Sitting of 13 April 1942

Preamble
The House met, The LORD CHANCELLOR on the Woolsack.

GOVERNMENT OF BURMA ORDERS: MESSAGE FROM THE KING.
THE EARL OF CLARENDON: My Lords, a Message from the King, signed with his own hand:
"I have received your Addresses praying that the Government of Burma (Audit and Accounts) Order, 1942, and the Government of Burma (Shan States Federal Fund) Order, 1942, be made in the form of the respective drafts laid before Parliament. I will comply with your request".

BUSINESS OF THE HOUSE.
LORD SNELL: My Lords, you have been advised that the House would go into Secret Session in order to discuss certain matters of future business. Unfortunately, my noble friend the Leader of the House is indisposed and will not be able to attend your Lordships' House, I fear, during the present week. In the circumstances it is suggested that the question which would have been submitted to your Lordships should be deferred until the next series of sittings.

NAVAL LOSSES IN THE EAST.
THE MARQUESS OF CREWE: My Lords, may I ask His Majesty's Government whether they are in a position to make any statement either about the condition of affairs in India or with regard to the recent naval losses which have taken place?
LORD SNELL: My Lords, I am not in a position to make a general statement this afternoon, but there are two subjects of particular interest which the Prime Minister touched upon in the course of his remarks to-day in another place which may be of interest to your Lordships. On India the Prime Minister advised the House that it would be better to await the return of the Lord Privy Seal, who may be in a position to make a personal report
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to Parliament upon the important Mission with which he was charged. The issue of a White Paper would be considered, although a great deal of information has already been made public by both Parties to the discussions.
The House may also be interested to hear what my right honourable friend had to say regarding the naval losses which we have recently suffered in Indian waters. With your Lordships' leave I will read his statement on this matter:
"On the 4th of April superior Japanese naval forces which had entered the Indian Ocean were observed steering towards Ceylon. These forces comprised at least three battleships, including one of the modernized sixteen-inch "Nagato" type and five aircraft carriers, together with a number of light cruisers and destroyer flotillas. Severe air attacks were delivered on the harbours of Colombo and Trincomalee. As has been announced, the attacking aircraft suffered heavy losses at both places from the British fighter protection and from the anti-aircraft batteries. We also suffered to a lesser extent but seriously in our aircraft, and damage was done to shore establishments and to the few ships which remained in the harbours. Besides these losses the two eight-inch-gun cruisers 'Dorsetshire' and 'Cornwall' and the aircraft carrier 'Hermes,' which had left the harbours before the attack, were sunk at sea by enemy aircraft.
"The naval operations were under the command of Admiral Sir James Somerville, an officer who for the last two years has been commanding in the Western Mediterranean and has almost unrivalled experience of the conditions of modern naval war. Without giving the enemy useful information I cannot make any statement about the strength of the forces at Admiral Somerville's disposal or the reasons which led him to make the dispositions of his Fleet for which he was responsible. Nothing in these dispositions or the consequences which followed from them have in any way weakened the confidence of the Admiralty in his judgment. I may perhaps add that it is quite impossible to afford continuous air protection by shore-based or carrier-borne aircraft to all His Majesty's ships at sea. Many scores are at sea every day without such protection and unless these risks are taken there is no means of carrying on the immense business of convoy and sea war which fall upon the Royal Navy."
LORD STRABOLGI: My Lords, the statement made by the noble Lord is quite new to me and I venture to ask a question about it. Before doing so, may I say that I am quite sure all your Lordships accept the statement made with regard to the great experience of Admiral Somerville? He has had an unbroken series of successes in this war and the question I am going to put to my

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noble friend is asked with that understood. How is it that these ships, which apparently were lost near Ceylon, were not given air protection? The statement we have just heard, I suggest, glozes over that question. There was obviously danger of air attack and it seems to ordinary persons possessed of ordinary information that this is a repetition of what happened to the "Prince of Wales" and the "Repulse." If it is true that one of the ships, H.M.S. "Hermes," was only ten miles off the coast of Ceylon, surely she could have had fighter protection from the aerodromes there. I do not expect the noble Lord to deal with technical questions now, but I would like to ask whether we can have a further report when fuller information is available.
LORD SNELL: My Lords, as you are aware, I have merely repeated what the Prime Minister said in another place earlier to-day, and I am not in a position to deal in any way with the supplementary question put to me by the noble Lord. I imagine, however, that opportunity will be afforded, if it is desired, for a future debate on the matter.

REMEDY FOR INJURY BY GOVERNMENT VEHICLES.
VISCOUNT CECIL OF CHELWOOD VISCOUNT CECIL OF CHELWOOD moved to resolve, That the principle under which private employers arc answerable in damages for torts committed by their servants, when driving the vehicles of their employers, should be accepted by the Crown in cases of torts committed by its servants when in charge of Government vehicles.
The noble Viscount said: My Lords, I rise to comply with the Notice which I have given and to move the Resolution which stands on the Paper. The short point is whether it is really desirable to maintain the distinction between Government vehicles and privately-owned vehicles, which, as I submit to your Lordships, depends much more on historic grounds than on grounds of reason. It is a most important practical question because under the present law a man may be killed—I am referring to an actual case—by the driver of a Government lorry in circumstances which really do not admit of any question as to his negligence and the widow is
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totally unable to obtain any compensation whatever for the incident that has occurred. The widow is left, in this particular case—though the fact does not, of course, affect the principle—with two children and absolutely nothing to support her except her pension of 18s. a week.
I should be the last person, I hope, to have the effrontery to endeavour to deliver a lecture on the law on this subject in an assembly which has amongst its members so many authorities on the question, but I must say a word as to the principles of the matter, because otherwise my Motion would be quite unintelligible. As I understand it, when an accident occurs and somebody is knocked down by a motor car—that is only one of many accidents but it is one which has become very important—two questions arise if it is sought to get money out of the owner of the vehicle. In the first place, of course, you must show that the accident was due to the negligence of the driver, and in the second place you must show that when he was driving he was acting as the agent of his employer—that is apart from statutory changes, if any, made by the Motor Car Acts—and that therefore the employer is liable for his actions. I hope that is a reasonably accurate statement of the position in the case of a private employer. In the case of a car belonging to the Government—that is, to the Crown, technically—and driven by the Government's servant, the case is very different. As all your Lordships are perfectly well aware, that becomes particularly important just now in view of the very large number of Government vehicles which are on the roads. I do not think I should be exaggerating in saying that in country districts by far the larger proportion of the vehicles which use the roads are Government vehicles. Therefore if there is difficulty in obtaining compensation for an accident due to the negligent driving of one of these vehicles it becomes a very serious matter.
The position with regard to Government vehicles was stated by the noble and learned Viscount the Lord Chancellor recently in these words:
"A member of the public injured by the negligent driving of a Service vehicle has the right to sue the driver of the vehicle and to obtain judgment against him for the damages which he has suffered lie has no right of action against the Crown, as, in law, the

