§ Order for Second Reading read.
§ 11.9 a.m.
§ The Attorney-General (Sir Hartley Shawcross)
I beg to move, "That the Bill be now read a Second time."
I have it in command from the King to acquaint the House that His Majesty, having been informed of the contents of the Crown Proceedings Bill, is prepared to place the interests of the Crown at the disposal of Parliament in connection with the Bill.
This Bill, with its legal jargon, its technical provisions and its procedural details, is more likely to arouse the enthusiasm of the lawyer than of the layman. Indeed the occasion of its passage through the House must provide something in the nature of a lawyers' holiday. But the first thing I should like to emphasise in connection with the Bill is, that it is a Measure of not inconsiderable importance to the layman, since it will very greatly fortify that principle of equality for all before the law, which all of us are agreed is a fundamental part of the British way of life, and not the less so when we are progressing towards the Socialist State. Indeed, it is a matter of interest and of significance that, at the very moment when the interests and activities of the State are increasing and expanding in many directions, this Measure should be introduced which, when we have dealt, as we hope to deal, with the question of legal aid for persons who cannot afford to engage in litigation at present, and when we have dealt, as we hope to deal, with the question of costs of litigation, will, for the first time, bring the State within the reach of the ordinary citizen under the ordinary processes of the law and in the ordinary courts.
I hope it is a pardonable weakness to pat oneself on the back; but, whilst this Bill is in no sense a controversial or political one, I do rejoice that it should have fallen to the present Socialist Government to resolve the doubts and anxieties which have obstructed action in this matter hitherto, and to give to Parliament as a whole the opportunity of enacting what this Bill, in fact, does, that the rights of the little man are just as mighty, and are entitled to just the same protection, as the rights of the mighty State.
1676 I do not propose to take up time by discussing the long and no doubt interesting history of the liability of the Crown before the law, except just to say this, that as long ago as the 13th century it had become established that the Crown could not be sued in its own courts; and this was the maxim in which it was expressed, "The Crown can do no wrong"; and that meant, as the law developed in England—in Scotland, springing from different sources, it developed differently and, in some respects, I am bound to concede, more liberally—that meant that, as the law developed in England, the Crown could not be sued at all for civil wrongs—torts as we call them—which might have been committed by its servants or agents, whilst in the case of contracts the subject could bring no action as of right and had to proceed by the special process of Petition of Right which, at all events theoretically, could only be brought with the permission of the Crown.
That, starting in the 13th century, is broadly the position today; and it was in those circumstances that, as long ago as 1921, a very distinguished committee was set up in order to consider the position of the Crown as a litigant, and to propose such amendments of the law as might be considered advisable and feasible, having regard to the special position of the Crown. The House will appreciate that, at that time, it was not merely a question of how the law should be altered in these matters, but whether it was desirable to alter it at all, and that was a matter about which then, at all events, there was by no means universal agreement. Again, it is, perhaps, interesting—and again I want to pat ourselves on the back, I am afraid—that it fell to a distinguished Lord Chancellor in a Labour Government, to Lord Haldane, in 1924 to alter the terms of reference to that Committee by requesting them to proceed on the assumption that it was both desirable and feasible to alter the law in this respect and asking them to prepare the necessary Bill. That, no doubt, relieved some of the anxieties that confronted the Committee; and in 1927, some three years later, they reported and presented a draft Bill.
What happened after that is shrouded in a good deal of obscurity, and no useful purpose would be served by going into it. It is sufficient, I think, to say that many great Departments of State and a 1677 number of distinguished lawyers continued to have great doubts, sincere doubts, as to the desirability and advisability of bringing about any change in the law in these matters, and so from that time in 1927 until 1945 nothing was done. The report was consigned to some convenient pigeonhole, and there the matter rested. But it is fair, I think, to say that, although some learned professors wrote learnedly from time to time about the matter, I do not myself doubt that one of the reasons why the matter was allowed to go to sleep, even though it was on a somewhat uneasy pillow, was that those responsible at that time felt, and, I think, rightly felt, that, in the meantime, in practice, no great injustice was being done. Although one could not go against the Crown, except by way of Petition of Right, it had become the almost invariable practice for the Attorney-General to give his fiat authorising such petitions to be brought, and although the Crown could not be sued for civil wrongs or torts it would normally—not, I think, invariably, but normally—stand behind its servant, who could always be sued personally for any wrong he had committed in the course of his duties, since the fact that what he had done might have been done on the orders of his superior afforded him no defence. The Crown would in such cases stand behind its servant, and if damages were awarded against the servant the Crown would see that they were paid.
Moreover, in cases where, for one reason or another, it was not possible to fix liability upon any particular servant of the Crown—for instance, where an accident arose through the condition of premises belonging to the State, the condition of land—some particular person was nominated by the Crown so that an action might be brought against him on the assumption, that was not controverted, that he was responsible as the occupier of the premises or the land concerned. And so in those circumstances the report of the 1921 committee was allowed to go to sleep. None the less it remained true that the remedies which were available were not as of right but as a mere matter of grace; and some matters, for instance, those involving the defence of common employment, had to be dealt with outside the courts altogether 1678 by a procedure which was established, a kind of informal procedure; and there may have been—I do not myself think there were a great many—but there may have been occasional cases where justice was not done; and, again, there may have been cases where the complications of the procedure discouraged people from pursuing even those remedies which were available to them.
At all events, we thought that, at a time when the Crown operating through Government Departments or public authorities is coming more and more into contact with the citizen and the subjects of the country, it was inappropriate that the citizen's right to legal remedies should be less effective against the Crown than they would be in any other ordinary case. So when the Labour Government came into office in 1945 some of us at once took out the report of the 1921 Committee, dusted it, and, to use a sacred phrase took it under consideration. Subsequently, a decision in another place, that the practice of nominating defendants—which had been pursued for some time in the case where no particular Crown servant was to blame—was open to criticism, expedited the process, and "consideration" became "active consideration." That consideration showed that, for one reason or another—and my comment involves no criticism—the draft Bill prepared by the 1921 committee, and produced by them in 1927, was, in the circumstances of today, 20 years later, no longer suitable and appropriate. Consequently, there followed a period of "anxious consideration," and in due course that gave birth to the present Bill. I think everyone agrees that this Bill is a better Bill, wider and more liberal in its scope than its stillborn predecessor in 1927.
Having said that about the origin and history of the matter, let me explain to the House, quite shortly, what the Bill seeks to do and, on the other hand, what it does not pretend to attempt. In the first place, it does not and cannot pretend to create an ideal system of law wherein the various rights of action are all clear and simple, where the remedies are sufficient for every wrong, the processes cheap and expeditious, and the defences available only such as accord with natural justice and equity. We do not pretend to do that. We take the general law in re- 1679 lation to all these matters, with any imperfections to which it may be heir, as it exists. This Bill pretends to make no alteration in regard to these general matters. But, taking the general law as it exists, as far as may be we place the Crown in the same position as the private citizen, or, to take a perhaps closer analogy, the company or public corporation, is already in regard to it.
There may be—and I have no doubt there are—a number of matters, such as the defence of common employment and the question what is the proper period of limitation within which actions can be brought, which need examination. Taking those two examples they are, in fact, being examined at the present time, but we have to examine matters of that kind generally; we cannot deal with them piecemeal by reference alone to cases in which the Crown is concerned. Consequently, all that we seek to do in this Bill is to abolish the special position of the Crown in litigation, and to assimilate the existing procedure to that which will be appropriate as between subject and subject. Even that, of course, cannot be done in every case.
Although the general effect of the Bill is to place the Crown in exactly the same position as the subject, there are, obviously, as the House will appreciate, a number of matters in which an analogy cannot be drawn between the Crown and the private citizen. The private citizen does not have the same kind of responsibility for protecting the public, such as the Crown possesses; he does not have the care of the public safety; he does not have the defence of the realm to consider; he is not responsible for the organisation of such great services as the Post Office. In these matters—and there are others which will occur to hon. Members—the functions of the Crown, under our constitution, involve duties and responsibilities which no subject is required to undertake, and these distinctions are inevitably, necessarily and properly reflected by various provisions of this Bill. But, subject to necessary and inevitable distinctions of that kind the broad purpose and effect of this Bill is to enable the citizen to take exactly the same kind of proceedings against the Crown, and in the same circumstances, as if the Crown were a fellow citizen.
1680 Now let me explain to the House, quite shortly, how the Bill achieves that result. It is divided into a number of parts. Part I deals with substantive law, and by Clause 1 the subject is enabled by ordinary proceedings to enforce—and to enforce no longer as of grace but as of right—any claim against the Crown which previously would have been impossible to a subject without the necessary fiat, by petition of right. That most important Clause, in regard to contracts with the Crown, will be enforceable in the ordinary way and in the ordinary courts. Clause 2—which, I suppose is the most important Clause in the Bill—makes the Crown liable in tort, and so far as practicable the Crown, in its public capacity, will be subject to the same liabilities for wrongs committed by its servants or agents as a private citizen or a public corporation. The Crown will be responsible in the ordinary courts and in the ordinary ways for negligence, for any wrongful acts or defaults by its servants or agents, for breaches of the common law or statutory duties—for instance, under the Factory Acts—it owes to those whom it employs, and for breaches of duty which arise from the occupation of premises or land. The next five Clauses deal with various particular matters, particular forms of property, and there again they generally assimilate the position of the Crown mutatis mutandis to that which applies as between subjects.
Clause 9 is one to which I ought to draw the attention of the House, because that deals with a somewhat different matter, namely, the important position of the Post Office. That, of course, is one of the cases where there is no kind of analogy between the position of the Crown and that of the private subject, because the Crown is under a statutory obligation to carry mails, and it does not—indeed, it cannot—use the method by which, if any analogy existed at all, the private citizen would obviously protect himself. I mean the method of a special contract with each sender of a postal packet, containing conditions exempting the carrier from liability, and so on. So, it will be seen at once, I think, by hon. Members that it would be quite impracticable to impose a liability on the Post Office, to take one instance, to pay damages for not delivering a letter, or for not delivering a letter as quickly as it ought to have been delivered. I will just 1681 pursue that instance for a moment. It might be alleged that the letter contained information with regard to the trend of prices on a market, information which would have enabled the receiver, had he got the letter in due time, to make an enormous profit on the Stock Exchange. The Post Office, of course, would have had no knowledge of that at the time it received the letter, and would have no means of checking the truth of the allegation that the letter contained that sort of information. In that kind of case also there would be the greatest difficulty—to put it at the lowest—in assessing what damages would properly be payable in such a case.
From that example hon. Members will see all kinds of impossible difficulties which might arise if the liability were imposed on the Post Office in that way. Consequently following the recommendation which was made in this respect by the 1921 Committee, and also after examining the way in which the matter was dealt with in other places—for instance, in the Commonwealth of Australia—this Bill exempts the Post Office, and also its individual servants, from liabilities in respect of these matters. On the other hand, as against that, and as a set off to it, the Post Office accepts, for the first time, legal liability in respect of registered packets. Compensation for loss of those will be made on a scale dependent on the amount of the registration fee.
Clause 10 is another Clause to which the attention of the House ought to be directed, because it contains a special exemption, or exclusion, in the case of claims between members of the Armed Forces in respect of personal injury which they have sustained while on duty as members of the Forces, or on Service premises. Here, again, I think Members will appreciate the special position, which exists. For instance, it is necessary in the course of Service training, in order to secure the efficiency of the Forces, to exercise them in the use of live ammunition, in flying in close formation and, in the Navy, in battle conditions, with, perhaps, destroyers dashing about with lights out, and so on. These operations are highly dangerous and, if done by private citizens, would, no doubt, be extremely blameworthy, but it is impossible to apply the ordinary law of tort in regard to them, or make the Crown liable for any injury which, unhappily, results.
1682 It is right that I should point out that under the existing law one member of the Forces might, in theory, at all events, in circumstances like that, bring an action against another. But such cases are very infrequent; indeed, I do not know what view the court might take about an accident which occurred where a destroyer flotilla was necessarily engaged in battle practice, with lights out, and a collision occurred. However that may be, theoretically the position is that a person injured in the course of such manoeuvres might commence an action against, say, the captain of one of the destroyers concerned. As I have said, such cases are extremely infrequent, and may well have been discouraged in the past by the fact that the Crown was not legally obliged to stand behind any officer or soldier who might have been sued in such a case. But now that legal liability on the part of the Crown is being created we have felt it essential—as the 1921 Committee did—to provide that neither the Crown, nor its servants or officers, shall be liable for accidents which occur while both parties are on Service duty, or on Service premises.
§ Mr. Bowles (Nuneaton)
The exemption, I take it, applies only to those in the Services and not, for instance, to civilians on a civilian ship which collided with another in the dark.
§ The Attorney-General
It applies only as between people who are in the Services, and on Service duty at the time the accident occurs. It is a limited exclusion. Although, at first sight, it is a withdrawal of the right of action which does theoretically exist at the moment it is one which is very infrequently exercised, to say the least. Hon. Members will appreciate, from the kind of example I have given, that it would be impossible to risk prejudicing the efficiency and discipline of the Forces by doing less than we propose to do, or that any officer or soldier ought to be placed in the position of feeling that if he makes a mistake, and personal injury results to another soldier, or man under his command, he may be liable to pay damages and the Crown will not be obliged to stand behind him.
But while we consider that this is the least protection we can give, we have not gone nearly so far in this matter as the 1921 Committee recommended and thought it appropriate that the Govern- 1683 ment should go. This Clause only excludes claims in respect of personal injuries. In other cases slander may be one, false imprisonment may be another, excessive jurisdiction by a court-martial may be a third—claims will lie, and not only against the soldier or officer concerned but, for the first time, against the Crown. This provision, while it technically and theoretically excludes a small number of possible cases is, in fact, creating a wide new measure of Crown liability where it has not existed before. I ought to add that while the soldier who receives injury on duty will not be able to recover damages in the courts, that does not mean that he will go unrecompensed. If he is injured, and remains in the Service, he will get proper medical treatment, and care; if he is invalided out, or dies, he, or his dependants, will have pension rights. As to that, the capital value of the pension rights, in terms of money is, in general—I am not saying it is so in every case, because one cannot be certain in every care what damages will be awarded—as valuable as the probable damages which may be recoverable in an action at law if such an action lay.
Clause 11 is one which appears to contain an exemption, but it is an exemption which merely preserves the existing law by providing that the Bill should not extinguish or curtail the proper exercise of the prerogative or statutory powers of the Crown, in particular with reference to the defence of the Realm or the Armed Forces. Most of the powers which the Crown now possesses and exercises are statutory powers, but there is always the residual prerogative power to take any necessary steps in defence of the Realm, and the maintenance of the Armed Forces. Clearly, it is essential that there should be no prejudice of those powers.
§ Mr. Edgar Granville (Eye)
In the case of a soldier who is seriously injured in battle school by the negligence of an officer, has he, or his parents, any right of appeal outside a military tribunal?
§ The Attorney-General
No, he would be confined to such rights as he has under the Pensions Warrant. It would not be a matter of a civil claim in the civil courts.
§ Mr. Hector Hughes (Aberdeen, North)
Suppose there are two members of the Armed Forces, and one is injured by the tortious act of the other. Is the injured man barred from making a claim against the tort feasor?
§ The Attorney-General
The effect of the Subsection (1) is certainly to bar a soldier who, while on duty, was injured by the tortious act of another soldier, also on duty at the time. The effect of the proviso is that if a soldier, although doing what he did in the course of his period of duty, was doing something which was quite outside the scope of his duty, an action will not be barred. If, for instance, a soldier, because of a personal dislike for the sergeant-major, or some other member of the sergeant's mess, strikes him in the face, and causes him injury, that would not be a case where Clause 10 (1) would operate to exclude an action.
I pass now to Part II of the Bill, which deals with procedural matters, and abolishes various old forms of process, of which many lawyers, and most laymen, have never even heard, and do not want to hear. Broadly, it assimilates the procedure between subject and subject to that which will apply when the Crown is a party. Actions may be brought in the High Court or county court and we are considering also the position of those special courts with particular jurisdiction—courts like the Liverpool Court of Passage in which the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) and I learned to practise the law before that great master Sir Francis G. Kyffin Taylor—and of bringing them within the scope of the Bill by Order in Council. Actions may be brought in the High Court or County Court either against the Department concerned or if there is any doubt as to which Department is concerned or where several are concerned against the Attorney-General.
