HL Deb 25 November 1992 vol 540 cc1031-44

7.52 p.m.

Lord Swinfen

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Swinfen.)

On Question, Motion agreed to.

House in Committee accordingly.

[The BARONESS COX in the Chair.]

Clause 1 [Burden of proof]:

Lord Swinfen moved Amendment No. 1:

Leave out Clause 1 and insert the following new clause:

("Proceedings in tort

.—(1) Subject to section 10 of the Crown Proceedings Act 1947 (if and insofar as it is revived by any order made under section 2 of the Crown Proceedings (Armed Forces) Act 1987), this Act applies to proceedings in tort against the Crown for death or personal injury suffered by a member of the armed forces of the Crown if the requirements of one of the paragraphs of subsection (2) below are satisfied.

(2) The requirements mentioned in subsection (1) above are—

  1. (a) that the Crown has—
    1. (i) withheld or caused any person to withhold any information whether contained in any document or on any computer disc or tape relevant to the proceedings; or
    2. (ii) refused or caused any person to refuse to answer any question so relevant,
  2. on the ground that disclosure of the information or the answering of the question would be injurious to the public interest; or
  3. (b) that the death or personal injury occurred in consequence of the member of the armed forces being subjected to an unusual risk.

(3) In this section, "unusual risk" means a risk of death or personal injury arising from service as a member of the armed forces and which is greater than that to which a person in civilian employment in the United Kingdom would ordinarily be subjected.

(4) In this section it shall be for the Crown to prove that any information or the answer to any question is not relevant to the proceedings.").

The noble Lord said: As the House has been sitting for a long time on the previous debate, I intend to keep my remarks on each amendment brief. I hope that will be for the convenience of the Committee. I hope my amendments will deal with the points which were raised by various noble Lords at Second Reading. Since that stage, I have taken advice from a number of distinguished lawyers well-versed in this area of the law. My amendments have been drafted with their assistance.

Amendment No. 1, if agreed by the Committee, will not only replace Clause 1 with a new Clause 1 but will narrow the ambit of the Bill so that it will come into effect only in cases where the Crown withholds information from an injured serviceman or his representative on grounds that disclosure of that information would be injurious to the public interest. At present if such a situation arises and the Crown privilege is claimed, that may well mean that the plaintiff cannot prove his case and injustice can result.

Subsection (3) of the new clause is designed to cover cases such as an explosion occurring for no apparent reason or where the presence of a device which has caused injury cannot be explained. It seems to me that in such a case a serviceman can legitimately claim to be placed in a better position than a civilian if it can be shown that the injury arose because he was exposed to risks to which his counterpart in civilian life would not be subjected. I beg to move.

Lord Carver

I made clear at Second Reading that I strongly supported the Bill because in my view it was extremely important that we should avoid a repetition of the disgraceful circumstances that arose when two Grenadier Guardsmen were injured in a training area in Canada.

The original Bill made the intention behind the Bill quite clear. The noble Lord's amendments, phrased now in legal terms which I found difficult to understand at first, achieve his aim, which I fully support, in proper legal terms.

It seems to me scandalous that a serviceman who has been injured on duty should not be able to claim compensation against the Ministry of Defence. It is scandalous that he has to prove that the Ministry of Defence was negligent in circumstances in which he was faced with risks which are not similar to those faced by civilian employees of the Ministry of Defence, or in circumstances where the Ministry of Defence tries, as it has on many occasions, to hide behind the argument that to disclose the true facts about the incident in respect of which he is making a claim would be against the public interest. It is right that in those circumstances the onus of proving that it was not negligent should rest upon the Ministry of Defence.

When I first read the amendment, I was most anxious that there should be no question that members of the Armed Forces or their representatives should in any way be able to sue the Ministry of Defence for death or injury on active service. I am assured that the amendment does not open the door to that. I therefore ask the Government to support the amendment and to give the Bill an easy passage through both Houses.

Baroness Strange

The amendment goes to the heart of the important point that my right honourable friend the Prime Minister made at the very beginning when he assumed office; namely, that the Government should be open and be seen to be open. So should the Ministry of Defence, whenever it is able. Our law is based on the principle that an accused person is innocent until he is proved guilty. In the case of injury, the burden of proof of relevance should be borne by the Crown. I support the amendment.

