§ 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 724 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, 725 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 726 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 727 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 728 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 729 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 730 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 731 £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 732 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 733 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 734 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 735 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.
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 736 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.
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 737 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, 738 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 739 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 740 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 741 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 742 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 743 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 744 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 745 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 746 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 747 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. 748 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
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 750 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 751 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, 752 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 753 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 754 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 755 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 756 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.
§ 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 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.
758 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 759 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 760 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 761 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.
762 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 763 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 764 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.765 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), 766 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 767 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, 768 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.
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. 770 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 771 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 772 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 773 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 774 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 775 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.
776 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 777 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 feltequitable 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- 778 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, 779 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 itThis 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 780 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 781 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. 782 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 lawExpect 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 783 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, 784 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 785 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.
786 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 787 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.
788 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) 789 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 790 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. 791 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, 36.793
|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.|
|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.|
§ Resolved in the affirmative, and Motion agreed to accordingly.