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.

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.

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?

Yes.

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.

I beg to move, in page 6, line 39, after "employed," to insert:

"unless such servant or agent shall have been guilty of wilful neglect or default and loss or damage has been occasioned thereby."

I think I ought to say that the argument of the hon. and learned Gentleman on this Amendment might cover the later Amendments which stand in his name.

I was about to suggest, for the convenience of the Com- mittee, that it might be well to take all the Amendments in my name to Clause 9 at the same time. After the first Amendment, the rest are consequential. This Amendment seeks to make the Crown liable in cases of wilful neglect or default by a servant or agent in relation to the loss or damage of a postal packet or in connection with telephone communications or telegrams. I think I am correct in saying that the law at present is that whereas the Postmaster-General himself is not liable for any wrongful act, if any loss or damage befalls a postal packet, or takes place in connection with a telephonic communication or telegram, his subordinates in the post office are liable for any wrongful act by them in relation to those items or matters. If that is correct, then Clause 9 of this Bill deprives the subject of rights which exist in his favour at this moment. I suggest to the Committee that it is depriving the subject of very important rights and that the consequences of the deprivation may reflect serious loss or damage. The Crown ought therefore to consider the question of amending the Clause in the way that I suggest.

If, for example, some sorter or postman, or some servant or agent of the Post Office, extracted anything from an envelope, no matter how valuable it was, in law that particular person could now be sued. Under the law as it will be if this Clause is passed without Amendment, the subject would be prohibited from bringing any such action. If a postman loses a letter one can sue him today. Under this Bill one would not be able to do so. In the courts a sub-postmaster has been held liable in respect of negligence in the transmission of a telegram. In future, if the Bill is passed in its present form, that will not be so. Indeed, the law which gives the subject his present rights against the Post Office has been the law since 1701. To argue that because it is now sought to confer the right of suing of the Crown in other respects it should at the same time be thought proper to take other rights away from the subject is somewhat incomprehensible. It is provided in the Bill that there is to be liability for a registered postal packet. On the face of it, that looks as though the Bill was conferring some important right upon the subject. In point of fact, the result is this: it is perfectly true that hitherto the Postmaster-General has not been legally liable for losses or damage to a registered packet, but in practice he has voluntarily accepted that liability on a published scale of loss or damage. Therefore, from a practical point of view the Bill is there conferring nothing whatever upon the subject. It is true that it is making statutory what has always been the accepted practice. On the other hand, however, it is taking away the very substantial rights that the subject has always had in regard to any claim he may have for damage or loss against some servant or agent of the Post Office in the cases I have mentioned.

It is important to consider the grave consequences that might happen. There are cases where a letter is posted and the time and date of the posting decides whether an offer has been accepted or refused. It may be a very important matter. It may be an acceptance which is very valuable indeed to the party concerned. If the letter is never delivered, of course, the benefit of that acceptance is completely lost. Yet, according to the Bill, no right of action is given to the subject in that case. What happens under the law now is that the subject would have a right of action against anyone in the post office other than the Postmaster-General. This Bill is seeking to take that right completely away. The same result arises in the case of a withdrawal of acceptance. That might be a very serious matter. A person may accept something and then, on reflection, he may wish to withdraw it and the non-withdrawal may involve him in very serious consequences indeed. Due to the wilful negligence of someone in the Post Office, the particular postal packet containing the withdrawal may never be received. In those circumstances, great loss may be sustained. Under the law as it stands at present, proceedings could be brought in order to claim damages, but if the Bill passes in its present form no such right of action will be permitted to the subject.

In regard to telephone communications, I would ask the Attorney-General why should the Post Office be immune from liability? An ordinary business must incur responsibility for any loss arising from negligence in a matter of this kind. If the Crown does not want to admit liability, why allow these telephone communications at allow? My submission is that if the Government allow telephone communications then they must allow the natural corollary if there is any negligence. If there is negligence, there ought to be a right to claim damages. As the right hon. and learned Gentleman the Member for Hillhead (Mr. J. S. C. Reid) said, one would have thought that in the case of the Crown we would have a model employer. In my submission, it ought to be easier to get redress under public ownership than it is under private enterprise. This Bill, however, shows that the reverse will be the case. I would also like to point out to the Committee that as the Post Office is staffed at present there is a good number of temporary employees. In a case of that kind, the liability to negligence is very much greater than when we have long experienced officers; and the public are exposed to the consequences of that action. To say that the consequences of wilful neglect ought not to be visited by the right to bring an action for damages in those circumstances must be wrong, and I, therefore, submit that this Amendment should be accepted.

The purpose of this Amendment appears to be to make the Crown and the servants of the Crown liable for loss of or damage to postal packets, including telegrams, or for consequential damage resulting from the miscarriage of some telephonic communication in the case where a postal servant has been guilty of "wilful negligence or default." May I say a word first about that expression?

This proposal is really quite novel in regard to negligence. It has been laid down again and again in the courts that there is no different standard of care, no different degree of care, required in different classes of case. There is no such thing as "wilful negligence." Judges have said repeatedly that "wilful negligence" is negligence with a vituperative epithet, and it would be outside the purpose of this Bill to include words of that kind. There is no half-way house, and one has either got to impose liability for negligence in these matters or exclude it. The hon. and learned Member for Gloucester (Mr. Turner-Samuels) suggests, by the analogy which he seeks to draw with private concerns, that the Crown should accept liability for negligence, but private concerns are able to, and, in fact, almost invariably do, exclude any liability for negligence in the individual contracts which they make in certain cases. Is it to be thought for a moment that any commercial firm in its senses would undertake a liability to pay damages, not only for actual loss but for consequential loss as well, in the case where it was undertaking to collect say a letter, in London and deliver it, by train, first of all, many hundreds of miles, and then by hand to its ultimate addressee in return for the payment of 2½d.? Quite obviously, no commercial firm would do that. It would protect itself, as commercial firms do, by having an express provision in the contract excluding a possibility of that kind.

Moreover, it is a standard provision in contracts for carriage by railway, and for carriage by road, to exclude all liability for consequential loss, and that is the position which is being taken up by the Crown in this case. We are saying that we will accept registered packets in a somewhat similar way to that in which a Railway enters into a contract at Company's risk. We are saying that we will accept a liability not exceeding the market value of what we carry, but we are saying, just as the railways and the road hauliers do, that we cannot accept liability for consequential loss.

It is true that we are taking away a right which exists at present to sue the individual post office servant, but how can it be said for a moment, as the hon. and learned Gentleman suggested, that that is really a substantial right? How can it be suggested that that right, in a case where the Crown is not standing behind the servant, would really meet the case where, owing to the loss of some packet or failure to deliver some message in time, serious damage has occurred to the person concerned? How could those damages be recovered from a postman earning, say, £6a week? I have never had experience of an action of that kind, and I should have thought that actions against a post office official for negligence in the transmission of a postal packet must be very rare indeed, and would be quite valueless unless the Crown were prepared to stand behind the official and pay any damages that might be awarded. The Crown is not prepared to do that. It is not prepared to accept that liability for every postal packet which it under- takes to carry, but it is willing to accept a certain liability in the case of a registered packet and pay up to the limit of the market value of what is carried. In those circumstances, I cannot accept the Amendment.

I do not think that the right hon. and learned Gentleman has made out a case in defence of the Clause as it stands at present. I think he overlooked the fact that the Government are here removing a right from the public, and in order to do that, they have got to bring forward a very strong case indeed, and they have not done so. This right, which they are removing, is, as the hon. and learned Member for Gloucester (Mr. Turner-Samuels) has said, the personal right of any member of the public, who uses the postal service in the ordinary way for unregistered letters, to proceed against any individual servant or agent of the Post Office who may be found guilty on the evidence adduced of neligence or default; in other words, as we commonly express it, negligence. That right has been removed, and the only reason one can see for that—the reason given by the right hon. and learned Gentleman—was that, in his view, a postal servant employed by the Government at a salary of £6 a week is a man of straw against who it is not worth while a member of the public having the right to take proceedings. That, quite obviously, with all respect to the right hon. and learned Gentleman, is not for him to decide, or for us. If the right exists, there is no reason why it should not be available, and I do not think it is a proper constitutional line of thought to seek to do away with a right of the public simply and entirely on those grounds.