Lord Ackner

I did not have the advantage of attending the Second Reading of the Bill because I was otherwise engaged in the work of the Appellate Committee. But I have had time to read the debate of the Second Reading of the Bill and to study the amendments. It is clear that the noble Lord, Lord Swinfen, was most anxious that one of the major problems, the proof of negligence, which had become extremely difficult in circumstances in which the Ministry of Defence had, for good or controversial reasons, decided that it was not appropriate to provide the information necessary to pursue a successful case, should not hinder a serviceman recovering damages in a situation in which the Ministry of Defence had proved negligent.

There was criticism of the Bill as originally drafted on the basis that it did not deal with the onus of proof by placing it on the Ministry of Defence in those circumstances. It constituted the Ministry of Defence the insurer of the serviceman by introducing strict liability with the result that the establishment of negligence would be irrelevant. The amendment, which I support, has radically changed that approach by merely providing—and though I say "merely" it is an important provision—that the onus in the circumstances which are described in the amendment should rest with the Ministry of Defence. To an extent that improves the position of serving personnel beyond that of the ordinary civilian. The onus is only put upon the defendant where the circumstances of the injury themselves disclose a negligent situation.

For example, in the case of a car that mounts a pavement and pins a pedestrian up against a wall, the driver of the car would be obliged to negative negligence following the Latin maxim that this was a case of res ipsa loquitur. What has happened in this case, and it seems to me very appropriately, is to take two specific situations in which the onus should be put upon the Ministry of Defence; namely that in subsection (2) (a) the withholding of information, or the refusing or causing a person to refuse to answer questions, or where the death or personal injury occurred in consequence of the member of the Armed Forces being subject to an unusual risk. Therefore it is a significantly changed situation, reducing very much the burden placed upon the Ministry of Defence from that of an insurer to that of an ordinary employer, but with the burden placed upon him of negativing negligence in those specified circumstances. Therefore I strongly support the amendment and I hope that the Government will do likewise.

8 p.m.

The Parliamentary Under-Secretary of State, Ministry of Defence (Viscount Cranborne)

As during the course of the Second Reading debate on this Bill, I remain grateful to my noble friend Lord Swinfen for his initiative in bringing these matters once again to the attention of the Chamber. As I remarked during that debate, it is perfectly clear that so long as Members continue to show the interest they do in the welfare of servicemen, servicemen will continue to be extremely well served by their representatives in this Chamber.

It is particularly noteworthy that my noble friend has taken account of the discussion during the Second Reading earlier this year and has prepared amendments to his Bill in the light of comments made by noble Lords. Originally my noble friend's intention, as he explained, was that service personnel claiming against the Crown for serious injuries sustained during the course of their service should no longer need to show negligence on the part of the Crown. The new version of the Bill would retain the question of negligence but is aimed at reversing the burden of proof so that the Crown would have to show that it had not been negligent rather than the claimant having to prove the Crown's negligence. This reverse test would apply in either of the following circumstances. The first that I have in mind would be if the Crown had refused to disclose relevant information to the claimant—this was a point addressed by the noble and learned Lord, Lord Ackner, during the course of his remarks. The second would be if the injured serviceman had been subjected to an unusual risk greater than that to which a civilian would ordinarily be subjected.

The Committee will agree that that amounts to a very different Bill from the Bill considered at Second Reading. Nevertheless, I have to say—and perhaps it will not come altogether as a surprise, although it will continue to be a disappointment to those who have spoken so far in the course of this Committee stage—that in spite of the transformation that the Bill has undergone, Her Majesty's Government remain unable to support it. I shall try to explain why that is so.

Subsection (2) (a) of the amendment refers to compensation claims in which the Crown has refused to disclose relevant information to the claimant or to answer relevant questions on the grounds that such answers or disclosures would be against the public interest. In this context subsection (4) provides that it shall be for the Crown to prove that information sought by the claimant and withheld by the Crown is not relevant to the proceedings.

I am perfectly certain that in isolation these provisions seem perfectly reasonable, but I submit that they amount to a misunderstanding of the position as it exists at the moment. They assume that at present the Crown—in this context the Ministry of Defence—decides what is relevant and not relevant and then decides what relevant information should be withheld on the grounds that its disclosure would be injurious to the public interest. With all due diffidence, particularly before the noble and learned Lord, Lord Ackner, as I understand it, that is not how the legal process works. I understand that relevance is already a matter for the court and not for the Crown. It is a matter for the court to decide before the question of public interest in non-disclosure is addressed. Then, once the court has decided relevance, the court goes on to decide the question of disclosure.

