advised by my noble friend Lord Carrington not to stick to it. I am sorry, but I must disagree profoundly with that advice. In effect, he is saying, "We have made our protest. We can now in good conscience wash our hands of it." I would remind your Lordships:
"What is truth? ' said jesting Pilate, and paused not for an answer."
If your Lordships persist, I believe that the real issue will emerge, and I have enough faith in the British public (and perhaps I may mention that it derives from the fact that for 33 years I sat as one of their representatives in another place) to believe that, once they know what the issue is, your Lordships' stand will not be misunderstood. It seems to me that the great divide between those who live under freedom and those who live under authoritarian Government is that the power of the Government shall not prevail over the rule of law as pronounced by an independent judiciary.
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Surely, my Lords, that is the whole world struggle that is going on to-day between men who live in freedom and men who do not. As was said many years ago:
"If power without law may make law
Expect what justice others may have."
I do not want to become emotional, but I feel rather deeply upon this issue. In a few weeks' time your Lordships will be going both to St. Paul's Cathedral and to Westminster Hall in order to parade before the world our pride in the 750th Anniversary of the signing of Magna Carta, and our determination that its spirit shall endure. We have also recently set up a Memorial at Runnymede in the same connection. The retrospective element in this Bill, if it is left there, is at best a denial of the spirit of Magna Carta, and at worst a betrayal of it. Your Lordships have spoken once. I would urge the continuance of resistance to a precedent which, as sure as night follows day, some future Government will use as justification for depriving some individual of his rights under the law. I can conceive of no greater principle on which your Lordships should stand, not once but twice.
6.16 p.m.
LORD FISHER OF LAMBETH: My Lords, by the courtesy of the noble Marquess, Lord Salisbury, I am allowed to intervene for just a very brief moment. The noble Lord who has just spoken said that he feels very deeply on this subject. I wish just to say that I also feel very deeply on this subject. I have come up all the way from the country in order to vote on it, but I shall have to go back before the vote is taken. I want to say this word, prompted by the noble and learned Lord, Lord Shawcross. He indicated that anybody who has any special experience ought to contribute it. I have a good deal of special experience and I should like to contribute it.
We are all honourable men—let us underline that—but my experience happens to be in Christian morality, and part of my training and experience has been to judge speeches made from one view or another, and to try to come to the wise judgment about them. I have listened to all the speeches this afternoon and one word used attracted my attention. It was cast at the Commons—that the Commons was not infallible. I want to

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remind your Lordships that none of us here, or none engaged in this matter, is infallible; and that is the right place to start from. The Commons are not infallible, the Lords are not infallible and, may I say with great respect, the law is not infallible. The judges are, practically speaking, infallible; that is to say, they take the law they are given and what they say is utterly impartial and as infallible as it humanly can be. I say this with my noble and learned friend sitting next to me. But the law itself can never be infallible and can never be the final authority governing any reasonable society.
Here in this case we are presented with deeply felt convictions from the Commons, from the Lords, from the Labour Party, from the Front Bench of the Conservative Party and from other members of the Conservative Party, by lawyers on one side and by lawyers on the other. What can a good Christian try to do? Only to come to the wise decision. I regret that I cannot record my vote on this matter, but I can put my feeling in a sentence. The wisest speech I have heard to-day was that from the noble and gallant Lord, Lord Fraser of North Cape. He came straight back to the bones of what we are dealing with, and he has had direct experience of his own. He differs from my noble and gallant friend Lord Slim, but that does not matter; he comes out of the same stable. He has brought us back to what seems to me to be the final question: what is the wise thing to do? It need not necessarily be wise to follow the lawyers or to follow any particular House in our Constitution. As the noble Lord, Lord Saltoun, said, as to what each man thinks is the wise thing to do, he is responsible to his own conscience and nothing else; and I myself feel deeply that the wise thing is not to insist upon the Amendments.
6.20 p.m.
THE MARQUESS OF SALISBURY: My Lords, I rise for only a few moments, at the close of this debate, to express my own personal views based on long experience of this House, and, like the noble Lord, Lord Fisher of Lambeth, who has just spoken, to urge your Lordships, with all diffidence, not to insist further on our Amendments. If I do this,
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I can assure your Lordships that it is not because I do not realise the importance of the issues raised by the War Damage Bill, especially in respect of the retrospective element contained in it. That is why people like myself (and I suppose that I am typical of many other noble Lords, at any rate on this side of the House) were in favour of inserting these Amendments on the Committee stage of the Bill—and, my Lords, I still think we were quite right. It was, I believe, not only justifiable but desirable that we should give Members of another place another chance of looking at, and discussing, the issues raised, in the light of views expressed by eminent lawyers and others in your Lordships' House.
But, my Lords, the position now is quite different, and is far more formidable than it was at that time. For if we insist further, we shall, in my view—and make no mistake, my Lords; I believe this to be entirely true—be provoking a first-class crisis between the two Houses of Parliament; and that, after all, is no light matter. The noble and learned Lord, Lord Parker of Waddington, I think it was, said in his speech, if I understood him aright, that he saw no reason why it should provoke such a crisis. I can only say to him and to the noble and learned Lord, Lord Shawcross, who said something, I thought, rather similar, that I do not agree with them. It is bound to provoke a crisis. I do not, of course, suggest for one moment that this House should never oppose another place. There may well be occasions when it is our constitutional duty to do so; and I am quite certain that, if such a time comes, we shall not shrink from that duty. But is this one of those occasions?
My Lords, I have in my own mind always taken the view—and did so when I played rather a more active part in this House than I do now—that before this House embarks on a conflict with the House of Commons two essential considerations must be satisfied. First, it must be on a question that raises issues important enough to justify such drastic action. No doubt some of your Lordships may well say that that consideration is entirely satisfied by the character of the Bill now before us, and I am not sure that I do not agree with them. But there is also another consideration which must not be left out of our minds, and it is

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this: that it must be on an issue which can be readily understood by the people of this country and on which we may expect their support; an issue on which we really shall be acting (to use an old phrase) as the watchdog of the people. Can we really say that that condition is satisfied by this Bill, or any portion of it? On the contrary, in that respect it is, I feel, one which is of the most complicated and technical legal matters, and which creates, as we all know, fissures and divisions cutting across all Party and other lines in the most bewildering fashion.
What does the man in the street see? He sees the Tory Party split in two from top to bottom; the Front Bench voting one way, the Back Benches voting another. He sees equally deep fissures even in the ranks of the great Law Lords, on whom we—and, after all, he, too—normally rely for the interpretation of the law. He finds one school of thought, represented by the noble and learned Lords, Lord McNair, Lord Parker of Waddington, and Lord Shawcross, and others, which supports the majority judgment of the House of Lords sitting in its Judicial capacity; and he finds, equally, another school of thought, represented by equally great lawyers—such men as Lord Radcliffe and Lord Simonds—who take a diametrically opposing view, for reasons which were expounded by the noble and learned Viscount, Lord Simonds, in a very important letter which appeared in The Times this morning.
My Lords, it is certainly not my purpose to try to adjudicate between all these great men. I have not sufficient knowledge, nor self-confidence. But I will say this: in view of these wide differences of view which have been expressed in the very highest quarters, and by the greatest authorities in the land, is it surprising that the average citizen finds himself bewildered? How is he to make sense of all this confusion? We in this House, I think, have done our best to clarify the public mind by inserting Amendments excluding from the Bill its retrospective character; and by so doing we have given the British people a chance to express a clear preference, one way or the other, in this controversy. But, my Lords, they have expressed no preference. They have hardly seemed even interested in it.
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For my part, though I recognise the force behind the arguments advanced by the noble Viscount, Lord Simonds, I still deplore the introduction of any retrospective element in this Bill, and I am therefore convinced that your Lordships did right to put in the Amendments excising it, for further reference to Members of the House of Commons. I do not regret that at all. But in view, as I have said, of these wide differences that have been expressed in this House, both in legal and political quarters, I cannot feel that we are in a position to insist upon our Amendments. As Saint Paul once said:
"If the trumpet give an uncertain sound, who shall prepare himself for the battle?"
And this certainly does not seem to be the ideal atmosphere for embarking upon a great constitutional battle. On the contrary, it seems to me that we should be fighting it on the worst possible grounds.
My Lords, as the noble Lord, Lord Silkin, rightly said in his speech—and we must never forget it—we are the junior partner in the Constitution, which is now based on the great mass of the electorate; and, that being so, I personally do not think we have done so badly. We have forced the Government to consider further an aspect of a Bill to which some of us attach very great importance, and we have given the British people a chance to raise a voice against the Bill. But they have not done so. In my view, therefore, in spite of what my noble friend Lord Grimston of Westbury said—and I have the highest respect for his judgment and integrity—I do not believe we can usefully do any more by insisting on our Amendments. Indeed, I believe that, were we to do so, we might dangerously prejudice the whole position of this House for the future, when the battle for our very existence comes, as I believe it well may, to its full blast. The noble Viscount, Lord Bledisloe, who spoke just now, appealed to your Lordships not to sacrifice principle for expediency; but I do not regard the advice which the noble Earl the Leader of the House gave at the beginning of this debate as the counsel of expediency. I regard it, if the noble Viscount, Lord Bledisloe, will forgive me for saying so, as the counsel of wisdom and statesmanship.
I know that there are numbers of noble Lords, in all parts of this House, who