There is another point with which the Attorney-General did not deal, and that is the question of absolving the Post Office from being liable for any loss, and, as I understand his argument, he failed to show why he should seek to retain the right for the Crown to proceed against one of its own servants, presumably, in regard to any fault which he may have committed against a member of the public. It is a curious triangular result. The Post Office servant commits a fault against a member of the public, but the member of the public does not have the right to proceed against the Post Office servant, nor does the member of the public have the right to proceed against the Post Office, yet, nevertheless, the Post Office does have the right to proceed against its own employee. I fail to see the machinery by which such process could be carried out, or, if in fact it was carried out, what would be the result, or, in the event of recovery being made from the Post Office employee, to whom the results of that recovery would belong. If, as I understand, the Amendment which the right hon. and learned Gentleman is going to move is incorporated in the Clause, he did not explain what he had in mind when he referred to cases in respect of which anything was done, or was omitted to be done, in relation to a telephonic communication. To my simple and unimaginative mind, it is difficult to see what a Post Office employee could do to a telephonic communication which could result in tort.

Put the plug into the wrong hole, and there is an action for slander.

What the right hon. and learned Gentleman is seeking to do is to protect the employee, not the member of the public who may have cause for complaint. I hope we may have a little more enlightenment on that minor point, and that the right hon. and learned Gentleman will more seriously consider the major point which I think is one of substance, and one which the Committee should not pass without very careful consideration.

I agree with a great deal of what the right hon. and learned Attorney-General said with regard to this actual Amendment, and, indeed, with regard to what was said in favour of its acceptance. I think that, as at present drafted, the Clause goes too far in the way of protecting Post Office servants. Let me give an absolutely extreme example, which I think illustrates the point. If I hand my letter over to the postmaster of a village and I see him tear it up before my nose, I can, I suppose, under the existing law, bring an action against him for something. If he happens to be my rival and knows that the letter contains a proposal of marriage, I dare say I might find it worth while to seek an injunction to prevent him from doing it again.

On the other hand, the right hon. And learned Attorney-General seems bent on allowing him to do it, or, at any rate, if not on allowing him to do it, seems bent on reserving to himself only the right of preventing him from doing it. I do not see why that should be so, and why, if a Post Office official commits such an offence, I should not be able to take action against him. I agree that there might be very sound reasons for not making the Crown liable. It is probable that in such cases large sums of damages will not flow, and that actions of this particular type will be relatively few, and will be confined to relatively bumble people; but I do not think, for that reason, we should laugh at them, or prevent them from being brought. Such things do happen, especially in small communities. In my submission, this Clause goes too far, and without trying to make a mountain out of a molehill, I think that before the Report stage the AttorneyGeneral should think over the matter again.

I agree with what has been said in support of this Amendment, and I hope that my right hon. and learned Friend the Attorney-General will look at this matter again. A few days ago, some Post Office workers in my constituency were erecting a pole on which telephone lines were to be distributed to various houses. The pole was being erected at the end of a garden of one of my constituents, and in order to give himself leverage, one of the men put his leg against the garden gate, and the gate gave way. Under the Clause as it now stands, my constituent will have no right of action against either the servant or the Postmaster-General.

My hon. Friend the Member for Hitchin (Mr. Asterley Jones) has not, I am afraid, appreciated the significance, if not the subtlety, of the drafting Amendment which I introduced at an earlier stage of this Bill. The effect of it is that claims for negligence are excluded only in regard to matters actually relating to the particular telephonic communication. In the case where a linesman has climbed to the top of a telephone pole and has dropped a pair of pliers or a hammer on one of my hon. Friend's constituents, the constituent would have a right of action. What we are excluding is a right of action where there has been negligence in connection with the actual transmission of the telephonic communication, where, for instance, the plug is taken out in the course of an important conversation with the result that the caller at one end, having asked a question—I will not suggest what—is unable to hear the answer given to him by the subscriber at the other end, or where, perhaps, the hon. Member having sent a telegram to his bookmaker, in order to put a half-crown on some horse for the 2.15 finds that his telegram has been delayed, and has reached the bookmaker only at 2.30, with the result that the half-crown has not been put on the horse which, has come in at 100 to I. That is the kind of case where we exclude liability in connection with a telephonic communication by the words here used, and that is the effect of the introduction of the word "a."

2.15 p.m.

I now turn to the more substantial part of the matter. We have thought it quite impossible to leave the Post Office servants in a less favourable position than the employees of ordinary concerns who, when they are sued by third parties in respect of matters which have occurred in the course of their employment, can normally expect to find their employers standing behind them, because, in practice, no one would sue them without joining the employers as well, since they will know that it is the employers and not the servants who have the money. For reasons which I think have commended themselves to hon. Members opposite, the Crown are not able to undertake a liability to pay damages except in respect of the registered packet. They have felt, therefore, that it would be quite unfair to leave the servant liable to action by third parties in circumstances where they, as the servant's employer was not liable. We have, however, retained the right of the Postmaster-General to take either criminal or civil proceedings, and such action would be taken in a gross, disgraceful and flagrant case such as that suggested by the hon. Member for Oxford (Mr. Hogg). I can assure the hon. Member for Oxford that if he reports to me any case in which such an incident occurs, we shall see that the full majesty of the law is directed against the servant concerned.

I think that the substance of this Amendment opens up a terrifically wide field for fraud. I think I can say that I might have clients who would willingly swear that they had sent £500 in an unregistered letter, and who would bribe the postman to say that he had lost the packet. What a racket that would open up. On the other hand, I think that there is a point of substance in what was said by the hon. Member for Oxford (Mr. Hogg). If a postmaster tears up a letter before the hon. Member's eyes, the hon. Member is surely entitled to have some right of action against him.

An action of that kind would be quite outside the scope of this Clause which relates only to things that are done in the course of actual employment and in relation to the postal packet: it would be outside the course of the employment. That point was considered by persons in another place whose opinion on the law is far more authoritative than mine.

I do not think that ray right hon. and learned Friend the Attorney-General has met the point at all. As I understand it, he rests his case on two things. The first is that the Crown cannot undertake this liability, and the second is that it must place its servants in at least as good a position as the servants of any other undertaking. In my humble submission, there is no substance whatever in either of those two points. First, as the law now stands, the Crown is liable, and has always accepted liability for the negligent acts of its servants. No case has been made out, and no illustration has been given of anything which has occurred in the meantime to show why that liability ought not to be continued. As the hon. Member for Chichester (Mr. Joynson-Hicks) said, where a Bill seeks to remove a right which already exists in the subject, then the Government must make out a very strong case indeed before it is allowed to take that right away. I feel that no case whatever has been made out on this by the learned Attorney-General. My hon. Friend the Member for Oldham (Mr. Hale) said that the Amendment as framed would open the door to fraud. If that is so, it is an extraordinary thing that it has not done so in the past. It is not suggested that the law as it stands today has been the means of creating fraudulent claims. That argument is completely unjustified.

I want to refer to another point which the learned Attorney-General made. He said that the Crown wishes to be in exactly the same position as the railway companies, for instance, and to say to the public, "Register your packet and we will be liable for it." Is the Attorney-General seriously asking everybody in the country to register every letter that is sent by post? That is what the suggestion would involve. In my submission, it is absurd to ask everybody in the country to register their letters in order that they may be sure that no loss or damage will be sustained to the postal packets. That cannot possibly be right.