Again I say with some diffidence, in view of recent events even the issue by a Minister of a public interest immunity certificate does not prevent disclosure if the court decides in favour of disclosure. It is for the court to consider whether the interests of justice in a particular case require the public interest in confidentiality to be overridden.

Noble Lords may have in mind the possibility that in civil litigation by a serviceman seeking compensation the plaintiff might be disadvantaged by such a court decision. Where grave issues of national security were involved, the court would not be expected to dispute the certification to that effect. However, at the same time the court would surely make it clear if it considered the information to be material to the outcome of the case. If so, the implication for the compensation claim by the serviceman—that the Crown should meet it—would also be clear.

Perhaps it would be helpful if I assure the Committee that in those circumstances the Government would act accordingly. However, I should add—this is a most important point—that no such case has happened in any of the thousands of compensation claims by servicemen since Section 10 of the Crown Proceedings Act was repealed in 1987. In fact I drew attention to that point during the Second Reading debate on 9th June last, when I asserted that the position of the serviceman was exactly the same as that of any other employee in the civil sector as a result of that repeal. It might be of some interest to know that since 1989 there has not been one single public interest certificate signed by Ministers in relation to a claim by service personnel against the Crown.

Subsection (3) of the amendment, referring to "unusual risk" is intended, I suppose, to leave the court to decide whether the service activity involved in the incident was more risky than that to which a person in civilian employment in the United Kingdom would ordinarily be subjected. It is not clear what type of civilian employment a court would be expected to use for comparison. In statistical terms the most dangerous civilian occupations such as the construction industry and diving are more dangerous than employment in the Armed Services overall. That is something of a generalisation. I am the first to admit it, particularly before the gaze of the noble and gallant Lord, Lord Carver. We all know that servicemen can on occasion be ordered directly to risk their lives in circumstances which would not ordinarily apply to a civilian. Nevertheless, all in all, although I understand and greatly sympathise with what my noble friend is thinking in this subsection, I suspect that the court would have some difficulty in interpreting it. Her Majesty's Government, while sympathising with the motives that lie behind the amendment, cannot really support the substance of what my noble friend suggests.

Lord Ackner

Before the noble Viscount sits down, in so far as his objections to subsection (4) are concerned, I am not sure that I follow him. Subsection (4) does not in any way take away from the court the obligation to make the decision as to whether or not the material is relevant. What it does, consistent with the earlier part of the amendment, as I understand it, is to put the onus on the Ministry of Defence to establish that the information is not relevant. I imagine the reason for that is that the circumstances are particularly within the knowledge of the Ministry of Defence as to how the accident occurred. Therefore, in relation to the issue of relevant or not relevant, the onus, instead of being put upon the claimant, is put upon the Ministry of Defence. That seems wholly consistent with dealing with this type of injury in a special way, and it does not in any way interfere with the issue being ultimately one for the court to decide. It merely shifts the onus from the plaintiff, upon whom the onus would normally be to establish relevance, to the Ministry, which has particular, and no doubt in many ways privileged, knowledge of the circumstances of the accident. I am not sure whether that has been fully appreciated.

Viscount Cranborne

I am very grateful to the noble and learned Lord for his intervention. Perhaps he can help me from his great knowledge of the law. As I understand it, were the serviceman not to be a serviceman but a civil employee of, let us say, a great quoted company and he was bringing a case before the Crown, would not the onus be on the great quoted company to produce the relevant information, just as it is as the law stands after the repeal of Section 10 now? Would it not be for the court to decide in the same way as I described it would be for the court to decide in the present circumstances before this Bill is considered?

Lord Ackner

I shall try to give a helpful answer. The issue which is concerning the Committee, as I understand it, is the onus of establishing that withheld information is relevant or irrelevant. Under subsection (2) of Clause 1, as now proposed, the Crown, if it withholds or causes any person to withhold any information which is relevant to the proceedings, shoulders the onus of proof that the incident occurred through no negligence on its part. An issue can arise in these circumstances. The Crown may say, "We are withholding material but the material is not relevant and therefore subsection (2) (a) does not bite. It only bites if we withhold not only information but relevant information."