Part III of the Bill deals with judgments and executions. In general it applies the ordinary law. The special right to imprison for non-payment of debt—a right which the Crown has never used in recent times, except where there was good reason to believe the case was one in which the defendant would not pay, not that he could not—that right is abolished except in cases of non-payment of Death Duties 1685 or Purchase Tax where the debtor has received money in the sense of a trustee, and the right would not be exercised except where the money has been salted away and would be paid if these measures were taken.
Part IV of the Bill deals with miscellaneous matters, and Clause 28, in particular, with the discovery or disclosure of documents. This is an important matter and one about which in the past there have been grave doubts as how far the Crown ought to go. In general, the Crown will be obliged under this Clause to disclose all relevant documents, but I think that everyone in the House and everyone who has considered this matter outside agree that there will be and, indeed, there must be some documents, for instance those dealing with matters of defence, which is an obvious case, which it would be contrary to the public interest for the Crown to disclose. That is a position which has been well established by many decisions in the courts both in this country and in Scotland.
But the question about which there has been some discussion is who is to decide in a particular case whether the public interest precludes the disclosure of the documents concerned. That has also been the subject of discussion in the courts, and particularly, recently in the House of Lords in the case of the "Thetis." The House of Lords there established—and established, if I may venture to say so with respect, conclusively—how impossible it would be to impose upon the courts that task of deciding whether or not it was contrary to the public Interest to disclose a particular document. When this Bill was being discussed and considered in another place it was made quite clear that the judicial view was that matters of public interest and policy must be determined by the Minister who is responsible to this House in regard to them. That is a principle which indeed we have frequently inserted in other Statutes dealing with this matter, and the principle is the same with regard to the disclosure of documents as it is in regard to these other matters that where policy or public interest is concerned it is for Ministers and not for the courts to judge and the Ministers must discharge their responsibilities under the control of Parliament.
1686 This House if it thought in a particular case that the Minister had taken a wrong view could question the Minister by the Parliamentary processes that are available to them. The Judges have made it perfectly clear that they cannot possibly judge. They have none of the information before them, none of the material, none of the background which would enable them to say in respect of a particular document whether or not it was in the public interest that document should be disclosed. Parliament can control its Ministers. If it thinks that a Minister is exercising his power to withhold disclosure with undue frequency or in circumstances in which it ought not to be done Parliament will find means of saying so. This Clause preserves the existing law, at all events so far as England is concerned in this respect, and we regard this Clause as quite fundamental to the Bill.
I can only add this: In view of the intervention of the hon. Member for Nelson and Colne (Mr. S. Silverman), it must not be assumed that these matters have been dealt with or will be dealt with by Departments as merely matters of routine. It is for the Minister personally to consider and decide whether or not it is essential in the public interest to refuse the disclosure of particular documents. [An HON. MEMBER: "Question."] An hon. Member says, "Question." I can answer the hon. Member, as I think all Members of this House who have been connected in one way or another with the great Departments of State will be able to answer him, that I know from personal experience with what a grave sense of responsibility Ministers do in fact discharge this task. If a Minister, having considered the matter personally, is not able to decide that it is essential that a document should be withheld, he will disclose it along with all the other documents relevant to the case.
§ Mr. Sydney Silverman (Nelson and Colne)
Is the learned Attorney-General saying to the House that so far no document has ever been withheld except on the personal judgment of the Minister concerned?
§ The Attorney-General
I cannot speak for previous Governments in days gone by, but I can certainly say that is the position today, and I know it is a position 1687 which Ministers of this Government regard with great seriousness and one on which, although they eventually reach decisions themselves they have sometimes taken advice from my noble Friend and sometimes from myself.
§ Mr. Silverman
I am not questioning that when a Minister of the Crown brings his own personal judgment to bear that he does it with the utmost sense of responsibility and fair play. That is not the point which I am making. I suggest that in the vast majority of cases where disclosure has been withheld, the Minister personally has never heard of the matter at all.
§ The Attorney-General
I am sure that that is not so; at any rate, so far as this Government is concerned that is not so. The hon. Member speaks of the "vast majority of cases," but these cases are very infrequent in my experience. Where they have occurred they have been given the consideration of the Minister concerned, and we have said—and my noble Friend in another place made it quite clear in the course of his speech—that it is clearly the duty of the Minister unless there are special circumstances—if, for instance, the Minister is ill or out of the country—to give this important matter his consideration. I can assure the House that that is the intention of His Majesty's present advisers.
§ Mr. Charles Williams (Torquay)
May I ask the learned Attorney-General if there are many cases in the course of the year in which documents are withheld? It would interest the House to know whether this is an occasional thing or whether there is a considerable number of such instances.
§ The Attorney-General
In my experience, which is very limited in point of time, it is very occasional.
Part V of the Bill deals with the application of the Bill to Scotland, and in doing so, it goes beyond the recommendation of the 1921 Committee, but we thought that it would be appropriate to have the same provisions in regard to this matter applying to Scotland as to England. There is also provision under the Bill in regard to Northern Ireland, and it may be for the convenience of the House if I indicate now that we intend to put down an Amendment to that Clause providing that the Bill as a whole can be extended to Northern Ireland with the necessary changes conse- 1688 quent on the different state of the law in that country by Order in Council, and we intend at once so to apply it.
That, I think, concludes all I need say about the Bill, and I must apologise to the House for taking up so much time. Perhaps I may add that we shall greatly value any assistance which hon. and hon. and learned Members on both sides of the House may be able to give both today and when the Bill comes up in Committee next week. I should like to say also how deeply grateful I am for the help, suggestions and advice which many hon. Members on both sides have extended to me personally. I mention only two because they are absent at the moment—the hon. Member for Oxford (Mr. Hogg) from the Opposition side of the House, and the hon. and learned Member for East Leicester (Mr. Donovan) from this side of the House. Both are at present in court, but they provided the greatest assistance to us in discussing the various aspects of the Bill. If between now and the Committee stage there are any points which hon. Members would like to discuss with me or with Mr. Thomas Barnes, the Treasury solicitor, we should be most happy to meet them.
Finally, I must say that in regard to those matters to which I have drawn special attention, the Post Office, the Armed Services, the Prerogative and discovery, whilst, of course, we are open to any argument, I hope hon. Members will not misunderstand me if I say that, having given the matter most grave and anxious thought, we became convinced, as the 1921 Committee was fully convinced before us, that these provisions were fundamental to the Bill. I cannot, therefore, hold out any great encouragement that we shall be able to depart from the principles which these Clauses embody.
§ 11.52 a.m.
§ Major Sir David Maxwell Fyfe (Liverpool, West Derby)
The Opposition are in agreement with the principles of this Bill, and they welcome the steps that have been taken in the direction of making the vindication of rights against the Crown approximate to such vindication against private persons. I also personally agree with what the Attorney-General said that the greater the part the State takes in general affairs, the greater is the need that the private individual should be able to 1689 establish his rights against the State and the duties and responsibilities of that State to him. Justice still remains an essential basis of human comfort. I should also like to say that we on this side of the House, despite the battery of back slapping in which the right hon. and learned Gentleman indulged a few moments ago, would like to add our tribute to the work which has been put into this Bill by the Lord Chancellor and by the right hon. and learned Gentleman the Attorney-General.
It is most important that in the postwar period we should continue the process which was initiated and carried on in the years before the war, namely, the constant examination of the problems and difficulties of our law, and the statutory correction of those that commend themselves to Parliament for alteration. It is an important procedure and it must continue. As long as I have anything to do with the law I hope I shall see it continuing. The right hon. and learned Gentleman has put very frankly before the House the points in this Bill which present some difficulty both to the lawyer and to the layman and which certainly demand our consideration today.
In the first Part of the Bill the Crown is rendered liable in tort—for the non-legal Members that is a wrongful act which does not arise out of contractual relations—to the same extent as a private person, but there are certain exceptions. I should like to draw the attention of the House to one or two considerations on these exceptions. With regard to the Post Office, there are two points as I understand it. In the first place, its liability is excluded in respect of acts or omissions relating to telephonic communications; and, secondly, liability with regard to postal packages is limited to registered packages subject to Post Office regulations. I have no comment to make on the second, but I should like the right hon. and learned Gentleman to have another look at the wording of Clause 9 (1) where the governing words are:No proceedings in tort shall lie against the Crown for anything done or omitted to be done in relation to … telephonic communication by any person while so employed.There is just the fear that those words are sufficiently narrow to lead to some exclusion, because I am sure that that 1690 is the last thing which anyone wants. As they appear, actions for injuries to passers-by through repairs to buildings or the movement of telephone apparatus or lines might be excluded. I should like the right hon. and learned Gentleman to consider that. I know there is a network of statutes relating to Post Office telephones, but it is a point of wording which is worthy of consideration.
I should also be grateful if the right hon. and learned Gentleman would on some occasion which seems convenient to him, clarify a little more Clause 11 which deals with the Prerogative of the Crown. I think it would help the House if, first, he were to tell us, what sort of acts are covered by Subsection (1); and, second, what sort of proceedings under Subsection (2) will be:material to determine whether anything was properly done or omitted to be done in the exercise of the Prerogative of the Crown.I appreciate the general argument for not infringing under this Bill the residual Prerogative in so far as it still exists, but I think it would be of help if we were given some concrete case, and if it were explained to us how the Clause is designed to work.
The next point which I wish to put and which I think is in all our minds, is the fact that the Bill, while substantially extending the subjects' remedies against the Crown, at the same time, does introduce a novel protection for Crown service, and in that way actually puts down the present rights of the individual. I think we are all concerned with, and we must consider carefully, the solution which is found in the Bill for what is known to many of us as the soldier's problem. After considering it carefully, I think there is something to be said for the view that these are not the sort of injuries which are likely to be caused on many occasions. I have always been fascinated by the example given by the right hon. and learned Gentleman of the destroyer captain or the pilot of an aeroplane who, when given specific orders to take a course which must involve danger to himself or those in his vessel or his aircraft, carried out those orders on manœuvres, during training or the like. It is, as I say, a fascinating point to know what is the standard of care which such an officer ought to apply, and one which has never been easy to deal with.
1691 One realises, therefore, that some compromise must be affected on this problem. The right hon. and learned Gentleman has drawn attention, quite properly in my view, to the parity of values of the pension rights and the common law damages which are now given. Many of us who served in the last Parliament, during the complete change of our workmen's compensation procedure, heard most interesting speeches from trade union members and others as to the difficulties of lump sum payments. It is a matter which is very much in our minds and on which there has been a considerable trend in public opinion. The answer must be on the argument put forward by the right hon. and learned Gentleman that, quite bluntly, pensions must be high. They must be at a level which will really bring about the position which he describes, and that situation must be faced. The great thing which we are all anxious to do is to prevent injustice. I am sure that many hon. Members both legal and otherwise, will have views, and what interests me is the scope in which this provision will operate. As I say quite honestly, I have not myself been able to imagine a large field in which it will prevent the accidents taking place, but I should be most interested to listen in the course of the Debate to suggestions from others who have no doubt considered the provision very carefully.
I want to say only a word with regard to the provision of the Bill dealing with cases in contract. Personally, I welcome the disappearance of the procedure by Petition of Right in a certain number of cases, and I confess that I have always felt a certain lack of ease as to how far that procedure operated and what were the consequences of raising it. It is obviously a procedure which ought to be swept away and a simpler procedure substituted. I do not think that there will be any controversy on that point. There was, however, just one matter of wording which I should like the right hon. and learned Gentleman to consider. The Bill does not in terms substitute a general liability by the Crown in contract as in the case of a private person. The intention of the Bill is clearly to subject the Crown to liability in all matters hitherto appropriate for a Petition of Right, and by inference it creates that liability. 1692 I think that that appears from Clause 13 and Clause 23 (2), but the right hon. and learned Gentleman might consider whether the Bill should not clearly and explicitly state that all claims that have hitherto been brought by Petition of Right should not be brought without fiat—either of His Majesty or of the Attorney-General.
The last question with which I wish to deal is a very important one and concerns discovery against the Crown. Anyone who has been concerned in litigation for or against the Crown knows the difficulty on this point. What has been done is to put the Crown in the same position as a private individual, subject to the maintenance of the existing privilege of the Crown in respect of injury to the public interest. May I just put to the House the way that that operates or, at least, the way it did operate during the three and half years in which I was largely concerned with Crown litigation? There are two things which are affected. The first is a document, the disclosure of which, from its nature and from its contents, would be against the national interest. The second is a class of document which, although the individual document may be quite harmless, is one which it is not in the public interest to make disclosable. May I put that in simple words? It really comes down to reports from civil servants, and the basis is that if you are to make all confidential reports by civil servants disclosable, then the result will be that the State will not have the advantage of as clear, honest and forthright reports from its civil servants, as it would if they were protected.
§ Sir D. Maxwell Fyfe
Because often the report which is made to the Minister is expressed in terms which are very appropriate for a confidential report and which explain exactly what is in the mind of the person reporting. He would be bound to tone it down if he thought that it was possible that it might be discussed in open court. I am sure that even the hon. Member for Nelson and Colne (Mr. S. Silverman) expresses himself in slightly more forthright terms—though only slightly—when giving a private opinion among his particular friends than when he is stating a matter in public.
§ Sir D. Maxwell Fyfe
The hon. Gentleman says that they are not private opinions. They are the honest personal opinions of a civil servant as to a personality.
§ Sir D. Maxwell Fyfe
Certainly, and if one is to harden or stratify these reports, and to get rid of the right to express strong and personal views, their value must go down. I think that that is not a question of politics but of psychology, and it is a view to which I have never been able to see the answer.
§ Mr. Paget (Northampton)
Why does not that apply with equal force to a corporation? The London County Council, for instance, has no protection of that kind, nor have any of the great corporations, some of which are quite as large as certain Government departments.
§ Mr. Hector Hughes
While he is answering my hon. Friend, would the right hon. and learned Gentleman give an example of the kind of report he has in mind?
§ Sir D. Maxwell Fyfe
Perhaps I may deal first with the point raised by the hon. and learned Member for Northampton (Mr. Paget). Important though the functions of corporations are, I cannot remember—again one can only speak from one's experience—that there have arisen in the cases of the various corporations which I have advised, documents on the same plane of importance as those which come up very frequently when one is dealing with Government Departments. I do not think the hon. and learned Gentleman's point is a good one.
§ Mr. Paget
I will immediately concede that point with regard to the importance of documents. What I was dealing with was the question of classes of documents. Classes of documents involving reports by inspectors of the L.C.C. are constantly being disclosed. Why should not similar routine documents of that description in a Government Department be disclosed, and why should the right hon. and learned Gentleman make the general statement that if documents are important they ought not to be disclosed?
§ Sir D. Maxwell Fyfe
In general, I should have thought that in respect of 1694 confidential reports, the higher up the scale one goes the more important it is that they should not be disclosed. It ought to be possible to draw a reasonable line between the report of a sanitary inspector and the report of an Under-Secretary in a big Department of State. As the hon. and learned Gentleman knows, as soon as one has to draw a line one has to select the most appropriate place at which to do so. In view of the long series of cases concerning this matter, and also from common sense, one ought to be able to draw a line, having as a test the national interest. I am afraid I have forgotten the point raised by the hon. and learned Member for North Aberdeen (Mr. Hector Hughes).
§ Mr. Hector Hughes
I understand that the right hon. and learned Gentleman's argument is that a report of a civil servant would be less forthright, even though it was on a public matter, if he thought it might be made the subject of public disclosure. I would like him to give an example of the kind of report he has in mind.
§ Sir D. Maxwell Fyfe
During the war we had to concentrate a large number of industries, which meant closing down the businesses of a number of people. That introduced great personal difficulties, and one was most sympathetic towards the people concerned because it was very hard on them. This involved a whole series of reports giving the views of each of these people—estimates of personality and the like.