Then the Attorney-General said, "Who is going to sue a postman who is in receipt of only £6a week?" With respect, that is not the point at all. The liability of the postman has existed for a long time, and when it has become crystallised in the form of an action and a judgment against the postman, the Crown has always been behind the postman and has always paid the damages. What the Attorney-General meant by instancing the fact that a post man might not be in receipt of a very big salary, as being an answer to the Amendment, is completely unacceptable by me. I cannot see any substantive answer there at all. It is not a question of a postman having £6a week. It is a question of whether a postman is liable or not, and if he is liable, the Crown is in honour bound to meet the liability.

I wish to say a few words on the question of the adjective "wilful" before the word "neglect." I hesitate to differ from so high an authority as the Attorney-General, but I would respectfully submit that what he said about that matter is not quite accurate. It is true that cases have held that the use of qualifying adjectives like "gross" in connection with "negligence" neither adds nor takes away from the substantive meaning of the word "negligence," but it is not correct to say that the word "wilful" before "neglect" has the same effect. There are many cases in which it has been held that the use of the word "wilful" before "neglect" imports a certain amount of recklessness which is more than ordinary negligence.

If my hon. and learned Friend will allow me, I would point out that Bevan on Negligence says that the addition of the word "wilful"

"does not carry the case any further."

That may be so, but what Bevan says there about negligence does not interest me at the moment. The Attorney-General may have taken a textbook like that and taken something out of it on the question of negligence. I have studied the authorities and the cases on this matter, and I say advisedly that the word "wilful" is in an entirely different classification from, say, the word "gross," and it does import, and add, meaning and colour to the word "neglect," For all those reasons, I ask the Attorney-General to look at this point again between now and the Report stage to see whether an improvement in that respect can be made to this Clause.

I will certainly do that.

If the Attorney-General says he will do that, I beg to ask leave to withdraw the Amendment.

I beg to move, in page 6, line 45, to leave out from "telegram," to the end of line 4, page 7.

So far, we have been dealing with the ordinary unregistered postal packet, and we now come to deal with the registered postal packet. I would like briefly to summarise the present position, and to state what my Amendment purports to do. The present position, as I understand it—I speak subject to correction, which I shall undoubtedly get from the Attorney-General, if I am wrong—is that there is no legal liability whatsoever on the Post Office in regard to a registered postal packet, but, as an act of grace, and over the course of time, there has grown up a custom in the Post Office inasmuch as they accept the moral liability to meet a claim in respect of loss or damage to a registered postal packet, up to certain limits which are defined, and which are based upon the amount of the registration fee which is paid to the Post Office. That is a purely moral responsibility on the part of the Post Office.

The Bill now proposes to change that position and, therefore, presumably to remove the moral responsibility by substituting instead a legal liability upon the Post Office in respect of loss or damage to a registered postal packet. That proposed legal liability is one which in normal circumstances, we might recognise as being reasonable—namely, a liability if the consignor of the registered postal packet can establish, presumably by proving by way of evidence, negligence on the part of the servant or agent of the Post Office.

This Amendment seeks to eliminate the necessity, in the special circumstances of a registered postal packet, for the consignor to have to prove negligence against the servant of the Post Office. The reasons I want to try to take this matter out of the normal provisions of the law are purely practical, because one cannot possibly hope to establish negligence against an individual employee of the Post Office in respect of the loss of a postal packet, even if it is registered. If any hon. Member registers a postal packet at the post office here, to be consigned to a most important constituent, and it is lost, unless one happens by chance to see the recipient of the postal packet in the post office throw it into the wastepaper basket inadvertently, or something of that sort, not only is there no earthly hope of being able to establish that an individual person was negligent in his handling of the registered postal packet, but there is no earthly hope of being able to identify the individual employees in the Post Office who have had the handling of the postal packet, and still less hope of discovering what they have done with it.

Therefore, in the action which the Government are taking in regard to these registered postal packets, it is difficult to say that they are removing an actual right which the citizen at present holds, because he holds only a moral right, but he does at present have the certainty of enjoying the benefit of the moral responsibility of the Post Office to meet his claim in the event of loss or damage to a registered postal packet. Under the provisions as they now stand, the moral right will have gone and, instead, the citizen will have only a totally ephemeral right—though a legal one—of being able to claim for loss or damage to a registered postal packet if he can prove negligence against an employee.

That is quite impossible, and I venture to suggest to the Committee that it is also unnecessary, because it is not a normal transaction. Carriage of a registered postal package is less common postal business than the ordinary letter post: it is more nearly akin to the insurance business. The consignor pays to the Post Office something additional to the fee for carriage, and he pays what is, in effect, an insurance premium for the safe carriage of that postal package to its ultimate destination. Therefore, if the right hon. and learned Gentleman is accepting a registration fee in addition to the postal fee for the safe carriage of this postal package, and the postal package is lost, and if he relies upon the necessity of the individual consignor to prove negligence against one of his employees, he is really taking money under false pretences.

Surely, the case is covered by the maxim "res ipsa loquitur "?

Will my hon. and learned Friend, and also the hon. Gentleman the Member for Chichester (Mr. Joynson-Hicks), allow me to say that there is really nothing between my hon. and learned Friend and me on the one hand and the hon. Gentleman the Member for Chichester on the other on this point.

I did not think that the hon. Member for Chichester had finished his speech, and I thought he had only given way to the hon. and learned Member for Crewe (Mr. Scholefield Allen). I have not yet put the Question.

I will conclude quickly, and leave the Attorney-General to make his observations. I think I have made my point clear. Surely, there is an insurance value in this particular transaction ?

The practical difficulties which the hon. Gentleman the Member for Chichester (Mr. Joynson-Hicks) very properly has in mind are, in fact, covered and overcome by a subsequent provision in the Bill—in the last paragraph of Subsection (2) of the Clause which is now before the Committee. There it is provided that there shall foe a presumption that the loss or damage was due to neglect by a servant of the Crown unless the contrary is proved by the Crown, and the result is that the reasons for the Amendment, namely, that it would be very difficult for a person to prove negligence in the circumstances of the carriage of a registered packet, are overcome by the subsequent provision. We put in this in order to deal with the precise difficulty which the hon. Member has in mind, and I think we successfully deal with it. I hope in those circumstances the hon. Member may see fit to withdraw his Amendment.

I had already appreciated the words to which the right hon. and learned Gentleman has drawn attention, and had intended to say something about them, but if he has nothing further to say, it is still quite evident what is the meaning of the words. I think the Bill would be better drafted if he had not put in a requirement and then taken it out; and I think it would be better if he accepted my Amendment.

We cannot accept the liability of an insurer in these matters, but we do accept this presumption which, I hope, will cover every reasonable and ordinary case.

I am not sure if the hon. Member for Chichester asked leave to withdraw the Amendment or not.

I thought I had done so. I beg to ask leave to withdraw the Amendment.

I beg to move, in page 7, line 9, to leave out paragraph (b.)

I hope that this is also a practical point. I quite agree with the principle involved, that there should be a limit to the value which can be recovered against the Post Office in the event of a successful claim being made for loss or damage of a postal package. The Bill provides two alternative limits of damage. The second one, in paragraph (c), which we are not discussing, I entirely agree with; but the first one, in paragraph (b), appears to me to involve a frightful lot of difficulties, and I say that there is no necessity for it, having regard to the fact that there is also a limit of damage imposed in paragraph (c). The basis of the value, the measure of damage, to which a limit is put under paragraph (b) is the market value of the package in question.

Who on earth is going to be able to establish the market value of the package in question? This rather introduces the point raised by the hon. Member for Oldham (Mr. Hale), as to the essential necessity of being able to prove what is in the package. But, apart from that, it involves a great many other things. What is the market value of an article which may be sent—which is suitable to be sent—by registered postal packet? One can think of any number of different illustrations. Suppose a man buys an article at one of the more expensive shops in the West End of London. Its price there may be, for instance, £25. The same article could quite well be bought in some less expensive shop, perhaps in the market town of any of our constituencies, at £15. Again, if it is- bought wholesale, its value may be £10. What is the market value of such a commodity as that?