What this amendment seeks to do is to say, "Very well, if you, with your greater knowledge of the circumstances than the claimant, say that you are withholding information which is not relevant, which you are entitled to do because only relevant information need be disclosed, then you, the Crown, must establish to the court's satisfaction that the material, the subject matter of the inquiry, is irrelevant." In the ordinary case, where the plaintiff complains that information is being withheld, he must establish that that information is relevant: otherwise there is no obligation to disclose.

So all that is being done here is to put the onus on the Ministry of Defence or the Crown to establish that if it wishes to raise the issue and say, "I am not obliged to disclose this information because it is not relevant," it has then to establish to the court's satisfaction that it is right in saying that the information is irrelevant. As I understand the clause, it goes no further than that.

Viscount Cranborne

I am very grateful to the noble and learned Lord, but what the Government are contending and what I am contending at the moment is that all the relevant information since the repeal of Section 10 surely has been listed at the discovery stage of the legal process, and it is for the court to decide its relevance. In present circumstances the Ministry of Defence or, as I understand it, any other employer, is enjoined to submit the documents to the court to decide what is relevant and what is not. It is for the court to decide.

Lord Ackner

This amendment, as I read it, in no way seeks to interfere with the court's jurisdiction—nor could it—to decide whether or not the information is relevant or irrelevant. All it does is to say that if there is an issue as to whether the information is relevant or irrelevant it is on the Ministry of Defence that the obligation should lie to establish its irrelevance rather than upon the plaintiff to establish its relevance. The justification I infer—I am usurping, I am sure, the function of the noble Lord, Lord Swinfen—is that since the Ministry of Defence will have so much greater knowledge of the circumstances of the accident in regard to which it may well claim some privilege, it should lie on the Ministry of Defence to shoulder the burden of establishing the negative, namely, that the information is irrelevant and therefore need not be produced. It is merely altering the onus, as is done at the outset of Clause 1(2), taken in conjunction with Amendment No. 2, in relation to establishing negligence or no negligence. It is a consequential part of shifting the onus of establishing or negativing negligence. The two go together.

Viscount Cranborne

I am very grateful to the noble and learned Lord but, with the greatest respect, I do not think he has answered the question I put to him some moments ago. Am I not right in thinking that if this Bill were passed, under both subsections (2) and (4), the Ministry of Defence and the Crown, by implication, would be in a different position from a private company who was an employer and that we would then find that the law regarded the Crown as having a greater onus than perhaps some great oil company or some other employer?

Lord Ackner

That I concede straight away: that is the whole function of the Bill. There is no point in having this Bill unless it puts the serviceman in a different position from the ordinary claimant. That is the very heart of the amendment. It is designed, as I understand it, because the serviceman may meet from time to time the response, "We will not tell you anything about the circumstances because we claim privilege and we must hold up the pursuit of your claim by claiming public interest, privilege and even relevance."

That is why the onus is being reversed. What is happening, as I understand it, in this amendment—as I believe the noble Viscount concedes readily—is that instead of asking that the Ministry of Defence should be the insurer of the serviceman, which is what was done in the Bill as originally drafted, the whole thing now is focusing on altering the procedure, and altering the procedure in relation to the onus. It is not altering the substantive law, which obliges the establishment of negligence. Unless negligence is established, there is no remedy. All it is doing is altering the onus for establishing the negligence, and this is part and parcel of it.

Viscount Cranborne

With the greatest respect to the noble and learned Lord, we have finally come to the difference between us, and that is why I asked the question and for his advice several exchanges ago. He will remember, and know much better than I do, that in years gone by until 1987 the Crown was protected under Section 10. As I have already said many times in the past, when I was in another place many is the time that I added my name to Early Day Motions and the like calling for the repeal of Section 10. It seemed extremely unfair that employees of the Crown should suffer from a disability from which employees in the rest of the world of employment did not suffer.

I understand the noble and learned Lord's point clearly—after all, he has a notoriously clear power of exposition. But all I say is that it is surely equitable that employees of the Crown should enjoy precisely the same privileges as employees in the private sector. If the noble and learned Lord says—which he does—that the Crown is in a more privileged position and therefore its employees are more disadvantaged because the Crown can claim Crown immunity or make special pleading in this regard, I would refer to the remarks that I made a few moments ago: that in all the cases since the repeal of Section 10 the Crown has not claimed that immunity in one single case.