§ Sir D. Maxwell Fyfe
I apologise to my hon. Friend. This involved reports on a vast number of personal matters and personalities. That is the sort of report which it is essential should be forthright and, indeed, downright, if it is to be of any value at all. I have clarified the position as far as I can. I do not want to detain the House, but I wanted to meet the points that have been raised. With regard to both these matters I cannot see how one can or should alter the view that the courts have taken, that this should be a matter for the Minister to decide. I think, however, that one ought to face the difficulty which is seen in Clause 28 (2). The effect of that provision is: 1695… any rules made for the purposes of this section shall be such as to secure that the existence of a document will not be disclosed if in the opinion of a Minister of the Crown, it would be injurious to the public interest to disclose the existence thereof.This House ought not to accept that provision without making it clear that we have noted it and expressed our view. I am sure the right hon. and learned Attorney-General agrees that that provision can only apply to a document of the highest importance, because there one is refusing to tell the other party to the litigation that one has the document at all, and that is a very serious matter. I suggest that it might well be the subject of a particular instruction from the Prime Minister to the great Departments of State, to the effect that it is only when the Minister has given the most careful consideration, and is absolutely satisfied that the national interest demands no reference being made to the document, that that extreme procedure will be used. If the right hon. and learned Gentleman, or someone on behalf of the Government, will give an undertaking that that matter will receive special attention from the head of the Government, I think the difficulties which are in our minds will be, to some extent, assuaged.
§ Mr. Scholefield Allen (Crewe)
I do not know whether the right hon. and learned Gentleman has perused what was said by the Lord Chancellor in another place, but that pledge was given by the Lord Chancellor.
§ Sir D. Maxwell Fyfe
I think the pledge ought to be repeated to this House, because we are specially concerned with the position of individuals in this regard. I have endeavoured to deal with the points which were selected as most important. I am sure that, generally, hon. Members in all quarters of the House will agree with me that this Bill, while still having difficulties which are inherent in the subject, proceeds along the right path, and that we should be prepared to let it go one stage further along that path today.
§ 12.19 p.m.
§ Mr. Turner-Samuels (Gloucester)
I am sure everyone in the House welcomes this Bill, and I think its value has been greatly enhanced by the very clear introduction and explanation which has been given by my right hon. and learned Friend the Attorney-General. I would 1696 like to deal presently with some of the matters which were raised by the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe), because they embrace the matters to which we ought to give most of our attention both now and in the Committee stage. This position of the law in this respect has been a slur on our legal system. I can remember Lord Justice Scrutton saying that it even discredited our Constitution, and he referred to the desirability of amending it. Only recently, in the Court of Appeal the learned judges there called attention to the fact that the position had become a crying evil. One thing ought to be said about the inordinate time taken before any attempt has been made finally to alter the position. The public cannot blame the lawyers in any way. The Bar Council, the Law Society and the most eminent lawyers have subscribed to the view that something ought to be done. Business associations and the Trades Union Congress have for years been very forcibly attempting to bring these alterations about.
One of the principles that made it completely indefensible was that whereas the King is the fountain of justice, when it came to an action against the Crown, that was just one of the instances where one was refused justice. The matter was, of course, becoming completely wrong. An amazing thing about this question is that although a committee was set up in 1921—Lord Hewart's Committee—the matter drifted on for some six years. This is one of the instances which demonstrate that if one does not want to do anything about an urgent matter, the thing to do is to appoint a committee. In 1927, after a labour of six years, the only mouse to come out of the mountain was a Report mainly in the form of a Bill. That Bill has, of course, now been scrapped. There was a considerable amount of controversy over its contents at that time, but it is right to remind the House that the then Attorney-General gave a very definite promise that a Bill would be introduced which would contain matters which were outside the orbit of the controversy which had arisen about the suggested Bill at that time. That promise was not kept.
It has been pointed out that the law in Scotland has been entirely different, and 1697 that gives emphasis to the absurdity in these cases of having one law in this country and an entirely different law in Scotland as to rights against the Crown. Indeed, it was underlined by the fact that although the original idea of this rule was that a liege subject could not sue the King in this own court, the fact remained that after the Act of Settlement in 1700 that ground had become completely invalid. It is, therefore, extraordinary to see how long this matter has persisted.
It is perfectly right that there should be safeguards in a Bill of this kind. Everyone agrees that the Crown has a special position, and one of the elements by which that security is obtained must obviously lie in the method of discovery. In an ordinary action where two subjects are in litigation with each other, there is as a rule complete disclosure. The party involved is not bound to disclose anything that will involve him in a criminal charge or, in the case of a private person, anything that might be dangerous to the public interest, but subject to that qualification, there is an unconditional obligation on each litigant to make full disclosure.
Although the Crown has here been put on an equal footing with the subject in regard to litigation, the question arises whether the Crown is not seeking to take more advantage of the protection which the Bill affords, vis-à-vis, the subject than it is entitled to. The only limitation that is set is that there shall be no obligation to disclose a document the disclosure of which would be contrary to the public interest. That is a proposition which can hardly be assailed. It must be right. What is in the interest of the State must be right. The question however arises on that how one shall determine whether the document is a document which in fact comes within that designation. It is argued that that is a question which should be left to the decision of the court.
§ Mr. Rees-Williams (Croydon, South) rose—
§ Mr. Turner-Samuels
I cannot give way just now. Perhaps the hon. Gentleman will intervene later on. There is a lot to be said for that, but in these matters we must to some extent act by experience. We cannot throw aside the experience of many years and of many cases and the views and advice of many eminent judges 1698 who have had practical contact with these matters and who have always endeavoured to safeguard the subject as against the State. Their view has been that it is not practicable for the court to have the decision on that matter confided to them and that it is much better and more practicable to leave the matter in the hands of the responsible head of each particular Department. When one tests it by these experiences, one gets an opportunity right up-to-date of applying that, because in the recent inquiry in the "Thetis" case, a considerable piece of litigation and a considerable inquiry, an opportunity was given to survey a matter of this kind very carefully. It became manifest beyond any dispute that it was better for the Minister to deal with these matters rather than the court or the particular tribunal concerned.
There is another aspect of the matter which has not been referred to although I am perfectly certain that the Attorney-General and the right hon. and learned Member for West Derby had it in mind. This only applies to documents. When it comes down to the evidential side of the matter I do not think the Crown or a witness on behalf of the Crown is in any better position than an ordinary litigant witness acting for such a party. It may very well be that some question of privilege or public interest may arise or the witness might be involved in criminal consequences, but he is then only given the same rights as any other witnesses would have. That is to say, even a witness who is not a witness for the Crown would not be obliged to disclose something against the public interest. It is, therefore, right to point out that the only difference so far as discovery is concerned lies in the question of the documents.
It has been asked why there should be any distinction between the document that might be produced inside the London County Council and the document that emanated from a Government Department. I should have thought that there was all the difference in the world. A document that comes from the L.C.C. ought to be disclosed in the public interest because it concerns a matter dealing with something which is in the public interest, which is got out in the public interest, and which it is in the public interest that the public should know. But these documents that are being excluded 1699 are in a different classification altogether, and they should not be disclosed in the public interest. It does not follow that every document will not be disclosed. The test is that the Minister has to apply his mind to the question of whether a document ought not to be discovered because to do so would be against the public interest.
§ Mr. Turner-Samuels
My hon. Friend may say so later when he speaks.
A question was asked by the right hon. and learned Member for West Derby about the difference in reports. There is a large variety of special confidential reports in connection with Government service and Departments which axe not found in local government. As an example, I have in mind the Services, where officers of senior rank frequently give reports on officers of junior rank. It would obviously put those who make those reports into the greatest difficulty, and would certainly not make for candour and complete disclosure, if there were no restrictions of the character provided by the Bill.
I now turn to a matter that was quite frankly ventilated by the Attorney-General and referred to by the right hon. and learned Member for West Derby in regard to the Post Office. It is contended by the Attorney-General, and it is provided in the Bill, that there is to be no right of claim against the Crown in respect of an ordinary postal packet which is not registered. That raises a serious matter for the public. To give a crude example, once one delivers a letter to a postmaster in any post office, he can tear the document into snippets and no matter what the value of that document is one has no right of redress. There are more serious implications than that. Suppose that a man, having got employment, writes a letter accepting that employment, and the letter miscarries and does not arrive. It may well be that great damage is suffered by that man. There again, he has absolutely no right of redress. Hon. Members who are lawyers know the cases that there are about the dates of posting in instances of acceptance of an offer. The letter may never arrive, and the other party, not knowing that the offer has been accepted, may take steps which 1700 ultimately exclude the first acceptor from having the advantage of that fact. The position is exactly the same when an offer has been made and an attempt is then made to withdraw it, if the letter which is sent, which, had it arrived, would have been effective in bringing about a withdrawal, does not reach its destination because of the negligence of some officer in the post office in dealing with the letters. There is no right of redress in that case. I am sure that the Attorney-General would not close his mind completely on any matter, and in spite of what he has said on this subject I would ask him to think again about this kind of responsibility on the part of the Post Office.
I cannot see the logic of differentiating that case from that of a registered postal packet. The Attorney-General asked "How are we to know? We cannot say what the contents of the letter are if it is not registered. There may be all sorts of assertions about its contents or value which may not be true." In what respect is the truth different in the case of a registered packet? The only difference is that it is registered, and one gets a receipt for it; but no one looks inside the registered packet, no one can say what is in it, and, therefore, there can be no difference, so far as evidence is concerned, between the case of the registered packet and that of the unregistered one. Again, in the case of telegrams, I cannot see why they ought not to be included in the category of the responsibilities of the Crown.
It is perfectly clear now that contracts are in the Bill, and that there is a complete right in the subject to sue the Crown in contract just as in tort. It has been claimed for the present position that the subject was not prejudiced in that the Attorney-General invariably granted his fiat. It has also been claimed that it had the salutary effect that the Attorney-General did not grant his fiat in a completely vexatious case. It has not been mentioned, but the profound objection to that proceeding was that the very person who might be a party to the litigation was given the right to say whether the litigation should be instituted or not. That must be a blot upon any legal system when one of the parties—it is not a question of being judge and jury—is given the power of saying whether an action should proceed or not. That is 1701 a blemish upon our legal system, which is admired all over the world in other respects—a blot of which I am pleased to see the last.
I wish to refer to the Armed Forces, to which allusion was also made by the two previous speakers. In this matter I find myself in great difficulty. I cannot myself, prima facie, see why a soldier ought not to have a right of action against a superior officer if that officer is negligent and injury to the soldier occurs. I say that subject to this qualification. I can see, of course, that if an officer is carrying out his commands—there may be some manoeuvres or practices, and that officer is directing them—and if in carrying out his orders in a proper way some misfortune overtakes a soldier, sailor or airman, that is one case. But, as the Bill stands now, as long as both parties are on duty, whatever an officer may do, whatever the degree of his negligence may be and however unfortunate an injury results to the soldier or Serviceman, he has no claim whatsoever. I do not think that that is the sort of situation that the public would want to continue. I think that, although the learned Attorney-General again expressed a certain mental closure on the matter, he ought to re-open his mind to this particular aspect of the position and consider whether it cannot be met in some way.
I see the difficulties, the restrictions and the necessary reservations that have to be made, but I think the scope of the provisions at present in the Bill must be widened. It is essential, in order to do the public justice to which the right hon. and learned Gentleman has subscribed this morning, in obtaining equality before the law against the Crown, and I think that, in order to make that good, he must, with all respect, look at this particular case again. For instance, if a pilot in an aeroplane is guilty of some carelessness—not associated with his duties on manoeuvres or with the orders given to him, no matter how ridiculous those orders may be—but by sheer negligence and carelessness on his part, lands one or more of a crew into serious injury, I really cannot see, and I have heard no cogent argument on the point, why a Serviceman in those circumstances ought not to be able to make a claim.
Those are some of the criticisms that one makes of an otherwise very good Bill 1702 indeed, and one hopes that, in Committee, some consideration will be given to these matters. I would like to say that I am pleased to see that county courts are included and that action can be taken there, but I would ask the Attorney-General, if I am right in my reading of the Bill, why it should enact that one cannot go to the assizes? So far as I understand the present provisions, an action must be brought at the Royal Courts of Justice, and only in the case where the Attorney-General's assent is received can it be taken to the assizes. If I am right about that, I think that is something that ought to be taken into account. Further, I cannot see why pending proceedings ought to be excluded from the Act, unless, the Attorney-General says that arbitration has already been instituted and, therefore, it would not be advisable to proceed.
I must apologise for taking so long, but I would like to add my congratulations to the Lord Chancellor for having introduced the Bill in another place, and to say that I am sure we all welcome this redress, which has been long overdue, and which vindicates British justice.
§ 12.45 p.m.
§ Mr. Basil Nield (City of Chester)
I think the House would wish me to say that we all hope that the various points not reached by the hon. and learned Member for Gloucester (Mr. Turner-Samuels), will be given consideration during the Committee stage. The hon. and learned Member has welcomed this Measure, and so do I, and I think it will be generally accepted by all hon. Members. The principal reason for its general acceptance seems to me to be that it does, in the main, widen and enlarge the rights of the subject. It has for a long time been a defect in our legal system that a man who is injured by the wrongdoing of a servant of the Crown has no remedy against the Crown, unless he proceeds by the lengthy, cumbersome and expensive method of Petition of Right. The inequity of this situation has been largely recognised by the fact that Government Departments have stood behind their servants when they have been sued. For example, when a person has been run down by a Post Office van driver negligently, the Post Office has indemnified the driver against damages awarded to the injured person. That was, however, a 1703 matter of grace. When this Bill becomes an Act it will be a matter of obligation.
I want now to raise this special point for the consideration of the Attorney-General. The right hon. and learned Gentleman mentioned it briefly in his speech. It seems to me that this Bill provides an opportunity for getting rid of a doctrine which is well-known to lawyers and generally condemned by them—the doctrine of common employment. It is germane to this discussion, because, of course, the State will, when the Government's schemes of nationalisation come into effect, probably be the largest employer in the country. As lawyers well know, common employment comes about in this way. If a man is injured by the act of another, and that other is in the same employment and engaged in similar work, he cannot recover damages against the employer—the reason being that he undertakes the risk of his employment when he accepts his contract of service. That is a doctrine which has, over and over again, been regarded as inequitable. Indeed, if I may quote from a speech in another place, of Lord Atkin, a well-known authority on the subject:At the present time, this doctrine is looked at askance by judges and text book writers. There are none to praise and few to love. However, it is too well established to be overthrown by judicial decision.The courts cannot overthrow this doctrine but this House can and here an opportunity to do so presents itself. It has a special importance in the light of the vast number of people who will be employed in common employment, in the sense of being employed by the State, and, when one considers that, in due time, almost every road haulage vehicle will be owned by the State, it may well be that the doctrine of common employment will have a much wider application.
§ The Attorney-General
I am sure that the hon. and learned Gentleman appreciates that this Bill will not affect road haulage in any way.
§ The Attorney-General
As I understand it, the intention of the Bill which is at present under consideration in another place, is not that road haulage vehicles should be owned by the State.
§ The Attorney-General
I quite agree with the hon. and learned Gentleman that that will be so. Whether the State will be the largest employer of labour is doubtful. Road haulage does not arise here, although I agree with the hon. and learned Gentleman that cases of that kind are examples of the reason why the doctrine of common employment should be reconsidered, not in relation to the State and the Crown alone, but in relation to all employers.
§ Mr. Nield
I am extremely obliged to the right hon. and learned Gentleman for his intervention, with which I entirely agree. To my mind the doctrine of common employment is equally wrong, whoever the employer may be.
Finally, I want to say a word about the scope of this Measure. It seems to me that, as at present drafted, the scope of this Measure is confined to actions in the High Court and in the county court. I think it is now clear that it is not intended to omit from the provisions of this Measure other courts of record up and down the country. In fact, it would be wrong so to do. I understand that there may be some Amendment in that regard. I thought, perhaps, I might be allowed very shortly to say something about some of those courts of which the Attorney-General, my right hon. and learned Friend the Member for the West Derby Division of Liverpool (Sir D. Maxwell Fyfe) and I have special knowledge, and, indeed, the hon. and learned Member for Crewe (Mr. Scholefield Allen) and the hon. Member for Nelson and Colne (Mr. S. Silverman).