Another point is, when does it become secondhand? It has already been bought, and, therefore, it has passed into private ownership. It has been consigned by the private owner to somebody else. Presumably, it is already a secondhand article. Is its market value that of a secondhand article or of a new one? What about a perishable article? There are nowadays, perhaps, even more perishable goods than before, with a very high value, which are consigned by post. Consider a box of peaches. A man might send the box of peaches by post. What is its market value if it is lost? It all depends on when it is lost. Was it lost at the moment of consignment or was it lost at the moment when, by virtue of the provisions of this Clause, the consignor starts to establish the fact that negligence has been committed? What is the market value of a box of peaches—the price to the grower, or to the consignor? These difficulties of knowing What is the market value of a registered packet are so innumerable and insuperable that this paragraph (b) is not worth putting into the Bill. It protects nobody; and there is alternative protection in paragraph (c).

The purpose of this provision is to prevent claims against the Post Office in respect of consequential damages, and we are adopting in this matter—as, indeed, we have been invited to do by both sides of the Committee—exactly the same position as is commonly adopted by ordinary commercial concerns -which undertake the carriage of goods. Let me take a particular example. A person may send a registered letter containing information, and may claim that, by reason of the loss of the letter or delay in transmission of the letter, he has suffered the loss of a market on which, if he had had the information in time, he would have been able to secure some advantage because of a rise of the market price; or something of that kind. Such damages would be exceedingly difficult—indeed, impossible—for the Post Office to check, and exceedingly difficult for any court to assess, and the Post Office are not able to undertake a liability of that kind.

What they are prepared to undertake is the same kind of liability as is commonly undertaken by ordinary commercial concerns in such circumstances, a liability for actual physical damage to the contents of a registered package. In a case where what has been transmitted is not a mere message, a paper which has no tangible value at all, but where something of some value has been transmitted, the question of what damage is sustained by its loss and the market value of the article in question is one for assessment by the court according to the ordinary principles which govern the action of the court in matters of this kind. It is not a matter which really gives rise to much difficulty in the courts, and it would not give rise to any greater difficulty in this kind of case than it does in the case of ordinary commercial concerns, and the Post Office does not feel able to undertake a greater responsibility in such matters.

I quite appreciate what the learned Attorney-General has said about the difficulties of assessing the value of information, and so far as that part of the paragraph is concerned, I must confess I am with him rather than with my hon. Friend the Member for Chichester (Mr. Joynson-Hicks); but I do not think the Attorney-General has met the real point of substance in my hon. Friend's Amendment, namely, that the phrase "market value" may, in certain circumstances, give rise to very considerable difficulties. Let me put one example to the learned Attorney-General. It is the practice, as I understand it, in ordering clothing by post, to send clothing coupons in an envelope. Now, the right hon. and learned Gentleman may be aware that there is a market value for clothing coupons, but that is not a legal market value. They may well have a market value—

The hon. Member is probably aware of the fact that a recent judgment has shown that there is a market value.

I shall not enter into an argument with the hon. Member on the subject of "black market" transactions, because I cannot match his knowledge on the subject. [Interruption.]The hon. Member for West Leicester (Mr. Janner) knows perfectly well that I am not casting any imputation upon him. He saw fit to interrupt me with a legally in accurate observation, and I replied flippantly, as he very well appreciates.

It was not an inaccurate observation. It is a matter of fact that a judge has so held.

I am afraid I cannot accept that from the hon. Member, because it so happens that my hon. Friend was present in court during the hearing of the case to which I have referred, and I am assured by him that the judge said no such thing. In any event, if the hon. Member for West Leicester were right—which he is not—it has remarkably little to do with the point, which is that the learned Attorney-General must recognise that the assessment of market value can, in the case of certain articles—-particularly of articles sent by post—give rise to considerable practical difficulties. "Therefore, I submit to the Committee that it would be very much easier and more satisfactory to leave the assessment of damages in this matter to the good sense of the courts, which are engaged every day in assessing damages, bearing in mind that the Crown is protected, as my hon. Friend has said, by the following paragraph. I hope the learned Attorney-General will give some attention to this point, because I feel that the Clause as it stands gives rise to wholly unnecessary difficulties.

I do not want to enter into a controversy with the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter), but I would have him know that the case to which I was referring was not the case to which his hon. Friend was referring. The fact of the matter is that, in the particular instance of which he spoke, a market value for coupons was given. I, too, can conceive of matters in which it would be literally impossible to decide what is the market value of any commodity. In particular, I should like to refer my right hon. and1 learned Friend to the position with regard to deeds and documents which may be lost. In a matter of that kind it is extremely difficult to assess the market value. It might become necessary to make searches, in order to be able to replace those documents. I think that ought to be left to the court; or at least we ought to have an assurance from the learned Attorney-General that, although proceedings cannot be taken under this particular Bill when it becomes an Act, his Department will make it clear that that will not exclude the right or possibility, which exists at present, of the postmaster making good any such loss.

I agree with my hon. Friend' the Member for West Leicester (Mr. Janner). I think the case of the deed is a very clear case in point, because the market value of a deed is the secondhand cost as a piece of parchment, and the cost of replacement is more. I want to make a point with regard to registered postal packets, which the learned Attorney-General contemplates as ordinary commercial usage, because there is the question of insurance. If a fee for insurance is paid, and if the price is to be increased, people are entitled to the full measure of the insurance as against the loss they have sustained. There maybe a firm which has spare parts specially made for a machine which has broken down. It may be some small piece of machinery of only slight value, which is specially made and is sent out to the factory in order to get that machine going again. If it is merely said: "We will repay you the 3½d. which had to be paid for that special screw of which you had not a spare" that will be wholly inadequate, because the machine will' have remained idle. There should be-some means of dealing with consequential loss. With regard to the words "market value," there does seem to be a fundamental objection. We wish to avoid vexatious -actions, but we certainly wish to ensure that there is fair value. Certainly the words "market value" appear to be wholly inappropriate, in view of the variety of articles involved.

I understand from the speeches of the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) and my hon. Friends the Members for West Leicester (Mr. Janner) and Oldham (Mr. Hale) that they are in favour of acceptance of liability in respect of consequential loss. All the instances they have given are those of consequential damage and not direct damage. Thus, the loss of deeds may result in other deeds having to be drawn up, searches having to be undertaken, and matters of that kind. Those are consequential losses and consequential damages. I should have thought, with respect, that that was clearly a case of consequential loss. The other instances that were given were all cases of consequential loss. Indeed, the hon. Member for Oldham said that this is a form of insurance, and it ought to cover consequential loss. He said so in terms. It may well be that the paying of a registration fee does give rise to a certain form of insurance, but the risk covered is the risk of loss of the articles carried, and not of consequential loss. When one pays a premium one ascertains before paying it what risk is being covered. That is the risk which the particular insurance company in these matters if one so regards the Post Office is prepared to undertake for the payment of 3½d., or whatever it may be; to repay the actual value of the article which has been lost, but not to cover any consequential damage. That, contrary to the suggestion of the hon. Member for Oldham, is what the railway company does and what the common carrier does. I think there are standard terms, and in every case they say—

The learned Attorney-General is referring to the common carrier which is analogous to the ordinary rate, the ordinary 2½d. form of postage.

The hon. Member is mistaken. I am taking the case of the railway company carrying at the company's risk. They do not insure against consequential loss; they exclude it in terms.

They have a higher fee.

I suppose anyone might cover any risk for a fee which was high enough. That may well be so. We are not prepared to enter into transactions of that kind. We accept a limited class of insurance for a premium. The only risk we are going to insure against is the actual value of the loss sustained. I quite agree that some articles which are carried in registered packets may be such as have no market value. If that is the case, there would be no difficulty in dealing with the matter, because the effect of the maximum exclusion would not then apply, and the courts would have to ascertain what was the real value of the article, disregarding consequential damages.

