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Clause 6—(Destruction Of Or Damage To Apsley House)

Volume 440: debated on Friday 25 July 1947

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11.15 a.m.

I beg to move, in page 5, line 38, to leave out Subsection (3).

When the Minister of Works moved he Second Reading of this Bill, he referred to the magnanimous gesture of the Duke of Wellington in handing over Apsley House, and to his great public spirit. Those sentiments were echoed from both sides of the House. I submit that it is quite wrong to take advantage of the Duke's generosity by allowing Subsect on (3) of Clause 6 to stand. Under Subsection (2), if damage is caused by fire, or in any other way, to any part of the house through the negligence of the Duke or his servants, the Duke is to be responsible for making good that damage, and the same is to apply if there is damage to furniture, but not if there is damage to the exhibits in the museum. Subsection (2) is not unreasonable. It is right to put responsibility for negligence on the Duke, and I make no complaint about that. But, under Subsection (3), if damage is caused by fire in the part of the house which the Duke occupies, his negligence is to be presumed—the burden of proof is to be on him. In the Second Reading Debate, the Minister apparently considered that was an ordinary liability of a tenant. He said:
"The Duke himself would be responsible for the ordinary tenant's liabilities in respect of the part of the house that he will occupy." —[OFFICIAL REPORT, 27th June, 1947: Vol 439. c. 892.]
I submit that no such liability ordinarily attaches to a tenant, and the chairman of the Select Committee, the hon. Member for Chesterfield (Mr. Benson), when speaking about this Clause, said:
"I have been accustomed to handle leases all my life, but I have never yet come across a lease which is so unconscionable as to include a Clause like this."
I agree with the chairman of the Select Committee. The burden of proving negligence ought to be on the Crown, and not on the Duke of Wellington to prove its absence. It is surely, an ordinary principle of British justice that a man should be deemed innocent of negligence unless the contrary is proved. I hope that one of my hon. Friends more learned than I will develop that point.

The agent for the Bill argued in favour of Subsection (3) that the Crown could never prove how a fire took place. I submit that this is not a good reason for imposing an unjust burden on the Duke. Moreover, he might be in precisely the same difficulty. Let us suppose, for example, that he was away from the house, and that his part of it was left in charge of a housekeeper, and that during his absence a fire took place and the housekeeper perished in it, which is by no means an impossible contingency. In those circumstances, how could the Duke prove the absence of negligence? The Committee were also told by the Treasury Solicitor that the Duke had agreed to this Subsection. Even if he did, I submit that Parliament ought not to pass something which is manifestly unfair, especially when the Duke has behaved in the generous way to which the Minister referred.

Of course, the Duke could insure his liability under both Subsections (2) and (3). He could insure both his liability for negligence and his liability for presumed negligence. I have, however, been at pains to make inquiries at Lloyds to ascertain whether, if this Subsection (3) casting the burden of proof on him were left in, the premium would be the same as if the Subsection were left out, and I am assured that the premium would be substantially higher if the Subsection were left in. Therefore, the matter is not an academic one; it is a point of substance, and I submit that the Duke ought not to be put to the extra expense to which he will be put if we leave Subsection (3) in the Clause.

I wish the hon. Member for Twickenham (Mr. Keeling), who is so anxious to promote this alleged principle of justice, had been equally active in its advocacy where the interest of the State, rather than of a private individual, was concerned, because, curiously enough, in another Bill which is to come to this House on Report today, exactly the same principle is embodied in relation to the Crown. In the case of the liability of the Post Office for postal packets in transit—I am quoting this as an example of what is, in fact, the general principle which is applied to these matters, and it is only one example—the Bill provides that there is a liability on the Post Office for the loss or damage of such postal packets if it is caused by their negligence, and the onus is cast upon the Post Office to prove, if damage or loss occurs, that it was not occasioned by their negligence. I hope the hon. Member for Twickenham will move his Amendment to that provision just as he has moved it to this one.

