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Clause 1—(Right To Sue The Crown)

Volume 439: debated on Friday 11 July 1947

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1.37 p.m.

J beg to move, in page 1, line 12, after "Act," to insert:

"or might have been the subject of a declaratory judgment under the Rules of the Supreme Court."
This Amendment seeks to insert words, the effect of which will be to give the right to a declaratory judgment or order along with the other rights to be given by this Clause. The matter is, in a way, technical, although it might be simplified by saying that the Clause as it stands will enable the subject in future to enforce a claim against the Crown where hitherto there has been a right to do so by petition of right or by some statutory provision. As the lawyers in the Committee know, there are many cases which do not come within a petition of right, or within such statutory provisions as exist. There are cases in which proceedings may be brought in court under an Order known as Order 25, Rule 5, asking the court to make a declaration as to what the legal rights of the plaintiff are against the Crown. There is in those cases no other method of doing that except by that means. I do not know whether the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) had that in mind when he alluded to the terms of this Clause last week, when the Bill was being read a Second time, and when he said he thought the language would have to be somewhat expanded. Certainly if it is to embrace this range of proceedings and cases to which I have alluded that, in my view, looking at the Clause, it is necessary so to expand it. I do not desire to go into technicalities about the matter, because I am quite sure the lawyers of the Committee follow the point. On the question of whether the language is flexible or wide enough to include this particular type of case, I think we have to look first at the marginal note. It is perfectly true that a marginal note is no part of a Statute, but it says quite clearly:
"Right to sue the Crown."
I think that is a perfectly faithful rubric when we come to look at the text, because the text lays down very specificcally the cases in which the right of enforcing an action against the Crown will be allowed. They are the two classes of cases which T have already mentioned—those which come under a petition of right or some statutory provisions. Another matter which I think is part of the Bill is the heading "Substantive Law". In my submission it is quite clear that as the first Clause deals with the rights of the subject in actions of this particular kind against the Crown, and the words referring to petition of right and statutory provision are words of limitation, once this Bill becomes an Act it will then take away all other rights which have previously existed in the subject to bring the proceedings to which I have referred. In those circumstances, this matter should be looked at again, and if those proceedings are not included by the language of the Clause, then the Clause should be widened in order to include them. I do not think that a mere assurance would cover the point. The matter ought to be placed beyond doubt, and the only way to do that is by making the wording of the Clause perfectly clear.

This Amendment, if I may say so with respect to my hon. and learned Friend, is misconceived. It is necessary to replace by other procedure, proceedings by way of petition of right and proceedings under the statutory provisions which are repealed by this Bill, and that is precisely what this Clause does. There is nothing in this Clause which affects any other proceedings against the Crown which might otherwise be taken, and there is certainly nothing in the Bill which prevents a person from proceeding by action for a declaration against the Attorney-General under the rules of court. The Amendment is inappropriate and unnecessary, and would not achieve the purpose which my hon. and learned Friend has in mind.

Amendment negatived.

Clause ordered to stand part of the Bill.