It is right to bear in mind the jurisdiction of these other courts, and the useful part they play. It is important that the same rules as to suing the Crown shall obtain in those courts. I am not certain whether the Chancery Palatine 1705 Court of the Duchy of Lancaster would be covered under this Bill. When one recalls that for generations there has been a court for the tenants and residents in the Duchy, a court which has a jurisdiction equal to the High Court, then it is quite clear that this Measure should apply there. Another court with which one is familiar is the Salford Court of Record, again within the Duchy of Lancaster. I would inform the House that that court goes back many centuries, and has a jurisdiction which is territorial, and limited in amount. But it is interesting to note that, according to the last published figures, some 12,000 writs went through its registry. It is plain, I suggest, that this Measure should operate in regard to that court.
The right hon. and learned Gentleman has referred to the Liverpool Court of Passage, where some of us learned our advocacy under the presidency of that very great judge Sir Francis Kyffin Taylor whose judgments have over and over again been respected in the Court of Appeal and the House of Lords. That court was established under a charter of Henry III, and has, during all this length of time, served justice in that part of the country. Some people have asked how its name came about. I do not think that is really known, except that it has always been thought that it may have related particularly to its Admiralty jurisdiction and to the passage of ships through the port of Liverpool. The last published figures show that 4,000 writs passed through its registry.
I think that the House will agree—and the Government have indicated that they are satisfied—that this Measure should be extended to such courts of record with civil jurisdiction. The right hon. and learned Attorney-General asked for suggestions, and one tries to help in these matters. I confess that I should like to see these other courts specifically referred to in the Bill, but if that is not an appropriate way of doing it, I would ask the right hon. and learned Gentleman to consider as a pattern, Clause 18 of the Hire Purchase Act of 1938, which, in effect, would mean that by Order in Council the provision of this Bill might be extended to these courts. From the attitude of the right hon. and learned Attorney-General, I am inclined to think that, possibly, that will be done.
1706 In the course of my observations I have attempted to show why we welcome this Measure, and to put forward two suggestions which I hope will be regarded as constructive, first, that there should be incorporated in this Bill a provision to do away with the doctrine of common employment, and, second, that these other courts of record should be included within the purview of the Bill. The principal reason for the Bill's acceptance is that it adds to the rights of the subject. The right hon. and learned Attorney-General has commended it to this House on those grounds. In my view, however, it is in this regard an exception to the melancholy procession of Measures which, under the present Administration so frequently tend, on the one hand, to invade the rights and liberties of the individual, and, on the other, to limit and curtail the control of Parliament.
§ 12.57 p.m.
§ Mr. Asterley Jones (Hitchin)
First, I should like to join with other hon. Members who have spoken in congratulating my right hon. and learned Friend the Attorney-General on this Bill. It marks a very great step forward in according to the subject the liberty which he should have. At the same time, I think there is a tendency in certain quarters to exaggerate the effect of this Bill. In the first place there is an idea abroad that the various Measures of nationalisation, which we are in the course of putting into effect, will make the employees of these new bodies civil servants. That is a widespread fallacy, and, of course, there is no truth in it. I have come across many lawyers who suppose that just because the coal mines have been nationalised, the miners have become civil servants, and that, therefore, some change in the law will take place as the result of this Bill vis-á-vis the mines.
I have also found an impression in certain circles that, from now on, all civil servants will be fair game if they carry out their duties in a negligent manner. For example, I have in my hand a letter which I received regarding an erroneous entry on a certificate issued by the Land Charges Registry. It is suggested by the writer of the letter that if the Crown Proceedings Bill becomes law, an action for negligence may lie against the Crown in cases of a similar nature. I must 1707 say that this letter came as a complete surprise to me. I do not think it can be seriously contended that if an official of the Land Charges Registry mismanaged the Register and gave rise to loss that he and the Crown would thereby be liable for action for negligence. I should also be very surprised if an official of the Ministry of National Insurance who negligently omitted to pay an old age pension thereby laid the Government open to action for damages. I do not regard the Bill as operating in that direction.
It seems most unlikely that a civil servant will be any more able to sue for his salary after this Bill is passed than he can now. Admittedly the case law on this subject seems a little doubtful at the present moment. There is a further category of public servants, who on the face of it will not be affected by the Bill. I refer to policemen. At present they are in a peculiar position in that they are not servants of the authorities who appoint them and pay them. We have been told that they exercise an independent statutory function. I do not imagine that the Bill will entitle a subject to sue the Crown in respect of the behaviour of a policeman. We shall still have various public officials carrying out functions, who will be liable to be sued only personally.
I should like to ask the Attorney-General to clear up one point in Clause 2 (5), with regard to proceedings against the Crown in respect of anything done or omitted to be done by the persons therein mentioned. It is a commonplace today that a servant of the Crown, strictly so called, is invested with certain duties of a judicial nature. It would be agreed that where he is carrying out those duties of a judicial nature he should not be subject to the orders of a superior officer. If he were so subject, his function would cease to be of a judicial nature. A servant of the Crown may thus inflict very serious harm upon a subject. For example, the Minister of Health may appoint an inspector to hold a local inquiry. If in the course of that inquiry and under cover of doing a certain thing, the inspector did another, he appears to be not liable as an official purporting to discharge functions of a judicial nature. There are one or two further points under Clause 25 (3), relating to an order for the payment of money for damages or otherwise 1708 by the Crown. How is the Order to be enforced? Is it possible to enforce an Order in such rare circumstances? Would there be any difficulty in doing it by an order of mandamus. Where a wrong is committed by a Crown servant against a subject and not against the Crown itself, would it be possible to obtain an order of mandamus?
Finally, I would like to refer to Clause 30. It will be observed that, subject to one exception the Public Authorities Protection Act will apply. For the last 50 years the functions of the State have been changing very considerably. The question now arises whether the one year limitation is relevant any more. The House will recollect that when we were passing the Coal Industry (Nationalisation) Bill a compromise was effected between the limitation in the case of a private person and a limitation for public authorities. The period was fixed at three years. I hope that even now, if it is not possible to amend the Public Authorities Protection Act, it will be possible to make an exception as in the case of the National Coal Board and similar bodies. I do not regard this as a matter of principle or as detracting in any way from the merits of this admirable Bill.
§ 1.9 p.m.
§ Mr. Bowen (Cardigan)
I wish to indicate very briefly that the members of the party to which I belong give their support to the Bill, and I would sincerely congratulate those who have been responsible for its introduction. We repeatedly urged during the war years that such a Measure as this should be introduced. The congratulations I offer are particularly deserved because of the expedition with which the Bill has been introduced. A decision in another place, no doubt helped to create that sense of urgency. In view of the account which has been given of the happenings between 1921 and 1927 in particular, those responsible for introducing the Bill deserve our wholehearted congratulations. I hope the same sense of urgency will be present in the minds of the Government when they come to topics which have already been touched upon, such as common employment and the application to the Crown and to public authorities of the Limitation Act. Indeed, I may add to that the implementation of many of the recommendations of the Rushcliffe Report.
1709 I think there is another matter on which those responsible for this Bill should be congratulated, and that is on the form of the Bill. I hope I shall be forgiven for expressing the view that it is a particularly well constructed and admirable Measure. As has been indicated today, there is wholehearted agreement, generally speaking, with the objects of this Bill. That is one thing. It is quite another to express in legal phraseology and statutory form the best way to achieve those objects. I do think that the draftsmen in this particular case have produced a Measure which is infinitely superior to the earlier one that came into existence. After all, it is not an easy task to strike a happy balance between the manifestation of the rights of the subject, on the one hand, and the preservation of the minimum protection necessary, by reason of their activities, for particular Government Departments, on the other, in particular, as indicated by Clauses 9 and 10, the Post Office and the Armed Forces.
I am not going to follow the hon. and learned Member for Gloucester (Mr. Turner-Samuels) into the realm of the mischievous propensities of postmasters, but I do think that under Clause 9 a very happy balance has been struck. I do not wish to go into details now, with regard to Clause 10, but I think that possibly on Committee stage something might be done to whittle down the absolute provision of that Clause. There might be some sort of compromise whereby the protection now given could be given in a much more qualified form. I do think that the learned Attorney-General tended to underestimate the embarrassment, and, indeed, in some cases, the hardships—certainly, the denial of ready justice—which has existed by reason of the present state of affairs, and I think that this Measure will create a much more satisfactory position in regard to much of the litigation which practitioners have to undertake today, particularly in view of the present trend of legislation.
There was one small point to which, while I am dealing with this matter, I should like to refer. I was a little unhappy as to the position of persons who would have employed the somewhat remarkable method of a "nominal defendant," before the decision in another place in the case of Adams and Naylor, and as to what provision 1710 has been made to protect their interests. I understand now that special provisions have been made whereby those persons will have justice rendered to them—despite the decision in Adams and Naylor—until the matter is put right by the provisions of this Bill.
Another matter on which I should like to comment is that of Clause 28. I do not wish to go into the details of that Clause: no doubt, we shall have an opportunity to do so on Committee stage. But I should like to say that I welcome wholeheartedly the attitude which the learned Attorney-General has expressed with regard to this Clause today. The responsibility for making the decisions under that Clause should be regarded as a particularly grave one. The learned Attorney-General talked of personal responsibility, and I respectfully agree with him that it should be a personal decision, after proper advice from the appropriate quarters, and should not be a hole-and-corner decision by some minor official. The Clause places the Crown in a privileged position, a position which cannot be justified unless the powers given in the Clause are exercised only with scrupulous care, and involve the personal responsibility of the Minister concerned. There is just one other observation I wish to make. When I was a student of constitutional law I was taught that the principle of "royal immunity" should always be coupled with that of "ministerial responsibility." All I hope is that now that the principle of "royal immunity" is to go, that will not be used as an argument for the establishment of "ministerial irresponsibility."
§ 1.17 p.m.
§ Mr. Gage (Belfast, South)
I am happy to be in the general fashion and contribute my meed of welcome to this Bill. I am glad to hear the learned Attorney-General say that the Bill is shortly to be applied to my own part of the country, Northern Ireland. I confess I rather regret the way in which it is tacked on by Order in Council. I should have thought a simpler way would have been to have made the Bill apply to Northern Ireland in the first place. There is nothing, so far as I can see, to prevent that from being done. But there may have been difficulties; I do not know; and it is a small matter. I should also like to congratulate the learned Attorney-General on the way in which he expounded this 1711 Bill to the House, and particularly for the able way in which he dealt with what I think he obviously regarded as some of the weaknesses in the Bill.
There are, so far as I can see, three weaknesses. They are firstly, with regard to telephonic communications, on which. I want to say a word in a moment; secondly, with regard to relationships in tort between members of the Armed Forces; and thirdly, with regard to discovery. With regard to the first point, that which is contained in Clause 9, where immunity is given to servants of the Crown for anything done or omitted to be done in relation to telephonic—a dreadful word, but has, I suppose, to be used—telephonic communication. This is a small point, but I should like to reinforce what my right hon. and learned Friend the Member for West Derby (Sir D. Maxwell Fyfe) said with regard to this. I should like some examination to be made to see whether this is not too widely drawn. I am not quite clear whether it would cover this sort of case: one is walking down the road, and a telegraph pole or a piece of telephone apparatus, which has to do with telephonic communication, having been negligently put up by a Post Office employee, falls on one. Would the Clause provide immunity to the Post Office employee? There would not be immunity for something done by another person who negligently erects something on the road. It is a small point. I am sure that that is not intended, but it seems a point worth mentioning so that it may be examined.
With regard to the matter of discovery. I must confess that my fears were not altogether allayed by the remarks of the Attorney-General. I have never agreed with the principle that a Minister should himself be the judge of whether a document should or should not be produced. In Clause 28 (2) it is provided:that the existence of a document will not be disclosed if, in the opinion of a Minister of the Crown, it would be injurious to the public interest to disclose the existence thereof.That seems to me to be going a little further, because now there will be no way in which a subject who may be suing can even know of the existence of a document which might be of the utmost relevance to his case.
1712 I feel that this is a matter which should be decided by the judges. I was not really impressed by the fact that the general trend of judicial opinion was that they themselves were inappropriate to decide this, because it is perfectly natural for judges to say: "This is an enormous responsibility. Why should it be pushed on to us? We have quite enough work to do as it is." I do not think judges are themselves the best people to decide whether they should undertake this duty or whether it should be undertaken by a Minister of the Crown. I do not for one moment say that a Minister of the Crown would not perform the duty conscientiously; I am sure he would. But I think it would make for far greater satisfaction to the public if it were undertaken by judges. I see no real difficulty in the matter, because in the list of documents the Crown could quite easily include a document for which privilege is claimed, specified only in that way, and the document might be sent under seal to the appropriate person, the judge or whoever it might be, so that he could decide the matter, and his eye would be the sole eye which would see the document. That seems to me to be of some importance.
Finally, I should like to refer to the important matter in Clause 10, where the rights of the subject are limited to a certain extent. I do not want to put it any higher than this: I think it is unfortunate, in a Bill which has as its object the extension—and indeed does extend—of the rights of the subject, that in one respect certain rights are taken away from the subject. I listened with great care to the illustrations which the learned Attorney-General gave, and I entirely agree that in the cases which he cited it would be quite proper that no cause of action should lie, as it were, by one soldier against another soldier when live ammunition was being used, and so on. But, as the learned Attorney-General said, there are very few such actions; they are very rarely taken; and I do not think legislation is necessary to take those rights away from the subject. I suppose that, in time of battle, a soldier who found that the lives of himself and his comrades were in danger through the negligence of his commanding officer could, in theory, bring a personal action against that commanding officer if he was wounded in 1713 consequence. Of course, that right has never been exercised, and is never likely to be.
But there is a class of case which will, I think, be affected by this. I can best illustrate my point by giving an example. Assume that the learned Attorney-General and myself were invited by a mutual officer friend to tea in Chelsea Barracks; and assume that the officer was off duty and wearing civilian clothes. One can think of a number of situations which might arise when we got inside the barracks. Let me take the most fantastic of all. We will suppose that the orderly officer—no doubt a person of strong political views—took objection to the political views perhaps of the learned Attorney-General and of his friend the officer, who was accompanying him, and committed a monstrous and unprovoked assault on both of them, on military premises Now, the learned Attorney-General would have his remedy, but his friend, the officer, though not on duty, being on military premises would not, as I understand it—unless, as the learned Attorney-General may say, he is covered by the proviso.
If that case is covered by the proviso, I do not think the next case I shall cite is covered by the proviso. We will say that that orderly officer was wearing a sword, in the normal course of duty, and owing to his negligent munipulation of the sword the learned Attorney-General and his friend, the officer, stumbled over it and seriously injured themselves. The learned Attorney-General would have a right of action for negligence, but his friend the officer would not. Let us take a less fantastic example. Suppose when the learned Attorney-General was leaving, and was passing across the barrack square with his friend, a Bren-gun carrier, driven recklessly by a wealthy officer, knocked them both down and seriously injured them. Now, that Bren-gun carrier was being driven on military premises, and there again the learned Attorney-General would have his cause of action but his friend the officer would not. Suppose a soldier was walking through the barracks, coming back from an evening out, and he met an officer driving a car on duty, and the officer knocked him down. That soldier, as I see it, would, under this Bill, have no right of action against the officer, though he has one now. It might be very important to that soldier, because if the 1714 officer had been driving his own car and had injured him he might have recovered a substantial sum.
I hope I am not wearying the House with these examples, but they keep occurring to me. Suppose an officer was posted from, say, York to Salisbury, and was travelling from one place to the other in his car and, quite properly, passed through London, and as he was going through London he met a soldier on a bicycle who was engaged in delivering a message from, say, the War Office to the Air Ministry, and suppose the officer knocked that soldier over and seriously injured him. As the law now stands that soldier would have a right of action against the officer, and might recover a substantial sum. But under this Clause, if it is made law, the soldier would lose that right.