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would wish us to continue to wave our flaming swords, and we must all respect their deep sincerity. But I cannot see what they hope to achieve. The Liberal Party, I understand, intend to continue their opposition into the "No" Lobby if there is a Division. Here I cannot help suspecting that no one will be more embarrassed than some of them if, as a result of their action, a great constitutional battle were joined between the two Houses on this particular issue. I think they are trusting to the Tories to save them. In any case, it is not for us to question their motives; it is just to do the best we can for this House and our country in these very difficult circumstances.
Feeling as I do, I could not in any circumstances vote for this Motion. I could not do it; that would be asking too much. But I shall abstain if the matter is pressed to a Division; and if there are in this House any other noble Lords who share the views that I have tried to express this evening, I hope that they, if I may say so with all diffidence, will do the same.
6.32 p.m.
THE LORD CHANCELLOR (LORD GARDINER): My Lords, in replying to this debate I feel in some difficulty. We have had a third debate on what has been substantially the same subject; but this evening there are two different questions before the House. The first is whether or not you adhere to the views which the majority of your Lordships expressed in carrying the Amendments; the second, which is, of course, quite a different question, is whether you now insist on those Amendments. I did indicate briefly the Government view at the conclusion of the Second Reading of the Bill, and I elaborated it in a great deal more detail on the Committee stage of the Bill. While I am told that there are some noble Lords here to-day who were not here then, I hope your Lordships will not think me in any way disrespectful to the House if I do not make a third long speech now. There are, of course, matters of detail which have been referred to. When I say "detail", the noble Lord, Lord Conesford, will not misunderstand me if I say that at this moment I do not think I would wish to embark on the difference of view as to what Lord Dunedin said in the hotel case.
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I hope the House may think it sufficient if on the first point I remind your Lordships that the Government's case, which, after all, is a fairly simple one, has always been the same—namely, that retrospective legislation is, in general, wrong and contrary to the rule of law; secondly, that there are exceptional cases which justify it; and, thirdly, that this is such a case. On the first point, the only reason which has ever been put forward why retrospective legislation is wrong is that the citizen in conducting his affairs is entitled to act in accordance with the existing law and not to find it changed against him afterwards when he has relied on the law as it was. As it happens in this particular case, that reason, which is the only reason why we disapprove of retrospective law, does not apply, because neither the Burmah Oil Company nor any of the claimants has ever suggested that at the time when they destroyed their works they did so on the faith of some decision made that they were entitled in law to denial damage. Indeed, as we all know, no such decision had ever been made.
As to whether we are agreed or not agreed that there are exceptional cases which justify retrospective legislation, of course if what I have said so far is right, then this, on the face of it, would seem to be a case which does. I have never been sure whether we do all agree that there are such exceptional cases. The noble and learned Lord, Lord McNair, in moving his Amendment, said of that argument of mine that we should all agree with him that, however distasteful retrospective legislation might be, circumstances could arise in which such legislation was necessary, but a heavy burden of proof rested upon those who pro, posed it. I have never been sure whether, for example, the noble Lord, Lord Alport, really agrees that there are any such circumstances in which there should be retrospective legislation.
However, if the noble and learned Lord, Lord McNair, was right in saying that at least that is what most of us would agree, then the next question surely is: What is the criterion by which you judge whether a particular case merits a exception? If I may say so, without offence, one of the things which has disappointed me a little (because this is the third time we have discussed this matter)

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is that noble Lords on the Liberal Benches—and they say there are exceptional cases—have never told us what their criteria are. They have never told us how we can judge. All we know is that if one takes the nearest parallels—and I think, in passing, if I may say so, that I agree with the noble Viscount, Lord Bledisloe, that the Charitable Trusts Act is not comparable to this—for example, exactly the same situation after the First World War, they have never told us whether they agreed with the 1920 Act or not. The Liberal Party was not worried at retrospective legislation then; and if one takes a case like the Validation of War Charges Act, the Liberal Party did not say, as has been said to-day, that this was a threat to the proper administration of justice; although it provided legislation which was retrospective in every way, including forcing a court which had already given judgment to give the opposite judgment for another party. The same thing applies in the wireless licence cases. We have never had the advantage of knowing what those who agree that there are exceptional cases would define as the criterion for finding whether or not a case is exceptional.
The Government case has always been that you can justify retrospective legislation only if you show that only by so doing can you do justice and act fairly between different groups of citizens. And what they have always done is to point out that in modern war you cannot compensate everybody; all you can do is to have regard to all the different citizens who suffered damage, whether in limb or money or in losing the breadwinners of the family, and try to act fairly. When we apply that to this particular case, your Lordships will remember that there was war damage in the East and that the amount, for example, in Malaya was the same as in Burma—about £160 million in each—in Borneo, about £12½million. In Burma, out of the £165 million, £67 million was British claims, and of the £67 million, £60 million was denial damage. And in all the cases in Malaya, where about one-eighth was paid, in Borneo—one-sixth—and in Burma—oneseventh—everybody was treated substantially alike. There were no rules; there were no tribunals. The Government simply said, "This on the whole is the
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fair thing to do, and it is the most we can afford to pay."
This was exactly parallel, it always seems to me, to, for example, the case of the shipowners after the First World War, when the Government said, "We cannot afford to pay you proper compensation. This is all we can afford. "They nearly all took it, just as nearly all those who had suffered denial damage took what the Government paid after the Second World War. But one or two Smart Alecks among the shipowners said, "We are going to rely on our legal rights." And they did. Some people besides shipowners did so, too. Among them were the Newcastle Brewery, for instance, who got a final judgment against the Government which was set aside by the 1920 Act in an attempt to treat everybody alike.
I think it is my duty to remind the House that, unless this Bill is passed unamended, a Government—it may not be this Government; it may be a Government of which noble Lords opposite will be Ministers—will have to say how is it possible to justify paying these four companies. One would have to pay all twelve, of course, because there are eight more who issued writs. And what about the others? There were 36 companies which started actions for denial damage in Burma; only twelve of those subsequently started actions in Scotland—perhaps the others have not got Scottish offices; I do not know—but how can one treat the twelve differently from the way in which the other 24 are treated? In all, £67 million worth of British claims in Burma were claimed by 352 companies and individuals, and if the compensation paid in all the Burmese claims is increased, how can we, in fairness, not treat the Malaysian and Borneo claims in exactly the same way?
If one is going to reopen war compensation in any form and pay more so long after the event, it is exactly the same as if, by some quirk in the law, it was discovered now that those who were prisoners of war in Germany were entitled to additional compensation. A Government after a war can only do its best by everybody. A case was quoted in another place of a boy in the Navy whose ship went down under him. He was imprisoned by the Japanese and made to work as a slave for four years in Japanese mines.

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He was compensated £36. One hundred thousand prisoners of war were compensated £4·8 million—almost the same amount as the Burmah Oil companies have already had. One cannot judge these things one against the other, but if it were found that those who had been in Germany were entitled, by some quirk in the law, to additional compensation, would anyone think it right to pay that compensation unless, at the same time, one provided something more for those who had been in Japanese prisoner-of-war camps?
It is a quarter of a century since the last war ended, and therefore the Government's case has always been that it is right to introduce retrospective legislation, if that is the only way in which justice and fairness can be applied between different bodies of citizens, and that these oil companies are in exactly the same position as that small handful of shipowners after the First World War who, although all the others had accepted what the Government felt they could afford to pay, were not allowed by Parliament—the Liberal Party being present—to get away with more because it was not thought to be right or just. The only way to deal with compensation was to pass an Act like the Act of Indemnity, which prevented those "Smart Aleck" shipowners from getting away with what admittedly were their legal rights, but legal rights which could not be given to them, in fairness and justice to all those who were in exactly the same position.
That was, and remains, the Government's case here; and it is not only the case of this Government but the case of the last Government, of the Government before that, and the Government before that, and the Government before that, and the Government before that; because this is the sixth Government which has said, in trying to do justice between all those who suffered as a result of the war, whether they suffered in limb or lost their homes or their little shops, or whether they were companies losing their installations, "That is all we can afford to do". It is on those grounds that I submit to your Lordships that the Amendments are not right.
As to whether those of your Lordships who still think the Amendments were right should insist on those Amendments, your Lordships have been addressed on this question by Members of your Lordships' House of great experience, like the noble Lord, Lord Carrington, and the noble Lord, Lord Silkin, and lastly, by the noble Marquess, Lord Salisbury. I am sure your Lordships will not misunderstand me if I say that, having been addressed by those of such experience in this House, and particularly, if I may say so, with the very long and very great experience of the noble Marquess, Lord Salisbury, I should regard it as an impertinence on my part if I were to add anything on that point.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 74; Not-Contents, 36.

CONTENTS

Aberdare, L.

Francis-Williams, L.

Lindgren, L.

Addison, V.

Fraser of North Cape, L.

Listowel, E.

Amherst of Hackney, L.

Freyberg, L.

Llewelyn-Davies, L.

Archibald, L.

Gaitskell, Bs.

Longford, E. (L. Privy Seal.)

Arwyn, L.

Gardiner, L. (L. Chancellor.)

Mitchison, L.

Attlee, E.

Geddes of Epsom, L.

Morris of Kenwood, L.

Beswick, L.

Gilford, L.

Morrison, L.

Blyton, L.

Glendevon, L.

Newton, L.

Bowles, L. [Teller.]

Granville-West, L.

Nunburnholme, L.

Brockway, L.

Greenway, L.

Peddie, L.

Burton of Coventry, Bs.

Hawke, L.

Ridley, V.

Chalfont, L.

Henderson, L.

Royle, L.

Champion, L.

Hilton of Upton, L.

Sainsbury, L.

Citrine, L.

Haire of Whiteabbey, L.

St. Davids, V.

Colwyn, L.

Hobson, L.

Samuel, V.

Darwen, L.

Howard of Glossop, L.

Sandford, L.

Denham, L.

Hurcomb, L.

Soper, L.

Derwent, L.

Iddesleigh, E.

Segal, L.

Devonshire, D.

Inman, L.

Shackleton, L.

Eccles, V.

Kennett, L.

Shannon, E.

Faringdon, L.

Latham, L.

Shepherd. L. [Teller.]

Ferrers, E.

Leatherland, L.

Silkin, L.

Snow, L.

Strang, L.

Walston, L.

Sorensen, L.