I do not regard this as the most important part of the Bill; nor this defect the Bill's principal defect. I do not think the Attorney-General has treated the argument fairly. It is rather a pity that the real point involved should be obscured by an ambiguous use of the wordm "consequential." If he insist upon it, let it be conceded that the kind of damage which, it is claimed ought to be covered, could be fairly described as "consequential." No one is saying that all the consequential damages which flow from the loss of a registered packet should be insured by a registered stamp. What has been said is that a limited form of consequential damage ought to be covered—perhaps the replacement value in the particular circumstances and of the particular article. No one is claiming the loss of a contract, or failure to deliver in time, as being consequential damages of this kind. It is quite a different thing from immediate consequential damage. I do not see why there should be any difficulty if we said that the article will be replaced, or a fair value will be given. That would satisfy everyone, and it would not involve the Post Office in any great liability.

I do not wish to detain the Committee any longer on this matter, because we have had a fairly thorough Debate upon it. The Attorney-General was continually referring to the actual value of the article, but I would point out that in the case of many articles the actual value is not even the market value, and we therefore immediately begin to get into a point of difference on the Attorney-General's own words. I think I must have as great a mind as the hon. Member for Oldham (Mr. Hale), because as he produced his words "replacement value," I was writing them down. It seems that we both had the same thought at the same time. I think that if any value should be inserted, it should be the replacement value.

The Attorney-General said, "Leave it to the courts," and that is the right thing to do, but the courts will not thank us for saying that what they have to find out is the "market value." The Attorney-General has said that this is not an insurance scheme as generally understood, but is merely a special fee accepted to ensure that the Post Office take care to try and avoid losing a registered packet. He has made it clear to the Committee that there is but one standard of negligence, that is, wilful neglect, or gross negligence, and that epithet should be true as far as other Departments are concerned. I hope that, if the Attorney-General does not see fit now to consider this matter further, it may be taken notice of at a later date. In the circumstances, I beg to ask leave to withdraw the Amendment.

I beg to move, in page 8, line 41, to leave out "and," and to insert:

"if—

(a) at the time when that thing is suffered by that other person, he."

The purpose of this Amendment, and of the subsequent Amendments to this Clause which stand in my name, is to meet what was thought to be the desire of the House on Second Reading, that the common law rights of a member of the Armed Forces should not be taken away, except in those cases where the events giving rise to the rights were treated by the Minister of Pensions as attributable to service for purposes of pensions. These Amendments bring that about. Pension entitlement as I suggested on Second Reading will in most cases—I will not say in every case—be as valuable to the soldier concerned as any lump sum for damages which he might recover.

I want to controvert the last statement of the Attorney-General that the pensions rights will be as valuable as those which are likely to be given by a civil court. This is a matter of real difficulty. It is obvious that men in the Armed Forces can and do sustain injuries from tortious acts, which are part of the warlike actions they carry on. One cannot hope to distinguish, for instance, between the accidental firing of a rifle causing injury, and injury caused by a rifle bullet in war. There is a large class of motor accidents which give rise to very real difficulties. It is not necessary to say that the rights of a widow who has lost her husband by tortious act, under the Disabled Persons Pensions Act, are nothing like the rights she has under common law if she pursued an action for damages.

I remember well the case of a man in uniform, walking across a place which was technically Army property, who was not there on duty, except in so far as every man in the Army during the war was on active service and was, therefore, technically on duty, being knocked down by a vehicle—and carried hundreds of yards—driven by an Air Force officer in uniform, and carrying other persons. The vehicle did not stop but was located in a damaged condition by police outside the headquarters of the local aerodrome. Every possible obstacle was placed in the way. The officer commanding said that he had no idea who had used the car, and whoever had done so had done it without his authority. It was impossible to establish who had driven the car. The result was that the widow had no rights in the matter. It is only fair to say that ultimately the Claims Commission made a not ungenerous award of a sum which was less than she might have got by legal process but was certainly more than she would get under the operation of this Clause. I think that it is a fair example of what might happen.

3.0 p.m.

In wartime any man in uniform is on duty. Any man may be the victim of dangerous driving, and the person driving the vehicle can be said to be performing part of his duties in wartime. The man may be coming home or may be returning from leave, and still be on military duty. He certainly would be if he had been recalled to the Service urgently because of some military event. The Government are wiping out a great many rights of the subject. I accept as a fact that the intention in moving the Amendment is to meet certain criticisms, but I do not think the Amendment carries out that intention.

I beg to move, in page 9, line 10, to leave out Subsection (3).

This relates to rather a technical point and I hope the Committee will, therefore, forgive me if I explain it. Subsection (3) limits the right of a potential plaintiff in an accident case where two or more persons are responsible for his injury or damage and one of them is protected by the Clause which is under discussion. The position normally at law is that a person who is the victim of an accident caused by two or more tort feasors, as they are called, is entitled to sue any one of them for damages, and to get the whole of his damages from any one. It any of them wants to recover the due proportion of the damages from any of the others responsible, he can do so. That right does not limit the chance which the plaintiff can have to go to the rich man and make him pay. That is fundamental to the present situation.

When, for one reason or another, one of those joint tort feasors is unable to get his contribution, either because the other man has no money or cannot be found or because some other event has happened, that does not in any way prejudice the position of the injured man to get damages from any one of them This Clause proposes to take that right away in a limited number of cases, that is to say, where the person suing and the person sued are covered by the other terms of the Section. In my submission, that is wrong, first, because it is inconsistent with the rest of the law as we know it and, secondly, because it is fundamentally unjust.

It can be said in answer to this that the man gets his pension rights which he would not otherwise get. I do not think that would always be true, but even if it were, it would not provide an answer to my Amendment because it must be absurd fundamentally to turn litigation into a lottery—more of a lottery than it must necessarily be. It is absurd to turn it into a lottery in the sense that a man loses part of his right to damages, to which he would otherwise be entitled, if it so happens that he is wronged by two people and one of them is a servant of the Crown. If he is wronged by one person he may get his pension rights and damages. If he is wronged by two or more people including a Crown servant, he may get only two-thirds, one half, one quarter, according to the proportion of blame—which again is very largely a matter of chance so far as he is concerned—which the servant of the Crown must endure. My belief is that this cannot be justified as a piece of law-making I do not see what the justification can be.

I would add, rather in support of what was said by the hon. Member for Oldham (Mr. Hale) just now, that it is not as a matter of fact true that a pension right necessarily forms any substitute for damages. There are matters which a pension right cannot take into account at all. Damage to a man's possessions at the time of the accident is not included. A convalescent holiday is not included. There are many things a court is bound to take into account in assessing damages which are not taken into account in assessing pension rights. I submit that it is a really absurd proposition that the question whether the man is entitled to damages alone or damages, plus pension, or part of damages, plus pension, depends upon the pure chance whether he happens to be injured by one person or two persons or the exact proportion of blame which those two people must bear as between themselves. In my submission, this is not a wise provision and ought not to be pressed.

I would like to say a word or two in support of the Amendment. It was a great mistake to put Clause 10 into the Bill, and I hope to take an opportunity of saying so shortly. It seems to me wholly unreasonable to put this Subsection into Clause 10, even if we want the Clause. The principle has been quite lucidly stated, but I would like to put it in my own way. It used not to be the law in this country that there could be any contribution between wrong-doers of any kind, and that if two people together committed a wrongful act, both of them or either of them were responsible to the person injured at the option of the person injured.

Then it was felt that that was not quite fair, and that between two people who did a wrong there might be varieties of responsibility and there was no reason in the world why they should not be compelled to bear the damage jointly to such proportion as a court of law might find. That was always between those who committed the wrongful act, and it was never held that that could in any circumstances prejudice the person who was injured by the wrongful act. The contribution between them was limited to themselves. The injured person was always entitled to recover his damages where he could. He was not in any way limited, or his action modified or qualified by the relationship between the person who did him the wrong and from whom he recovered damages. For the first time that principle is departed from, and in those circumstances what the Crown is seeking to do is to make the injured person in some way bear the injury when, without this, he would not have been responsible at all. In a Bill which has been introduced in order to abolish outworn prejudices and to extend the rights of the subject, it seems a pity that the general law should be cut down in a way which nobody thinks right in any other kind of action.