This Amendment, the object of which, as the hon. Member has said, was fully considered, discussed and rejected by the Select Committee, is really quite inappropriate to the circumstances for which this Bill, by agreement with the Duke, provides. Under the scheme, as the hon. Member knows, Apsley House is divided into two quite separate portions, one to be retained for the occupation of the Duke, and the other to be occupied by the Crown. If any fire occurs in that portion of the building which is occupied by the Crown and it extends to the Duke's portion, the Crown accepts full liability for it. Negligence or not, the Crown undertakes liability for any damage which results, whether it is occasioned by he fault of some Crown servant or whether it is the result of something which, so far as they are concerned, is a completely inevitable accident. It has not been sought, although it might well have been, to impose any such liability on the Duke. The Duke is only to be liable if a fire occurs in his portion of the premises through the negligence of himself or his servant. His portion of the premises is under the control of himself or his servants. The Crown have no access to it. The Crown can have no possible means of establishing whether or not there has been want of care on the part of the Duke or his servant in giving rise to a fire. Therefore, as the Duke agreed, this Clause was inserted in the Bill, and he has accepted the onus of showing how the fire occurred, or, at least, if he is unable to, do that, of showing that it was not the result of any negligence on the part of himself or his servants.

The hon. Member for Twickenham says that that is unusual. So far from it being unusual, it is the ordinary common law principle which applies to cases of this kind—what lawyers call the rule in Rylands v. Fletcher. For many scores of years it has been the rule that if a fire escapes, say from the house occupied by the hon. Member for Twickenham, and sets light to my house next door, the hon. Member for Twickenham will have to pay for the damage which I have incurred unless he is able to show—and the onus lies on him—that what has happened is the result of an inevitable accident and not from any fault on his part. Living next door to the hon. Member for Twickenham, if I had the good fortune to do so, the onus of proving that he had been negligent would not lie on me if my house were destroyed by a fire which had spread from his. It would be for him, whose fire had spread, to show that the fire had originated from a pure and inevitable accident. That is the ordinary principle of law.

If what the right hon. and learned Gentleman is stating is correct, as I dare say it very probably is, is he not showing that the whole of this Subsection is quite unnecessary, and that the position might he allowed to rest where the common law has put it?

I do not think so, because what has happened here is that we have made a special agreement with the Duke, undertaking a special liability on the part of the Crown and giving rise to a different liability on the part of the Duke. One must read the Clause as a whole, and, in order to be quite clear that while the Crown is undertaking a special liability, the Duke remains under what would be the normal liability, we have expressed it in the Bill.

I was directing my argument to the point, which has been stressed many times by the hon. Member, that there is something new in this, and something contrary to the ordinary principles of justice. This is an age-long principle of our ordinary law. We have altered it in this case, in order to impose a higher liability on the Crown and to retain the existing normal, customary liability on the Duke.

The Attorney-General said that it was the ordinary rule as laid down in Rylands v. Fletcher. Surely the rule in Rylands v. Fletcher applies only where a person keeps an inherently dangerous thing on his premises, such as a reservoir or a bull, and the liability attaches to him if he allows the water or the bull to escape. There is nothing of that sort here at all.

The hon. Member, if I may say so with respect, is wholly mistaken, and I have no doubt that other hon. and learned Members opposite will be able to assist him on this point. This is not at all a matter of doubt. For scores, if not for hundreds of years, the escape of fire has been regarded as covered by this principle. Indeed, there is a strong argument for going further, and saying that if a fire escapes from the hon. Member's house to my house he is under an absolute liability, and if he shows that he is guilty of no negligence at all, he is still guilty if my house is burned down. But I am not pressing that. I myself do not think that is correct, but the rule in Rylands v. Fletcher, which applies to the escape of fire, is one of the well-established Imo-positions of our law which, for a long time, has been in no doubt at all.