Those seem to me to be serious matters, and I think further consideration should be given to this aspect. Clause 10 is a very far-reaching one. I think that the illustrations given by the learned Attorney-General present only one side of the picture, when he mentioned the types of cases which might happen on, say, manoeuvres or in battle. Nobody wants to render an officer liable in those sorts of cases. But in these other types of cases—which I am sure are at least as frequent—I do not think the law should be altered. I hope I have not sounded too carping or niggling about this, simply because I have spent the time allotted to me by referring to some of the weaknesses of the Bill. In general, the Bill is an admirable one and should be welcomed by every hon. Mem-Member of this House. It is one, as we have all said, which has been eagerly awaited, and I am sure every hon. Member is now glad that it comes here for its Second Reading.
§ 1.29 p.m.
§ Mr. Janner (Leicester, West)
I wish to point out one or two matters, in accordance with the suggestion of the learned Attorney-General, which may possibly help at a later stage, and which will, I think, help towards making what is already a very excellent Bill almost as perfect as it can be. I should like to say that there is not the slightest doubt but that this Measure is very long overdue. In my opinion, the average man in the street does not to this day realise that the provisions of the Bill are not, in fact, in existence already. I suggest that if 1715 any hon. Member went to a layman in the street and told him that, in the event of an injury being sustained by him in consequence of the action of a servant of the Crown, he would not be in a position to take any proceedings, that man would think the hon. Member was talking nonsense. It is only when a case arises, in which an individual is personally concerned, and he suddenly finds himself in a solicitor's office, or in some other place seeking advice, and is told that what he thought was bound to be the case was not, in fact, so, that he finds he really has no right of action.
Take, for example, the position with regard to contract. If a man feels that he is entitled to damages, or to some other remedy in respect of a contract, and he has never come across this question—most people have not—he is told that he has to obtain a Petition of Right, that it will take a long time, and cost a lot of money and that it is a matter of courtesy on the part of the Attorney-General whether he gets it. He naturally becomes confused. This is a Bill which seeks to put into action what reasonable persons, with the exception of those who had come up against the difficulties, believe to be the situation, and which ought to be the situation. It is a charter to remove difficulties which ought not to exist, and give legal effect to that which has always been morally correct. I am sure that most lawyers who have been consulted in these matters have had considerable difficulty in trying to explain to clients concerned, that they are not entitled at the moment, to take action against the Crown in cases where they would be entitled to do so against individuals.
I welcome the provision which relates to these proceedings being taken in county courts. That is as suitable and expeditious a way of dealing with matters between the Crown and individuals as it is of dealing with differences which arise between individuals themselves. I am also glad that the provision with regard to the Crown's position in relation to imprisonment for debt is being considerably modified. What was for a considerable time the right of the individual, that he should not be thrown into prison because he owed money in relation to private matters, will now extend in most cases where the Government and the Administration are concerned.
1716 I feel that Clause 9 of the Bill is not of sufficient scope, particularly with regard to actions for damages suffered in consequence of something going wrong with the postal service in circumstances where, in normal matters, as between one private individual and another, and one private company and another, an action for damages would have resulted. The Clause says that in case of the loss of a registered packet a person shall be entitled to a sum which shall not exceed the market value of the packet in question. I appreciate that in many cases people send money in registered packets and that they know what the market value of that money is, but that does not go far enough. Sometimes documents are sent by registered post. There is an intrinsic value as well as other values which may be assessed by way of damages. The Attorney-General ought also to reconsider the question of damages which arise in respect of packets which are not registered, and to do something about the other services. The point has just been made about injuries which may be sustained owing to negligence on the part of those dealing with telephonic communications. My right hon. and learned Friend should consider a larger measure of protection for the public in relation to the postal services.
When we come to the question of discovery, those who are accustomed to dealing with cases can only come to the conclusion that the limitation of discovery is a very serious step to take. All of us appreciate that there are certain circumstances in which there cannot be discovery of confidential documents. But to leave that matter entirely to a Minister is, I say, with the greatest respect for their ability and integrity, not entirely satisfactory. I suggest that a judge might be called in to give a decision if there were a dispute as to what documents should be produced. I do not mean the judge who is in the action, because I realise that he ought not to be the person to decide, ex parte as it were whether a certain document should or should not be produced. But surely we have sufficient confidence in our judges to allow the Minister to be assisted by a judge who is independent of the case, and who would have no political or other considerations which might even subconsciously prejudice his judgment.
On the Committee stage, I am sure that the Attorney-General will take into con- 1717 sideration the points which have been made today on the question of common employment. I know that this is a matter which as a whole has to be dealt with by another Bill, but I see no reason why the thin end of that wedge should not be driven in by this Bill. I know it is argued that this is a matter of principle, and ought to be dealt with in a Bill of a wider nature than this Bill. I do not hold that view. I think that a Bill of this nature offers an opportunity of breaking down what is a vicious and bad principle. The principle of common employment is regarded in the legal professions and by laymen as being quite out of the running with present ideas. Here is an opportunity, when the whole of the proceedings that may be taken against the Crown come under consideration, of starting the ball rolling—if I may mix my metaphors—and I would urge on my right hon. Friend the importance of this, if he can see his way to introduce it here. All he would have to do afterwards would be to introduce a small Measure saying that the provisions contained in this Bill, when it becomes an Act, shall apply in general. I think that the man in the street, when he realises what is the position, will say that this Government, in accordance with the policy which they have adopted all along, have seen to it that these matters of importance to the common man are being attended to and will result in an Act being put on the statute book which will not only enable justice to be done but will make it clear that justice is being done.
§ 1.41 p.m.
§ Mr. Joynson-Hicks (Chichester)
I am glad to take part in this Debate, because the subject of it must be a matter which is most gratifying to Mr. Speaker. Anything gratifying to Mr. Speaker is naturally satisfactory to all Members of this House. Hon. Members will recall, particularly those present in the House today who are mostly involved in one direction or another in the legal profession, that one of the leading cases which this Bill is putting right involved a claim by one of Mr. Speaker's predecessors. The House will recall the action after 1834 when Mr. Speaker resided in a part of the building now occupied by another place when, owing to the alleged negligence of some of the servants of the 1718 Crown in overstoking the heating furnaces under the Palace of Westminster, through the burning of the tallies, Mr. Speaker's residence was destroyed. He lost his furniture, and in subsequent proceedings in which he sought to claim damages against the Crown for loss of the furniture he was thwarted by the principle which this Bill is seeking to amend. I feel, therefore, that we are on safe ground with the Chair on this occasion.
I would like to say something with regard to the Bill in particular and the opening speech of the Attorney-General, whose modesty on this occasion we welcome. I think the only congratulatory moment he allowed himself was when he patted himself on the back, if I may quote his own expression, upon the occasion when Lord Haldane narrowed the terms of reference of the Crown Proceedings Committee set up by Lord Birkenhead. I am at a loss to understand the cause for congratulation, because I fail to see that the action on Lord Haldane's part resulted either in greater expedition on the part of the committee or in greater security of position on the part of the public.
§ The Attorney-General
If what was at that time a matter of considerable controversy whether the law should be altered at all had not been resolved by a directive of Lord Haldane, the committee might have been sitting still.
§ Mr. Joynson-Hicks
Subsequent history shows that there would have been little difference if that was so. I think that the speeches that have subsequently been made indicate that there is, in details if not in principle, a considerable degree of criticism on points on which the Bill might yet be substantially improved. I would like to refer to two omissions from the Bill to which I hope the right hon. and learned Gentleman will give attention. Hon. Members on both sides have referred to others. I am in sympathy with all of these. The one to which I particularly want to refer is the omission to deal with the liability for nonfeasance in a case in which the Crown would otherwise be liable for nonfeasance. I do not think it necessary to go into a long explanation, but I will briefly give an illustration to explain the point which I have in mind.
Suppose that the Crown, which we now must realise is the Statutory authority for 1719 some 8,000 miles of trunk roads, is engaged in the repairing of those roads. The normal way in which a road is repaired is for it to be divided and for each half to be done at a time in sections. Very often there is a section in which the left-hand side of the road is, perhaps, four inches higher than the other side because of a fresh layer of concrete upon it. Suppose that, owing to the failure of someone to protect that four-inch cliff between one half and the other half of the road, an accident occurs. What is the position? That is definitely a case of misfeasance, and because it is misfeasance, and because an accident results from something having been done which ought not to have been done, there is a right of recovery on the part of any person injured as a result of that particular accident. That is as the law stands at the moment, and, so far as I can interpret this Bill, it will continue to be the law in the future. A member of the public injured in that way would have a right of recovery against the Crown.
Suppose we take the other case in which a road is not being repaired—some section of this 8,000 miles of trunk roads for which the Government will in future be directly responsible has not been repaired. It may be a section of road, such as the Great North Road, which carries a terrific quantity and weight of traffic, and which becomes worn out very rapidly. In these days of shortage of labour and materials the Government may under pressure have utilised the available resources in building an aerodrome, or something of that kind, and they say, "This road will have to stand a bit longer because we cannot spare the men or materials to allow the work to be done." As a result, the road gets into a very bad condition. Some night when the traffic from London to Edinburgh, or wherever it may be, is utilising that road, a night service coach, perhaps with 20 people in it, comes down the road in the dark, crashes into a pothole, slews across the road and involves other vehicles in an accident, causing serious casualties to many people. This is a case of nonfeasance and under the law as it is at present there would be no right of recovery unless in regard to the individual driver there was an allegation of negligence. There would be no recovery because of the state of the road. The point 1720 I wish to impress upon the right hon. and learned Gentleman is that, where we are granted a right of recovery against the Crown, we should also be granted a right of recovery in respect of nonfeasance as well as misfeasance.
§ Mr. Joynson-Hicks
Before leaving that point I should like to quote one precedent which I think will certainly appeal to my right hon. and learned Friend the Member for Hillhead (Mr. J. S. C. Reid), the precedent of the Allness Report, because in that Report it is stated that this particular hiatus in British law should be met. It is already the case in Scotland that nonfeasance is actionable in the same manner as misfeasance and under Scottish law the matter is, therefore, much more logical. The Allness Committee recommended that the law here should be brought into line with that in Scotland in that respect, and I hope sincerely it may be possible to do so.
There is one question I should like to ask the right hon. and learned Gentleman in regard to this question of discovery. As a practising solicitor I am very glad indeed to sec the amendments of the law proposed in the Bill, but there is one question of principle about which I should like to ask a question. On it my mind is not made up and it may well be that the question is a very simple one to answer. Will establishing this right of discovery not involve the abolition of or an infringement upon the principle of anonymity by civil servants? Hitherto it has always been recognised in this country that the civil servant and his work, were to remain anonymous. They cannot be attacked and any question of responsibility for that work must be answered by the Minister of the Crown who is responsible for them. I am wondering whether the reports being available on discovery may not be the means of forcing civil servants to go into the witness box and to be cross-examined. Would not the whole basis of Ministerial responsibility be undermined by this comparatively minor extension of what I think is the existing state of affairs?
Finally, there is one further question I should like to ask and that is whether it 1721 is not possible for the Bill to include an extension of the private individual's right to protection against the Crown in regard to the rights of the Crown to recover. I am very glad indeed to know that most of the prerogatives for execution are being eliminated, but at present the private individual's right to recover against another individual is subject to the Statute of Limitations. The right of the Crown is not so limited and we know that the Crown can go back for any period it likes for Income Tax claims and Income Tax recovery. It seems that that is unfair to the citizen and an improper principle of law. I hope the right hon. and learned Gentleman will be able to consider whether it is not practicable as well as proper for the Crown to have some limitation on its rights of recovery against an individual just as an individual is bound by the Statute of Limitations against another person.
That is all I wish to say upon the Bill. I feel that the rather eulogistic comments which have been made upon it may be tempered by the time we come to the Third Reading, unless the Bill is substantially improved and numerous omissions from it are included. Unless the general tendency of the Bill to whittle down the rights of private individuals as against the Crown—for that is what it means in many cases—are substantially varied, I myself feel that we may be very much more critical of the Bill when it comes to its Third Reading than we are at this stage when it is about to receive its Second Reading.
§ 1.55 p.m.
§ Mr. Sydney Silverman (Nelson and Colne)
It is inevitable, I suppose, that a Debate on a Bill of this kind should resolve itself into what is a lawyers' holiday, but whether it is inevitable or not, I suggest it is rather a pity because in its small way this Bill is a very important matter. We are at last establishing that the Crown shall be subject to the law, and that has always been an important principle to get embodied in our legislation. I agree with those who have said that it is even more important to get it embodied in our legislation by a Government which believes in widening the responsibility of State action so that it covers a much greater field than it did before.
1722 If I may, I would disagree with the last speaker in what he said about Lord Haldane's message to the Committee of 1921. I think it was of the greatest importance to take the question of principle out of the atmosphere of controversy and to direct the committee to consider how effect could be given to the principle by legislation. The principle in the public mind, at any rate, seems plain commonsense, although lawyers in 1921 and subsequently have not always thought so. I should like to join in the congratulations which have been offered. I see my right hon. and learned Friend who moved the Second Reading was inclined to congratulate this Government on having done it, and I think he was right. However, I have one uneasy thought at the back of my mind that we might have to share that credit with another place, but the share of the credit which belongs to another place would to my mind be rather negative. They discovered after a quarter of a century that we had found a method of easing the injustice of not having a Bill of this kind, and they seemed to have come to the conclusion, for reasons which satisfied them but remained singularly unconvincing to a great many other people, that there was something wrong in doing justice except by an Act of Parliament.
§ Mr. Silverman
I am sure it was, and I am giving them their due meed of credit for that, but I happen to be the unfortunate solicitor in the case of Adams v. Naylor. The fact that they denied their case in order to compel the Government to act in other cases was no comfort to my clients at all. One does not expect the Law Lords to act on the rather Communistic principle of spreading misery as wide as possibly in order to persuade Governments to do something about it. Anyhow, the Government have been induced to do something about it and I congratulate them on having done so.
I want to confine my observations to three points, one of which concerns Clause 10, one Clause 12 and the other Clause 28. I cannot help regretting that at a moment when we are doing so much to extend the right of the private individual against the Crown and to limit and remove outworn privileges, we have thought it necessary to introduce a Clause into the 1723 Bill to take away rights which people already have. That is what Clause 10 does, and I can see no reason in the world for it. In moving the Second Reading today the Attorney-General said. "We are not going to regard this Bill as a means of levelling up the law but only of putting the Crown in law in the same position as a private citizen would have been in a like case." Clause 10 is an exception to that very admirable principle.
One hon. Member opposite was at great pains to give us some imaginary instances, and they were very good instances, but there was no need to give imaginary ones. Those of us who practise professionally could give dozens of actual examples in our experience. Let me give two in my own experience. A soldier attends his medical officer because he has a pain in his ear. The medical officer decides that the proper thing to do is to pour oil down his ear, but, unfortunately, instead of oil he pours acid down the man's ear and all over his face, with the result that the unfortunate soldier is discharged with a permanent disability and an ugly scar. That, of course, was an act of plain negligence, and an action was brought and damages were recovered. That was under the law as it was without this Bill, but under this Bill the soldier would have no remedy whatsoever.
§ Mr. Silverman
And, as I was going to say, he would not be pensionable. It may be that that part of the injury which interfered with his earning capacity might bring him a pension if he went before a sympathetic pensions tribunal, but on the other hand it might not. The really ugly, humiliating and embarrassing personal disfigurement would bring him no pension, and under this Bill he would have no remedy of any kind. Why in the world, when we are seeking to do something good, should we discount it or limit it in that way? That was a case in which I was professionally engaged. There was another where a soldier suffering from V.D. should have been given one kind of tablet but was given another. The result was that he died. His widow brought an action and damages were recovered, but under Clause 10 of this Bill, that right of action is taken away completely and nothing substituted for it. I do not know 1724 what is the justification for that, and I hope that between now and the Committee stage the Government may at any rate reconsider Clause 10.