Summerskill, Bs.

Wise, L.

Stonham, L.

Taylor, L.

NOT-CONTENTS

Aberdeen and Temair, M.

Grimston of Westbury L. [Teller.]

Ogmore, L.

Airedale, L.

Parker of Waddington, L.

Alport, L.

Guest, L.

Parmoor, L.

Asquith of Yarnbury, Bs.

Horsbrugh, Bs.

Rea, L.

Baldwin of Bewdley, E.

Huntingdon, E.

Rowallan, L.

Barrington, V.

Layton, L.

Saltoun, L.

Bledisloe, V.

Limerick, E.

Shawcross, L.

Brocket, L.

Lytton, E.

Sinclair of Cleeve, L.

Byers, L.

McNair, L. [Teller.]

Slim, V.

Carew, L.

Merthyr, L.

Southborough, L.

Colyton, L.

Molson, L.

Stamp, L.

Godber, L.

Monson, L.

Swansea, L.

Terrington, L.

Resolved in the affirmative, and Motion agreed to accordingly.

DUNGENESS NUCLEAR POWER STATION
6.58 p.m.
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM): My Lords, with your Lordships' permission, I will now answer the Question addressed to me earlier by the noble Lord, Lord Sherfield, by repeating a Statement which has been made by my right honourable friend the Minister of Power in another place earlier to-day. I shall read the Statement in his own words:
"In accordance with the policy set out in the White Paper The Second Nuclear Power Programme published in April, 1964, the Central Electricity Generating Board issued an inquiry for tenders for the second nuclear station to be built at Dungeness—Dungeness 'B' While inviting tenders for an advanced gas-cooled reactor station, of the kind which has been developed in this country by the Atomic Energy Authority, the Board stated that they were also ready to consider tenders from British industry for water-moderated reactor systems of proved designs such as those developed in the United States.
"The tenders, which were received in February, 1965, included proposals for both advanced gas-cooled and water-moderated reactors.
"The tenders for Dungeness 'B' have now been assessed by the Genera-
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ting Board, in conjunction with the Atomic Energy Authority, and they have informed me that the advanced gas-cooled reactor shows clear economic and technical advantages over the alternative systems and has a good potential for further development. It will also generate base load power more cheaply than a contemporary coal fired station.
"I have accepted the joint recommendation that an advanced gas-cooled reactor system should be adopted at Dungeness 'B'."
LORD BYERS: My Lords, will it be in order for me to say that I think this is an occasion for congratulation to the Atomic Energy Authority for a really remarkable technical breakthrough? I hope that this may be conveyed to them.
LORD STONHAM: My Lords, I entirely agree with the noble Lord. This is a great achievement for British industry.
LORD SHERFIELD: My Lords, is the noble Lord aware that this decision will indeed be very welcome to the scientists and engineers of the Atomic Energy Authority, who have developed this system under a running fire of criticism, and, indeed, even of denigration, from some sections of the Press and from other quarters? Would the noble Lord perhaps not agree that this is a good opportunity to repair the damage which has, I think, been done as a result of this criticism, and the delay which has occurred, to our prospects of selling nuclear products abroad? I am sure noble Lords will agree that premature claims—I will not say exaggerated claims

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—have been made for atomic energy progress in the past. But that is no reason, I suggest, to undervalue or underrate what is, in fact, a fine British achievement.
LORD STONHAM: My Lords, I welcome the statements made by the noble Lord, who has himself had much to do with this present achievement. I agree with him that the decision now made will greatly enhance our prospects of selling British plants abroad. I am aware that premature claims have damaged the industry, but the British industry has been, by implication, damaged by extravagant claims made overseas for other plant. It is very good news that we now know we can produce a British plant which can lead the world.
LORD WOLVERTON: My Lords, I should like to add my congratulations to the Atomic Energy Authority. I think ment. Although the technical achieve-this breakthrough is a wonderful achievements of the gas-cooled plants at Bradwell and Berkeley were wonderful, they were not in the ultimate price competitive with the most efficient steam stations. I think this is a wonderful breakthrough, and it will help this country enormously to be able to sell more plant abroad. I should like to associate myself with the congratulations to the Atomic Energy Authority.
EARL FERRERS: My Lords, I think the Statement which the noble Lord, Lord Stonham, has made is very important indeed. At the outset, I should like to say how much we all welcome this decision that a British advanced gas-cooled reactor should be adopted. This is a triumph for British engineers, and it is a matter for great congratulation. Can the noble Lord say how much this is likely to cost? Is he in a position to say when building is likely to be started and when the plant is likely to become operational? It may be that he cannot say at this moment when it will be, but if he can, I think it will be an advantage.
I believe that the most important part of the noble Lord's Statement came at the very end, when he said:
"It will also generate base load power more cheaply than a contemporary coal fired station."
This is of extreme importance, because
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up to now the generating capacity of a nuclear powered station has always been cheaper to run, but the capital cost has been greater. I understand from the Statement that the noble Lord has made that, taking into account both the capital cost of building the station and the running cost, the result is going to be cheaper than a coal fired system. If this is so, it obviously raises great matters in regard to fuel policy. I wonder whether the noble Lord would consider the Government's publishing a White Paper on their fuel policy, to state exactly how this new breakthrough of atomic energy is going to be co-ordinated into the fuel policy of the country.
LORD STONHAM: My Lords, answering the noble Earl's last question first, the Generating Board intend to make a full statement when the contract negotiations have been completed later in the summer. A contract has not yet been finally agreed, although a statement is being issued to-day which will give rather more details. But it is not at present possible for me to say when the plant will be constructed.
What I said in my original Statement covers all costs, capital and maintenance, on the basis of the rules to which we have been accustomed in this country. If a longer life and higher load factor for Dungeness were to be assumed, this would tend to increase the advantages of A.G.R.
LORD NUNBURNHOLME: My Lords, I live within seven or eight miles of Dungeness, and I should like to congratulate the Government on this new project. However, I should like to ask the Government to consider the serious question of the shortage of fresh water, and whether they could incorporate in their contract some scheme for converting sea water at Dungeness into fresh water. If we are going to have cheap power in Dungeness, why should we not have some water, of which we are very short, especially on Romney Marsh, where the waterfall is only about 19 inches?
LORD STONHAM: My Lords, I am glad to have the noble Lord's welcome, he living so near the area. It is the case that the site will not involve any planning or amenity problems. With regard to the point put by the noble Lord about water, I think that is another question, although

797
the suggestion he has made will be conveyed to my right honourable friend.
LORD BYERS: My Lords, is it not the fact that the desalination system is incorporated in the design? I think it is.
LORD STONHAM: My Lords, I do not think the details of that have been finalised. As I said, the contract has not yet been placed. There were six designs, and I did not say which has been selected.

STATUTORY ORDERS (SPECIAL PROCEDURE) BILL
7.10 p.m.
Order of the Day for the Second Reading read.
THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF LAND AND NATURAL RESOURCES (LORD MITCHISON): My Lords, this is a short procedural Bill, a trifle lacking in sensationalism, but useful none the less. The Special Procedure dealing with Statutory Orders was introduced by an Act in 1945, and there are more than 40 Public and Local Acts under which orders may be made subject to this procedure. It has, in fact, proved to be very serviceable and useful. One feature is that when an order subject to this procedure is laid before Parliament, there is a period of fourteen days for Petitions, and a succeeding period of fourteen days during which Parliament may bring the provisions of the order before it. The reason for the latter is that orders subject to Special Procedure are in general orders involving some question of policy and also applying to private interests. In the field of orders they are rather like hybrid Bills in the field of legislation. Both those periods are enlarged by this Bill to 21 days from the fourteen days in the original Act.
The next change is this. The original Act required the Chairman of Ways and Means in another place and the Lord Chairman of Committees here in examining a Petition to find "a substantial ground of objection to the order". If there was no such substantial ground, they could not deal with the Petition. This has in fact proved unnecessary. It is not required by the two Chairmen, who have a full responsibility in the
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matter, and this Bill takes out the words, "a substantial ground of objection to the order". I may perhaps be relieved of considering what "a substantial ground of objection to the order" may be.
The third point is a rather more complicated one. The two Chairmen are to have between them a power to refuse to let a Petition go on—a power, in effect, to refuse a Petition for amendment to be certified as proper to be received—if that Petition involves amendment of the order of such a kind that if the order were a Private Bill what is called an additional provision would be required. Broadly speaking, if I may put it in general terms, the point turns on the possibility of an amendment to an order prejudicing the interests of persons who would not have been so prejudiced by the original order. This arises in oases where several interests are involved: if I may give the House one very simple instance, in an amalgamation of various water undertakings under the Water Act, an addition to, or subtraction from, the number of undertakings to be amalgamated may well affect some outside interests. The Bill would therefore provide the power which I have just mentioned; that is to say, wholly or partially to strike oat the Petition in so far as it contains an element that would call for additional provision were a Private Bill involved. This is a highly technical point, as I am sure your Lordships will appreciate, and the language of the amendment has caused us a certain amount of concern. I have had the benefit of discussing this matter with the Lord Chairman of Committees, who, with his colleagues in another place, is, of course, involved.
I think there is a case for examining subsection (4) of Clause 1 of the Bill very carefully. We may have to introduce some Amendment at a later stage, and I would say this about it. Though, so far as I can see, no deep question of principle is involved (for that matter, perhaps, there is no question of principle in the whole Bill) it is none the less possible that Standing Orders might be useful for this purpose—there are such Standing Orders—instead of the legislation here proposed. I am referring only to one subsection and one point, and that is subsection (4) of Clause 1 of the Bill.
I should like to say, if I may, with great respect to the Lord Chairman, how