Lord Carver

Surely, the noble and learned Lord has an important point here. The whole object of this Bill is not to treat members of the armed forces exactly like all other servants of the Crown but to treat them as rather special servants of the Crown. There are two circumstances that make them rather special. One is that because of reasons of security or public interest—it may not have happened in the last 10 years, but it happened in the past—the Ministry of Defence has said that it cannot reveal the true circumstances of the accident, or whatever it was. In those circumstances, it is surely right, as the noble and learned Lord has said, that the member of the armed forces should be given the additional help that the Ministry of Defence has to show, first of all, that the information that it is withholding is not relevant to the issue; and, secondly, that it has not been negligent.

The other circumstance in which the armed forces should be treated as different services of the Crown is described in the amendment where they are subjected to an unusual risk. I would agree with the noble Viscount that it might be quite difficult for a court or anybody to decide whether, in the particular circumstances in which the injury took place, it was unusual or not. Surely, the whole object of the Bill is that where they are unusual, where they are ones to which another servant of the Crown is not likely to be subjected, then again the onus should rest on the Ministry of Defence. I would ask the noble Viscount to say why he thinks in those circumstances members of the armed forces should not be treated as a special case. He has not made that clear at all.

Viscount Cranborne

The important thing is that the Ministry of Defence should release the documents to the court in the way that I have described, and in the way that it has done since the repeal of Section 10. If it is of any comfort to the noble and gallant Lord, he knows as well as I do the beneficial effects on employment within the armed forces that the repeal of Section 10 has had. There are various ways of measuring this and I would not want to put too much weight on the figures; but the trend is clear that since the repeal of Section 10 the number of cases of justifiable negligence by the armed forces under which its employees have suffered has declined dramatically.

Indeed, the amount of money that the Ministry of Defence has paid out in pursuit of negligence claims has increased, and is estimated to reach as much as £6 million this year. I would submit to the noble and gallant Lord that we have a greatly improved situation; that the Ministry of Defence is anxious to be seen to be equitable in this, and that certainly the documents that it discloses under the present dispensations will be the documents that will not be subject to certificates of immunity of the kind that I suspect noble Lords seem to fear.

Lord Ackner

The noble Viscount is overlooking that under the amendment, subsection (2), the requirements that are specified are not that the Crown has sought to withhold and failed to withhold, but has in fact withheld, which means has succeeded in establishing satisfactorily that the information is information which it is injurious to the public interest to disclose. So it has succeeded in withholding that material. The court has said that it is a valid claim.

In that situation, the serviceman is deprived of full information as to the circumstances in which the accident has occurred. Then the onus should be upon the Crown to establish, having successfully withheld relevant information, that the accident was not caused by any negligence on their behalf. It is a special case for which, as I understand it, a special remedy is being sought.

Viscount Cranborne

I do not know how long the Committee would like to continue this exchange. We can either draw stumps now and say that we agree to differ on this and leave it to the decision of the Committee, or continue with this exchange. We have given this a good airing and the Committee will be in a position to decide when it comes to the Question being put. I have nothing more to add to what I have said. The armed forces have made considerable strides in this direction in the past five years. I welcome it, as I am sure noble Lords do here. We are entirely satisfied that we have an equitable situation now and | that the Bill, if amended as proposed, would be otiose.

Lord Elton

In the now evidently remote contingency of my noble friend thinking about this further, would he consider one thing said by the noble and learned Lord and the noble and gallant Lord which I think made their case slightly less strong than it might be put? The person being put in a different position from the rest of the world is not so much the serviceman being put in a different position from other employees, because if the risks are equal presumably the protection should be equal. It is the Government (in this case the Ministry of Defence) which is being put in a different position from the large, quoted company to which he referred. This is for the good reason that it is subject to different opportunities and different temptations.

There is on government departments a consideration of the national interest, and it may always be tempting to take that as a reason for not disclosing information. If my noble friend were to find himself in a position to examine this further, would he consider that to a Back-Bencher who had listened to this with no intention of joining in, it seems quite important that the change of emphasis is not simply on the individual member of the armed forces, it is on a powerful department of state which has a much stronger position than a powerful company.