I will now pass at once to the transitional provisions in Clause 12 and the point which I wish to raise in that connection is that to my mind it is not very clear. I am not sure what it means. Subsection (1) of Clause 12 says:When this Act comes into operation, the preceding provisions of this Part of this Act (except Subsections (3) and (4) of Section five thereof and any provision which is expressly related to the commencement of this Act) shall be deemed to have had effect as from the beginning of the thirteenth day of February, nineteen hundred and forty-seven.Does that mean that actions which were started after that date and which might have been defeated because they were in fact actions against the Crown will not now be so defeated? Or does it mean that it is only in the case of causes of action arising after 13th February, 1947, that the Act provides a right of action? I think that Subsection (1) is capable of both interpretations, and I do not know which is intended. I feel sure that there ought to be no limitations placed by this Bill upon the right to bring actions against the Crown except those which arise out of the ordinary limitation Acts. Then, if we look at the proviso, we find that it reads:Provided that where by virtue of this Subsection proceedings are brought against the Crown in respect of a tort alleged to have been committed on or after the said thirteenth day of February and before the commencement of this Act, the Crown may rely upon the appropriate provisions of the law relating to the limitation of time for bringing proceedings as if this Act had at all material times been in force.I confess that I do not know what that means. I do not see how the law relating to the limitation of time can possibly arise in a case where the cause of action arose between 13th February this year and the date on which the Act comes into operation, unless it is anticipated that the Act will not come into force for more than six years. Subsection (2) seems to be in conflict with Subsection (1) because it apparently provides that actions which were wrongly started before 13th February may now be put right by joining the Crown in at this stage. I think that all that ought to be cleared up and that the principle should be quite clear that where actions wherever started had not been disposed of, they ought not, after the 1725 passing of this Act, to be defeated by any plea that they are actions against the Crown. No limitation ought to apply except the limitations already statutory in other cases of tort.
I want now to say a word or two about Clause 28 and this vexed question of discovery. It has to be remembered that what we are considering here is litigation—a contest between two sides on a disputed issue. The rule is that if you wish to rely on any document as evidence in litigation of that kind you ought to be under a duty to disclose it. That is obviously a wise and fair rule, but there are exceptions and limitations under the existing law. Privilege in discovery is not limited to the Crown and other people may enjoy it. It is open to any party in a case to say of a particular document, "I will not show that to the other side." He is entitled to advance that claim. What happens if he does so? The document is shown to a master, judge or registrar who looks at it and says, "Yes, I think this is something which you are entitled not to show to the other side," or he says, "No, I have looked at this document and have considered what you have said, but I can see nothing which would entitle you to 'keep it dark'."
That system works quite fairly. Why should it not apply to this similar privilege claimed by the Crown? It used to be argued, "We cannot trust these dread secrets to anybody. We must decide ourselves. No one else must even see the document; no one must know that it exists." But in such a case a great many people know that it exists. The Treasury Solicitor knows that it exists. So does his typist who copies it, his office boy who takes it to counsel, and counsel who is briefed by the Treasury solicitor. He knows what is in it; otherwise, how can the privilege be claimed? Is it suggested that a judge of the high court is less to be trusted with the knowledge of this secret than all those people?
I noticed that the Attorney-General did not rely on that argument. He said that it is not a question of whether judges of the High Court can be trusted with secrets of State, but that it is a question of whether judges are qualified to decide whether or not the privilege is rightly claimed. He did not give any reason why they should not be qualified, except that they were so modest as to have said 1726 so themselves. I agree with the hon. Member for Chichester (Mr. Joynson-Hicks) that that is not a conclusive argument. I can see no reason why a judge of the High Court is not perfectly qualified to say with regard to a particular document, "Obviously, questions of public interest arise here, and I shall not order it to be produced." The right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) said, "That is very true, but the document might be quite innocent in itself, and yet belong to a class of documents which ought not to be disclosed." I see his point. One might say, "Here is a document which is quite innocuous. We would have no objection to producing it. We do not claim that there is anything in that document which, in the public interest, entitles us to keep it from the other side. But if we disclose it in this instance, we may open the door to disclosing a whole class of similar documents to which the same consideration would not apply."
That is an easy argument to understand, but I suggest it is not very convincing. In a particular case, all that matters is the particular document. It is going very far indeed to say that a document should not be shown to the other side because, although it is quite innocuous in itself, and raises no question of prejudice to the public safety or the public interest, if it were shown, people involved in other cases might ask for the production of other documents. I thought the answer of the right hon. and learned Member for West Derby to my hon. and learned Friend the Member for Northampton (Mr. Paget) was unconvincing. He said that people who make reports will not make them honestly if those reports are shown to anybody except their immediate employers. I do not agree. I do not believe that is true. If it were true, it would apply not only to the State but, as my hon. and learned Friend said, to the London County Council, a good many public authorities all over the country, and, indeed, insurance companies and many other bodies which send out officers to make investigations. These people are not entitled to claim this privilege on the ground that they would get less honest reports. Why should the State do so? I do not think that argument is as convincing or persuasive as some people try to make out.
1727 Surely, the provision is too widely drawn in any case? Clause 28 says:… if, in the opinion of a Minister of the Crown, it would be injurious to the public interest to disclose the existence thereof."The public interest" is a very wide phrase.
§ Mr. Silverman
I was about to say so. My hon. and learned Friend always anticipates me because he thinks so much quicker. That is a point I was going to make. It may be that a Minister of the Crown, doing his duty to his department and to the nation, might say, "If we lose this case it will involve the Chancellor of the Exchequer increasing the Income Tax by 2S. 6d. in the £ next year. There are a great many people involved. It is in the public interest that they should not have to pay."
§ The Attorney-General
If I may interrupt my hon. Friend, I wish to say immediately that it can never be in the public interest, in such circumstances, to defeat the cause of justice.
§ Mr. Silverman
I am quite sure that my right hon. and learned Friend would think so, and I am grateful to him for having said so, but he is not the only Minister of the Crown, nor will he always be in his present office. There will be other Governments. If we use so wide a term as "in the public interest," a Minister, acting conscientiously, might say, "My duty, first and foremost, is to the public interest. I think it is better in the public interest that we should win, and, therefore, I shall not disclose documents which might cause us to lose the case. I would not be doing my duty if I did so." If a Minister happened to think so, however inadvisedly and mistakenly, nobody would see the document and nobody would know that it existed, because it is he himself who decides. Nobody would hear of the document at all. How can that be right?
I should have thought that the phrase "in the public interest" is altogether too wide. Let us say, "the public security," or "the public safety" or "the defence of the realm," although even then I would have considerable doubts whether the Minister should be the judge in his own 1728 case. But, at any rate, it would be a little better than leaving it so wide as "the public interest," completely undefined and unlimited. There may be questions of foreign relations or secrets of the Services involved. Everyone would concede the right of absolute secrecy in cases of that kind, but the phrase "the public interest," although it covers cases of that kind, also covers cases of a far different kind.
Let me refer to a case from my own experience. A young woman was employed in an explosive factory. Her husband was in the Army. He was a prisoner of war in Italy, so never at any stage in the case could there be any reference to him. In the early hours of one morning she was sent with a box of explosive powder—defective powder, as was admitted—under her arm to a storehouse in the dark. There was no light in the storehouse, and, with the box of explosive under her arm, she had to find the key, insert it in a lock in the dark, open the door in the dark, enter the magazine in the dark, and deposit her box of explosive powder, alone, in the dark. What happened nobody will ever know. There was an explosion and she disappeared. There was an inquest, but before that there was an inquiry by the Minister of Supply. He sent down an inspector. The inspector save a lot of witnesses, took statements and made a report. Would the Minister ever produce the report? No. We have never seen it to this day. Would he produce it at the inquest for the coroner? No. Would he put his inspector in the box so that we could ask him questions about it? No. Would he at least tell us the names of the witnesses from whom he took statements? He would not. He has never done so to this day. The action which was brought was abortive because it would have been defended in any case by the principle of Adams and Naylor.
Such things have been happening all over the country throughout the war. It is idle to say that documents have never been withheld except on the personal investigation and conscientious judgment of the Minister himself. I do not believe it. I do not believe that the Minister of Supply ever heard of the case or was ever asked. All that happened was that the Treasury Solicitor who had the con- 1729 duct of the case decided in his wisdom that the public interest was involved. Perhaps it was. It might be that there was something in the composition of the explosive or the organisation of the factory that it was not desired to divulge, but I am complaining that he was the judge in his own case and no one could say whether the public interest or the defence of the realm was in any way involved.
§ Mr. Silverman
It may very well be that is the question to which the right hon. and learned Member for West Derby was referring, but all I am saying is that this unfortunate husband, who was a prisoner of war and was unable to do anything about it, is debarred for ever from knowing what happened to his wife and whether there is any evidence to support his claim. A privilege as absolute as that and depending as absolutely as that on the personal decision of a particular litigant who happens to be on the other side of the case is wholly wrong and ought to be reviewed. I confess at once that all these matters are capable of amendment in Committee and do not go to the root of the Measure. The Measure is one of very great value and we all welcome it and congratulate the Government on having introduced it, but having done that, let use not be petty and niggardly about it but do it in such a way as will make it unnecessary ever to do it again.
§ 2.24 p.m
§ Mr. John Foster (Northwich)
In rising to make a few suggestions, I am following the suggestion of the Attorney-General himself. I will not join in the chorus of praise except to say that the Bill is long overdue. There are one or two points to which I would like to draw the Attorney-General's attention. First, I would like to support what was said by the hon. Member for Hitchin (Mr. Asterley Jones) with regard to the police. The object of making the superior responsible for the act of an inferior as applied to the Crown will not be achieved in the case of the police. The definition in Clause 2 (6) is roughly that a Crown 1730 servant, for the purposes of the Bill, is a person who is paid by the Crown. It was decided in the case of Fisher versus Oldham Corporation that a policeman is a servant of the Crown but he is not paid by the Crown. Therefore the object of the Bill fails as regards a very large section of officers of the Crown Although the policeman is a servant of the Crown, he is not paid by the Crown but paid by the watch committee, the joint standing committee, or a corporation, and therefore he will not come within the definition of an officer of the Crown.
§ The Attorney-General
The definition is that the officer shall be appointed and paid by the Crown. The policeman is not paid by the Crown. I do not know of any case where any difficulty has ever arisen with regard to this matter. It is the usual practice for the police authority to stand behind a police officer when sued.
§ Mr. Foster
I am grateful for the intervention but this Bill is passed to obviate the necessity of standing behind somebody. If this Bill is passed we shall not have the position that where a man is sued, his superior, who may be the corporation, has to stand behind him. I should have thought that the Attorney-General would have recognised that, the object of the Bill being to prevent that, it is not right to perpetuate it in the case of the police.
Clause 31 provides that this Bill shall not prejudice the right of the Crown to rely on statutes in its own favour. The Crown can say that it wants the benefit of a statute, but the Crown is not touched by statutes which do not mention it specifically. If the Attorney-General will look at Clause 2 (1) (c) he will see the class of cases in which action can be brought. He will see that the class of case which will be covered by this Bill and is subject to bringing action against the Crown, is:… in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property.That means that the Crown is not bound by statutes which impose a special responsibility, let us say, for the possession of property and which do not specifically mention the Crown. Let us take a concrete instance. The Housing Act, 1936, imposes on landlords the duty of seeing that houses are reasonably fit for human habitation—a very wise and salutary position It does not affect the Crown. Therefore, 1731 if the Crown is the landlord of some property and has broken this very salutary proposition by letting the house while it is not fit for human habitation and as a result the tenant is injured, it will be impossible under the Bill for the subject to bring an action against the Crown. I would like the Attorney-General to look at that point, and if I am right, I am sure he will admit that justice demands that the Crown should be affected by that.
Many hon. Members have mentioned common employment. One of the biggest limitations on the doctrine of common employment is contained in the Employers' Liability Act, 1880, but it does not affect the Crown. We get the position that where a subject is injured in circumstances which have enabled him to sue another subject and to rely on that Act, the Crown can say, "We are not bound by, and have no liability under that Act." As I understood from one intervention he made, the Attorney-General admitted that the theory of common employment should be looked into. It requires to be looked into all the more as regards the Crown, if I am right in saying that the Employers' Liability Act. 1880, does not bind the Crown. In any action by the subject against the Crown, the Crown can rely upon the common law rule of common employment completely unfettered by Statute, which was the subject of judicial animadversion in the 19th century, and for which reason the Act of 1880 was passed.
There is also the doctrine that the Crown can break its word and get away with it. That may be startling to many lawyers, but it is founded on the theory that the Crown cannot limit its future executive action by contract. Perhaps the most disgraceful case in which that was ever done was in the case of the "Amphitrite," when the British Legation in Stockholm gave an assurance to certain Swedish shipowners that if the "Amphitrite" came to England during the 1914–18 war she would be allowed to go back. When the cargo got here the British Government said "No," and withdrew the safe conduct. An action was brought but the Judge said "No. The Crown is not bound by its contractual promise," because the Crown cannot be bound to fetter its future executive action That is a very bad principle, and 1732 one which I had hoped that the framers of this Bill would have excluded.
This principle also lies at the bottom of the fact that a civil servant cannot sue in respect of his contract of service. It has been held that he can sue for arrears of pay, but if the Crown puts into a contract of service with that civil servant a particular clause, one finds that the Crown can then rely on this doctrine, and say, "This is fettering our future executive action," and can deny the right of the civil servant to sue in regard to the enforcement of his contract. In the courts, it has always seemed to me that the reasons given for that has been confused with the principle, which is correct, that as regards the Armed Services of the Crown it would be wrong for members of that Service to try to enforce their contracts. In the case of the ordinary civil servant there does not seem to be any reason in law, justice or propriety to prevent a civil servant who has an express contract with the State from being entitled to enforce that contract against the Crown. The Attorney-General should see whether it is possible to cure these defects, if it is accepted that they are defects.
There is one point in respect of which I am not sure how the Bill will work, and which I should like to leave in the mind of the Attorney-General. As I understand it, under the law, apart from this Bill, declaratory judgments are restricted, when asked for against the Crown, to matters which cannot be the subject of a Petition of Right. There has been a judgment to that effect. I do not think that this Bill alters that position Therefore, if, after the passing of this Bill, a subject were to ask for a declaratory judgment, he would still be met by the limitation that the judgment would have to apply to a subject which could not be the subject matter of a Petition of Right. It is a complicated point, and I leave that in the mind of the Attorney-General. I bow to his knowledge if he is able to answer it off-hand, but it is a matter which needs looking into, if I am right. On the question of the police, I beg him not to rely on the argument that he used in his intervention, namely, that of course the corporation stands by the police, and everything is all right. We have seen the effects of the Crown standing behind its servants, and that is the very reason for this Bill. 1733 While subscribing to the general principles of the Bill, I think that some of the matters which have been raised by other hon. Members, and those which I have ventured to raise, should be carefully looked into during the Committee stage.
§ 2.35 p.m.
§ Mr. Scholefield Allen (Crewe)
I welcome this Bill. For many years we on this side of the House have pressed for this reform. Great work has been done by the legal group on this side of the House and particularly by my hon. and learned Friend the Member for East Leicester (Mr. Donovan), to whom reference was made by the Attorney-General. In the great competition which takes place for legislation in this and the other place, we congratulate the Lord Chancellor on having found a place for this Measure, and for his persistence in getting someone from outside—not a Parliamentary draftsman—to draft this Bill for introduction into another place, from which it has been sent to us so that we can give it our blessing. We do give it our blessing. It is a reform which is long overdue. While we welcome it, we on these benches await with great eagerness many other reforms in the law. We have had reform in divorce procedure, we now want the reforms recommended in the Rushcliffe Report, and the procedural reforms, which are so necessary if our legal machinery is to work well. There will be no opposition to law reform from this side of the House. We want it as quickly as possible.