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Crown is not liable for the torts of its servants."
The only amendment that I would venture very respectfully to suggest to the Lord Chancellor is that the real point is that the Crown is not liable for torts at all.
THE LORD CHANCELLOR (VISCOUNT SIMON): Is that where the noble Viscount is going to stop his quotation?
VISCOUNT CECIL OF CHELWOOD: For the moment I was dealing with the legal position, but I will go on certainly. The Lord Chancellor went on to say:
"If, however, the driver of the Service vehicle was on duty at the time of the accident, it is, and has been for many years, the invariable practice of all Government Departments to provide the funds required to satisfy any judgment obtained against the driver. The injured person is thus enabled to recover in full the compensation to which he is entitled in respect of the injuries which he has suffered. A person injured by the negligence of the driver of a Service vehicle is therefore in no worse position than if the injury were caused by a non-official person and may be in a better position by reason of the fact that the financial resources of the State are made available to meet his claim."
I think that covers the whole point.
The first point to which I have to call the attention of the House is that it is quite clear that the Courts are unable to give judgment against the Crown in such a case, and that therefore the right of the subject to compensation is not a legal right, but depends entirely on the voluntary action of a Department of Government, and is open to all the objections that, I think, always apply to leaving a private individual at the mercy of the officials who control the Department in question. That, I think, is true, and I hope that I have not exaggerated, in any way, the position. I know of no reason—I dare say this is due to my ignorance—why, in principle, nowadays, Departments should be exempted from the ordinary action of the Courts of Law. It is not, I think, a question of the fact that they are discharging public duties, because other bodies which discharge public duties, such as local authorities and so on, are not exempt from the operation of the ordinary law in these cases. Nor is it due to the fact that the Crown is altogether outside the purview of the Courts. No doubt that may have been so once; though not for many centuries has the Crown been exempt from actions brought on any
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contract made with a servant of the Crown. The action is, as your Lordships are well aware, of a particular character called a Petition of Right. I read in the books that it dates back from the days of Edward I, and it has recently been organized and settled by a Statute of, I think, 1860. Therefore, the Crown is, and ought to be, shown liable for breach of contract, and I confess I have great difficulty in understanding on what principle the Crown is exempted from liability—I am referring to pecuniary liability, of course—for the torts of its servants.
Now, as the Lord Chancellor, in the passage I have read, very truly pointed out, the remedy remains open against the actual driver. But that remedy may well be of very little value to the injured party. The driver may have practically nothing but his pay, or he may be entirely impoverished, and in that case the action merely means an addition to the cost to which the victim has been already put. I have read to your Lordships, at the Lord Chancellor's request, the answer which is made—namely, that, by the generosity of the Departments, by voluntary action of the Departments, where negligence is proved or admitted, they will pay—this is what is suggested in the statement of the Lord Chancellor—whatever sum has been awarded against the driver. But that is subject, I venture to submit, to one very serious exception. They will not pay unless the driver, at the time of the accident, was, in fact, discharging the duties with which he had been entrusted. If he has failed in those duties, or the Department think he has failed in those duties—because that is really the only security you have—then no compensation is payable at all.
Let me just give one or two instances of how that works out in practice. I will take first the case of a certain Mr. Alfred Simpson, who when riding a bicycle was knocked down by a Government lorry, and killed. As I understand the reports that I have been able to look at, there is really no dispute at all, none whatever, that the accident was due to the negligence of the driver of the lorry, who was, I believe, on the wrong side of the road and who, at any rate, drove against the traffic lights. It was in consequence of that that the accident occurred. As a matter of fact I believe the driver was prosecuted for manslaughter, but I am not entitled to say anything about that

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because the case broke down owing to the absence of military witnesses who had some evidence—I do not quite know what—to give. But that the driver was guilty of negligence has never been disputed in all the long correspondence that took place with the Government officials. What the officials say is that the driver took the vehicle out without the authority of the Government, and so he was not really driving as their agent when the accident took place.
The result is that the widow has had no compensation from that day to this, and I must say that I think it is a very hard case. It may be perfectly true to say that the Government were innocent. Employers very often are innocent. Burt, in point of fact, the question is on whom shall the loss fall? Shall it fall on the employer of the man who is guilty of the negligence and the owner of the car, or shall it fall on the perfectly harmless and innocent person who suffers from the consequences of the accident? I must say that, in principle, it seems to me that in a case of that kind the Government clearly ought to be made to pay, and that, at any rate, the case should be submitted to a Court of Law to hear what a Judge and jury would say of such a plea as I have mentioned.
There is another case. I will not trouble your Lordships with the details of it, but it has been a good deal discussed in the other House. It is called the Atherton case. There the reason for non-payment was not that the driver had taken the car out against the will or without the leave of his superiors, but that, having been sent out by his superiors, he went further than it was his duty to go, no doubt for some private motive, and that it was while he was driving further than his duty demanded that the accident occurred. There is a third case—the last with which I shall trouble your Lordships—about which I regret that I cannot give many details, because all that was said in the report was that the driver took what was not an authorized route. I think that that phrase shows how very unsatisfactory the position is. A man is sent out and is told to use certain roads; but for reasons of his own, very likely he chooses to take a slightly different route in order to reach the destination to which he has been sent. If he does that, it is said that the Government are not, according to this case, responsible for any accident which may
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then occur. In this particular case the driver had been sent abroad, and the War Office declined to give any address or to accept service of the writ on his behalf. The result was that the learned Judge before whom these facts came said that there was a complete denial of justice to the plaintiffs.
I confess that this seems to me to be a very unsatisfactory position. As far as I can see, according to this, a Department, when they send a man out, have merely to say "You are to drive in strict accordance with the law; you are always to obey the traffic lights; you must never disregard the white lines, and you arc to take the utmost care never to exceed the speed limit," and then, if an accident takes place in consequence of his disobeying any of those provisions, the Department would be perfectly entitled to say, according to the practice as revealed by these cases, "This man was not really acting as our agent; he was doing exactly what we told him not to do, and therefore we shall not pay". I feel—perhaps I have no right to say this now, because I know so little of the law—that if that kind of plea were brought before any Court, the Court would disregard it and say "Nonsense; this man was clearly your agent, and you must pay."
It may be said that, although the practice of the Crown is open to the criticism which I have ventured to make, yet, if it is fairly carried out and the Crown really does pay when substantially the driver was acting in the discharge of his duties, and therefore its agent, and has been negligent, that is really all that you would get from a private employer. I venture to think that that is not quite the case; but here I must throw myself on the mercy of the Lord Chancellor, because I have to interpret what is the result of the legislation on the subject, and I shall very likely interpret it wrongly, but I shall do my best. I find it a little difficult to follow, but, as I understand it, the law is that, before a man is allowed to send out a car driven by his servant, he has to take out a policy of insurance, the effect of which is that, if any individual suffers bodily injury or damage from the negligence of the driver of that car, and the owner is in consequence liable to pay damages, the insurance company will take over the obligation which rests upon him. As far as I understand the legisla-

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tion, it does not depend on the driver acting at the moment as the agent of the employer or owner of the car; it depends on the fact that the car belongs to a man who has entrusted the driving of it to the individual involved in the accident, and who is therefore deemed to be responsible, and who must' be insured against that responsibility—it is a curious provision, but that is what it amounts to—by taking out a policy of insurance which will enable any victim of the negligence of the driver to recover damages for the injury which he has suffered.
I understand that to be the position; and, quite apart from my own effort to understand the legislation on the subject, I have always understood from those of my friends who are owners of cars that that is in fact the position. If that is so, then surely the Government ought to go so far as to say, "Although we are not bound to take out this policy of insurance, yet we do hold ourselves to be in precisely the same position as if we had taken out such a policy, and we will pay damages for any injury which any victim may suffer in consequence of the negligence of the person whom we have allowed to drive a car." Unless I am entirely wrong, I believe that the question of whether the person in charge of the vehicle is the servant of the owner makes no difference at all; the point is that he is in charge. The practical point is that, if you have a car and allow it to be used in the circumstances which exist to-day, then, if the person who uses it causes injury to others, you—the owner of the car—ought in common fairness to pay compensation for the injury which is caused. I have some acquaintance, as we all have, with owners of cars, and I cannot imagine the possibility of any decent owner of a car doubting for a moment that he ought to pay in circumstances of that kind. Quite apart from the legislation on the subject he would insure himself against such a risk, and he would see first of all that the person injured was paid.
It is often said that the Government should be in the position of a good employer—in fact, of the best employer. I venture to say that at present the Government are far from being in that position in respect of this particular circumstance. I would add two general observations. It is said that it would be a great mistake to alter the present position, because the
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Departments, left to themselves, will always be very generous in such matters as this. I distrust that argument completely. I resent the idea that Departments should be above the law, and I am quite satisfied that the principle upon which we in this country have insisted from the days of Magna Charta onwards, that everybody should be subject to the law of the land, is the only sound one, and the only real guarantee of liberty which we possess. Therefore the conception that you can trust the generosity of the Department seems quite wrong in principle. It is wrong for another reason. The Departments in making any payment are subject themselves always to the Treasury, and nobody would accuse the Treasury of generosity—at least, I imagine not. I never heard of anyone doing so; indeed, it is their business not to be generous, it is their business to save the money of the State as much as they can. Therefore, to rely upon the generosity of public Departments is a very unsafe proceeding.
I feel very strongly that your Lordships, with the great history which you have behind you of your care for the liberty of the subject, dating, as I said just now, back to the times of King John, will be very anxious lest there should creep in any exception to the broad general principle that even Government Departments are not above the law, and, if it has crept in, that you will insist, as far as your Lordships can insist, that the Government of the day should take measures to see that subjects in this matter, as in all others, have complete protection from the law of the land. I beg to move.
Moved to resolve, That the principle under which private employers are answerable in damages for torts committed by their servants, when driving the vehicles of their employers, should be accepted by the Crown in cases of torts committed by its servants when in charge of Government vehicles.—(Viscount Cecil of Chelwood.)
LORD RUSHCLIFFE: My Lords, the point raised by my noble friend Lord Cecil is a very interesting one. It is, I venture to think, at the present time, also a very important one, and, as he has already pointed out, its importance is increasing by reason of the growing number of Government-owned vehicles at present on the roads. It is also a question which