I do not wish to add anything on the merits, because I agree entirely with what was said by my hon. Friend the Member for Oxford (Mr. Hogg). I want only to raise two points of procedure. The Lord Advocate will be aware that if this Subsection stands, it will be necessary to re-introduce into Scottish procedure a method which was tried and rejected as being unsatisfactory, and why should this be? The other point of procedure is this: it is a complete novelty that there shall be power to bring in and make a party in a case in court somebody who admittedly has no interest in that case at all. This Subsection contemplates that the Attorney-General or the Lord Advocate shall be made a party if the Crown is sued, or that the soldier himself shall be made a party, when admittedly it does not matter to him who wins or what happens. The defendant may join the other person who has no interest whatever in the litigation. That is a complete novelty in the law of Scotland, and the fact that it is necessary to bring in that anomaly shows how ill-founded is the conception on which the whole Subsection is based.

The hon. Member for Oxford (Mr. Hogg) was good enough to write to me about his proposed Amendment, and although I am compelled to tell him that' we shall be unable to accept it, I would like him to know that it has been given by my noble Friend and myself the most careful thought and consideration. It was said by the hon. Members who have spoken that this Clause introduces some principle which is alien to our general law, but I must point out that it was supported by everyone, including a number of very eminent lawyers, who spoke to the Clause in another place. It was moved into the Bill by Lord Simonds and it was apparently regarded by those who spoke to the Clause there as being an act of elementary justice which would remove what would otherwise have been an unintended consequence from the general provisions of Clause 10 which would have formed a blemish on the Bill.

The purpose of the Subsection is to prevent hardship to private persons who, but for the provisions of Clause 10, would have had a right of contribution against the Crown or against the Crown servants. That right disappears under the Bill. It was thought, and it is still thought, that it would be unfair in circumstances such as these to leave the private driver, the private defendant, to meet the whole of the damages without having any right of contribution—

He has now.

He has a right of contribution, but that does not affect the Crown. I am dealing with the position of the defendant, if my hon. Friend will listen. I am coming to the position of the plaintiff, but one has to deal with separate matters separately. So far as the defendant is concerned, it was thought unfair to leave him in the position of having to pay the whole of the damages without the right which he has now of contribution against the Crown or against the Crown servants. So far as the position of the plaintiff is concerned, he is a person who must always be, for this exclusion to apply at all, in the service of the Crown, on duty as a servant of the Crown at the time the accident occurred. He will, therefore, get his pension rights from the Crown in respect of the accident, and those rights, in addition to the damages which he may recover from the private wrongdoer, will prevent any real hardship arising. I am sorry, therefore, that we are not able to accept the Amendment.

I am very much surprised at the answer given by the Attorney-General. I thought this was an enabling and extending Bill to extend the rights of private individuals, but into this Clause a limitation is introduced. As the Attorney-General has said, there are two persons concerned, the plaintiff in the action and the defendant in the action. Under the law as it now stands, a defendant who has been unsuccessful in his defence has the right of contribution against the joint tort feasor. Until recently he had to be prepared to pay the full damages. As the hon. Member for Oxford (Mr. Hogg) and the hon. Member for Nelson and Colne (Mr. S. Silverman) said, each of the tort feasors is responsible for the full amount, and only recently has the question of giving them the right of contribution among themselves been brought in.

"It would not be fair" says the Attorney-General, "for the civil defendant to be responsible for the full amount in a case where he cannot get his contribution from the Crown. Therefore, rather than do injustice to the defendant it is better that injustice should be done to the plaintiff, that is to the man injured, and deprive him of his rights and now he will only get a proportion of the contribution from the civil defendant, and he will have to rely for the rest on the pension he would get." If that is not cutting down the limitation, I do not know what is. I am not a bit impressed by the very learned judges who have been quoted. Here is a Bill intended to be an enabling Bill, but now it is suggested there should be a deliberate cutting down of the constitutional rights of private citizens. For they are private citizens even though they happen to be in uniform and on duty, they still remain private citizens. I cannot see what defence the Attorney-General can put forward to this Amendment.

Although time is pressing, I cannot let this Clause go without joining in the general protest from all sides of the Committee. I am not impressed because a number of learned law lords in another place think they are doing something which is fair. I think that if the King's Bench judges, with practical experience of working out this rule in courts of first instance, had been considering this matter, they would not have agreed with the rara avisin another place. Every judge of first instance values the Law Reform (Contribution Between Joint Tort Feasors) Act but also values the fact that the plaintiff himself is entitled to take his full damages from any of the tort feasors. A plaintiff is now so entitled to get full damages from either party, leaving the defendants to fight it out. This Clause might be all right if the percentages were always fifty-fifty. But in one case the judge may say that one of the defendants is only 5 per cent. liable, or even 1 per cent. liable. There may be a number of cases where the defendant is held to blame to the extent of 10 per cent. If this Clause becomes law the citizen with a right will be indulging in catch-as-catch-can. He may get his pension plus 10 per cent, or his pension plus 90 per cent, damages. That disposes of the argument of the Attorney-General. I say that this is cutting down the right of the plaintiff in a manner with which this Committee ought not to agree.

I understand that time presses. If I were to follow my convictions in this matter, I should press it to a Division, but I do not wish even the time of a Division to interfere with the progress of this excellent Bill. If my hon. Friends agree, I will not press the Amendment to a Division, but I ask the Attorney-General to take to his noble Friend the universal howl of execration with which this Subsection has been greeted in this Committee, and that it even be whispered to the other noble Lords that it has not met with approval in this place, and that perhaps it might be dropped at the next stage. I beg to ask leave to withdraw the Amendment.

I said on Second Reading what I had to say about this Clause. In my view, which I am glad to think is shared in many parts of the Committee, it is a great pity that this Clause was ever brought into this Bill at all. There was not the slightest need for it; it does only injustice, and produces all sorts of complications that are totally unnecessary. It can work in no one's advantage, and I hope that before we part with the Bill altogether, there may still be time for second thoughts and the withdrawal of this Clause altogether.

I agree. Would the Attorney-General consider, with his noble Friend, whether it would not be better to take out Clause 10 altogether, and do whatever is necessary with regard to the matters therein mentioned by introducing them in a separate Bill?

I would like to support that suggestion.

I would also like to support it.

I do not rise to join in the chorus but to express the hope that if this Clause is to be reconsidered, as I hope it will be, attention will be given to Subsection (4), which provides that a certificate by the Admiralty or a Secretary of State about a person being on duty may be produced. A certain amount was said about that on Second Reading, but I am still not satisfied that a conclusive certificate is necessary. It should be possible for a person who disputes what is said by the Department to be allowed to say so, and if the whole of the Clause is being put into the melting pot again, perhaps a little of the heat might be applied to Subsection (4).

May I briefly support the plea for the withdrawal or reconstruction of this Clause? If, in fact, it is withdrawn, I think it will be found in practice that the liability of which the Government are trying to rid themselves is so small as not to justify the inclusion of this particular Clause as it stands.

I beg to move, in page 9, line 48, to leave out from "for," to "issue," in page 10, line 1, and to insert "defence of the realm."

During the Second Reading Debate i raised the question of the conclusive certificate provided for by Clause 11 (2), and I ventured to suggest that the Subsection be dropped altogether, that in any event the terms were far too wide, and that great embarrassment would be caused if matters of this kind were left entirely to the certification of the Service Departments, particularly when we are getting on to such an obscure topic as the width of the Prerogative. It occurs to me that a satisfactory compromise with the Service Departments might well be that when we are dealing with such matters as the defence of the Realm, where they have peculiar responsibilities, they might be allowed to decide the case for themselves; but when one is only dealing with matters such as training or maintaining the efficiency of the Forces in peace time, I see no reason why the powers of the courts should go and why the Service Depart- ments should be put in a position to decide matters of that sort without question of appeal. In view of the lateness of the hour, I will not expand my argument, but I hope that the Attorney-General will make some concession.