8.30 p.m.

Viscount Cranborne

I am grateful to my noble friend for that. Of course, I would be the last to suggest that my opinion—particularly in matters of law in which I am not the least bit versed—should in any way count for more in the Committee than the views of the noble and gallant Lord, Lord Carver, and the noble and learned Lord, Lord Ackner.

I shall read with the greatest care the interventions that have been made and consider extraordinarily carefully the pleas that have been made on behalf of servicemen. But I am not persuaded. Nevertheless, I shall endeavour to approach the matter with a completely open mind. When two such distinguished Members of the Committee have made the interventions that they have, it would be foolish and churlish of me not to take their views extremely seriously.

Lord Mayhew

It is encouraging to hear the noble Viscount say that he will bring an open mind to this matter, because much of what he said was against the proposed amendment. I am neither noble and learned nor noble and gallant but, as I see it, the amendment is a revolutionary change to the Bill which was introduced by the noble Lord.

On Second Reading the noble Lord, Lord Swinfen, was faced with the argument that the Bill put servicemen in a very privileged position compared with civilians. He has faced up to that situation extremely well and is no longer demanding that the Ministry of Defence should not be exposed to charges of negligence. Indeed, he has tried his utmost, with some success—and I am encouraged by what the noble and learned Lord, Lord Ackner, said—and to a considerable extent has abandoned the idea of not requiring negligence to be proved. Instead, he has brought forward the two points where there is a difference between the serviceman and the civilian. Those are two definite points. He has dealt with them in the amendment. It seems to me that he has gone a long way towards answering the objections raised by the noble Viscount on Second Reading. I am rather sympathetic towards the amendment and hope that the Government will accept it.

Viscount Cranborne

I am grateful to the noble Lord, Lord Mayhew. I know that nominally he is neither gallant nor learned, but he is noble and no doubt he is both learned and gallant in reality. I have nothing further to add to what I said a few moments ago, but I shall read carefully what has been said by Members of the Committee.

Lord Swinfen

The debate on the amendment has taken longer than I had anticipated and I expect it has taken longer than the Committee had anticipated. The point that one must remember is that a serviceman would not be able to bring his case to court where the Ministry of Defence claimed Crown privilege. That is why it is necessary for the serviceman to have the ability to apply to a judge or a master in chambers to have the Ministry of Defence prove that the matter is not relevant. That is because, as a general rule, if it were not the case, where the Ministry of Defence claimed Crown privilege the serviceman would never have the opportunity to bring his case to court.

The question of unusual risk is not always that difficult to prove, but it would be a case for the court to decide. That is a matter with which most judges, in their skill, would have no great difficulty.

At the beginning of the debate the noble and gallant Lord, Lord Carver, wanted to be assured that in times of war the Bill, as I propose to amend it, would not apply. I can assure him that the Crown Proceedings Act 1947, as amended by the Crown Proceedings (Armed Forces) Act 1987, would still apply when all the proposed amendments to the Bill are agreed to, if the Committee agrees to them. I commend Amendment No. 1 to the Committee.

On Question, amendment agreed to.

New Clause 1 agreed to.

Lord Swinfen moved Amendment No. 2:

After Clause 1, insert the following new clause:

("Burden of proof

.—In proceedings to which this Act applies, it shall be for the Crown to prove that it is not liable in tort for causing the death or personal injury suffered.").

The noble Lord said: This amendment will change the burden of proof from the plaintiff to the defendant; that is, the Crown. However, one must remember that this legislation will be used only when the Crown refuses to provide the plaintiff with information on the grounds that to do so would be injurious to the public interest, thus preventing the plaintiff from presenting evidence which would well prove his case. It would be quite wrong for the Crown to prevent an action being brought by stopping evidence without having to prove the contrary. I beg to move.

Viscount Cranborne

My noble friend's proposed new second clause proposes to reverse the burden of proof in the circumstances defined by the first clause. Clearly it is based on an assumption that shifting the onus of proof from the claimant to the Crown would make a difference. This would indeed be so if the standard of proof in civil law were the same as that in criminal law; that is, beyond reasonable doubt. However, the standard in civil law is the balance of probability. In any given case it is extremely unlikely that the probability would be finely balanced at precisely 50/50, as opposed to 49.5 per cent, or whatever, and that the burden of proof would decide the question of liability. In practice it would be no more difficult for the Crown to show that the balance of probability was against negligence than it would be for the Crown to refute the claim that the balance of probability was in favour of it.