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has a very long history behind it, the question of the liability of the Crown. I observe that this Resolution limits it to liability in respect of vehicles belonging to the Government. When I saw this Resolution on the Paper I had a recollection, I admit a very vague recollection, that this question had arisen in another place when I was a member of the House of Commons some years ago and, for greater accuracy, I took the precaution of looking up the record to see what happened at that time.
What happened, shortly, was this. When a Bill, which was then called the Ways and Communications Bill, 1919—that was the Bill which subsequently became the Ministry of Transport Bill and it was the Bill under which the Minister of Transport was appointed—was before Parliament it was in due course sent to a Standing Committee, and in Standing Committee Sir William Joynson-Hicks moved an Amendment to the appropriate clause (of which I do not give the number because the number of the clauses, as so often happens, was changed when the Bill became law) in the following words:
"and shall"
that is, the Minister shall—
"be responsible for the acts of his servants and subject to process in His Majesty's Courts in the same way as a private person, and shall be under the same liability as to costs."
That Amendment was intended to deal with vehicles owned by the Ministry of Transport, but in terms it was not so limited.
When that Amendment came on in Standing Committee the then Home Secretary, Mr. Shortt, was very reluctant to accept it. He said that it was an inappropriate time in which to make such a fundamental change in the law. He also said, "You cannot deal with a question of this kind in isolation and, at any rate, a Bill dealing with the Ministry of Transport is not an appropriate place to make so great a change." He made the further point, which did not strike me as a very substantial one, that in any case it was not a Committee point at all, and if this change were made at all it ought to be made on the Report stage on the floor of the House. However, the Committee was both emphatic and unanimous. Members of all Parties pressed Mr. Shortt to accept it, and ultimately, with some
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reluctance, he did accept it, at least in principle.
When the Bill came up on the Report stage Sir Eric Geddes, who was then the Minister of Transport Designate, moved an Amendment, after "sued," to add the words:
"in respect of matters whether relating to contract, tort or otherwise arising in connexion with his office."
That was in complete fulfilment of the undertaking which Mr. Shortt had given in Committee. Therefore, you had then this, as it seems to me, quite anomalous and perfectly indefensible position—namely, that the Minister of Transport was responsible for the torts of his servants, while the War Office and the Admiralty and other Government Departments were not responsible at all. That must seem to all of us a most indefensible and ridiculous position. However tortious the acts of a driver of the War Office or the Admiralty might be, no action would lie against the War Office or the Admiralty; on the other hand, there were full rights against the Minister of Transport for the acts of his servants.
This position no doubt struck Lord Birkenhead, who was then Lord Chancellor, as one which wanted clearing up, and no doubt the noble and learned Viscount on the Woolsack when he replies will tell us what the policy of the present Government is. Lord Birkenhead apparently agreed that this was a position which wanted clarifying, and he appointed a Committee in 1921, that is, quite shortly after these proceedings on the Ministry of Transport Bill, and among other things this Committee was asked to inquire into this very question of the liability of the Crown for torts—not limited to vehicles at all, but generally; to inquire into the question as to how far the Crown should become liable to be sued for tort. This was one of the very strongest Committees ever set up. I see two of my noble friends here to-day who were members of it. One was the then Attorney-General, the noble and learned Viscount, Lord Hailsham, another was Sir Thomas Inskip, afterwards Lord Caldecote, who was then Solicitor-General. It contained four or five who afterwards became Judges of the High Court, and it contained also gentlemen like Sir Claud Schuster and others who were very fully qualified to express their opinions on such a matter.

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They made their Report in 1927. It appears that in the interval Lord Haldane, who by this time had become Lord Chancellor, modified the original terms of reference, and asked the Committee to prepare a Bill on the lines I have indicated on the assumption that the alteration in law involved therein was both desirable and feasible, and so the Committee pointed out that they were relieved of the duty of making any recommendation. The Bill was prepared and provided for the liability of the Crown, subject to certain reservations, for tort. What happened to that Bill I have not the slightest idea; I cannot see that it ever proceeded any further. Whether it was presented and got a First or Second Reading I do not know, but at any rate that Bill was drafted and I have it before me. Shortly after that some private members of the House of Commons, who were also obviously disturbed at the anomaly of the then situation, also prepared a Bill very much on the same lines. That Bill was presented by Sir Henry Slesser, who was then a private member, and it was supported by very distinguished lawyers like the late Mr. Withers, the Member for Cambridge University, Sir Ellis Hume-Williams and Sir Malcolm Macnaghten, who is now a High Court Judge. Had that Bill passed it would have made the Crown liable for tort in the same manner as a private person. That Bill, as far I can see, never proceeded any further either, so that there were these two Bills—one a Government Bill and the other a Bill presented by a very influential body of private members—which shared the same fate. Neither of them certainly passed into law.
I took the opportunity of finding out, if I could, what is really the substance of this matter and how far it is a matter of practical consequence at the present day. For this purpose I have got the figures for Hertfordshire, which is a County with which I am closely associated. I find that in the year ended March, 1942, there were in the County of Hertfordshire—which I have no doubt is characteristic of the whole country—3,348 road accidents. Of these, 712—that is to say, between one-fourth and one-fifth of the total—involved vehicles belonging to the Fighting Departments, which are, of course, the War Office, the
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Admiralty, and the Air Force. Therefore, in a very substantial number of these accidents vehicles belonging to these Departments were involved. The vehicles involved, as your Lordships would expect, were armoured vehicles, motor lorries, motor tractors, solo motor cycles, motor ambulances, and so on. These figures sufficiently indicate that the matter is really a substantial one, and that it is rather absurd and anomalous to maintain the distinction between vehicles belonging to the Fighting Services and those belonging to another Department—namely, the Ministry of Transport.
I also found out—and this has already been referred to by my noble friend Lord Cecil of Chelwood—that when an accident occurs, and notice is given to one of the Fighting Departments that one of their drivers is involved, they send to the police and say—these are the words which I shall give—"We wish to give this man full and fair consideration". That means that anything that may be obtained by way of compensation is in the form of an ex gratia grant and is in respect of a claim that has no right in law. What I should like to ask my noble friend on the Woolsack, when he comes to reply, is what this really comes to. What facilities are these men who are injured by a vehicle belonging to a Fighting Service given for stating their case? Are they treated as fairly and as fully as they would be if the vehicle belonged to the Ministry of Transport or to a private person? In other words, is the man prejudiced by reason of the fact that he has been run over by a vehicle belonging to the War Office, say, and not to the Ministry of Transport? In the latter case he can make a claim in law; in the former case he cannot.
Apparently these claims are considered by the Claims Departments in these relevant Ministries. Who compose these Claims Departments? Are they lawyers, are they officers, or are they civil servants? because they are exercising what is a quasi-judicial function of very great importance to the people concerned. Do they apply the same sort of rules, do they bring to bear the same class of principles, which a Judge would bring to bear if he were trying an ordinary civil case in an action brought in respect of exactly the same sort of claim? I hope my noble friend when he replies for the Government will accept this Resolution, but in