The whole of the circumstances resulting in the division of Apsley House are peculiar, and there is no exact precedent for providing for such matters as damage by fire and other relationships which may arise between the Duke and the Crown. A bargain was made between the Duke and the Crown that, on the one hand, in certain circumstances, the Minister of Works should be absolutely responsible, and, on the other hand, the Duke should be responsible for negligence, the onus being on him to disprove it. That was the arrangement. If it is now sought to depart from that arrangement it may well be that we shall want to re-open tae whole of the agreement concerning these matters, and see whether they ought not to be dealt with in some different way. In those circumstances, I hope the hon. Member will see fit to withdraw his Amendment.

11.30 a.m.

As a layman and a non-learned Member, I am not impressed by the argument which the learned Attorney-General advanced, albeit quite lucidly, in regard to his residence adjoining that of my hon. Friend the Member for Twickenham (Mr. Keeling), as if these were parallel circumstances. Surely, the right hon. and learned Gentleman will agree that there is a difference between his sober and well conducted residence and the equally sober and well conducted residence of my hon. Friend, and an establishment of this character? The Duke of Wellington is now dividing his house in two, half being a residence and half a place of entertainment. The kind of entertainment we are to have is not indicated very clearly. Apparently, according to Subsection (2, a) it is to be

"for the purpose of any entertainment given on behalf of His Majesty's Government."
I am inclined to think that, if the learned Attorney-General had found that the hon. Member for Twickenham was devoting his residence to any entertainment—even in the right hon. and learned Gentleman's restricted sense of what entertainment might be—it would certainly qualify the value and nature of his adjoining residence, and also the risks inherent therein. Persons who attend entertainment under the auspices of His Majesty's Government, or any Government, are of a very varied and diverse character, and it might well be—

The hon. Member is now out of Order. This Bill is concerned solely with the Wellington Museum.

I was merely taking that example as an illustration. I noticed that the learned Attorney-General was allowed to refer at some length to the Post Office.

It is by way of illustration that I am comparing this to the example the right hon. and learned Gentleman gave with regard to his own residence and that of the hon. Member for Twickenham. My mind would not have gone in that direction except for the fact that he mentioned it.

Surely, there is a profound difference between two adjoining residences, where the risks of fire are normal and habitual, and a residence which is partly shared by the Government who quite rightly, claim the right to bring to that building at any time, and under any circumstances, large numbers of persons with either sound or doubtful qualifications. A person who is sharing as a private concern, for example, His Majesty's Theatre, with its usual entertainments, is, under an ordinary practical insurance policy, liable to a very much higher premium than he would be if he were living in a detached building. The liability placed upon the occupier of the residence because of the use to which the other portion of the premises is put—and it is a very ill-defined use in the case of Apsley House—seems to me to alter the liability very seriously. I can assure the learned Attorney-General that if he, as the neighbour of the hon. Member for Twickenham, takes out a risk with any reputable insurance company, he will find it to be very different from one which the Duke of Wellington takes out with the same insurance company; the rating will be very much higher in the second case than in the first.

I am surprised that the Attorney-General should insist upon keeping in this Bill a Subsection which, on the face of it, looks so harsh and unconscionable as does this one. I am equally surprised by the weakness of the argument with which he has bolstered his case. The Duke of Wellington, in his generosity, has agreed to these proposals, but that is not the slightest reason why this Committee should not amend them. We in this Committee are never bound by agreements reached outside, and when the Duke is making over to the country a gift of such priceless value as that which he is now giving, it is monstrous to maintain in the Bill such an unconscionable Subsection.

The position of the Government is, of course, different from the position of an ordinary citizen in the matter of insurance. Hon. and right hon. Members opposite know, or should know, that in the ordinary way the Government do not insure their property; the Government have so much property, spread over such a wide area, that, in the public interest, they very wisely carry their own burden of risk. Therefore, any fire originating in Apsley House will not be dealt with as it would be in the case of two owners of, let us say, adjacent semi-detached villas, where the fire spread from the one to the other. In that case, of course, the matter of liability is dealt with between the insurance companies by what is called the ordinary "knock for knock" clause. In this case one party, the Duke, will be insured, and the other party, the Government, will not be insured.

