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Clause 2—(Liability Of The Crown In Tort)

Volume 439: debated on Friday 11 July 1947

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I beg to move, in page 1, line 21, after "law," to insert "or under any statute."

My purpose in moving this Amendment is to seek an explanation. It has been represented to me by various persons skilled in the law that there is no obvious reason why the terms of Subsection (1, b)of this Clause should be limited to common law duties, and should not include duties imposed under any Statute. The Committee will be aware that there are certain cases where employers are bound under Statute to take certain measures for the safety of their employees, and the mere fact that they fail to take those measures is sufficient to found an action for damages without proof of negligence, which would be required under common law. On the whole, I think that anyone with any experience would say that those provisions work well and fairly. I assume that the intention is that the Crown should be a model employer, and that the Crown should be liable in damages to their servants in circumstances comparable to those in which the subject is liable in damages to his servants.

I know that there is a provision in the Bill about the Crown being bound by a statutory duty. I do not profess to understand its full implications, but I would put this point to the Attorney-General: as the Bill is drafted, are there any instances in which an accident may happen in circumstances where, if a private person had been the employer, there would have been an action for breach of statutory duty, but where there is no action against the Crown, the Crown being, in the circumstances I have suggested, the employer? If I can be assured that although the terms of the Bill are obscure, nevertheless, everything is covered that would be covered under this Amendment, I shall be satisfied, though I suggest that for the sake of clarity it should be put into the Bill. But if there are cases which the Amendment would cover, and which are not covered by the Bill as it stands, I would like to know why the Crown is permitted to be a worse employer than the private citizen.

1.45 p.m.

I am afraid I am not in a position to accept this Amendment. If Subsection (1) (b) were to include this reference to any Statute, it would, of course, have the effect of imposing on the Crown an obligation to comply with Statutes, which, when they were passed by Parliament, were intentionally made not binding on the Crown. It is not the intention of this Bill to alter the existing substantive law in regard to matters of that kind. In regard to the question of which Statutes should bind the Crown and which should not, it is a matter for Parliament to deal with in the case of each particular Statute it passes. Parliament has sometimes thought it proper that the Crown should be bound by the statutory duties being created; in other cases it has thought not. It is for Parliament to say, in relation to each Statute, whether it is to bind the Crown or not, and it would create the greatest possible confusion to endeavour now to bind the Crown by every Statute without first examining whether it was really appropriate that the Crown should be bound by it or not. We cannot seek to do that by an Amendment to this Bill.

It is not easy to see what Statutes might affect the position as between master and servant other than the Factories Act. That is, at all events, the major Act which gives rise to claims on behalf of injured workmen. There are other Statutes which affect the position of servants, but that is the major enactment, and with few exceptions it is the one relied upon by servants who are injured, and who desire to bring an action in respect of their injuries. That Statute does, in fact, bind the Crown, and consequently, a right of action under that Statute would arise under Subsection (2) of this Clause. So far as other Statutes are concerned, if at present they bind the Crown, then the right of action will arise under Subsection (2). If at present they do not bind the Crown, the passage of this Bill will not affect the position. In the light of that explanation, I hope the right hon. and learned Gentleman may see fit to withdraw his Amendment.

Will the Attorney-General tell us whether the Crown is bound, by the statutory duty as to fencing, etc., contained in the Factories Act?

Owing to the large extension of the activities of the Crown as an employer of labour, it might be well that this matter should be cleared up as soon as the Government are able to do so. If the Attorney-General does not want to accept this Amendment, which deals with a small but I believe not easily defined omission of the Crown's liability, we must accept that. I should have thought that the Crown could have gone so far as to say, "Now we are coming into line with good employers and will undertake their obligations without further boggling about it." I cannot press the matter. If the Crown are not prepared to assume all the obligations of a good employer, I must just leave if there. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause ordered to stand part of the Bill.

Clauses 3 to 8 ordered to stand part of the Bill.