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any case I hope he will be able to give this assurance, that a man who is run over or injured by a vehicle belonging to a Service Department is not in any way prejudiced by reason of that fact, but has just the same chance of getting full compensation as he would have if he had been run by a vehicle belonging to the Ministry of Transport or someone else. I hope also my noble friend on the Woolsack will indicate what the policy of the present Government is with regard to the whole of this matter, because apparently the policy of successive Governments in the past has been extremely obscure. The late Lord Birkenhead would have liked to deal with the matter. The Bill was actually drafted, but apparently never introduced. What is the policy of the present Government with regard not merely to the question of vehicles, but to the whole question of the liability of Government Departments for actions for tort? I do not think I need say any more, but I have ventured to make these few remarks in the hope that the Lord Chancellor will be able to throw some light on the situation as it is seen by the present Government.
VISCOUNT MAUGHAM: My Lords, I should like to add a few words to what has fallen from the noble Viscount, Lord Cecil of Chelwood, and my noble friend Lord Rushcliffe. Like my noble friend Lord Rushcliffe, it occurred to me that it was very strange that there should be any difference between the position of the War Office, to take one of the bodies concerned, and the Ministry of Transport. Like him, I remembered that the Ministry of Transport Act, 1919, had, as I think, gone all the way which is suggested by the Resolution moved by the noble Viscount to-day. In order that there should be no doubt about it, I wish to point out that the present law is this. It is under Section 26 of the Ministry of Transport Act, 1919. Your Lordships will be well aware that under that Act, particularly under Section 2, an enormous number of the functions, duties, and powers previously exercised by a number of persons were imposed upon the Minister of Transport in relation to railways, light railways, tramways, canals, waterways, roads, bridges and ferries, and vehicles and traffic thereon; harbours, docks, and piers, including a great number of other matters which are mentioned in Section 2. The Ministry of Trans-
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port therefore may well be concerned with the management or the duty of appointing large numbers of persons who will drive vehicles on the roads and perform like functions.
Section 26 (1) says this:
"The Minister may sue or be sued in respect of matters, whether relating to contract tort or otherwise arising in connexion with his office, by the name of the Minister of Transport, and may for all purposes be described by that name and shall be responsible for the acts and defaults of the officers and servants and agents of the Ministry in like manner and to the like extent as if they were his servants, and costs may be awarded to or against the Minister."
There is, therefore, no difficulty in framing a section which will cover exactly the points which, I understand, the noble Viscount who moved this Resolution desires to have covered. For my part I am unable to see why, if you are run over by a vehicle on the public roads, your position should be different in the case where the vehicle is in charge of the War Office and where it is in charge of the Minister of Transport; and I would observe this, which in effect is only saying in different words what the noble Viscount said in opening this Motion, that the position is not the same in a case where the War Office is in control of the vehicle as it is in the case of a private person, accepting, though I do to the full, what the Lord Chancellor said about the position taken up by the Treasury in these matters.
The practical difference is this, as it seems to me. If one of us is run over on a road by somebody who is driving a motor vehicle and is a chauffeur or a working man, or somebody who obviously is not the owner of the vehicle, in most cases we do not take the course of suing him and then seeing afterwards if we can get the money out of the employer, which is what we should have to do if we were run over by a vehicle in the nature of an Army lorry, but we sue the owner of the vehicle, and if we can establish that the man driving the vehicle was driving it in the performance of his duty to his master or employer we are then entitled to damages against him. In the one case, that is in the single proceeding, if there is a proceeding at all, we establish the liability of the person who employs the man who is driving the vehicle; but if it is a vehicle belonging to the War Office we cannot do that. We cannot get the War Office there, or somebody representing

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the War Office, whether it be the Minister of War or any other person who is really in charge—we cannot get him there in order to determine in the single action, firstly, that the man has been guilty of negligence, and, secondly, that he was carrying out duties imposed upon him by his employer, so that there is, as the noble Viscount has pointed out, this difficulty.
If one sustains an injury by such a vehicle as I am now mentioning, one fights an action which may be costly, doubtful and difficult against the actual driver, if you can ascertain his name and address, and, having done that, there is still a major, it may be a vital, point to be determined—namely, whether he was carrying out his duty in strictness, because as I understand it, I would say that a chauffeur who takes out a car without his master's knowledge does not make his master liable for the tort which that driver commits on the high road. It seems to me that the double question has got to be determined, firstly, that of negligence, and secondly, that of proper performance of duty, which does not mean driving carefully but means carrying out the duty generally of going to fetch a certain thing or to take goods to a certain place, and so forth. That question cannot be determined in the Law Courts at all. As the noble Viscount has pointed out, that is left to be determined very likely in the complete absence of the plaintiffs in the action, and will be determined by civil servants, no doubt of great ability, but, it may very well be, persons who are less acquainted with the law than the noble and learned Viscount on the Woolsack. We have had several cases in this House of that very nature during the last two or three years—namely, cases to determine whether the servant in question was really acting in the performance of his duty to his principal so as to make the principal liable.
I am not going to say a word on the very general point as to liability for all torts. There may be some good reason for all I know why those advising the Crown ought to be careful, especially in times of war, in making a major alteration in the law of that kind, but, on the question of motor car accidents, my present feeling, subject to what the noble and learned Viscount on the Woolsack may say, is that there is an overwhelming case for putting the owners of those vehicles—
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I mean the Offices in charge of them, the War Office, or it may be some other body—in precisely the same position as that in which the Legislature has deliberately placed the Ministry of Transport by the Act I have mentioned. I would add that I have never heard that that section has led to any abuse, or has put the Crown in a position in which the Crown ought not to be put. It was a section introduced in the interests of justice, and I conceive that the interest of justice requires the extension to the case of the War Office.
LORD CLAUSON: My Lords, I do not propose to apologize for addressing your Lordships within such a very short period after that at which I have become a member of your Lordships' House, but I think it is desirable that one who is a member of your Lordships' House and who has had upwards of fifty years' professional experience should venture to place before your Lordships the way in which this question, as I believe, strikes the ordinary litigant and the ordinary litigant's advisers. Of course, if in all these cases there was no question as to whether the driver was driving on his own business or his master's business the case would be simple. Where the Army vehicle is being driven undoubtedly on Army business it is quite obvious that the Department must, as a matter of fair dealing with the subject, implement the verdict which has been given, whether it, be by the County Court Judge or the High Court Judge, on the question, which is the sole question, whether the driver caused the accident or the accident was caused by the pedestrian or the cyclist who was injured. As to this case no question really arises. Accordingly the practice has arisen of the Department always paying in those circumstances the sum which the tribunal has found to be the proper sum to be paid by the driver to the man who has been injured.
Then comes the other class of case which has been adverted to by noble Lords who have already spoken, and that does make a great difficulty. If the Department is to be put upon the same footing as an ordinary master—and I conceive that that is what we are considering for the moment—then another issue arises—namely, the issue whether the driver was driving, to put it into popular language, on his own business or on War Office business. All of us who have been concerned with cases of this kind, either