It is by no means the case that the prerogative powers of the Crown are restricted to matters concerning the defence of the realm. If that were the case, there would be great substance in the submissions made by the right hon. and learned Gentleman, but whilst the prerogative is undefined, there are a great many other matters not connected with military Forces at all which come within the scope. Questions about aliens, harbours, patents, and the right of the Crown to suppress disorder and maintain peace are matters of prerogative. It is true, however, that the prerogative power also covers, in time of peace, the whole of the maintenance, the training and efficiency of the Armed Forces of the Crown. It is commonly supposed, I know, that as a result of the passing of the annual Army Act the Armed Forces rest for their existence upon that statutory authority and are maintained by the Crown exclusively under that Statute. That is not the case. The discipline of the Forces depends upon the Act, but the efficiency of the administration of the Army which the Crown is authorised by Parliament to maintain depends entirely upon the prerogative powers. That also applies to the Navy.

The prerogative powers cover the training and arming of the Forces, the setting up of fortifications round the coast—even in times of peace—the training of the Forces in the use of armaments in these fortifications, and so on. To take one particular instance—the fortifications at Shoeburyness—the firing of the guns in practice there, is carried out under the prerogative powers of the Crown. It is essential that nothing in this Bill should take away from that prerogative or any of the other undefined prerogative powers which the Crown possesses. This Bill does not in any way enlarge the prerogative. It leaves it as it is and it leaves the courts able, as they are now, to define what is the nature or extent of the prerogative in any particular case. All that the certificate here does is to provide that some particular act may be certified as having been done in the course of a prerogative. It would still be for the courts to say whether that particular prerogative had any legal existence or not. I hope that the right hon. and learned Gentleman will be able to withdraw his Amendment.

I certainly cannot agree with the argument of the Attorney-General, particularly in regard to the last part where he says that it is for the courts to define the nature and extent of the prerogative and that that will remain with them if this Clause is passed. I cannot believe that, because the certificate here will be to the effect that the matter was properly done or omitted to be done in the exercise of the prerogative and it will, therefore, take that matter out of the hands of the courts altogether. I regret very much that this Subsection should be insisted upon. I feel sure that it does alter the powers of the court but, as has been pointed out by other hon. Members, this is not an occasion when we wish to divide the Committee. I feel that this goes very much further than the Attorney-General has admitted, and I hope that he will look into the matter again. I beg to ask leave to withdraw the Amendment.

I beg to move, in page 10, line 10, to leave out "forty-seven," and to insert "forty-six."

The effect of this Amendment is so clear that I do not think I need say any more about it.

The purpose of the Amendment is to ante-date the operation of Part I of the Bill to February, 1946. I am afraid we cannot accept that proposal. I have no doubt that the hon. and learned Gentleman has based his Amendment upon the fact that a decision in the case of Adams v.Naylor was given, not in February, but in the early part of 1946, and that, therefore, as from that date, certain proceedings against Crown servants should no longer be taken. For that reason, the hon. and learned Gentleman would wish us to ante-date the provisions of this Bill to the time when that became the case.

Since the decision in the case of Adams v.Naylor was announced in the House of Lords, we set up a form of machinery whereby any claims which might previously have been made the subject of action at law might be made subject to arbitration. A number of claims have, in fact, since that date, been made the subject of the arbitration machinery to the satisfaction of everybody concerned. It would be wholly wrong, in my view, to place those who tarried in putting forward their claims in a more favourable position, because it is a more favourable position, by giving them action at law, than those who decided to take advantage of the arbitration machinery and whose claims are now being dealt with in that way. This Bill provides that equality of treatment in respect of all those cases which arose after the Adams vNaylor decision and before the introduction of the Bill. We have to fix a date somewhere and we thought the right date was the date when the Bill was introduced.

I quite agree with the answer given by the learned Attorney-General, but I would put one question to him. Did all those people who had the right to make claims know of the possibility of the arbitration machinery

In any case where a claim was submitted they certainly knew of that matter, and, if a claim was put forward, the individual concerned would be acquainted with it. The arbitration procedure is well in hand and is being used, and much publicity was given to it at the time. I was asked a Question about it in this House, and the matter was also mentioned in another place.

I think that all the people concerned were well aware of that provision.

In those circumstances, I beg to ask leave to withdraw the Amendment.

I beg to move, in page 13, line 12, at the end, to insert:

"unless the court or judge at the instance of any party orders otherwise."

I propose, with your permission, Mr. Beaumont, to take this Amendment and the next one in my name, as they really go together—in line 13, to leave out Subsections (2) and (3). The short point is that, at present, where a writ is issued, all subsequent proceedings up to the trial have to be taken either in the district registry or in the central office, according to where the action is commenced, but it is now proposed in the Bill that all such proceedings have to be taken in the Central Office and not in the district registry where the writ is issued there as would be done in a normal case. That might lead to some inconvenience and hardship to the plaintiff, and all I desire to do is to ask the Attorney-General whether he will consider that again to see whether some improvement cannot be made in that connection.

The second part of the Amendment is much more substantial, in my submission. Under the Bill, the right to go to the Assizes seems to be taken away altogether, unless the consent of my right hon. and learned Friend the Attorney-General is obtained. That seems to me to be a rather arbitrary proceeding. Why, in this particular case, my hon. and learned Friend, without giving the court any power to decide the matter, should arbitrarily say, whatever the circumstances, "No, I insist that this case should be tried in London and not in the country," I do not know. It may be that the matter will have arisen in the country, that the witnesses are there, and that everything that is convenient and near to the trial is all situated in that locality, and yet my hon. and learned Friend can say that, in spite of those conveniences, the matter must be dealt with in London. There are certain rules of court, as my right hon. and learned Friend knows, which provide that where it is more convenient to have a trial in the country by reason of local circumstances, the court invariably decides that it has got to be tried there. All I ask is that my right hon. and learned Friend will look at the matter again to see whether some modification cannot be made in order to meet the practical needs of the circumstances.

The reason for this provision, which was recommended by the 1921 Committee, is that in some—I dare say very few—important cases, cases of constitutional difficulty, or cases which are important for some other reason, it is necessary to have Treasury Counsel and a Law officer appearing for the Crown. That would be really quite impossible in existing circumstances unless the Crown were able to fix the trial in London. Of course, under the provisions of the Bill as it now stands, if the Crown does elect to have the case tried in London, it will have to bear the additional cost occasioned by trial in London rather than by trial at Assizes. As a matter of fact, of course, a very large proportion of cases are already dealt with at Assizes, and will continue to be so dealt with. Ordinary common law actions, running down actions, and actions of that kind, where no question of constitutional interest arises, always go to Assizes. If the court, in the exercise of its discretion, considers it convenient for the parties that the trial should take place there that practice will be continued. Even the case of Adams and Naylor, which gave rise to issues of considerable constitutional importance, originated in the Liverpool Assizes. We have considered the matter, and we shall not operate the Clause harshly. But, in cases where Law Officers have to be engaged, or in cases which raise matters of constitutional interest and where Treasury Counsel have to be employed, we must have the right to have the trial in London, if need be.

I beg to move, in page 14, line 46, to leave out "proceedings in the High Court," and to insert, "an action."

As at present drafted, this Clause limits the scope of the proceedings to which Part II of the Bill applies, and confines it to actions in the High Court. Of course, that is wrong. The intention is that the county court should be included in the scope of the provision, and that is the object of this Amendment.

I beg to move, in page 15, fine 38, at the end, to add:

(4) Subject to the provisions of any Order in Council made under the provisions hereinafter contained, this part of this Act shall not affect proceedings initiated in any court other than the High Court or a county court.