In short, the situation which this amended Bill would seek to achieve is, I am glad to say, already in existence. Servicemen's claims for compensation against the Crown are not handicapped by national security or public interest constraints on the disclosure of information to claimants. We know of no claim in which such considerations have prevented a serviceman from proving his claim against the MoD or affected the assessment of the amount of compensation to be paid. The amended Bill, if enacted, would only complicate the legal process and would not actually help the injured serviceman. Although the Government find it impossible to accept the amendment proposed, it is important that my noble friend has given the Committee the opportunity to air further this matter.

Lord Ackner

I am sure it is my fault but I did not understand what the noble Viscount said. It is very important in some cases to know where the burden of proof lies. If the serviceman does not have the material and the burden is on him, he will be non-suited and will lose his case because he does not have the material to discharge the burden of proof.

If the burden is on the Crown to negative negligence, the Crown must produce the material and the serviceman can wait until that material arrives. The contrast between the weight of the civil and criminal burdens is quite irrelevant. The sole question here is: on whom should the obligation exist to establish or negative negligence? From the point of view of the serviceman who is deprived of the relevant information, that is very important. If the noble Viscount thinks it is not important, I presume that he will not resist the amendment. I certainly support it.

Lord Carver

There is another important point apart from the one made by the noble and learned Lord. If the onus is on the member of the Armed Forces to prove the negligence of the Ministry of Defence, he finds himself involved in considerable legal expenses—that was certainly the position in the case I referred to earlier—whereas if the onus is on the Ministry of Defence, then it is the Ministry which must pay most of the legal expenses beforehand. It is, therefore, an extremely important point and is at the heart of what the Bill is intended for.

Lord Swinfen

I thank noble Lords who have spoken, particularly the noble and learned Lord, Lord Ackner, who put the position a great deal better than I. I beg to move.

On Question, amendment agreed to.

Lord Swinfen moved Amendment No. 3:

After Clause 1, insert the following new clause:

("Application to Scotland

.—In the application of this Act to Scotland, the expression "tort" means any wrongful or negligent act or omission giving rise to liability in reparation and any reference to proceedings in tort shall be construed accordingly.").

The noble Lord said: This is a new clause. It is to ensure that the Bill will apply to Scotland as well as to the rest of the United Kingdom. It deals in particular with the point raised at Second Reading by the noble Lord, Lord Mayhew. I beg to move.

On Question, amendment agreed to.

Clause 2 [Saving for states of war etc.]:

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

Lord Swinfen

Clause 2 is not necessary. It was designed to allow the Crown to prevent servicemen claiming damages for injuries incurred in time of war and in other active service conditions. That situation is covered by Section 2 of the Crown Proceedings Act 1987, which gives the Secretary of State powers to revive Section 10 of the Crown Proceedings Act 1947. Clause 2 is therefore not needed.

Clause 2 negatived.

Clause 3 [Interpretation]:

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

Lord Swinfen

I oppose the fact that Clause 3 should stand part of the Bill. The removal of the clause deals with points raised by several noble Lords at Second Reading. It is no longer required following the acceptance by the Committee of the first amendment inserting a new Clause 1.

Clause 3 negatived.

Clause 4 [Citation, commencement and extent]:

Lord Swinfen moved Amendment No. 4: Page 1, line 25, leave out subsections (1) to (3) and insert: ("(1) This Act may be cited as the Crown Proceedings (Armed Forces) Act 1992.").

The noble Lord said: Amendment No. 4 changes the name of the Bill in subsection (1) to the Crown Proceedings (Armed Forces) Bill 1992. It is accepted practice for legislation dealing with the same or related matters to have similar titles. It is not only sensible, but it makes it much easier to follow the development of law and to check the current position.

The amendment also removes a delay of 30 days in subsection (2) after the passing of the Bill and before the Act comes into effect. I can see no reason for such a delay. Subsection (3) in the original Bill is unnecessary. I beg to move.

On Question, amendment agreed to.

Clause 4, as amended, agreed to.

House resumed: Bill reported with amendments.