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at the Bar or on the Bench, know that that issue raises very great difficulties indeed. Some cases are quite clear. If my chauffeur has abstracted the key of the garage which I keep for myself in my desk and has taken out the car, and gone off on his own business in the evening to see a relation or something of the kind without consulting me, and there is an accident, no one would think it fair or reasonable that I should be made responsible for the damage to the pedestrian whom he has run over. That is a perfectly plain case one way; but there is every variety of case in which all sorts of difficulties arise. There may be divergence from an authorized route. A driver may go a few yards off the route to see his wife and an accident may happen just as he is going round the corner to the cottage where his wife lives. Has he ceased to be driving on Army business and begun driving on his own business because he goes to see his wife? I will not weary your Lordships with all the possibilities, but when one has to test whether a driver is on his own business or on the business of his master very often there arise difficult questions of fact and sometimes difficult questions of law.
As the law now stands the issue cannot be brought before His Majesty's Courts. An action can only be brought against a driver. If in that action it is attempted to give evidence about or to discuss the question of whether the driver was driving on his own business or on War Office business, it will be the duty of the Court to prevent that issue being gone into because the Crown cannot be sued as owner of the vehicle or master of the driver, and the Court has nothing to do with that issue at all. What happens in practice, as I understand, is that the Department makes up its mind as best it can on this very difficult issue. If after considering the matter it comes to the conclusion that the driver was not driving on War Office business it refuses to implement the judgment, or it says to the litigant—because this arises probably in the earlier stages in many cases—"It is not much good you going on because we shall not pay and you will never get it out of the man." The way in which it strikes the ordinary litigant, I venture to think, is this. Even a disappointed litigant, though he always thinks the judgment given against him is a wrong one, is in most cases satisfied if he thinks that
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he has had a fair hearing. If he thinks that the matter has been put before the Court on his behalf by his legal adviser, even though the decision is against him, he is on the whole satisfied.
Your Lordships may perhaps know an old legal chestnut, but I hope I shall be pardoned for repeating it. The story is told of a young and enthusiastic barrister who told his client that he thought he had got a very good case. He went into Court—I hope it was a County Court and not a High Court—and the matter was argued on both sides. The litigant, having heard the other side, began to think, as not infrequently happens, that his case was not quite as cast iron a case as he had thought. The litigant in question failed and he and the young enthusiastic barrister left the Court together. The young enthusiastic barrister, not being perhaps so conversant with the traditions of the profession as no doubt he became in later years, made an observation to the litigant to the effect that the Judge was quite wrong and that his decision was a scandalously wrong one. It is always said in the story that the litigant replied: "Well, Sir, you may say that, but I am bound to say that I think the old buffer was doing his best." I think most of us who have spent some time on the Bench will be glad if when the time comes The Times obituary notice records" It was often said of him by litigants that after all the old buffer was doing his best." The point I want to make is that it is not fair to the claimant in such a case as we are considering that he should be told that the Department take the view that in the circumstances of the case they ought not to accept liability. He ought to have an opportunity of knowing what is the case against him. In other words, the issue ought to be tried in circumstances in which his advisers can take part in it and test the evidence.
I have spoken for the moment about what I conceive to be the view of litigants and their advisers, but there is another aspect. That is the aspect of those on whom falls the responsibility of deciding this issue. I am not claiming to speak either on behalf of the Bench or the profession of the law, and still less can I claim to speak on behalf of the civil servants of the Crown, but I do know something of the way in which civil servants work. During the last war I was for a not inconsiderable space of time a

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civil servant. I acted as a civil servant in one of the Fighting Departments, and I am satisfied that those upon whom responsibility falls of deciding issues of this type, in the absence of those primarily concerned and without those primarily concerned having the opportunity of knowing what arc the grounds upon which the decision goes against them, have to carry a responsibility which ought not to be put upon officers of the Crown. I am sure many conscientious officers of the Crown would be glad to be rid of it. They would be glad to know that the matter could be brought before, and decided by, those whose business it is to decide issues as to the rights of subjects—namely, His Majesty's Judges, whether of the County Courts or the High Courts. From their point of view I should have thought—though far be it from me to pretend to speak on behalf of those among whom I served only temporarily and in a subordinate capacity—that the law ought to be altered. I add nothing to what my noble and learned friend Viscount Maugham said—though I venture to think it is very important—that the Ministry of Transport has been made liable without any evil results. Why should not the War Office, the Admiralty and the Air Ministry be made liable?
I apologize to your Lordships for having taken up so much of your time, but I would go perhaps even further than the noble Viscount who moved this Resolution. I should wish to see the law altered, but of course if the matter can be met during the exigencies of war without altering the law, by an understanding in the Departments that this issue when it has to be decided will be decided by them on legal advice, the grounds of which can be placed before the complainant and if the complainant can have an opportunity of criticizing, the substance of the difficulty would be met, if not in a really satisfactory manner, at any rate, having regard to the exigencies of the time, in a reasonable way. But until the Bill carefully prepared by the Committee to which the noble Lord, Lord Rushcliffe, referred—a Committee of which the present Lord Chief Justice was a member, a very strong Committee—has been made law, I venture to think the law will remain defective. Some parts of that Bill have in fact been adopted in various shapes and forms by Lord Hanworth's Committee of which I
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had the honour to be a member, which dealt with the form of procedure.
THE LORD CHANCELLOR: My Lords, I think your Lordships would wish me in my first sentence to say with what pleasure we have all listened to the maiden speech in your Lordships' House which has just been delivered by my noble and learned friend Lord Clauson. I was the more glad to hear it because, if I may say so with great respect to others who have spoken, I thought that he laid emphasis on the aspect of the matter which is of real practical importance. As he said in his closing remarks, we have to have regard to the exigencies of the time and this is not a very good moment to embark on an elaborate piece of legislation which would have necessarily many consequences, involving many changes and possibly raising considerable difficulties. At the same time, I join with him wholeheartedly in the main proposition upon which he based his whole speech that, war or no war, we have to see that the arrangements made are such as give justice, and are seen to give justice, to those who are concerned to make a claim.
I agree entirely with my noble and learned friend Lord Clauson that it is well to draw the broadest possible distinction between two kinds of cases. The ordinary case, the case that arises nine times out of ten, or, I think I might say, 99 times out of 100, is a case where there is no controversy, but that the driver of the Government vehicle was, at the time of the accident, in Government employment and discharging Government duty. That is the ordinary case, and as my noble and learned friend said just now, and as was also, I think, indicated in the interesting speech of Lord Rushcliffe, it is the perfectly well established practice that when that is so the Department does, as it obviously ought, pay the damages and the costs. The difficult case which it is right for us to consider, though at the same time we really ought to bear in mind that it is not the usual case, is the case where injury, no doubt, has been inflicted, and it may be has been inflicted by the negligence of the driver, but where it is at any rate seriously contended that what the driver was doing at the time had nothing in the world to do with his lawful employment. That is the difficult case with which I shall endeavour to deal briefly in a moment.