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indebted I am personally to him—he who has, of course, an unrivalled experience on these matters—and his colleague in the Commons. He is concerned, I feel sure (I felt sure the more when I spoke to him) in seeing that this small business is attended to in the most practical and just way. There is a question of justice, because it may involve people who were hitherto outside the order being brought within the scope of its provisions.
The last point is on subsection (5) of Clause 1, and is simply a question of the cases in which a Petition which objects to an order generally should go to a Joint Committee of the two Houses. The position at present is that the Petition is not referred to such a Joint Committee except on an Order of either House. The amendment is that the Petition normally goes to such a Joint Committee, but that either House may resolve against its so going—that is to say, it enlarges the scope of this particular provision, which is, I think your Lordships will agree, a provision for the protection of the individual, and also a provision to secure the rights of the Legislature against the Executive.
I hope I have explained an extremely complicated matter with sufficient clarity. It took me a long time to understand it myself. I well remember that some years ago there was a considerable row on the question of Special Procedure, because somebody thought that one particular borough had abused the procedure. The Bill has a considerable practical importance, though I am tempted to say that it is not wildly exciting as a subject for debate, and I hope your Lordships will feel that this Bill, which is, I believe, non-controversial, might be allowed a Second Reading. I beg to move.
Moved, That the Bill be now read 2a.—(Lord Mitchison.)
THE EARL OF DUNDEE: My Lords, we are grateful to the noble Lord for his very clear explanation of the Bill, with which we agree. He has confessed that, as I quite understand, he has taken a long time to prepare his speech in trying to deal with the Bill. If I may say so, he has done so in a very full and entirely adequate way, and he will perhaps be relieved to hear that I have nothing to add to what he has said. I hope your
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Lordships will give the Bill a Second Reading.
THE CHAIRMAN OF COMMITTEES (LORD MERTHYR): My Lords, I should like to say a few words, because the noble Lord, the Minister, who introduced this Bill, was good enough to mention me. I should like to thank him for his consideration and courtesy in dealing with a point, which is not a very easy one, about subsection (4) of Clause 1 of this Bill. I will not trouble the House by going into it further this evening, but the noble Lord has kept the door open by what he has said and has allowed for the possibility of an Amendment to be further made to the Bill. For that I am much obliged, and I wanted to say so before the Bill passed its further stages.
LORD MITCHISON: My Lords, am I allowed to say, "Thank you"?
On Question, Bill read 2a, and committed to a Committee of the Whole House.

FIREARMS BILL
7.20 p.m.
Order of the Day for the Second Reading read.
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM): My Lords, I beg to move that the Bill be read a second time. You will recall that on February 11 you warmly welcomed my Statement announcing the Government's intention to introduce a Bill providing wider powers and more stringent measures to combat the increasing menace of armed criminals and hooligans. The Bill which I now present for your Lordships' approval shows considerable changes from the one which was accorded an unopposed Second Reading in another place, on March 2. Expert and interested members of all Parties have worked together in considerably enlarging and amending its original scope so that the present Bill comes to us in my view as a largely agreed measure—although it will not surprise me if your Lordships, with your expertise on this subject, at a later stage make suggestions for its further improvement.
Your Lordships will recall that last December a spate of shooting incidents occurred in London which underlined

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the need for speedy and drastic action. In that one month firearms were used in 37 indictable offences known to 'the Metropolitan Police: and this compared with only 3 in the same month of 1963. Of course sound conclusions cannot be drawn from a period of one month, but the figures threw in sharp relief a general trend which has developed over the whole country. In 1963, in England and Wales, firearms were used in 578 indictable offences known to the police, but in 1964 the figure had increased to 731. In cases where shotguns were used the increase was even more alarming. From 107 in 1961, it had doubled in 1964, to 215. We have as yet no comparable figures for this year, but almost every week further firearms incidents reach the headlines, including the tragedy of February 10, when a police officer was killed and another seriously wounded at Oxenholme railway station.
With this evidence of increasing use of firearms by professional criminals, and the new menace of armed hooligans, roaming the streets and countryside prepared to damage property—and perhaps maim people—almost out of bravado, no one in the House will dispute the Government's determination to act. In this Bill we propose action under three main heads. First, we shall give the courts powers to inflict drastic penalties for a wide range of offences on those people who, with a complete disregard of all control, use or intend to use firearms in the commission of crime. In order to create an effective deterrent the Bill greatly increases the present penalties under the Firearms Act and provides severe sentences for a number of new offences.
Second—and because this is essentially a preventive Bill—we are providing the police with greatly extended powers to help them to catch the criminal and hooligan before they have used their firearms. If we cannot turn people from a life of crime we hope to convince criminals of all sorts that they dare not take firearms out with them. Finally, we have taken steps in the Bill to make it much more difficult for criminals to obtain possession of firearms, and to keep closer control on those who sell dangerous and potentially dangerous weapons. In a country where the police, save in exceptional circumstances, walk
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unarmed, the use of firearms must be strictly limited.
My Lords, this is a tough Bill to meet a tough situation. I now propose briefly to run through its provisions. The first four clauses all create new offences, Clause 5 gives the police additional powers, and the remainder makes various extensions and amendments to the Firearms Act, 1937. Clause 1 creates a new offence, punishable on conviction on indictment with ten years' imprisonment, for a person to have with him a firearm, or imitation firearm, with intent to commit an indictable offence, or to resist arrest or prevent the arrest of someone else. This covers all firearms, including shotguns and air weapons. To prove the offence the police will have to show that the offender had a firearm or imitation firearm with him; and that he intended to commit an indictable offence and have the firearm with him while doing so. This last would be very difficult to prove affirmatively. We therefore provide that, if it can be proved that the accused person had a firearm or imitation firearm with him, together with the intention of committing an offence, such proof shall be deemed to be evidence that he intended to have the weapon with him while committing the offence. This puts the onus on the accused person to show that he intended to rid himself of the weapon before committing the crime. This accords with the common-sense view that if a person is found armed, and with the obvious intention to commit a serious crime, it is reasonable to assume that he has not taken the weapon with him out of sheer forgetfulness.
This provision fills a gap in the existing law. As the law stands at present, Section 23 of the Firearms Act, 1937, provides that a person committing one of a large number of serious crimes while armed may receive seven years' imprisonment, in addition to the sentence for which he is liable for the basic crime committed. But the law does not provide for the case where a crime has not been committed but where it is quite clear that is intended to be committed by an armed criminal. This clause, with its ten-year penalty, applies to all firearms, loaded or unloaded, including air guns, in or out of doors, whenever a person is found in possession with intent to commit an indictable offence.

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We follow this up by making it an offence, in Clause 2, for any person to have with him in a public place, without lawful authority or reasonable excuse, a loaded airgun or shotgun, or any other firearm, whether loaded or not, together with the appropriate ammunition. The maximum penalty on summary conviction is six months' imprisonment or a fine of £200, or both, or (with the exception of air weapons) with up to five years' imprisonment or an unlimited fine, or both, upon conviction on indictment. Here we are aiming both at the dangerous criminal carrying a firearm and at the armed hooligan haring around with a loaded weapon which he is prepared to loose off to the public danger. A loaded firearm, even a shotgun or an air weapon, can be so dangerous a weapon that it seems to us right to place upon the person carrying it in a public place the onus to show cause for doing so. But, because such weapons are less dangerous than other firearms, we have made the possession of a loaded air weapon in a public place a summary offence only. A person having with him in a public place a firearm, other than a shotgun or air weapon, and ammunition ought to be asked to explain what he has them for.
Clause 3 makes it an offence for anyone with a firearm to trespass in a building without reasonable excuse. This is punishable on summary conviction with up to six months' imprisonment or a fine of up to £200, or both, or (except for air weapons) on conviction on indictment with up to five years' imprisonment, or an unlimited fine, or both. Here we aim at buttressing Clause 1 in deterring the professional criminal from carrying firearms when setting out to break into premises. It should also catch persons who, although they may not have the prior intention of committing an indictable offence, trespass in a building with firearms, either to avoid interrogation or on the lookout for mischief, thereby causing serious alarm to people in the house.
The penalties are related to the relative degrees of danger to be apprehended from the weapon. Generally, they follow those in regard to having firearms in a public place, but the conditions for incurring Clause 3 penalties are more severe than in Clause 2 because the trespasser will be
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guilty of an offence if he merely has a firearm with him, irrespective of whether it is loaded or he is carrying ammunition for it. We have provided heavier penalties where the firearm is not an air weapon because a trespasser with a revolver or shotgun in a building is likely to have some criminal intent, but a trespasser with an air gun is more likely to be a youth with less sinister intentions.
In Clause 4 we supplement Clause 3 by making armed trespass on land without reasonable excuse an offence punishable on summary conviction with imprisonment for up to three months or a fine of £100, or both. By definition "trespass on land" includes land under water. One purpose of the clause is to cut off the escape route of a person suspected of carrying a firearm in a public place for an illicit purpose, since he will be unable to escape the law, as so many have in the past, by stepping off the highway on to private land. It will also be a great help in deterring hooligans who descend on the countryside at week-ends and go around, armed mainly with air weapons, but sometimes with shotguns, shooting indiscriminately at wild life, windows, cars, farm buildings, and even people—everything animate and inanimate. It was this practice that led to the introduction in another place, with the support of the National Farmers' Union and many associations interested in the countryside, of a Private Member's Bill on armed trespass. This Bill has now been withdrawn because substantially all its provisions are included in the Bill now before you.
When people cause damage or commit vandalism, they commit offences under existing law, but the difficulty lies in catching the offenders in circumstances where a conviction would be likely. By making armed trespass on private land an offence in itself, it should be much easier to act against these hooligans, and to stop them before they cause any damage or can terrorise anyone. We have made it an offence for a trespasser simply to have a firearm with him, regardless of whether it is loaded or he has ammunition for it. This is because the mere sight of an armed trespasser could be alarming, or at least annoying to the landowner, who would scarcely concern himself with the academic question whether the trespasser had ammunition or not, quite apart from the probability that