While we are doing this good work, let us not pass this Bill without seeing that it does all that it could do. I would like to support what has been said by my hon. Friend the Member for Hitchin (Mr. Asterley Jones) and the hon. Member for Northwich (Mr. J. Foster) with regard to actions against the police. It is time that we got rid of these semi-fictitious actions, of the fiction of suing the police constable, knowing full well that the body behind him will provide the damages. Let us sue his superiors, and let us have means in this Bill whereby a writ can be issued against his employers in the way which is open to the ordinary citizen to sue a wrongdoer's employer. It is time that in all actions we were able to adopt the same method, whether the defendant is the Crown, a municipal corporation or an ordinary member of the 1734 public. I welcome the abolition of many ancient writs which have had to be learnt off by heart by students for examination purposes, and which they never hear of again in the course of their legal life.
I would like to make a plea in respect of the period of limitation. My hon. Friend the Member for Hitchin asked that the period should be three years There are many of these actions which are defeated by the short period of 12 months. In respect of some affairs, 12 months is a long time, but not when one considers actions arising out of a plaintiff being injured; the plaintiff may be in hospital, and may be under all kinds of disabilities. It takes time, perhaps, before a suggestion is made to him about consulting a solicitor, and very often the 12 months have gone before anyone can give him advice.
§ Mr. Scholefield Allen
As my hon. and learned Friend points out, it might be a child whose father is abroad on service. In my submission, no harm would be done if the Crown made this concession and if the period of limitation was one of three years. There is only one other point which I want to bring to the attention of the learned Attorney-General. I support what the hon. and learned Member for Chester (Mr. Nield) said, and hope that those ancient courts, like the Court of Passage and the Salford Hundred Court, and perhaps the Tolsey Court—and there are others—will not be overlooked, and that if jurisdiction is being given to the county court, the Attorney-General will see that similar rights are given to these very ancient courts which are a part of our legal system. I welcome this Measure of law reform, and I hope it will be the precursor of many Measures of law reform introduced by this Government.
§ 2.41 p.m.
§ Mr. Charles Williams (Torquay)
I feel that, after some of the warnings we have had, I ought to disclose that I am not a lawyer and not likely to be interested in any briefs that might arise out of this Bill. I was very glad to see that this Bill had been introduced, not from the point of view which has been expressed by certain other hon. and learned Members, but because of my experience in 1735 this House during which I have met constituents who definitely felt themselves aggrieved because they had come up against this position in standing against the Crown. I noticed that that feeling has been brought out, directly or indirectly, in almost every speech. The Attorney-General, in his speech, referred to the little man, and almost led me to believe that this Bill would remove a vast amount of grievances against the State which are felt by the small men today.
I think that, once or twice the cloven hoof seemed to come out when the right hon. and learned Gentleman showed the other side of his personality—the one not so full of charm—when he was referring to the question of the Post Office and letters under Clause 9. He there used an illustration which I thought was not quite tactful if he really wanted an easy passage for this Bill. The right hon. and learned Gentleman used the illustration of a letter concerning some heavy gambling on the Stock Exchange being lost in the post, and he asked how could we indemnify people in such a case. I could, equally, have given an illustration of another kind. Let us suppose that there was a letter containing a most important brief, and that it got lost. I feel sure that the lawyers, somehow I other, would manage, even under these conditions, to get at the Crown. They have been much more skilful in these matters than the rest of the community. I give that as an illustration to show that, in all these matters, there can be a very wide sense of grievance under the law as it stands now.
The Attorney-General said quite clearly that the Bill would improve, in many cases, the position of the small man. After listening to the Debate fairly carefully, I. would not limit the point to the case of the small man, but would rather refer to any individual citizen, because, as the Debate proceeded, and as each lawyer spoke, it became more and more clear to me that we are really not covering anything like the number of cases that I should like to see covered. For instance, under Clause 10 of the Bill, we have to consider the position of the Services, and I would like to ask the Government a question on which I am quite unable to make up my mind whether we are, in fact, remedying a grievance or not. Supposing a Service vehicle, under two heads 1736 —(a) if employed by the Crown, and (b) if improperly used—runs down and kills an ordinary private citizen. What is the position there as far as compensation is concerned? I am not clear about that position. It would seem to me that, even if; it is already—
§ The Attorney-General
I can answer the hon. Member's question at once. The position would be exactly the same as it the vehicle belonged to the hon. Member.
§ The Attorney-General
If the vehicle is being used in the course of employment by the Crown, it would be possible to bring an action, but, if the hon. Member's motor car is taken away and is used on a joy-ride by his chauffeur, the hon. Member would not be liable.
§ Mr. Williams
I think I have got that point right, and the learned Attorney-General has done something to clear up a doubt in my mind. Though the lawyers know it, the ordinary individual citizen does not know it, and it has not been al all clear. I therefore thank the right hon. and learned Gentleman for the help he has given on that point.
There is, however, a point which was raised by the hon. Member for Chichester (Mr. Joynson-Hicks) concerning the recovery of taxation and actions by the Crown where taxation had not been paid. In these cases, the Crown should have a reasonable time over which it could go back. I think there should be a certain limit, but, after all, the Crown in its own interests very often sets a limit beyond which one cannot go, and I do not see why we should not have some limit as far as the recovery of taxation is concerned. Is it possible to have that matter dealt with during the Committee stage?
There has been a certain amount of discussion about Clause 2 in relation to the possession of land and the transfer of land under that Clause. In the case of a farmer who is ordered to develop and break land, and who would suffer a heavy loss in those circumstances, and the farmer has protested that it is a bad policy, but is forced to do it by the authorities, then, surely, there ought to be some power of recovery. I do not think that position is referred to anywhere in the Bill, but it does seem to me that, 1737 if we are going to deal with these matters, it is just that kind of case which should be included. I only use that particular case as one of many illustrations which could be given in which individuals might suffer severe damage as a result of interference by the Crown. It is a case which I would like some of my hon. and learned Friends on both sides of the House to investigate, to see if it is not possible to help the unfortunate individuals in such cases, and also in the cases of small shopkeepers and instances of that sort. I would like to see the position of the private citizen very much more completely safeguarded against the action of Ministers than it is at the present time.
May I turn from that to a point on which, in one way or another, I have been confused by the arguments of members of the legal profession opposite? I have said something on Clause 10, but there is also the question of the Post Office. The right hon. and learned Attorney-General put the matter very clearly. He said that the Post Office would only accept liability up to the amount of the insurance, which, I think, in all probability, is correct. But is he quite sure that the insurance and the provision which he laid down are really wide enough to cover the present position of the Post Office, and the innumerable mistakes made by the Post Office at the present time? Should not there be a greater opportunity for the ordinary subject who is having his business delayed by the Post Office to obtain reparation, in the same way as he might if his business were held up by other persons? I do not expect the right hon. and learned Gentleman to have much sympathy with the private individual, but I am hopeful that there will be a Law Officer from over the Border, and that he will look at it in a more friendly way.
I would like to touch on the question of documents, which has already been dealt with at considerable length. I join with the hon. Member for Nelson and Colne (Mr. S. Silverman) in protesting against the use of the words: "public interest." Over a long period of years, one has noticed that the tendency of Ministers is always to shelter themselves behind the phrase, "The public interest will not allow of this or that." The right hon. and learned Attorney-General, with great courtesy, answered a question which I ventured to put to him in the course of his speech. I asked him what was the 1738 number of cases in which this might occur. He said that such cases would be very rare. That may be so, but I believe that, in all probability, he was referring to matters of major public importance, and not to comparatively small matters, such as were referred to by the hon. Member for Nelson and Colne.
The difficulty with regard to this Clause has been felt on all sides of the House. Not only members of the legal profession, but people outside that profession, if they read this Clause, would feel precisely the same about it—that it needs to be tightened up so that the use of the words "in the public interest," will not be widened. We do not want them to be used too fully or too often so as to protect the State against the private individual at the present time. During the past year or so, there has been a growing tendency to make more use of these words. There are many other things which I dislike in this Bill, but it does, in fact, help to bring a greater protection to the private individual, although not nearly as much as I should like to see. Although I support the Bill, I hope that, between now and its further stages, some serious Amendments will be put forward in an effort to remove many of the grievances of which we have heard this afternoon from all parts of the House.
§ 2.55 p.m.
§ Mr. J. S. C. Reid (Glasgow, Hillhead)
It is plain from the Debate that this Bill is welcomed in all parts of the House. I welcome it as going far to remedy a position which has always been irksome, and which has recently become quite intolerable. It is only the timidity of certain Government Departments which has prevented this reform being achieved long ago. I doubt if we would have got it now had it not been that the recent decision in the House of Lords made the make-shift arrangement, under which we have been operating for a good many years, unworkable. Therefore, at long last, something just had to be done.
I shall have some criticism to offer of the Bill, but neither its imperfections nor the fact that the urgency of its introduction is much greater as the result of that decision, would make me refrain from offering my congratulations to those responsible for its preparation and introduction, and, in particular, to the Lord Chancellor, who, I think, has helped the 1739 matter very much indeed. Personally, I think it is a very imperfect Bill, although it is a great deal better than the existing position. Therefore, anything I have to say is not in the least intended to impede or delay the passage of the Bill, and if my hon. Friends and I fail to put down Amendments, it must not be thought that our criticisms are any the less pointed or deeply felt by us. Our only object will be to make certain that the Bill is not lost.
Before turning to the particular points involved, I want to say a few words as a lawyer coming from Scotland. As far back as I have traced, it has always been our common law that the Crown can be sued for breach of contract. Our law has always prided itself on being founded on principle, and I have never found any practical disadvantage flowing from that long-established right of the subject in Scotland. At one time, the officers of State were sued. For a long time now, the principal defender in all actions against the Crown, or almost all, has been the Lord Advocate of the time. There has never been the slightest difficulty. Therefore, I think that we from Scotland can assure our friends across the Border that they need not anticipate any trouble from this reform with regard to contracts.
With regard to tort, or, as we say, delict, the position was different. I think it was creditable to everyone concerned that it was only within almost living memory that it was necessary for the Scottish courts to decide whether the Crown was liable for the negligence of its servants, and, largely influenced, I think, by the existing English law, they held that it was not. But, equally consistently with principle, I think they might have held that the Crown was so liable. However, it is now established in Scotland that the Crown is not liable.
I also welcome a certain increase in the jurisdiction of our courts. There is some difference of opinion in Scotland about this matter, I know, but I have always taken the view that we ought to be alive to preventing defendants being haled before courts which are not appropriate for them. I see no reason why a Scottish pursuer should not go to such a court as suits him. The Crown resides in any part of the United Kingdom, and I take 1740 it that an action can be raised in any part of the United Kingdom against the Crown.
There is one rather unexpected consequence which I hope the Lord Advocate will clear up. I assume that it is within the option of the pursuer—I use Scottish language although this is not a purely Scottish point—to go to either country, wherever the action may have occurred. I rather think that the English would have jurisdiction if a plaintiff brought an action in respect of an accident in Scotland, but I am not quite sure whether the Scottish courts would have jurisdiction if a pursuer brought an action there in respect of an accident in England. There is some discussion going on upon that point in Scotland, so perhaps the Lord Advocate will answer it in the course of his remarks.
We are dealing here with an obscure branch of constitutional law. It is obscure in many respects because the good sense of past generations has prevented many questions from becoming points of acute controversy. The points were settled as we went along. Therefore, it is very difficult to find specific authority on a number of points. Moreover, some of us do not have the resources to enable research to be undertaken, and we often find it difficult, in the rush of a Parliamentary Session, to pursue these matters as far as we would like. I am not sure therefore that what I am going to say from now on is in every respect completely correct. I hope it is. I hope that the Lord Advocate, who has greater resources, will put me right if I stray.
I was rather surprised that one of the points which the Attorney-General took, in commending the Bill, was that it made for the equality of all before the law. I should have thought that with regard to a great many of these provisions the Bill does the exact opposite, as I shall seek to show. The criticisms which I shall make, as with those which all of us may make, upon a Bill of this kind, are personal criticisms. There is no question of a party point of view coming into a Bill of this character. What we say does not of course commit all our colleagues. Speaking for myself, I say that while the Bill introduces one indispensable provision, enabling those who are injured by the negligence of Crown servants to have an effective remedy, it takes away a good 1741 many existing rights from the subject for no apparent reason. I wish to pursue that line of thought for a few minutes, because it seems to me to be important.
I do not know what the law of England is, but I know of nothing in the law of Scotland which prevents the subject obtaining an interdict against a servant of the Crown, including any Minister. I have never heard of any reason why that rule should be altered. It is easy to think up theoretical questions which might arise if there were an unreasonable judge on the bench. The only possible reason for altering that rule, if it is intended to alter it, for Scotland—I am a little doubtful about it—is that the Government are not prepared to trust those who are entrusted with jurisdiction in these matters to act reasonably. I see no reason whatever for taking away a right of that kind from the subject. We have got through two wars without this alteration, or the other alterations to which I am coming.
The existing rules did not cause trouble in what we hope will prove to have been the most disturbed period of our history. Are we really looking forward to a period in future when protection for the Executive, which has not been necessary in the past, is going to be necessary? Were that the view of the Government it would throw a pretty lurid light upon their anticipations. But, of course, it is not the view of the Government at all. The fact is—as was admitted by the Lord Chancellor in another place—that those Members of the Government who have been preparing the introduction of this Bill have just been overruled by the Service Departments. I can quite understand that the Cabinet, being taken up with a great number of other matters, have not the time to resolve these difficulties. Therefore, the Lord Chancellor just had to acquiesce, as he very frankly admitted, in a most unsatisfactory position. I should like to read to the House what the Lord Chancellor said in another place, particularly with regard to Clause 10. He said on the Second Reading:Let me be quite frank. This Clause, together with Clause 7, is one of the Clauses I have been pressed, and, indeed, compelled by the Service Departments to insert, in order to overcome the misgivings, or, if you like, the reluctance, which they feel, and have traditionally felt, about the introduction of the Bill.1742 On Committee stage he said:The short and long of it is that I am under an obligation, either to get this Clause as it is, or to withdraw my Bill.It is quite obvious he did not think much of this Clause, because he said:I hope that in due course the nervousness of the Service Departments will be allayed. It is not unlikely that we shall find we have some odds and ends to gather up, and, probably, that will lead to amending legislation.If that is the Estimate of the noble and learned Lord I do not seek to dissent from his view. If my remarks cannot receive attention today—and it is quite obvious from what the noble and learned Lord said that they cannot—then I hope that, being on record, they may perhaps receive attention when this amending legislation comes to be introduced.
I have dealt with the question of interdict. Let me come on to the next and, I think, the most important—as it has been put from various quarters of the House—of the cases where existing rights are taken away. Under Clause 10 it is now prohibited that any serving soldier shall bring any action against either the person responsible or the Crown in respect of any accident to him which arises either when he is on duty, or even when he is off duty provided he is on Government property. What earthly reason is there for that? The only reason that has been suggested is that on active service, or in specially dangerous operations, there may be some hampering thought in the mind of the serving soldier that something of this sort is going to happen. How can that be so? If the Government Department is going to pay the damages in any case how can there be any such anxiety in the mind of the soldier, sailor or airman? There is a complete lack of logicality there. I can understand that if a general or an admiral or an air marshal were going to be held responsible, and made to pay something or another, that would be an impossible position for him so far as he is concerned in the field. But he has never felt that. It has been the law so far as Scotland is concerned—and, I think, so far as England is concerned—that such actions could be brought. It certainly never influenced any general or admiral as far as I know it has never, happened.
What has happened—and here I think actions have been taken; the learned Lord 1743 Advocate will correct me if I am wrong—is that very recently a serving soldier has brought an action against another serving-soldier who caused him injury while he was a passenger in the vehicle which the defendant soldier was driving. Is not that reasonable? One soldier is driving a vehicle along a road; another soldier in that vehicle is injured. Why should not he have a right of action? Because of common employment, it is said. But common employment does not affect conscripts, and conscripts form a very large proportion of the Army today. It really is a most odd position. People are forced into the Army and then told: "You are to be even worse off than you would be if you had entered the Army voluntarily, because of the doctrine of common employment." Common employment means that there is a certain community of jobs between the two. But here, an airman may fall from the sky on to Government property, killing a soldier who is off duty; he may also kill another soldier off duty, but who happens to be on the public road just outside that Government property, and he may also kill a civilian. The latter two persons are entitled to bring their actions, but the former is not. Now, even if there is anything at all in the argument that the airman's mind will be influenced by the fact that an action is to be brought, that action is not excluded, and in the case I have cited two of the three injured persons would be able to bring their actions. This is just a piece of departmental obscurantism, and nothing else. I fully realise that the Lord Chancellor has been defeated; and I fully realise that the right hon. and learned Attorney-General can do nothing. I have no intention personally, of either putting down or supporting any Amendment that may be put down to remedy this matter. But I feel that I must put on record the most emphatic protest, in the hope that when the odds and ends have to be cleared up this matter may receive a more liberal attention.