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The debate to-day is a kind of continuation, a sort of appendage, to the main debate which was raised a little over a year ago. It may be useful to give the reference. It was on the 26th March of last year that my noble friend Viscount Cecil of Chelwood asked for a statement as to the remedy a person has who is injured by the negligent driving of a car belonging to the armed forces of the Crown, and put the question, "in what respect the remedy for injuries so caused differs from that of an injury caused by the car of a non-official person." That really was the beginning of a number of discussions on this subject. I gave to the noble Lord and to the House a full reply on behalf of the Government on that occasion. I pointed out that, though a member of the public injured by the negligent driving of a Service vehicle has no right of action against the Crown, yet if the driver of the Service vehicle were on duty at the time of the accident, it is, and has been for many years, the invariable practice of all Government Departments to provide the funds required to satisfy any judgment obtained against the driver. I do not think that statement of mine has been challenged. It could not be challenged with any knowledge or truth. Before I made it, I carried out the fullest inquiries. I have known the fact in my time, as a Law Officer of the Crown, very well, and I have refreshed my information about it constantly since then. No one in this House with legal experience such as my noble and learned friends Viscount Hailsham and Viscount Caldecote possess, or anyone else who has been Attorney-General, would question the proposition for a moment.
I must say, therefore, that I was a little surprised that Viscount Cecil of Chelwood should now have said of the remedy which an injured man might have against a driver—I took his words down—that it "may be of very little value." He explained that he meant that the driver might not be good for the money. There is no need to concern oneself about that. The Department concerned finds the money and pays the damages and pays the cost without any question of the driver himself being requested to produce the necessary compensation. That is the reason why I said, in the course of the debate a year ago, that in that respect at least, if there is a difference, the difference is not unfavour-
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able to the person injured—always assuming, of course, that he identifies the wrongdoer and sues him—because the Crown, the whole resources of the Treasury, are behind the defendant, if the defendant is shown to have been guilty of negligence.
The difficult case with which I wish to deal is the one which my noble and learned friend Lord Clauson so clearly brought before us: the case where there is a question whether the Department ought to assume responsibility because, in its view at any rate, the injury was not inflicted by anyone who was acting as the Department's agent. I may say that I spoke last year with the full authority and concurrence of all the Fighting Departments, as well as of the Post Office and of other Government Departments whose vehicles run along the roads. I will before going further say a word about this exceptional provision in respect of the Ministry of Transport. I have not myself any knowledge of any action in which the Ministry of Transport has been sued. Although it is the Ministry of Transport, and despite certain paragraphs which my noble and learned friend Lord Maugham very naturally read out, it would be a mistake to suppose that the Ministry is responsible for accidents on the railways, roads or canals simply because it is the Ministry which superintends those arteries of traffic. It is responsible only if the accident which occurs is due to the negligence of its own officers, servants, or agents.
The statement which I made a year ago was as clear and precise as I could make it, and I gratefully recognize that the noble Viscount, Lord Cecil of Chelwood, was good enough to say in reply that it would remove a great deal of misapprehension that might exist on the subject. I might perhaps remind my noble friend that he also said at that time that he realized the difficulty of legislation.
VISCOUNT CECIL OF CHELWOOD: So I do now.
THE LORD CHANCELLOR: That is all I ask: that the difficulty of legislation should be recognized. At the same time, the noble Viscount very properly asked that all concerned, all the Departments, should look very carefully into the matter to see what improvements could be made in the existing system. If I may speak of my own activities in the matter, I may

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say that I have in fact kept myself constantly informed, and have continually interested myself in this particular topic, for I esteem it to be of the greatest possible importance. It would be a definite loss to the State if people injured by accidents on the roads in which Army vehicles are concerned should feel that they are suffering from injustice. I will not seek to discuss the two or three specific instances which the noble Viscount mentioned. One of them, I recall, concerned a widow. But if he will be so good as to provide me with details I will see that those cases are looked at. I am not, at present, in the least disposed to admit any valid ground for complaint. But, of course, we must see.
I must here make a statement to the House which corresponds strongly to my own information and impression. I do not think it is true that under the existing system, the different Departments through their Claims Committees, or whatever they are called, do unfairly try to get out of their moral responsibilities. In point of fact most of these cases go to the Treasury Solicitor, and anybody who knows the Treasury Solicitor, and who knows the care with which these matters are examined by him, would be very slow indeed to suggest that he is endeavouring to act like some extremely acute but unconscionable person who would get the Department out of paying if he could. At a time when we are spending I do not know how many millions of pounds a day, the admission that there may be a few hundred pounds to pay to somebody who says that he has met with an accident on the roads from a collision with a Government vehicle is a very small matter indeed.
If anybody has a different impression—and I think there was a sentence in the noble Viscount's opening speech which rather conveyed it, and the Treasury is always fair game on these occasions, as I know very well—it really is because the instances which become known to a Member of Parliament, or which are made the subject of comment in the newspapers, tend to be instances where someone thinks that there is a reason for complaint. Nobody informs Members of Parliament or writes to the newspapers to say that they have been fairly treated; yet I happen to know that in the Treasury Solicitor's Department they are constantly receiving
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letters of commendation and thanks because of the way in which claims of this sort have been expeditiously and fairly dealt with. I beg your Lordships, therefore, to put this matter in its proper proportion; and while, of course, the fact that the great mass of cases is satisfactorily dealt with is no excuse at all for not trying to make better arrangements for a minority of exceptions, it really would be a pity if we had the notion that we are dealing with a great scandal, and that it is the fixed practice of Government Departments to try to cheat ordinary citizens out of their rights. That is not true; we all want to assist in the satisfactory and prompt settlement of every honest claim.
I am sorry to have to suggest one other correction in what the noble Viscount said. None of the noble and learned Lords who followed the noble Viscount affirmed his statement as to what is the effect of the Road Traffic Act. I speak with diffidence, but I should not have thought that the language was very obscure. Nobody can read the Road Traffic Act with any attention, I think, without seeing that the third-party insurance policy, which those of us who have motors and who have them driven are required to take out, is a policy under which the insurance company is bound to pay for negligent damage which is inflicted by the insurer or by those who are carrying out his work. There is no ground whatever for saying that if a thief breaks into my garage to-night and takes out my car and drives it helter-skelter about the country, hurting someone on the roads, the insurance policy which I have taken out will cover such a person. That is entirely plain from the language of the Act; because the insurance policy, by the terms of the Act, is to insure
"such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them."
VISCOUNT CECIL OF CHELWOOD: I am very anxious to have a clear statement made by the noble and learned Lord Chancellor, because it will have a great effect. I speak with diffidence, because, very naturally, I find the Act more difficult to understand than he does; but surely what it says is that if any person in charge of a motor with the consent of the owner—it need not be his servant; it is anyone who is in charge with the consent of the owner

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—causes damage to a third party, then the insurance must be such as to cover that risk.
THE LORD CHANCELLOR: It is not for me to make a legal pronouncement; I can only offer to the House, humbly and subject to correction, what I conceive to be the plain language of the Act of Parliament. I will read the words. I may say, for purposes of explanation, that it is necessary to use the plural as well as the singular, because you may have a partnership of a company or a number of people acting together.. The policy has to be one, according to the Act, which insures
"such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them."
Is any liability incurred by me if a thief takes my motor car out of my garage and knocks somebody down by driving negligently? Obviously not.
VISCOUNT CECIL OF CHELWOOD: I said, with his consent.
THE LORD CHANCELLOR: I will deal with that. It is agreed, I think, that there is no liability whatever either to take out a policy of insurance or for the insurance company to undertake to pay in respect of any damage if the act is done otherwise than in circumstances which result in a liability being incurred by the insurer. The liability is no doubt incurred by the insurer if he allows somebody not his own driver to drive. I do not dispute that, but that has nothing to do with the point. The point is that there is no requirement that third-party insurance should require me to pay compensation if my chauffeur takes my car without permission and drives off on a frolic of his own. That is entirely plain. If the noble Viscount would like a different illustration, I have here the actual certificate of insurance issued under the Road Traffic Act by Lloyds. I notice that it relates to "the policy-holder or other person driving with his knowledge and consent." You are not driving with a person's knowledge and consent if you go off on a frolic, having taken his car without leave. I must say, subject always to being corrected hereafter, that I find it very difficult to understand how anyone could have thought otherwise, although it is obvious that the noble Viscount did. My own view, however, is clear, and it is that the
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third-party policy point is not a good one. What happens when my chauffeur or a soldier or any third person drives my car without any sort of authority from me is that he commits an offence if he has not taken out a third-party insurance. That is true enough, because no one is entitled to drive unless he is so covered; but it is quite untrue, I think, to say that the proprietor is the person who, by the terms of his policy, pays for accidents which have nothing to do with him, because he has never authorized the journey.
I wish now to say what I myself believe to be the two points on which some rearrangement is much to be desired. The first is a point which was mentioned by the noble and learned Lord, Lord Clauson, and I believe that it is a point of real substance. I think that there is very great force in the observation that it does not seem fair that, where a Department wishes to take up the position that the accident was quite outside the scope of the employment of its servant—the soldier or other driver—it should be judge in its own cause. I agree fully with that view. It is a well-worn saying that you ought not only to get justice done but you ought also so to arrange things as to make it clear that justice is being done. I doubt whether the existing system in fact is prejudicial to the plaintiff, for I think it is quite possible that there are cases in which the Treasury Solicitor cuts the knot and accepts liability where, if you were dealing with an insurance company in an ordinary running-down case, you would find that you had got a long and difficult argument before you. Still, I do not wish that that system, by which the Department is the body which decides it, should continue. Of course it is perfectly plain, as Lord Clauson said, that there are cases where the employer is not responsible for the accident; there are also many cases where it is perfectly obvious that he is: it is the cases on the boundary line where, not unnaturally, it may be thought that the present system is not satisfactory, because it does leave the Department to decide the matter for itself. A principal can, of course, only in law be responsible in damages for the negligence of his agent, acting within the scope of his employment, but it is perfectly true, as the noble and learned Viscount, Lord Maugham, said just now, that you may have very nice cases about