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the trespasser would throw it in the hedge at the first sight of authority. In any case there can generally be no excuse, apart perhaps from geographical inadvertence, for carrying arms, without permission on another man's land. Nevertheless, the penalties under this clause are less than those for armed trespass in a building, because the offenders are more likely to be boys trespassing on a farmer's field with air-guns than vicious thugs, and the severe penalties necessary for armed trespass in a building would not, in our view, be appropriate here. All the offences in the four clauses I have dealt with are new offences, and I thought it advisable to explain them.
Clause 5 gives the police the various powers which the Government consider they should have in connection with offences and suspected offences under the previous four clauses and certain sections of the Firearms Act, 1937. These are power to require the handing over of firearms and ammunition for examination; to search persons and vehicles; to arrest without warrant; to enter private premises; and to seize and detain firearms and ammunition. We regard Clause 5 as one of the most important parts of the Bill, because if we are to achieve our intentions it is essential that police officers shall be able to make reasonable inquiries and to take immediate, and effective action when necessary. I am equally aware that it is essential that these powers should be properly supervised, and I am confident that they will be.
Clause 6 extends to Scotland, with the necessary adaptations, the provisions of part of Section 23 of the Firearms Act, 1937. These are provisions which provide for additional penalties where persons committed certain serious crimes while armed, or who upon arrest afterwards are discovered to be armed. The offences concerned are listed in the Third Schedule to the 1937 Act, but in view of the difference between the Scottish and English systems of criminal law it has been necessary to provide a separate Schedule for Scotland. We often do find it necessary to provide separately for Scotland. In Clause 7 we increase the penalties for a number of offences under the Firearms Act, 1937. Noble Lords will find them listed in full detail in the
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Second Schedule, and I do not propose to go through them now. They represent substantial increases, and a number of offences which hitherto have been triable only summarily now become hybrid and so can be dealt with either at magistrates' courts or at the higher courts. The maximum term of imprisonment for the most serious offences is raised to five years, and that for other serious offences to three. Clause 8 enables a chief officer of police to impose conditions of registration on firearms dealers, and subsection (2) of Clause 9 extends the registration system to those who deal in shotguns only. Persons who fail to comply with the conditions imposed would render themselves liable to six months' imprisonment, a fine of £200, or both.
It was suggested that the whole existing firearm certificate procedure should be extended to cover shotguns. After very careful consideration, however, we have come to the conclusion that the burden which certification would put upon the police and the users would not be justified by the results; and I believe there will be general concurrence in this decision. The total number of shotguns held by members of the public is not known, but is probably at least half a million, most of them in use by perfectly respectable people for legitimate purposes. If they all had to be given firearm certificates the police would be wasting an enormous amount of time making inquiries about responsible members of the public. Such a diversion of police effort might well reduce their ability to deal with crime. And even if we undertook this great administrative task there is small reason for thinking it would materially reduce the supply of firearms to the kind of people this Bill is aimed at, because most of their weapons are stolen or illegally imported; and the man who is prepared to obtain a firearm by theft is not going to be deterred from possessing it by the requirement of a firearm certificate.
So we have considered how the acquisition of firearms by theft might be made more difficult. Firearms handled by individuals and approved clubs under the existing firearm certificate procedure are, as a matter of standard practice, required to be kept in secure places when not actually in use. This is a

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standard condition in all firearm certificates laid down by the Firearms Rules, 1937. These Rules also require conditions to be attached requiring the owners to report all losses and thefts immediately. We have no reason to think that this procedure requires amendment. In practice the criminal who wants to steal a firearm will go not to a private house but to somewhere where he knows he will find the type of weapon he would like to have. His obvious target is the dealer's shop where he thinks he will find something to suit his fancy.
Under the 1937 Act all dealers in firearms, other than those dealing solely in shotguns and air weapons, have to register with the police. Some 2,000 of them are so registered. The police may refuse to register if, among other things, they are satisfied that the applicant cannot be permitted to carry on business as a firearms dealer without danger to the public safety. If registration is refused the dealer has a right of appeal to quarter sessions. Like so many blanket powers, this is appropriate only for the bad case. What the police cannot do under the existing law (although they can in connection with a firearm certificate) is to attach conditions to the registration of dealers. Most dealers are responsible folk, who follow the excellent advice of the Gun Trade Association about the sort of precautions they should take to secure their premises and their stock, and I wish to express the Government's appreciation of the cooperation and public spirit that the Association has shown in this matter. It needs, however, only one or two slightly less conscientious dealers for relatively substantial numbers of weapons to be liable to be stolen and become available to criminals.
The Bill therefore provides that, upon registration, the police shall be able to attach conditions, and upon non-compliance to revoke registration. It is not the intention that standard conditions shall be prescribed; indeed, local circumstances may vary so much that it would probably be undesirable to do so. But before the relevant provisions of the Bill come into force, my right honourable friend the Home Secretary will discuss with chief officers of police the sort of conditions to be attached to
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registration, and there will most certainly be the strongest emphasis on security measures. Dealers will have a right of appeal to quarter sessions against the conditions imposed and any revocations of registration. For the first time we shall bring within the dealers registration system persons who deal only in shotguns and who are at present outside it. This will make the registration system for dealers a comprehensive one covering all lethal firearms.
The remainder of Clause 9 makes various other amendments to the Firearms Act, 1937, which are germane to the preventive functions of the Bill. The minimum permitted length of barrel for a shotgun not requiring a certificate is to be 24 inches instead of 20 inches as at present, and it is made illegal for anyone—even a firearms dealer—to shorten a shotgun barrel to less than this length. In other words, sawn-off shotguns are to be banned by law. Section 21 of the 1937 Act (which prohibits the possession of firearms by ex-prisoners) is to be extended to borstallers and others; and where the sentence is three years or more, the prohibition on possession of firearms is to be for life.
The Bill as a whole will apply to Scotland but not Northern Ireland, and the new offences under Clauses 1 to 4, together with the new powers for the police under Clause 5, will come into operation one month after the passing of the Act. As my right honourable friend, the Home Secretary, has indicated, he intends to ask chief officers of police to co-operate in holding another amnesty before the provisions relating to increased penalties come into force. This will enable people who have firearms without certificates and who, under the provision of the Bill, will become liable to long terms of imprisonment, to hand them in without penalty. To allow time for the amnesty arrangements, and those by firearms dealers and the police in regard to the new registration provisions to be made, it may be desirable to allow somewhat longer than one month, and Clauses 7 to 9 will therefore come into force by order, but it is the Government's firm intention to bring these clauses into force as soon as practicable after the passing of the Bill.
When this Bill becomes law, as I hope I it soon will, anyone who carries a fire

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arm with him with intent to commit a crime or to avoid or prevent arrest will know that, if convicted, he risks a ten-year sentence. Also, generally speaking, anyone who, without authority or reasonable excuse, carries a firearm in a public place, or as a trespasser, on land, or in a building, risks a heavy penalty. The penalties in this Bill have been provided without, I believe, infringing the reasonable and rightful liberties of the subject, or imposing avoidable and irksome restrictions on the general public. The reasonable law-abiding citizen has much to gain and nothing to fear from this Bill. The criminal and the hooligan have everything to fear. I believe that it does all a law can do to meet and defeat a threat which we are determined to stamp out, and it is in that belief that I commend it to your Lordships. I beg to move.
Moved, That the Bill be now read 2a.—[Lord Stonham.]
7.45 p.m.
LORD DERWENT: My Lords, we ought to be very grateful to the noble Lord, Lord Stonham, for the care with which he has explained this Bill, because it means that my own remarks will be all the shorter. This is an almost classic example of how many of us would like to see a Bill handled in either House of Parliament. As the noble Lord has hinted, when this Bill was introduced into the other place it showed considerable signs of lack of consideration, owing to a certain hurry, if I may so put it without wishing to cause offence, at that time. The Opposition, as is always the case with the present Opposition, put forward constructive ideas and moved Amendments with the intention of improving the Bill. Indeed, as the Bill went on they were helped in this task by Labour Party Back Benchers.
The Home Secretary used a great deal of common sense in the way in which he handled the Bill. I was going to say that he listened to the arguments, but I believe that the word "listened" is not very popular at the moment with noble Lords opposite. At any rate, he considered the arguments put forward very carefully. Some of those arguments he rejected, on very good grounds. I shall mention only one. Some of the Amendments he accepted, and in some cases he moved the
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appropriate Amendment himself. As a result of the way he and the Opposition handled the Bill, it has come to your Lordships' House in a wonderfully improved state as compared with its state when it first arrived in the other place. I only wish that all Ministers would follow the good example of the Home Secretary.
The only matter I wish to mention in regard to those things which the Home Secretary rejected—and this matter was mentioned only on Second Reading—is the question of the registration of shotguns and certificates. The noble Lord has mentioned it, but I will mention it again because it is an idea which has been much canvassed all over the country. I feel that the noble Lord was a little optimistic in saying that there were only 500,000 shotguns in existence. Nobody knows, but I should not mind betting that the number is nearer a million. A good number of people own more than one shotgun. This task would be quite impossible for the police. Before they issued a certificate they would have to see each person, they would have to prepare a report for their superior that he was a suitable person to have it, and then, when he did eventually get it, every now and then they would have to check it. The vast number of shotguns are in perfectly proper hands, and, as the noble Lord indicated, the police would be much better engaged in catching criminals.
In view of the careful explanation which Lord Stonham has given the House, there are only three matters that I particularly want to mention. The first is as to the wording in Clause 2(1), which says:
"Any person who without lawful authority or reasonable excuse…."
Those words are rather loose, and it is in general the wish of all Governments to make the criminal law as precise as possible. The circumstances in which an excuse may be lawful are so varied that it would be quite impossible to put into a Statute what would provide a reasonable excuse. I would remind your Lordships that these words were used in the Prevention of Crime Act, 1953. I well remember those debates, in which I myself took part. This wording was argued strenuously from both sides and, in practice, the courts and the police have found that, as a matter of common sense, in this sort of circumstance, these words are entirely