As far as I know, there is no such thing as a "knock for knock" agreement in regard to fire insurance; nor, of course, is there any obligation on the owners of adjacent proporty to insure against fire. No doubt, the right hon. Gentleman is thinking of the case of motor insurance, which is a rather different case, covered by Statute.

I am obliged to the right hon. and learned Gentleman for his correction if I misused the term "knock for knock". No doubt the question of liability would be settled without litigation between the insurance companies concerned. That is the point. This is an exceptional case, because, as the right hon. and learned Gentleman knows, every leaseholder is compelled, under the terms of his lease, to insure his premises against fire. It is the most usual thing in the world to have a fire insurance policy upon a house, and I am quite sure the learned Attorney-General has a fire insurance policy upon his own house. In this case, there will be an exceptional position, in that one party will be covered by insurance and the other party will not be. In those circumstances the Crown is bound, as trustee for the national Exchequer, to use to the full against the Duke of Wellington any powers given to it by this Bill.

Government Departments are always frightened of the criticisms of the Public Accounts Committee, as the hon. Member for Chesterfield (Mr. Benson) and I know full well. If it appeared to the Public Accounts Committee that under this Clause the Crown had a good claim against the Duke of Wellington for a considerable sum of money—it might run into half a million pounds—but had compromised that claim in any way, and had not operated to the full the powers given to it by this Subsection, then those concerned would get into serious trouble with the Public Accounts Committee. The Gov- ernment, therefore, are always in the position of a trustee who can make no settlement but is bound to use to the full the powers entrusted to him by law. That is the position from which we start. If this Subsection does, in fact, add anything lo the common law the Government are bound, when occasion arises, to use this Clause to the full against the interests of the Duke of Wellington.

But the Attorney-General goes on and draws an analogy between the position of the Duke under this Clause and the position of the Post Office under, the Crown Proceedings Bill. Frankly, that is as weak an argument as has ever been advanced in this Committee. I suppose he might compare the position of the Duke to the liability, and the special liability, placed upon common carriers, such as railway companies, who hold themselves out as persons who are ready and willing to convey goods for the public. He might, I suppose, compare the position of the Duke to the special position of innkeepers who take charge of goods deposited with them by residents. But to say that the Duke should accept the same position as the Post Office, who hold themselves out as able and willing to carry safely from one part of the country to another parcels and packages entrusted to them by the public, is, to my mind, utterly ridiculous. Why should the Duke undertake any special liability or responsibility of that character? He is an ordinary private citizen. Why, in respect of these premises, there should be placed upon him a special and more onerous liability than that carried by the ordinary citizen, I do not know.

Lastly, the learned Attorney-General contradicts all his former arguments by saying: "Oh, but this Subsection does nothing to the common law. This is a e common law position. If a fire breaks out in your house and spreads to mine which is next door, then there is a presumption of liability against the person in whose premises the fire originates. That may very well be the case, though I am not at all sure that the owner of the house in which the fire originated would not be able to plead an act of God if his house had been struck by a thunderbolt or something of that character.

That is one of the elementary things which one learns and that is what I sought to explain to the House as an ordinary principle of law. That was why I referred to the Post Office. The hon. Member for Twickenham (Mr. Keeling) was saying that this was something new, unusual and unprecedented. The ordinary principle of law is that where a person has exclusive control over property, and something untoward occurs in connection with that property and results in damage, it is for him to show that the damage was not due to his negligence. If he can show that it was due, to an act of God he escapes liability.

It is up to the right hon. and learned Gentleman to tell the Committee upon which leg he is standing. Does this Subsection add anything to the common law position or does it not? Will he answer that question with a plain "Yes" or "No"? We shall at any rate know where we stand. Is there no answer?

The Subsection embodies in the contractual arrangements between the Duke and the Crown what is a normal principle of common law. As this was a matter of contractual arrangement between the Duke and the Crown in which the Duke accepts a more onerous liability than exists in common law, that must be made the subject of statutory provision.