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this, and I can quite understand that it is desirable, if possible, to find some rather different way of answering that question.
It would be one way of answering that question, of course, to legislate: to enact that the Crown is to be answerable for its servants' negligence and torts just as much as any other employer. I do not want to delay over this too long, but really that is not as easy and simple a solution as some people might suppose. Those who looked at the Bill which was drawn up at Lord Haldane's request will know that it was a Bill of many clauses, containing many exceptions. It is only right to say that, though that Bill was drawn up by a very distinguished body of lawyers, it was drawn up on this rather curious instruction, that it was to be drawn up on the assumption that the alteration was desirable and feasible. Therefore those who were the authors must not be assumed to have said it was quite easy. And it is not quite easy. In point of fact, quite a number of difficulties present themselves at once. I do not want to multiply them—I should be thought to be searching for excuses. I only mention one, but I could mention many. Supposing you applied such a system to the Post Office, it would follow that the Crown, through the Postmaster-General, must answer for all injuries that are suffered by any person through the negligence of any servant of the Post Office. Suppose that a letter is carelessly delivered to the wrong address and the consequence is that an important contract is lost; suppose that a telegram is wrongly transcribed and a speculation thereby suffers; suppose that a telephone message is not delivered on the ground that the operator is "sorry you have been troubled" and thereby you lose the last chance of a housemaid. These are not imaginary cases; they arise at the very moment that you lay down the proposition that the Crown is to be answerable in damages for an injury that is inflicted on any subject of the realm because of the negligence of any servant of the Crown.
It is quite easy to give other illustrations, in connexion with Customs and many other things, but it is enough to say that those who have considered this with every desire to look at it favourably and sympathetically are quite satisfied that you cannot make such a change
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without a very elaborate Bill, and that it is not a thing which is likely to be undertaken in war-time. I do not wish to be misunderstood. I am not myself in principle opposed to the proposition at all. If I had the opportunity in rather easier times I should be very glad to take any part that was open to me to examine and try to carry out some such change. I agree with the noble Viscount that the ancient proposition upon which the present system is based is in many respects archaic, and I think too that if in the course of time our community tends more and more to put services in the hands of governmental organizations it will be of more and more importance to make sure that ordinary citizens are compensated if they are wronged. But I do tell the House of Lords that it is not possible, except by an elaborate Bill, to make such a provision at the present time, notwithstanding the exception—I agree a curious exception—in the Ministry of Transport Act, which I believe has very little practical operation. Consequently I have been driven to look to see what can be done short of that which would meet what I admit is a matter that ought to be met.
This is the conclusion to which I am disposed to come, and which I am able to say the Departments concerned would be willing to implement. It may not be as full, and therefore not as satisfactory, as some would wish, but I do not think anybody will deny that it is a genuine attempt to meet what I think is the central difficulty. Let me just resume the matter in this way. In the case of a claim against a private employer for damages for injury due to the negligence of his chauffeur, if the question arises whether at the time the chauffeur was acting as the servant of his employer or whether he was driving on what is sometimes called a "frolic of his own," it is pointed out that the question is decided in the course of the litigation, and is not a matter therefore which is decided by his employer. What can be done on similar lines without any legislation now? When the vehicle is a Government vehicle this question cannot be decided by the Judge, for the reason pointed out by Lord Clauson, since the action is against the actual driver. And though it has hitherto been the practice for Government Departments to pay, when they felt they ought to pay, they have hitherto, as has been pointed out, decided themselves

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whether they would refuse responsibility on the ground that the accident occurred when the driver was not acting as a Government driver but was improperly using a Government car. I may say in passing—what I am sure my noble friend Lord Cecil will agree with—that it is unthinkable that anybody would say that my chauffeur is acting within his authority as long as he drives carefully, as I tell him to do, and that I escape liability the moment he begins to drive carelessly. Of course that is neither law, nor common sense, nor anything else; it is mere extravagance.
In order to meet this public feeling I think this ought to be done. What is the complaint? The complaint is that this issue is decided by the Department but that it ought to be decided impartially by an independent person rather than by the Department involved. It cannot be decided by a Judge unless we have new legislation. But if there should be any feeling that it is undesirable that this question should be decided by the Department concerned, the Departments would have no objection to the institution of a practice under which, if the claimant so desires, the matter should be referred to an independent person, with adequate legal attainments, appointed by the Lord Chancellor. I have in mind some distinguished King's Counsel of unquestioned probity and independence, well acquainted with the niceties of this subject, to whom the matter might be referred. In Scotland the appointment would be in the hands of the appropriate Scottish authority. The facts would be made available to the independent person, and the claimant would be entitled to submit to him any statement in writing upon the point at issue. It would nearly always be the case that the matter has got to be ascertained from the Department rather than from the claimant, who cannot himself know very well, but still he ought to contribute all that he can. The independent person will also have the right to call for any further information which he considers necessary to enable him to perform his functions.
Upon completing his investigation, the independent person would give a certificate as to whether or not, if the driver at the time of the accident had been privately employed, the private employer would have been liable in law for such negligence, if any, on the part of the
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driver as might be proved at the trial. If the certificate stated that the private employer would be so liable, the Crown would accept that position and would undertake the representation of the defendant and, in accordance with the usual practice, would pay damages and costs found to be due to the claimant. If, on the other hand, the certificate stated that a private employer would not be liable, the plaintiff would be bound by it and would know, before proceeding further with his action, that his only remedy was against the driver. My noble friend Lord Maugham drew attention to a very important point when he said how distressing it would be if there were some costly and risky action which had to be pursued against a driver only to find at the end that the Department would not pay. To meet this, the reference to this independent person ought to take place at the earliest possible stage—at any rate as soon as the writ has been issued—because the claimant will want to know as soon as possible whether or not the resources of the Crown are behind the defendant.
I have taken some pains, as your Lordships will see, with the authorities concerned, to look into this matter closely. I am very glad to state to the House that that proposal commends itself to all those who are concerned, and we are all prepared to see that it is honestly and honourably fulfilled. It seems to me that it does meet the main difficulty which many people feel—the difficulty, namely, that the Department is deciding its own case. I must make it plain, of course, that the investigation and decision of the independent person would not be a full-fledged arbitration with barristers and solicitors and all the rest of it. That would be much too elaborate and expensive a process, and it would raise other difficulties which will not escape the minds of lawyers acquainted with the necessities of Crown practice. Our object is to get rid, once and for all, of any suspicion that the Department is judging its own cause, and to secure that the independent person whom I would appoint has all the material before him so that the decision may be impartially arrived at as to whether, if the Department were a private employer, the Department would have to accept responsibility for any negligence on the part of the driver. That is the main suggestion I have to make. I very much hope it will commend itself to the House gen-