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suitable. They have created no trouble whatsoever; the wording has been entirely successful.
May I just say one short word about Clause 4, which has already been mentioned by the noble Lord, Lord Stonham, with regard to trespassing with firearms on land? Of course this is very much to the wish of the National Farmers' Union, and I should go further: that it is very much to the wish of the farm worker who has sometimes had extremely unpleasant experiences. In my own part of the world in the North Riding of Yorkshire, this nonsense, or crime, whatever you like to call it, of people wandering about farms shooting everything in sight has not yet arrived. I know that it is very frequent in the South and I believe it has arrived in the West Riding of Yorkshire, but evidently those who come to the North Riding are, so far, more sensible. But I believe that Clause 4 is a very necessary provision of this Bill.
There is one other matter in the Bill which I wish to mention, and that is in connection with Clause 9. Under the principal Act a shotgun was a smoothbore gun that had over a 20 inch barrel. This Bill does what I believe may well be a very important thing: it defines a shotgun as a weapon of that kind with a barrel of 24 inches or over. If it has a barrel of under 24 inches it becomes an ordinary firearm. The so-called sawn-off shotgun has been increasingly used in recent years in England, but it is absolutely unnecessary for sporting purposes to have any shotguns with barrels of under 24 inches. In fact, I am not sure whether I have ever seen one, other than American ones. The police tell me that a 24-inch barrel is a much more tricky problem to hide down the trouser leg than a 20-inch barrel. It is as simple as that, but I believe that this simple change in the law may have very useful effects from the police point of view. Those are the only matters which I am going to mention on the Bill.
I think that we must not be deceived about what this Bill can do. I believe that it will give great powers to the courts and the police against a certain type of person; the ordinary hooligan, the exhibitionist young, if I may so term them—the sort of youngsters who think
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that it is smart to go about with a firearm in their pocket—and it will probably have a very good deterrent effect against the man who is starting on a career of of crime. I believe that these heavy penalties may well deter them from carrying firearms. I think we must realise that it is going to have a far smaller effect on the sort of man, the recidivist, who has been in and out of prison, who is probably going to get eight, ten or twelve years if he commits another serious offence. That sort of man, if he thinks it is worth while to carry a firearm with, presumably, the intention of wiping out any possible witness of his crime, such as a lone policeman, will not be much deterred by this Bill.
The Home Secretary, in his wisdom or otherwise, has indicated that in the ordinary way he does not think anyone ought to stay in prison for more than ten or twelve years. If a man is going to get that sort of sentence in any event, whether he carries or uses a firearm or not, the Bill is really not going to have much effect.
LORD STONHAM: My Lords, will the noble Lord allow me to interrupt? He either misunderstood or misinterpreted what my right honourable friend said. He has at no time suggested that, in all circumstances, a man will not be kept in prison longer than ten or twelve years.
LORD DERWENT: My Lords, I did not in fact say that. I said that he said one should not normally be kept there longer. This Bill is not going to take the place of the Homicide Act, which some people are trying to do away with. I think that it may have very little effect upon that type of prisoner, although, of course, he may not want to risk being found out before he commits a crime. That is a serious point. But if this Bill does all the things which I think it will do, such as helping police and the courts against the young fool—and it is particularly important that air pistols are brought in on this—against the man starting on a career of crime, or against those who are purely exhibitionist, then it will have done a great deal. I agree with the noble Lord that everyone has worked hard to make this Bill a success. Some of your Lordships may think that you can still improve it, and that may well be

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so, but my own view is that, by and large, it is just about as good as we are likely to get it. I hope that your Lordships will give it a Second Reading.
7.56 p.m.
VISCOUNT ST. DAVIDS: My Lords, I wonder whether the noble Lord could answer two questions which I should like to put on this matter. First of all, I must say that I very frequently see firearms offences, because in the course of using a boat along the waterways one sees every day, and in fact many times a day, single youngsters or groups of youngsters armed with various weapons, usually air rifles but sometimes ordinary small-bore rifles, firing across the waterway and at everything in sight. Indeed, I or my friends are ourselves fired at occasionally.
THE EARL OF LONGFORD: Has the noble Viscount fired back?
VISCOUNT ST. DAVIDS: We have not gone as far as that yet. But I should like to know what is the position of myself, or any other member of the public who sees this offence being committed. Are we entitled to disarm these youths, or what are we entitled to do about it?
The second question that I would put is this. It seems to me that this would be a very good moment for a public surrender of weapons. Is there to be any amnesty announced when this Bill becomes law, so that those people who take its provisions seriously can consider going through their cupboards and handing in any weapons, belonging to themselves or to members of their family, which they find? I submit that that might be a very good move at this moment.
7.58 p.m.
LORD SWANSEA: My Lords, I shall not keep your Lordships for long. Like other noble Lords, I followed with great interest the Bill's progress in another place, and I am also very pleased to see that it has been greatly improved in the process. Her Majesty's Government are to be congratulated, for once, on introducing a Bill which will prove a more effective deterrent to the evil-doer than did the previous legislation, without imposing any additional restrictions on the law-abiding citizen.
My part in this debate as a member of the Council of the National Rifle
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Association is to put in a few words on behalf of that Association, and also on behalf of the National Small Bore Rifle Association. My noble friend Lord Cottesloe, who is Chairman of the Council of the National Rifle Association, has asked me to say how much he regrets that another engagement has prevented him from taking part in this debate himself. He has asked me to say on behalf of the National Rifle Association that he welcomes the Bill in its general approach, and hopes that it will be administered in such a way as not to interfere with the legitimate use of firearms by the members of the Association and members of affiliated clubs. In fact, I have reason to believe that that is the declared intention of Her Majesty's Government.
The membership of these associations and of the rifle and pistol clubs affiliated to them numbers many thousands throughout the country. In fact, in this very Palace of Westminster we have a rifle club down in the basement, beneath this very Chamber. I am a member of that club myself, and we have a number of very friendly and enjoyable matches against visiting rifle clubs. There is also an annual rifle match between this House and the other House, which takes place at Bisley every year. These members of rifle clubs have taken up shooting as a hobby, just as other people take up golf, tennis, bowls or gardening, and it is a sport which is no less fascinating and no less demanding in its own way than any of the other sports T have mentioned. The misfortune of people who follow this particular sport is that the implements of their sport—and they are often instruments of great precision, and beautiful examples of the craftsman's skill—are potentially lethal, so it is only natural that certain restrictions should be imposed on their use and on their acquisition. Rifle club members fully realise and appreciate this, and are prepared to put up with a certain amount of inconvenience. I say "a certain amount": some of them do jib a bit at the present restrictions.
Now I should like to talk about the law-abiding members of rifle clubs and those who use firearms for other legitimate sporting purposes. I am very glad that no further restrictions have been imposed on the acquisition and possession of firearms for legitimate purposes, but I feel that the

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powers of search by constables might perhaps be a nuisance in certain cases.
LORD STONHAM: I hope it will.
LORD SWANSEA: Yes, I agree with the noble Lord; I hope it will be a nuisance to certain people in certain circumstances: but I am thinking of the member of a rifle club who is going to or from the range. He may be going to take part in an important match. He may have one or more rifles or pistols in his car. He may or may not have some ammunition as well. A zealous constable might come along and stop him and say, "What are you doing with these arms and ammunition in your car?" Unless that individual has with him some evidence of bona fides, he may be in a bit of trouble, in all innocence. I can foresee a certain amount of annoyance being caused to people going about their lawful occasions; but I can say that the National Rifle Association, at any rate, is prepared to advise its members to carry with them such evidence of their bona fides as may be thought necessary, in the form of either a firearms certificate or a membership card of a recognised rifle club.
Another point I want to mention is the question of insurance. It was referred to in the debate in another place. There is a substantial body of opinion in favour of a compulsory system of third-party insurance for users of firearms and shotguns. I can foresee great administrative difficulties in that, and I am not advocating any compulsory scheme of that sort myself, but I do think that Her Majesty's Government could well do something to bring to the attention of users of firearms and shotguns the advantages of partaking voluntarily in a scheme of third-party insurance. Very regrettable accidents sometimes happen and are publicised in newspapers—and they really are extremely regrettable.
I was looking at my game licence before I came into the Chamber—the noble Lord, Lord Stonham, will be pleased to hear that I have one—and on the back there are some excellent notes, which appear to have been compiled by the British Field Sports Society in conjunction with the R.S.P.C.A., on ensuring clean kills in the field and safe gun-handling. That is an excellent way of
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bringing such matters to the notice of users of firearms and shotguns. I wonder whether Her Majesty's Government could not also contribute to this and make use of the space on the back of a game and gun licence to draw attention to the advantages of third-party insurance. It is not necessary for me to remind the noble Lord that there are some very reasonable schemes at extremely cheap rates, and that most insurance offices have a ready-made policy of that nature.
There are one or two points which the noble Lord, Lord Stonham, mentioned in his speech to which I should like to refer. One was on the question of differentiating between firearms and shotguns and air weapons. I think it was in relation to Clause 2 of the Bill. So far as I can see, in some circumstances a shotgun or an air weapon can be no less dangerous and no less lethal than a firearm. I find it hard to see why a distinction should be drawn between them, as it is in this Bill. A shotgun at close range can inflict a terrible wound, far more damaging than a single bullet from a rifle or a pistol; and a pellet from an air weapon can also inflict a very dangerous wound if it hits the wrong spot. The other point about which I am in some doubt and which also arises from the noble Lord's speech is on Clause 1. He said, I think, that that clause covers firearms, shotguns and air weapons. I see only firearms mentioned in that clause, and, so far as I know, neither a shotgun nor an air weapon is a firearm within the meaning of the Firearms Act. Perhaps the noble Lord can clarify that when he comes to reply. My Lords, I think that is all I have to say on this Bill. It is a good Bill, and I believe it will serve a useful purpose. I think the penalties it imposes will have a very salutary effect in decreasing the illegal use of firearms.
LORD STONHAM: My Lords, I am grateful for the welcome which has been given to this Bill by all three noble Lords who spoke about it. I was particularly pleased with the noble Lord, Lord Derwent, because when he said that he was going to mention three points I thought they were to be points of criticism, but they were, all three, points of approval. Therefore, I need not say any more about them. He was quite right to emphasise, as I did myself, the