I take that elaborate answer to mean that if this Subsection were taken out of the Clause and if a fire originated, the liability of the Duke would be no more and no less as a result of the deletion of the Subsection. Is that the position?

I have given the answer. If the right hon. Gentleman does not understand it, I am afraid I cannot help it.

I assume the answer of the right hon. and learned Gentleman to mean that the Subsection adds nothing to the common law position and that if it is deleted from the Bill the liability of the Duke will be precisely the same as it would have been under the common law. In those circumstances we shall have no alternative but to press the Amendment to a Division.

11.45 a.m.

It very often happens that when there is a bargain between two parties a clause of a declaratory character is inserted in the agreement. It may not add anything or detract anything from the common law position, but it is put in so that there shall be no ambiguity. I think that is one of the reasons for this Subsection in this case. The Attorney-General has brought in our old friend the Rylands v. Fletcher rule. Like the hon. Member for Twickenham (Mr. Keeling) I was at first rather surprised to find it at Apsley House. To my mind the relationship between the Duke and the Crown is very much that of a lessor and a lessee whereas the case of Rylands v. Fletcher deals with the position of a person who brings a tiger or some other dangerous thing onto his land, a thing, as my right hon. and learned Friend said, inherently a danger to his neighbour.

It is quite normal in the case of a lessee of valuable premises for him to, insure against all fire risks, whether they are to a duke's residence or not. Under this provision the Duke is in a stronger position than the normal lessee because if he can prove that he was not guilty of negligence he is no longer responsible. The ordinary lessee is responsible, whether guilty of negligence or not. That is a strong point and therefore this is not an unconscionable Subsection. It is much milder than the normal clause found in many rack rent leases.

The second point which is quite conclusive, is the Duke s own view of the matter. I see in the minutes of evidence taken before the Select Committee, that Sir Thomas Barnes, who I believe is the Treasury Solicitor, said, in answer to the chairman:
"This part of the bargain I, as a matter of fact, discussed with the Duke, and he thought it was a reasonable thing to do. He took the view that it is right that if a fire happened in his part of the building it would be quite impossible for us to say how it took place."

The evidence goes on:

It might have taken place there through no negligence; through the fusing of a wire, for instance, or because somebody over-stoked the fire. He was quite content to take upon himself the burden of discharging the onus of showing how the fire arose.

If he is willing, I do not think the Committee will have anything to say."

Yes, I will. The chairman went on:

"But it seems to me that it would have been far more equitable had the risk been borne according to the relative occupation However, if the Duke is agreeable there is nothing more to be said."
In these circumstances, if the Duke agrees with this burden, slight though it is, I do not think this Committee need worry about it now.

I have put my name to the Amendment, and I very rarely do that unless I have good reason. The words which the hon. Member for Chesterfield (Mr. Benson) used in the Select Committee were very strong and drastic. He takes up the position that this is an agreement to which the Duke makes no objection. It still seems to me there is a suspicion of a hard bargain on behalf of the Crown. The impression I have is that the Subsection in question is using a very generous offer to impose a very hard bargain on the Duke and is a matter which this Committee should look at. The Attorney-General sought to compare the behaviour of the Opposition on this with their behaviour on some other Bill that may come later today, but there is a difference between the Duke's position and that of the Post Office, which registers its parcels and extracts a fine from the subject—[An HON. MEMBER: "A charge."]—I prefer to call it a fine because they take so much from the subject for registration. The Attorney-General said we had a bargain. That is correct. It is a bargain on one side and that bargain does not become law until it has passed through the House of Commons, the final arbitrator.

The House should look at this matter from the point of view of the taxpayer in the widest sense. The bargain should be reasonably good and secure, but the House must look at it from the point of view of the good landlord. That does not mean imposing unduly harsh terms. I know that is a theory which obtains in the Tory Party, but I am advised that it obtains among a large number of people who do not belong to our party.

The normal landlord imposes far harsher terms than are imposed under the Bill.