This is an Amendment to the same effect, in order to remove any doubts.

I beg to move, in page 16, line 34, at the end, to insert:

"(3) If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the Certificate shall state the amount so payable, and the appropriate Government department shall, subject as hereinafter provided, pay to the person entitled or to his solicitor the amount appearing by the certificate to be due to him together with the interest, if any, lawfully due thereon;

Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such directions to be inserted therein.

(4) Save as aforesaid no execution 01 attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Crown of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Crown, or any Government department or any officer of the Crown as such, of any such money or costs."

This is the privilege part of the Clause which is already in the Bill dealing with financial matters.

I should like to raise a matter which was briefly referred to by the Attorney-General in moving the Second Reading, and that is the proviso to Subsection (2). As the Committee will appreciate, that is the proviso which keeps alive the provisions for committal in two specific cases of debts owed to the Crown—debts incurred in the case of Purchase Tax and in the case of Death Duties. On the Second Reading, the learned Attorney-General told the House that that power was preserved because in those cases, and apparently in only those cases, the money had come into the hands of the person concerned as a kind of trustee, and that, therefore, it was necessary to preserve it in this case. But I think we are entitled to hear a little more of the reason why, in the case of two specific taxes, this very considerable power is preserved. A variety of taxes are imposed by a variety of methods in this country today, and it seems a little oppressive that in the case of these two particular taxes, this very considerable power should be preserved. I do not think the Committee should part with the Clause without hearing some justification for it.

I rise in support of my hon. Friend the Member for Kings-ton-upon-Thames (Mr. Boyd-Carpenter) in order to give the learned Attorney-General an opportunity of perusing the paper which he has just recived and which, I trust, deals with this Clause.

No, it does not.

The point that has been raised is one on which the Committee is entitled to have, and indeed would welcome, some further explanation from the Attorney-General. This power of the Crown to imprison people for debt is an anachronism. It has long since been given up in the ordinary way, in regard to private debts, and we have heard a good deal from the Attorney-General as to the desirability of the Crown being a good employer and on a par with private concerns, in other connections. Why should the Crown not also be on a par with the private individual in regard to the recovery of sums of money? The Committee should demand some further enlightenment on these two rather unusual and minor exceptions to the ordinary run of law, and as to why this power of imprisonment should be retained.

I think there is a little confusion about this matter. The special Crown remedy, the writ of capias ad satisfaciendum will not survive. It will not be used even in regard to these two cases. What is being done by this provision is to add two cases, those of Purchase Tax and Death Duties, to the six special cases which are already provided for in the Debtors Act. I do not think any hon. Member will wish me to enumerate the six existing cases, but I would mentioned two because I think they are, in a sense, analogous—default by a trustee in paying over money in his possession, and default by a solicitor in paying costs under an order to make payment. There are analogous cases to those under Section 4 of the Debtors Act, where the trustee of money has failed to pay over. That is, in a sense, also the position of a man who is under a liability to pay Death Duties or to pay Purchase Tax. He has presumably had the money out of which he ought to have paid the Purchase Tax or out of which he ought to have paid the Death Duties, and experience with these two classes of case has shown that it is very useful to have in reserve this remedy, a remedy which is never utilised unless there is a real reason for thinking, as I indicated on Second Reading, that the person has the money salted away and could pay if he would. This is a method to encourage him to desire to pay.

I am a little disappointed not to see any Amendment by the right hon. and learned Attorney-General on Clause 28, having regard to the discussion we had on Second Reading. I do think some regard ought to have been taken of the strongly grounded objections that were made to Clause 28. I think something ought to be done about narrowing down the exemption from about narrowing down the exemption on the wide ground of public interest, to the ground of public safety and defence. Whether the privilege claimed in Subsection (2) is a good one or a bad one I do not propose to debate now. As no Amendments have been put down I reserve the right to put some down on Report stage. I hope the matter may be considered in the meantime.

I beg to move, in page 20, line 36, to leave out paragraphs (c) and (d.)

The object of this Amendment is to put the solicitor to a Government Department in precisely the same position as any other solicitor, and to lay him open to the same results if he is late in making pleadings or in entering an appearance.. There seems to be no reason why he should be put in a protected position.

To a great extent the purposes of default and summary judgment procedure are to obtain quick judgment in case the defendant disposes of his assets or clears out of the country. That, of course, cannot apply to the Crown, and, in all the circumstances, we feel unable to accept this Amendment. I do not think it is appreciated what an enormous amount of work is involved in Government Departments at the present time, or will be involved when the whole field of tort is thrown open to the private litigant. I will be quite frank with the Committee. In regard to this matter the Crown simply cannot face at the moment having judgment signed against it in default of appearance without the leave of the court; that is to say, without notice of an application to that effect having first been given to it. I ask my hon. Friend to agree that it would be unreasonable to subject the Crown to the risk of snap judgments of this kind, and that there really is no hardship on the subject in imposing this provision.

I beg to move, in page 21, line 44, to leave out:

"Save as aforesaid expressly provided."

I should also like at the same time to refer to the two following Amendments: In page 21, line 46, after "instituted" to insert:

"and have not been determined by judgment or otherwise"

and in page 21, line 47, to leave out:

"for the purposes of this section."

The purpose of the Amendment is to bring in pending proceedings. Under the Clause they are excluded. The short point which I wish to make is, that the Clause as it stands enables the Crown, in regard to pending proceedings, to raise the very defences which the Bill removes on future actions. That seems to me to be wholly inconsistent and indefensible. Again I ask the learned Attorney-General to look at this, and to see whether something cannot be done about it on Report.

I am afraid we are unable to accept this series of Amendments. If my hon. and learned Friend looks at this again he will see that they would not achieve the purpose which he appears to have in mind, and would, indeed, make the application of the Bill a matter of extreme difficulty.

I beg to move, in page 26, line 31, at the end to insert:

"(3) If the order decerns for the payment of any money by way of damages or otherwise or of any expenses, the appropriate Government department shall, subject as hereinafter provided, pay to the person entitled or to his solicitor the amount appearing from the order to be due to him together with the interest, if any, lawfully due thereon:

Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that pending an appeal or otherwise payment of the whole of any amount so payable, or any part thereof, shall by suspended.

(4) No such order as aforesaid shall warrant any diligence or execution against any person to enforce payment of any such money or expenses as aforesaid, and no person shall be individually liable under any order for the payment by the Crown, or any Government department or any officer of the Crown as such, of any such money or expenses."

This is the privilege part of the Clause.

Perhaps the learned Lord Advocate would tell those hon. Members of the Committee who, like myself, do not know, what the fourth word of Subsection (3) means?

The word "decerns" means "decrees."

We ask the Committee to leave out Clause 50 of the Bill in order to substitute a new Clause, which will enable us to apply the Bill as a whole to Northern Ireland, with such necessary Amendments as are required by the different system of law and administration in that country.

I beg to move, "That the Clause be read a Second time."

This Clause is to implement the undertaking I gave on Second Reading, to provide machinery whereby such ancient courts as the Liverpool Court of Passage and the Salford Court of Record can be brought in.

I should like to express the gratitude of many of us who are interested in these courts for this provision.

I beg to move, "That the Clause be read a Second time."

This Clause provides for extending the Bill to Northern Ireland by Order in Council. There is provision for the laying of the Order.

Can we be told why, in connection with the laying of the Order, the period is for 28 days instead of the more modern form?

It was thought that this was a sufficient period in the circumstances of this particular class of Order.

I beg to move, "That the Clause be read a Second time."

I beg to move, "That the Clause be read a Second time."

This is also a privilege Clause in the Bill.

I beg to move, as an Amendment to the proposed Clause, to leave out lines 21 and 22.

I raised, on Second Reading, this question of why there should be special exemption from the activities of creditors all war savings certificates and that kind of investment.

I am prepared to accept the Amendment.

I am much obliged.

I beg to move, That the Clause be read a Second time."

The Clause is intended to extend to one year—