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contributions which were made by the Opposition in another place to the very great improvements which have been made to the Bill during its various stages; but I think he will not deny me the praise to the Government for having listened—although I think he used the wrong word when he said "listened". I think "harkened" is the appropriate word; because it denotes action rather more than mere listening. We have certainly taken action.
One point which the noble Lord raised in doubt was that the recidivist, likely to carry a weapon in his criminal pursuits, may be unlikely to be affected much by this Bill.
LORD DERWENT: My Lords, I did not make myself clear. He may be affected, certainly. But I said I did not think he would be deterred.
LORD STONHAM: Well, my Lords, I think he will be very considerably deterred if he knows that if he has a weapon with him and a police constable has grounds for suspecting that he is going to commit an offence, he can get ten years just for carrying the weapon. I think it is likely he will be deterred, particularly when he knows that the police constable will in many cases know him and know him also as the kind of man that uses, or is likely to use, that kind of weapon; and he can stop him.
My noble friend Lord St. Davids asked two questions. One was when he was talking about waterways. I believe he was thinking largely of canals and of the activities of youths who use air weapons. Well, it would seem to me that they would almost certainly be in a public place and that, if they are going to assault my noble friend with an air weapon, it would have to be loaded. In that event Clause 2(2) would apply to them:
"Any person who without lawful authority or reasonable excuse"—
I do not think even shooting at my noble friend would be regarded as a reasonable excuse—
"the proof whereof shall lie on him"—
that is the person concerned; not my noble friend—
"has a loaded air weapon with him in a public place shall be liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding two hundred pounds or both."
And that is an extremely serious matter.
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I think there is no question that they would be committing an offence under the Act and a very serious offence.
Then my noble friend asked me whether he could disarm these youths. A landowner has the right to remove trespassers from his land, by force if necessary; but the landowner has none of the powers which we are giving the police under Clause 5 of the Bill, such as the right to seize and detain firearms. Any citizen, however, would have the right to seize any person who was committing an offence of this kind and to hand him over to the police with the evidence. I should think that a few successful cases of that kind would act as a severe deterrent and discouragement to those young people who have been annoying people on our rivers and canals.
The other suggestion that my noble friend raised was that this would be a good moment for an amnesty for those who surrender weapons. I think he must have come into the Chamber just after I concluded my speech, because in my speech I said that my right honourable friend is most certainly consulting with the police with a view to making arrangements for an amnesty after the Bill is passed. This will be announced with full publicity and will give people who may be, perhaps unwittingly, committing an offence under this Bill a chance to get rid of the weapons they have.
The noble Lord, Lord Swansea, asked a number of questions. As there is more business yet before the House, I hope he will allow me to answer his points as briefly as I can. He hoped that the Bill would be administered in such a way as not to interfere with the legitimate rifle and pistol clubs. There is no doubt about that. Indeed, the police will rely to a great extent on the legitimate clubs for information about persons who apply for licences for firearms certificates to see whether they are legitimate and proper members of a club. If they are not, it is unlikely that such persons would get firearms certificates. The noble Lord also mentioned that the rifle clubs will put up with any reasonable restriction but will jib a bit at some things. One of the things that the rifle clubs will jib at, he said, was the power of search, which might be a nuisance. I cannot see that it is much of a nuisance if an honest

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citizen with every right (and a certificate to show it) to carry a rifle in his car should have to show the certificate to a policeman. I think it is worth while for honest citizens to be stopped, perhaps slightly delayed and perhaps slightly annoyed, if this is the small price to pay for picking up a few crooks and possibly saving lives and property.
The noble Lord raised also the question of insurance. This subject was discussed at great length in another place and met with small volume of support from any part of the House. It is a subject which, if he wished to table an Amendment, we might discuss at greater length at the Committee stage. He mentioned the advantage of printing the insurance notice on the back of the gun licence. This is a matter which has been considered and I do not think any favourable decisions were reached, but it is something I can look at again. He also made the point that under certain conditions an air gun and a shotgun fired from close range are no less lethal than other weapons. Certainly, if you had an air gun pellet in your eye you would lose the eye and under certain conditions it might kill you. But, generally speaking—and if he will look at Clauses 1 to 4 he will agree—the penalties have been fitted to the gravity of the offences and the general (not the particular) lethal propensities of individual firearms. I do not think that there is much more we can do in this connection. I think we have drawn the line in the right places.
On one point I must correct the noble Lord. Air guns and shotguns are both within the definition of "firearms" in the 1937 Act. If he looks at Clause 1, which refers to firearms, he will see that it means that anyone who goes out with intent to commit an indictable offence with any firearm, including any air gun or a shotgun, is liable to be sentenced to up to ten years imprisonment. I think the point is covered. Finally, again I am most grateful for the welcome that this Bill has been given and for the questions.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

WIFE'S RIGHTS IN MATRIMONIAL HOME
8.20 p.m.
BARONESS SUMMERSKILL BARONESS SUMMERSKILL rose to ask Her Majesty's Government whether in view of the judgment of this House concerning the deserted wife's "equity" to remain in occupation of the matrimonial home, they will introduce remedial legislation, especially as three of the Law Lords stated that the result was unsatisfactory and required the attention of Parliament. The noble Baroness said: My Lords, I must apologise to your Lordships for keeping the House to this late hour, and particularly to the Lord Chancellor for bringing him back to the Woolsack after he has had such a long day listening to other debates, but I believe the recent decision of the Law Lords to allow the appeal of the National Provincial Bank from the Court of Appeal decision raises a matter of considerable importance, and that is why I feel that it brooks no delay. In fact it ends what has been known as "the deserted wife's equity", namely, the right to remain in occupation of the matrimonial home.
May I remind your Lordships of this case? It was the case of a woman called Mrs. Ainsworth, a married woman with four children, who was deserted by her husband in 1957, since when she has continued to make her home at Milward Road, Hastings—the matrimonial home. In 1961 Mrs. Ainsworth was granted a decree of judicial separation and maintenance for herself and her children on the basis that she remained in occupation of the house rent free. Subsequently the National Provincial Bank advanced about £2,000 on the security of the house to a company, to enable it to discharge the husband's debt to them. In 1962 the Bank called in the debt, stating that in default of payment it would exercise its right as mortgagee. Mrs. Ainsworth resisted this claim on the ground that her husband had deserted her, leaving her in the house. Finally, the case came to your Lordships' House, where a decision was made in favour of the Bank. While the decision of the five learned Judges was unanimous, nevertheless three Law Lords said that the result was unsatisfactory and required the attention of Parliament; and it is for this