I do not know anything about the hon. Gentleman, but I know a good deal about the hon. Member for Chesterfield. He has a sound knowledge of agreements and bargains of this kind. The hon. Member for South Croydon (Mr. Rees-Williams) may set himself up to know much more, but from the many speeches which I have heard him make, I have heard no evidence of it so far. I am appealing to the conscience of this Committee not to impose on the Duke the Clause in its present form, which the hon. Member for Chesterfield described as "unconscionable." The Attorney-General seemed a little bit peeved because he has been kept here to do a little job this morning, but I appeal to him to accept the Amendment, because if he does so, it will be in accordance with the best traditions of the country. I hope that a Division will be avoided, but there will certainly have to be one if this Subsection is not deleted.

When I referred to this Clause in the Select Committee as "unconscionable," I admit that I did not know that it was merely stating the common law. That makes a considerable difference, but, nevertheless, I am not entirely happy about it. I cannot support the Amendment, because I think it is bad in this respect: Subsection (3) is valid in application to Subsection (1). If fire breaks out, and destruction is absolute, then, under Subsection (1), the Treasury must compensate the Duke for his loss if under the proviso that the fire is not due to his negligence. In this case the onus of proving that there was no negligence on the Duke's part should rest upon him. But with reference t) Subsection (2), I think the onus of proof is rather harsh. We are saying, "You are making a gift to the nation, but we will only accept it on condition that you insure it." That is what it comes to. The Treasury have a right to say, "If you require compensation you have t prove that your hands are clean." That is different from saying, "If fire breaks out, and it damages the part we are using, you will be liable for damages unless you can prove that you were not negligent." I would be prepared to urge acceptance of the Amendment on the Government had it made Subsection (3) an addendum to the proviso to Subsection (1) But whether Subsection (3) is common law or not, we are receiving a generous gift, and there are some grounds for accepting it graciously.

I think that both sides of the Committee will be in agreement with the hon. Member for Chesterfield (Mr. Benson) in expressing the view that where a gift of this sort has been made it should be accepted graciously, and without the tag put on it, "If any damage is done to the gift hereafter, through fire coming from the part left in your possession, you will be assumed to be guilty of negligence, and responsible." I hope I shall be able to satisfy the hon. Member that it would not be very useful to make Subsection (3) apply to Subsection (1).

Subsection (3) does apply to Subsection (1). I object to it applying to Subsection (2).

I am in entire agreement with the hon. Member. The Attorney-General drew a red herring across the path by trying to compare the position under this Bill with the responsibility of the Post Office for articles in their possession in the course of transit. Here, the Duke of Wellington is neither in possession nor in control of the other part of Apsley House. In the case of the Post Office, they have complete possession of goods while they are in transit but—

This liability is imposed on the Duke only in respect of that portion of the premises which are bailed to him. There is a bailment in so far as there can be a bailment, and he is in exclusive possession of this portion of the premises.

I agree that he has exclusive possession of the part of which he remains the occupant, but under the Bill the burden is put on him of being responsible for damage to the rest of the premises. The presumption is that in every case where negligence is not proved the damage is due to his negligence.

That is wrong. The presumption applies only to a fire occurring in the premises over which the Duke has exclusive control.

That does not in any degree contradict what I was saying. The right hon. and learned Gentleman sought to justify this Subsection on the basis that there was a bargain between the Duke and the Crown, and that the other side of the bargain was that the Crown was accepting absolute responsibility and liability for any damage to the part of the premises in the Duke's possession resulting from fire originating in the other part of Apsley House.

12 noon.