One other argument has been put forward, namely, that, of course, these people will always get pensions. I ask the right hon. and learned Gentleman whether, before the Committee stage, he will be able to give us a firm assurance that in every case where this defence is taken to oust an action there will be a pension. I cannot ask him to say it will 1744 be an adequate pension, because views on adequacy differ. But I should like a firm assurance that a man will never be allowed to fall between two stools, in that he is excluded from his legal right by the Bill and is excluded from pension by the Royal Warrant, or by the decision of some tribunal. If the right hon. and learned Gentleman can give a firm assurance to that effect it will remove a good many of the practical objections, and a few of the theoretical ones, too.
At the risk of being thought too legalistic, I will say to the House that the theories of the lawyers have sometimes stood this country in good stead, and if too many holes are driven into legal theory, thereby making it impotent in time of difficulty, it may be found that one of the chief bulwarks of liberty has disappeared. It is for that reason that I venture to think that theoretical considerations are not wholly without weight in this sphere. I will not today say that theory should stand in front of practice. It cannot. But do not let us forget it, nevertheless.
With regard to Clause 9 and the Post Office, there are, of course, grievous theoretical objections to depriving the general public of their right to sue a postman because of his tortious act. There is no reason for that at all. The Attorney-General said that a business of the size of the Post Office must have special protection. Why should it have more protection than the railway companies? Why should a registered packet, or any other kind of packet, in the Post Office require more protection than a packet in the care of a railway company? It seems that the Post Office, having been nurtured in an apparently secluded atmosphere, does not like to stand up to the ordinary buffets of life. The railway companies have had to stand up to them, although perhaps in future they may subside into the more peaceful atmosphere of the Post Office, somewhat to the detriment of the public interest.
I would like to ask the right hon. and learned Gentleman to clear up a point on Clause 11, which is not clear to me. I do not profess to be anything of an expert with regard to the prerogative but I should have thought that there was practically nothing left of the prerogative in connection with the purpose of training or maintaining the efficiency of 1745 the Armed Forces of the Crown in time of peace. Yet, when we come to Subsection (2) the Secretary of State is given a new and, I think, a dangerous jurisdiction. It says:Where in any proceedings under this Act it is material to determine whether anything was properly done or omitted to be done in the exercise of the prerogative of the Crown, the … Secretary of State may certify that the act … was necessary for such purpose. …It does not say, in terms, that the Secretary of State is to certify that the act was within the prerogative, but it comes very near it. I should have thought that it would have been much safer to limit this Clause to time of war, or to the defence of the Realm, leaving out training and maintaining the efficiency of the Armed Forces. It may be that Secretaries of State will take a reasonable attitude here, but if a Secretary of State chooses to certify, in some dubious circumstances with regard to training or maintaining the efficiency of the Forces under his command, I think it will embarrass the courts of justice very much. So, I hope that before the Report stage the Government will consider either taking out this altogether, which I would prefer, or modifying it so as to make it certain that the courts will not be hampered in carrying out their duties.
All this seems to show a growing impatience on the part of the Executive at any form of control by legal process. This would not be a suitable occasion to develop that theme, but this Bill is just another example of the trend which has been obvious for a long time, which, I think has gone too far, and which we should take every opportunity of trying to curtail.
I will not deal with the question of discovery, because I think Scotland is left out of the Bill in that respect, and I do not profess to understand all the practical questions that may arise in the English courts. I welcome the Attorney-General's statement that the whole question of limitation of action is to be reconsidered, and I hope very much that when that time comes, the period which, I understand, is one year in England, will be materially lengthened. I ask the Lord Advocate whether, it he cannot go further now, he will do what he was sympathetic towards doing in another Bill, make certain that in Scotland the period is at 1746 least 12 months. If I understand this Bill aright, the period will be only six months. I hope that he will indicate that he is prepared to put down an Amendment to put that right before the Report stage. I would put one down myself, but I think that it would be better that he should do so, because we do not want the delay of accepting an Amendment in principle which may have to be redrafted at a later stage. In passing, I would say that I cannot quite understand why non-payment of Death Duties and Purchase Tax is singled out. It may be well to have further discussion on that, if there is time, on the Committee stage. It seems a very curious selection. The objection to all this kind of thing is that the Crown is judge in its own case, and it is never submitted to an impartial person whether a man really is in bad straits.
I would ask the Lord Advocate or the Attorney-General to consider whether they cannot modify the provisions of Clause 45 and the corresponding provisions of the English parts of the Bill. These are the provisions which limit the right of arrestment in the hands of the Crown. The House may be aware that there are two relevant types of arrestment—arrestment on the dependence on action so that a person sued cannot make way with the money, and arrestment after decree with a view to recovery from the persons who hold a debtor's money of the amount of the debt which he owes. This raises a very large question in relation to the arrestment of the wages and salaries payable to any officer of the Crown. As the number of officers of the Crown increases, so does the difficulty which arises from that. A privileged class is set up against whom it is very difficult for a tradesman to have an effective remedy. I hope that the Government, in consideration of the other reforms which they have in mind, will try to find some reasonable way of limiting this privilege. Meanwhile it would be futile to ask for an Amendment to be accepted.
I do, however, ask for some Amendment with regard to paragraph (c). I fully realise that the Post Office Savings Bank is a separate business and that there would be grave practical difficulties if it were not excepted, but I cannot see these practical difficulties existing with regard to war savings certificates or national savings certificates, and I cannot see why 1747 that form of property alone ought to be excluded from the ordinary legal remedies. I hope, therefore, that the Government will consider a limitation in that respect. If not, will they make it clear to the public what is the remedy of a creditor against a debtor who holds either of these two types of property and perhaps little else that can be attached? If they will not exclude these—and it is in their hands—I think it is essential that the public shall know what they can do. This matter is so obscure that the ordinary practising solicitor has no time to investigate it and, therefore, I ask that on the Committee stage, if not now, there should be a statement on that subject. I hope that in raising these points of detail at this stage, it may be possible to save time during the later stages of the Bill.
§ 3.25 p.m.
§ The Lord Advocate (Mr. G. R. Thomson)
May I assure the House that we are very grateful indeed for the reception which this Bill has got and very grateful for the various suggestions which have been made. I can assure the House that I only wish I could adopt the Scottish expedient and take these things to avizandum that I might ponder on what has been said and consider them at leisure. I cannot do that, but I will try to deal very generally with some of the points which have been discussed. I can assure the House that everything that has been said will be carefully weighed. We have had endless discussions about these matters with all sorts of people. It is a very important Bill, and it is very important that we should get it as right as we can. We value the suggestions that have been made, and if there are any further suggestions to be made, we shall be delighted to consider them.
May I say a word about the Scottish position? It has been largely explained by the right hon. and learned Gentleman the Member for Hillhead (Mr. J. S. C. Reid), who preceded me. As far as tort is concerned, we in Scotland, with some reluctance, have been driven into the same position as England, so accordingly we have now to use this Bill in order to put the tort position right. So far as other branches are concerned, we in Scotland have always proceeded on the simple principle that the Crown can be sued in the 1748 King's Courts. Originally the action was brought against the officers of State, but latterly it has been against the Lord Advocate, and that procedure received statutory approval in the Crown Suits Act, 1857, and we are not doing anything to alter the position. In Scotland as far as that type of action is concerned the Lord Advocate enjoys no privilege. He can be interdicted, an order for costs can be pronounced against him. Diligence can be done against him and it can be done against a Government official. What is more, the Crown is liable in discovery. Nobody so far has endeavoured to seize my furniture and nobody has attempted to seize the furniture of any Lord Advocate, although theoretically that is quite a possibility.
As far as all these matters are concerned, the subject in Scotland has had all the rights against the Crown that he would have had against the ordinary defendant. There are one or two points in which we have merely changed the situation. In the first place, we have extended the right to sue the Crown to the sheriff court. While the subject in Scotland always had the right to sue the Crown, in the past that has been confined to the Court of Session. We are extending that. There is one other alteration which has been referred to by the right hon. and learned Gentleman the Member for Hillhead. The Bill provides in England that where an injunction is sought, it is enough if a declaratory order is pronounced. I have said that in Scotland the practice has been to treat the Lord Advocate or Government officials exactly as a private litigant would be treated. That seems unnecessary and we propose to extend the English principle to Scotland.
The right hon. and learned Gentleman has suggested that this is going too far and that we are really giving something away. I do not think so. We are certainly not giving away the substance, and if we are giving away anything it is only the shadow. When one looks at it from the point of view of the balance sheet, the subject at the present moment has the right to interdict in a certain limited sphere and in the Court of Session. Under the Bill he now gets the substance of these rights plus the power to operate them in the whole sphere of reparations and in the sheriff court, so that on the 1749 whole it seems to me that the subject makes quite a good bargain. There are general reasons for preferring declaratory order to interdict. It has not so far placed the Crown in difficulty in Scotland, but it might not do so in the extended sphere the declaratory orders will now occupy. One must keep in mind the fact that the Crown may have to take certain steps at the shortest possible notice which infringe the rights of the subject, and it might be a national disaster if the Crown—
§ Mr. J. S. C. Reid
Can the Lord Advocate explain why he expects that the Crown should have to act so much more rapidly than it had to in the past in the case of two great wars?
§ The Lord Advocate
Of course, so far as England is concerned this is a matter which is something new and experimental. It may be that after their experiments they may find that they can follow our practice, but one must remember that the sphere in which these orders were operated in Scotland is very much extended and that we are also in an experimental phase there. The right hon. and learned Gentleman also raised the question of arrestment. The general question of the arrestment of the salaries of civil servants is a broad one which has been part of our common law for centuries, and is obviously not a matter which can be dealt with in this Bill. The more limited question of arrestment in the hands of the Post Office would, as I think the right hon. and learned Gentleman agrees, give rise to a great deal of trouble. On the still more limited question of arrestment in the case of national savings certificates and so on, I am prepared to give that further consideration, but I understand that at the moment it can be dealt with in the same way as Post Office deposits by arbitration under the Savings Banks Acts. However, I will make quite certain of that before we reach the Committee stage.
Another point which the right hon. and learned Gentleman raised concerned the pursuer's option to seek the Crown defender in any court. It appears to me that the pursuer can go to either country and also that there is reciprocity in the matter so that the Englishman can go to Scotland. I think that that is quite consistent with our principles of jurisdiction. A great deal has been said on the topic 1750 of discovery, and after the way in which the matter was dealt with by the right hon. and learned Member for the West Derby Division of Liverpool (Sir D. Maxwell Fyfe), I feel that I do not need to add anything to what he said. The fact that the Bill allows discovery against the Crown, either when the Crown is the defendant or at any other time, is, of course, no surprise to a Scots lawyer. We are perfectly familiar with that kind of thing and it has not occasioned any real embarrassment so far as I know. The law in the Cammell Laird case, I venture to think, has been the law in Scotland for many a long day. In fact it was founded on a case from Scotland decided in the House of Lords in 1822—the case of Vass, which is the foundation of the whole doctrine.
There has been a great deal of criticism of leaving this matter to the decision of a Minister. It must be remembered that our judges, who have always been extremely jealous of any encroachment by the Executive, over a long period of years have consistently said that a Minister responsible to Parliament is the proper person to make the decision. Judges have said that they have not got the necessary knowledge of the relevant circumstances, and that to provide them with the necessary knowledge would involve them in a complicated investigation which would have the defect that it would be a one-sided investigation, as a result of which they might require information of which they would have difficulty in disabusing their minds, and an investigation in which the Crown's opponent could not be present. Therefore, the law as laid down is the result of long experience, it is wholly satisfactory, and the Bill accepts it entirely.
The right hon. and learned Member for West Derby referred to Clause 28 dealing with the question of concealing the existence of a document. That, even as far as Scotland is concerned, is a new matter. The right hon. Gentleman said that we have not applied the discovery provision, but, in view of the discussion that has taken place today, I think we shall need to apply it in order to bring Subsection (2) into operation. It may be a very, rare case, but the tact that it is rare may make it very important. One can conceive of cases where it might be very important indeed. My noble 1751 Friend the Lord Chancellor in another place, said that he contemplated a general directive emphasising the responsibility of Ministers in this matter. I have discussed it with my right hon. Friend the Attorney-General, and we both think that such a directive should draw specific and particular attention to the importance of the matter raised in Subsection (2). I hope that will meet the right hon. Gentleman's point.
§ Mr. C. Williams
Before the Lord Advocate leaves this Clause, there is also a further point which was raised by several hon. Members as well as myself with regard to the words "public interest," and we asked whether it would be possible between now and the Committee stage to provide words more in accordance with what some of us would like?
§ The Lord Advocate
That matter can he considered, but I am afraid it would be a very difficult thing to do. A good deal of the discussion has centred around the question of the Armed Forces. One must agree that, in this respect, something is being withdrawn. This Bill puts the Crown into the same position as the ordinary subject defendant, in so far as the Crown is liable to the same sort of obligation as the ordinary defendant, but the trouble is that the Crown has certain public duties and functions which private persons do not usually have.
The result of that is that the Bill does not impose on the Crown a general liability in tort. It goes as far as it can but it cannot go any further. As far as the Armed Forces are concerned, this seems to me to be reasonable. On principle, an action against the Crown for the failure of an officer to carry out his service duties is a bad thing. It would upset service conditions and discipline, quite apart from the difficulty which the right hon. and learned Gentleman the Member for West Derby suggested of arriving at a definition of a proper standard of care. It would be a matter for discipline. What would one say with regard to Lord Raglan's blunder of the charge of the Light Brigade? I do not know how one would draw an action against Admiral Byng. At the other end of the scale we have the case of the driver and the motor vehicle, which is driven in the course of his duty. The real practical difficulty is 1752 drawing any satisfactory line of distinction between the two cases The result is that Clause 11 is something of a compromise. I would remind the House that the removal of the right of action is limited to cases of death and personal injury. I would also remind the House that the object of any action is, after all, to obtain a money payment. In the vast majority of cases, the injured soldier will get a money payment if he has to give up as a result of his injury.
There are other very interesting points that I would gladly have discussed, but my time is running short. I would like to say a word about prerogative, as it was mentioned particularly by several hon. and right hon. Gentlemen. Prerogative is difficult to define. It can be defined generally as the residue of authority which is inherent in the Crown. No doubt in war it covers any steps that the Crown takes for the defence of the Realm but even in peace—here I must disagree with the right hon. and learned Member for Hillhead (Mr. J. S. C. Reid)—the prerogative, I rather think, covers the manner in which the Army is raised and kept up and the disposition of forces. All that Parliament does through the Army Act is to give its consent to the raising and keeping of the Forces. After that, the prerogative comes into operation. That is why this Clause is of importance. With regard to Clause 11 (2) the Attorney-General and I were discussing this yesterday and were not entirely satisfied about it. We are, therefore, prepared to look carefully at that again
So far as the Post Office is concerned, that is just one of those exceptional matters which must be dealt with in an exceptional way. As to the period of limitation of action, that is a general question and one which is receiving anxious consideration, just as the question of common employment is. I very much sympathise with the right hon. Member for Hillhead with regard to the six months. I feel with him that the six months' limitation in Scotland is far too little. It is a great pity that we did not get the year at the same time as England got the year. Whether we can deal with the matter here so far as the Crown is concerned without touching other questions is a difficult matter, but I will look at it very sympathetically indeed.
§ Question put, and agreed to.1753
§ Bill accordingly read a Second time.
§ Bill committed to a Committee of the Whole House for Monday next.—[Mr. Snow.]