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reason that I have brought the matter to the House to-night.
The decision means now that a husband who deserts his wife can transfer the house to anyone else, including his new mistress, for a large sum or small; and, even though the new owner has full knowledge of all the circumstances, he or she can turn the wife out of the matrimonial home and the court cannot refuse the demand. Then, as soon as the wife is turned out the husband can manage to get the house re-transferred to himself. This possible manipulation of the law recalls to mind Lord Cowper's statement on Equity. He said:
"The office of Equity is to support and protect the Common Law from shifts and crafty contrivances against the justice of the Law. Equity therefore does not destroy the Law, does not create it, but assists it."
My Lords, with all due respect, I feel that this decision to deprive a woman, innocent of any matrimonial offence, and her four children of their home is a triumph of the rights of property over those of equity. In this case the law appears to come down on the side of the least wronged and the least afflicted, the bankers.
In the course of this case great importance has been attached to the property right of the bank which advanced £2,000 on the security of the house. I find it difficult to understand why more importance was not attached to the social needs of the mother of four children who for years had been giving unremitting service to the home and her country—that is, if we acknowledge that children represent, in one sense, the wealth of the nation. She had ben required to be maidservant, laundress, cook and concubine (if I may use the term in its legal sense) to her husband, and nurse and part-time teacher to her children. If we were to assess these services given over the years to the family, and indirectly to the community, in monetary terms we should find their value far in excess of £2,000. I say that the husband and the nation are in debt to the mother, and the repayment of this debt should be given priority. Her contribution to the country has been greater, financially and socially, than the banker's advance.
If the Judiciary should not concern itself with the wider social implications, then my argument falls, but I understand that this is not the case. If this woman fails to bring up her four children on National Assistance, then they may go into care, which is very common. A great majority of children in care by local authorities have parents living. They may go into care at a cost over the years to the taxpayer of an amount far in excess of the bank's demand. Again, if these fatherless children, denied adequate accommodation, become delinquent, then the cost to the State will be far greater than £2,000. Yet it has been deemed right and just to take this mother's greatest necessity, a roof over her head and her children, now that the father has deserted them.
In this country the law denies wives any right to the home and contents which, through their services, they have helped to provide. In Canada and the United States of America the Homestead Laws protect the deserted wife, and in many European countries community of property gives her security. My Lords, the British Law is obsolete and far behind that of smaller countries in making provision for the wife and mother. I should like to ask the Lord Chancellor to-night whether a Private Member's Bill should not be introduced forthwith in order that in future other mothers may not find themselves in the position of this unfortunate woman.
The court, should, as the Master of the Rolls has characteristically said, "temper justice with mercy". But is a mother's contribution to our society so insignificant that when she is threatened with the loss of her home her only hope is to reply upon the mercy of the court? Should she not be protected by Statute law? Undoubtedly the noble and learned Law Lords were very concerned with the outcome of this case, and I am honoured to find the noble and learned Lord, Lord Cohen, here. He has been sitting here for many hours, tireless it seems, and I am delighted to tell the House what he said in regard to this case, because he was one of the Law Lords. He said:
"I arrive at this conclusion with some reluctance for I recognise that the Respondent is an admittedly wronged and deserted wife … the existing law I think is in an unsatisfactory state, particularly as regards the position of the deserted wife and of third parties."
The noble and learned Lord, Lord Upjohn, said on this occasion:
"… a wife does not remain lawfully in the matrimonial home by leave or licence of her husband as the owner of the property. She remains there because as a result of the status of marriage it is her right and duty so to do, and if her husband fails in his duty to remain there it cannot affect her right to do so. She is not a trespasser, she is not a licensee of her husband, she is lawfully there as a wife…"
Then the noble and learned Lord, Lord Upjohn, said that:
"… it is desirable that the recommendations of the Royal Commission on this subject should receive some further consideration."
May I just remind your Lordships of what the Royal Commission on Marriage and Divorce said, under the heading "Provision for protecting a spouse who has been left in occupation of the matrimonial home "? I must remind the House that this was written when what was known as the Denning Convention, which permits the deserted wife to remain in the home, was still operating, but that has been out of date from last week. The Royal Commission said (paragraph 664):
"We think that it has been right to afford this protection to a deserted wife, to allow her to keep a roof over her head; it would be shocking to contemplate that a husband could put his wife and children into the street so that he could himself return to live in the home, perhaps with another woman. The law has, however, been criticised on the ground that it leaves to some extent uncertain the position both of a wife and of third parties. Moreover, the law is not firmly settled since it does not as yet rest upon a decision of the House of Lords. For these reasons, we consider that it would be preferable to lay down in a statute the circumstances in which a wife should have a right to remain in the matrimonial home."
Finally, may I draw the attention of the House to what the United Nations Commission on the Status of Women said? They made a recommendation, which has been adopted by the Economic and Social Council, which includes the provision of statutory matrimonial regimes affording women equal rights with respect to separate or common property during marriage and equitable sharing of property at dissolution. Throughout the long range of our history, mankind has been slowly and painfully finding its way towards discovery of itself. But change and invention in the woman's world has always lagged behind. I believe that marriage should be looked upon as an
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equal partnership. So far Britain has failed to realise the full value of the wife's part in making a home: otherwise her claim to a fair share of the family income and community of property would have been secured as a matter of common justice long ago.
8.32 p.m.
LORD COHEN: My Lords, I do not think that in a debate, if it can be so called, which has arisen on a Question, it would be right for me to go into this matter in detail. I should like to thank the noble Baroness for her reference to me, and I would say just two things. First, I think that it might be wrong to accept as a full statement of the law the noble Lady's statement about the position where there was a transfer of the home to a mistress for a trifling sum. I think that the noble and learned Lord the Lord Chancellor will probably agree that it is not ouside the power of the law to deal with that situation. I cannot recall to mind the name of the case which may be cited.
Secondly, I agree with the noble Baroness that this is a matter which requires further consideration. When I added what I did, I had in mind the Law Commissions Bill, which we were discussing. I thought that this might well be a fit matter for the Commission. I appreciate that the noble Baroness desires, if possible, to proceed by a Private Member's Bill, but I want to put in a caution. It is not so easy as it sounds. There are cases, for instance, of constructive desertion. For example, a lady might allege that she had been deserted, only for it to be proved, when the case came on in the Divorce Court, that the husband had not deserted her but had been driven out of the house by her behaviour. A great many things have to be considered. When I added those remarks, I had in mind partly what appeared in the Report which the noble Lady cited, and partly a suggestion made by Lord Justice Russell in the Court of Appeal.
Therefore, while I hope that the Government will find it possible to afford greater protection than our Judgment leaves with a truly deserted wife, it is a matter which requires careful consideration. I hope that your Lordships will forgive me for this short intervention, which

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I make because the noble Baroness referred to me in her remarks.
8.35 p.m.
THE LORD CHANCELLOR: My Lords, the Question which the noble Baroness has raised is one of importance to a large number of our people. I am as sorry, as I am sure she must be, that, worn out by the exertions of the day, out of 1,007 Members of your Lordships' House only 7, and not the 1,000, are here to hear the subject discussed.
The actual Question which the noble Baroness has asked is:
"To ask Her Majesty's Government whether in view of the judgment of this House concerning the deserted wife's 'equity' to remain in occupation of the matrimonial home, they will introduce remedial legislation, especially as three of the Law Lords stated that the result was unsatisfactory and required the attention of Parliament."
If I may start by being depressing, the answer to the Question is, No, they are not doing, so. In the first place, they do not know anything about it. This decision of your Lordships' House was made only on the 13th of this month and was reported on the 14th. The process of a Government forming a view is necessarily one of a little length. To start with, there is a particular Minister concerned, who has first to form his view. If he forms a view in favour of legislation, it would then be for him to prepare a paper and put it before his colleagues. This has to go through one or more Committees and in the event of disagreement, I suppose, to the Cabinet. The idea that Governments, who all the time have a hundred legislative proposals at some stage or another before them, can form a quick view, while it may be desirable, is, I am afraid, not realistic.
Secondly, if they had considered the matter, which they have not, I think it is highly unlikely—and that is an understatement—that there could be legislation this Session, because the Government are already committed to more legislation in this Session than they can get enacted, and the position in next Session is one of some difficulty already. But, of course, there is a certain amount of time for Private Members' Bills, and this the noble Baroness might feel would be a proper case for a Private Member's Bill.
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For my part, I entirely agree with her that the time is coming when we ought to reconsider the whole question of property law between spouses. In most Western democracies there is some measure of community of goods, on the basis that where there is a home and children somebody has to look after them. If the wife did not do it, the husband would have to do it or pay somebody to do it. It is because in most countries it is ordinarily the wife who looks after the home and children, that the husband is free to go and earn a living for them both which he could not do if he had to do half the looking after of the house and children. If that is so, or if they both be working, it is only right that they should share their property and income during marriage.
I do not know whether our people would agree with this, though I think that a considerable number of people in this country would think that it ought to be the law, that at least the matrimonial home and its contents should belong to both. So often the wife may be at work, too. Who happens to deal with the mortgage instalments and hire purchase is very much a matter between them. I think that most ordinary married people do in fact operate on a sort of communityof-goods principle. Sometimes the husband hands over the money for the housekeeping or, as in parts of Wales, hands over everything he earns to his wife and she gives him back something for himself. It is, I think, time that we began to think about what the property rights of married people ought to be.
However, if one is to deal with the immediate problem, it would seem to me that this would be a suitable thing for a Private Member's Bill. I think everybody in the country would agree that there was nothing contrary to common sense and justice in the law that was laid down by the Court of Appeal in Bendall v. McWhirter, because if a wife is deserted, while a husband would not ordinarily get an order to turn her out of the house it is not right that he should nevertheless be able to do that by the expedient of selling the house to somebody else, and for the purchaser to get her out. Because if she has children, whatever she may get by way of maintenance is not the same thing as having the matrimonial home. I should have thought

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that there would be general agreement that, in substance, the decision of the Court of Appeal in Bendall v. McWhirter ought to be restored.
There is one difficulty, however, about that, and it is in relation to third parties. I would suggest to the noble Baroness that if we are to restore the position to the substance of what it was, it would be better to restore it to the recommendations contained in paragraph 698 of the Royal Commission's Report, because that safeguards the position of the third party, which was, I think, a weakness of the position under the previous decision of the Court of Appeal. This recommendation is that in such a case the court should be able to grant the wife an injunction against the husband from disposing of any interest in the home or its contents, and that that order should be capable of registration as a land charge. This means that the potential purchaser's position will be safeguarded, because he can tell where he is. The order will be on the Land Charges Register, and he will know that this is a protected wife. Otherwise, we were slowly getting into the position, under Bendall v. McWhirter, where, if you wanted to buy a house with the life savings of your family, when you were shown round by the woman you ought to say to her: "Are you a deserted wife?—because, if so, then I may be in difficulty." I would suggest to the noble Lady that this would be a very good case for a Private Member's Bill.
But I agree with the noble and learned Lord, Lord Cohen, that this is not a very simple subject, and the noble Baroness ought to get advice, particularly for this reason: that if it is in the right legal form, then I can see no reason for the Government to oppose it, and they might be very well disposed towards it; whereas if it is in the wrong legal form we shall get into difficulties.
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It is also a matter for consideration whether, apart from paragraph 698, such a Bill should or should not include what is recommended in paragraph 697 of the Report. But these are technical matters. I do not know whether the noble and learned Lord, Lord Cohen, or even the noble and learned Lord, Lord Hodson, would be interested in this question, but I am sure the noble Baroness would be well advised to obtain help on the technical wording of such a Bill. But, apart from that, speaking personally, I am sympathetic; indeed, if your Lordships' House had been other than your Lordships' House, when I saw the hour and the exhaustion of those present and their small numbers, I should have said: "Why do we not call it a day? Come round to my room and let us talk about it." But that would have been a grossly irregular observation to make in your Lordships' House, and I thought it right to say what I have said.
So that, while I am afraid the answer is, "No; I cannot hold out any immediate hope of Government legislation", I am personally sympathetic towards this idea; and I am sure that as many Members of the House as are here will agree that we are grateful to the noble Lady for having raised a question which clearly affects large numbers of our people.
BARONESS SUMMERSKILL: My Lords, may I thank the noble and learned Lord who sits on the Woolsack for what he has said? He has given me much more than I hoped for. He has blessed a Private Member's Bill, and I hope to have the pleasure of drafting one that will satisfy him in every technical detail as soon as possible.
House adjourned at a quarter before nine o'clock.