I hope the right hon. and learned Gentleman will follow this argument. He said there was a quid pro quo, that the Crown were accepting absolute liability for any loss suffered by the Duke as the result of a fire originating in some other part of Apsley House. I do not read that in the Bill anywhere. Let us see what is provided. Under Subsection (1) one sees that liability to make payment under Subsection (2) to the Duke of Wellington only arises where:
"Apsley House is destroyed or so damaged that in the opinion of the Minister of Works it could not be restored so as to preserve the association thereof with the first Duke of Wellington."
And then:
"the Minister of Works gives notice in writing to the Duke of Wellington for the time being to that effect—"
So that before paragraph (b) which provides for any payment to the Duke can come into effect, there must be really total destruction of Apsley House. There is not in this Bill any provision whereby absolute liability is placed upon the Crown to make good the loss done to the premises in the occupation of the Duke resulting from a fire starting in the other part of Apsley House which is put out before the stage of total loss is reached. That being so, where is this quid pro quo? The right hon and learned Gentleman's statement is surely quite misleading when he says that this Bill casts an absolute liability upon the Crown to make good any damage done to the Duke's part by fire starting in Apsley House. It is not there.

Furthermore, let us see to what extent the Crown accepts liability under Subsection (1). It is only to pay compensation which is held to be:
"reasonable in view of the loss by the said Duke and his successors of the said rights;".
There is no provision there for payment of compensation for damage done to the property of the Duke inside his flat, so in that particular I suggest that the right hon. and learned Gentleman again was inaccurate and that, on the other side of the bargain, having put this great bur- den as I envisage it on the Duke, all the Crown will do is to say that where they think there has been total destruction, they will pay compensation for the loss of the rights set out in Subsection (3) to the Duke but no more, and will pay nothing at all where there is not a total destruction of Apsley House. That does not seem to be in any way a fair bargain. I agree with the words used by the hon. Member for Chesterfield, that on the basis of testing this as a bargain, it is unconscionable.

I would much prefer Subsection (3) to be taken out and leaving it to the common law position; at the same time, if it be the intention of the Government and the right hon. and learned Gentleman to declare that the State will be responsible for any damage done to the Duke's possessions in his flat under absolute liability to do that which he said in his first speech, then I suggest to him that, following upon his words, it is really necessary that he should put down an Amendment to this Bill to carry that intention into effect. I hope the right hon. and learned Gentleman will now make the position clear with regard to that. We do not want to take up too much time on this Measure because there is a great deal to do, but we cannot pass a Clause of this sort which may afford a precedent on a number of other occasions without putting matters of this nature in correct form.

There is a general obligation under Clause 5 to keep the structure of the whole building in repair. There is, in addition, the ordinary liability under the Rylands v. Fletcher rule which exists in the case of escape of fire from the Crown's portion of the premises to the Duke's, and if fire so escapes, we have said that we shall accept absolute liability for it.

It is not in the Bill, I agree, except as covered by Clause 5 (1). Hon. Members on both sides of the Committee will appreciate this, I hope. We really are imposing on the Duke here by agreement with him, a liability which is much less onerous than that normally undertaken by tenants. I agree with the hon. Member for South Croydon (Mr. Rees-Williams) that there is an analogy to a tenancy here, but it is a liability which is much less onerous than that normally undertaken by tenants of property who are put under liability to insure under their lease, or than that of tie occupiers of property, because there are the two analogies. In the case of escape, the analogy is with the occupier; in the case of fire, which is confined to tae Duke's portion of the premises, the analogy is with the tenant. So I say we are putting the Duke under a less onerous liability, both in regard to that portion of the premises of which he is a tenant, and also in regard to that portion of the premises of which he is not the tenant but which adjoins the portion in his own occupation. Where fire escapes in the ordinary course there is a liability which it is difficult in practice to avoid.

Hon. Members will appreciate that these matters have, necessarily, to be the subject of negotiation. One way of dealing with the matter might have been to say that the Duke would be responsible for any fire occurring in his own portion of the premises and would be under a complete liability in regard to that, and that the Crown would be responsible for any fire occurring in the Crown's portion of the premises, and that the Crown would be responsible completely for that. After discussion, it was thought—both sides agreed about this—that the fairer and more satisfactory way was to deal with the matter on this basis, and I ask the Committee to say that it would not be right to interfere with the arrangement which was come to, without reopening the whole matter so that we could discuss it again with the Duke aid decide whether, in the circumstances, it would be better to deal with it in the alternative way or in some other way. That being the position, I am afraid that I cannot accept this Amendment, and I hope that hon. Members will not think it proper to press it.