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and that my noble friend who raised this matter, and for whose energy and devotion we are all grateful, will feel it is a sincere attempt to remove what is no doubt a grievance and a difficulty. I do not see that I could go further except by having fresh legislation which, in present circumstances, I hardly think is possible.
There is, however, one other matter I would mention which has not been raised during the debate, but which it seems to me also calls for some consideration. It is the question of the facilities for service of process in respect of traffic accidents arising from the driving of Government vehicles. I do not know whether it is everywhere appreciated that, where there is no question of the driver acting within the scope of his employment, his defence is undertaken by the Treasury Solicitor, who himself conducts the proceedings and is available, as every first-class solicitor is, to do what is fair and right to the plaintiff and give him as much assistance as he can. That is what ordinarily happens. I believe that the cases in which there is a real ground for complaint on the subject are very few, and I know quite well that the Department's object in the past has been to do what it reasonably could to assist the plaintiff. It is impossible, of course, for the authorities to undertake to serve legal documents on somebody else. If they started doing that, there would be many other kinds of process they might be asked to take charge of; but where a Department is prepared to accept responsibility for any negligence proved against a driver, service is accepted on behalf of the individual sued. It must be remembered—and I say this particularly in reference to one example given by my noble friend Lord Cecil of Chelwood—that in time of war it is not always possible, on grounds of security, to give information as to the whereabouts of a particular officer or soldier, because that information inevitably discloses where a particular unit is stationed and whether it has gone overseas. For that reason some allowance must be made for the practical difficulties of the case, but they very seldom arise.
I have been at pains to ascertain precisely what the Departments can do in order that, by making a statement on the subject, those concerned may be reassured. The Departments will, in cases
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of traffic accidents, sympathetically consider in each case what information and assistance can properly be given, having regard to security considerations and to all the circumstances of the case. As I have said, the assistance they have been able to give is much appreciated in a great many cases. There ought to be no unnecessary obstacles put in the way of private citizens who claim that they have suffered from a Service driver's negligence, and I state this now, on behalf of the Departments, as an assurance that this will be their attitude in these matters. I apologize for having detained your Lordships longer than I should, but I have been most anxious to make plain to the House what it is possible to do. That which it is possible to do, I most earnestly and sincerely desire to see done.
I claim that the proposals which I have put forward are proposals which do meet the sense of unfairness which may be caused by the claim of a Department to decide for itself. I needly hardly say that the individual, or individuals, whom I should appoint to certify in these cases will be completely independent. That goes without saying. They would not be responsible in any way to the Department. They would be chosen as it is the duty of the Lord Chancellor to choose a Judge. I hope I have made it plain that it is really impossible to put this particular task on the Judge himself without, of course, changing the law. I think your Lordships probably recognize that at this time of day to introduce a large and complicated Bill on this subject with all sorts of reactions probably not now present to your Lordships' minds, would be a very considerable undertaking. For my part I hope that some day myself or somebody occupying the position which I now hold may be able to take a major part in discussing the possibility of such a change, for I do not think that anything but good could come from convincing the people of this country that the Government and their officers claim no privileges and that they desire to do all that is fair and right as between man and man. I hope, therefore, that what I have said may go some way to show the noble Viscount that the question he has raised has been very carefully considered, and, even though my reply may not in all respects go as far as he would wish, that it will be felt to be a material contribution towards dealing with this matter.
VISCOUNT CECIL OF CHELWOOD: My Lords, may I first of all join with the Lord Chancellor on one point on which I am most heartily in agreement with him—namely, in tendering to Lord Clauson our warmest congratulations for his maiden speech. It has been most helpful and informative. The Lord Chancellor has met me, I quite admit, in a very conciliatory, and indeed a very favourable attitude of mind. I fully grant that, and in the circumstances I shall not of course divide the House on this matter. But I am bound to say that I am still quite unconvinced on one point and partially on another. I am quite unconvinced as to the insurance point. It seems to me that what I said was substantially right, that in point of fact the private employer one way or another is bound to be covered by insurance, either directly himself or indirectly through seeing that his servant is covered by insurance, so that he is primarily responsible for any injury that is caused as long as the man is there with his consent. There is no question of him being employed to do anything. If he is in charge of a motor car with the owner's consent and an accident occurs, then the owner is bound to see that the victim of the accident will have not a man of straw to sue but a person insured for a substantial amount.
That seems to me still to be true, with all respect to the Lord Chancellor, and I do not think his ingenious argument has in any way altered it. I think it ought also to be true that the Crown in that respect is put in exactly the same position as others, and that those under the Crown are not entitled to raise narrow points as to whether the vehicle was being used directly in their service. If they allow one of their servants to take it out, if he has gone out with their consent, then they ought to be responsible for everything that happens, either directly or through insurance. That seems to be the good sense and justice of the case. Therefore I am not convinced on that point.
With regard to the other point, the question of service of writ, I should have thought that something a little better than now exists was desirable. I dislike so very much the official saying that it will be sympathetically considered. This does not always work out as I think it should do and it always leaves the impression that they are not really going to do what you
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want them to do, that they are merely going to give you a friendly word. I cannot see why they should not say "Whether the man was or was not directly engaged on our work it is impossible, owing to the circumstances of the war, to know, and we will in that case accept service of writ on his behalf and will send the writ on to him." That seems to me a perfectly reasonable thing to do. I cannot see why they should not do that, and, if they did, that would meet that particular point. But that, of course, is not the main point.
With regard to the other suggestion, that there should be an arbitrator appointed who would settle whether in point of fact when the accident occurred the lorry was being driven on public business or on the private interests of the driver, that may be the best that can be done at present, but I hope the Lord Chancellor will not think I am obstinate when I say I should like to think about it a little more before I express a definite view. Before I did that I should like to have the opportunity of consulting some who have spoken in this debate and who are more qualified than I am to express an opinion about it. That is all I desire to say. I cannot help feeling that, substantially, this situation will not be settled satisfactorily until we have the abolition of those fantastic and archaic rules, as the Lord Chancellor called them, as to the liability of the Crown through its servants for tort. I am sure that is all wrong and all nonsense, and it ought to have been abolished years and years ago. I very much regret that when a carefully considered Bill was presented the opportunity was not taken to do that. However, I agree with the Lord Chancellor: I think it would be very difficult to pass an elaborate technical Act of that kind unless it was one which had universal consent, which I am afraid is not likely to be the case. It would be difficult in war-time to press for legislation of that kind. For the present, at any rate, I desire to withdraw the Motion.
Motion, by leave, withdrawn.

MILK FOR INVALIDS.
LORD ARNOLD LORD ARNOLD had given Notice that he would call attention to the Regulations for priority milk for invalids, and also move for Papers. The noble Lord said:

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My Lords, with your permission I wish to postpone this question until Wednesday. I ask leave to do this in order to meet the convenience of the Minister of Food.

ARMY AND AIR FORCE (ANNUAL) BILL.
Brought from the Commons; and read 1a.

SUGAR INDUSTRY BILL.
THE LORD CHANCELLOR THE LORD CHANCELLOR acquainted the House that the Clerk of the Parliaments
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had laid upon the Table the Certificate from the Examiners that the Standing Orders applicable to the Sugar Industry Bill have been complied with. The same was ordered to lie on the Table.

GOVERNMENT OF INDIA (GOVERNORS' ALLOWANCES AND PRIVILEGES) (AMENDMENT) ORDER, 1942.
Laid before the House (pursuant to Act) for affirmative Resolution and referred to the India and Burma Orders Committee.
House adjourned.