The right hon. and learned Gentleman has now disclosed that there has been an undertaking given to the Duke with regard to liability for fire causing damage n the Duke's part but, as far as I am aware, it is the first time we have heard of that, and we do not know what are the terms of the undertaking Could the right hon. and learned Gentleman perhaps inform us, and could he at the sari e time explain when this Bill is dealing with, on the one hand, the rights of the State and, on the other hand the rights of the Duke, why this important undertaking is not contained in the Bill?

I am afraid I cannot add to what I said when I told the Committee originally what was the position. The Crown have in fact accepted an absolute liability in regard to the escape of fire from their portion of the premises.

The right hon. and learned Gentleman has justified Subsection (3) on the ground that the Duke agreed. He has also told us that the Crown agreed that if fire broke out on the museum side of Apsley House and spread to the Duke's side, the Duke would be

Division No. 339.]

AYES

[12.11 p.m.

Adams, Richard (Balham)Greenwood, A. W. J. (Heywood)Porter, G. (Leeds)
Attewell, H. C.Griffiths, D. (Rother Valley)Price, M. Philips
Awbery, S. S.Griffiths, W. D. (Moss Side)Proctor, W. T.
Ayles, W. H.Guest, Dr. L. HadenRees-Williams, D. N.
Balfour, A.Hale, LeslieReid, T. (Swindon)
Barstow, P. G.Hall, W. G.Rhodes H.
Battley, J. R.Hamilton, Lieut.-Col R.Ridealgh, Mrs. M.
Bechervalse, A. E.Harrison, J.Royle, C.
Belcher, J. W.Henderson, Joseph (Ardwick)Segal, Dr. S.
Benson, G.Hicks, G.Shawcross, Rt. Hn. Sir. H. (St. Helens)
Beswick, F.Hobson, C. R.Silverman, S. S, (Nelson)
Bing, G. H. C.Holman, P.Skeffington, A. M.
Bowden. Flg.-Offr. H. W.Hudson, J. H. (Ealing, W.)Skeffigton-Lodge, T. C.
Bowles, F. G. (Nuneaton)Hughes, H. D. (Wolverhampton, W.)Smith, H. N. (Nottingham, S.)
Braddock, Mrs. E. M. (L'pl, Exch're)Hynd, H. (Hackney, C.)Smith, S. H (Hull, S. W.)
Braddock, T (Mitcham)Irving, W. J.Sparks, J. A.
Brown, George (Belper)Jones, D. T. (Hartlepools)Stewart, Michael (Fulham, E.)
Brown, T. J. (Ince)Jones, Elwyn (Plaistow)Sylvester, G. O.
Bruce, Major D. W.Jones, P. Aslerley (Hitchin)Taylor, R. J. (Morpeth)
Burden T. W.Keenan, W.Taylor, Dr. S. (Barnet)
Carmichael, JamesKenyon, C.Thomas, D. E. (Aberdare)
Chetwynd, G. R.Lewis, J. (Bolton)Thomson, Rt. Hn. G. R. (Ed'b'gh, B.)
Cluse, W. S.Longden, F.Thurtle, Ernest
Colman, Miss. G. M.Lyne, A. W.Viant, S. P.
Cooper, Wing-Comdr. G.McAdam, W.Walkden, E.
Corvedale, ViscountMack, J. D.Walker, G. H.
Cripps, Rt. Hon Sir. S.MacMillan, M. K. (Western Isles)Wallace, G. D. (Chislehurst)
Daines, P.Mallalieu, J. P. W.Wallace, H. W. (Walthamstow, E.)
Davies, Edward (Burslem)Mann, Mrs. J.Wells, P. L. (Faversham)
Diamond, J.Manning, Mrs. L (Epping)Wells, W. T (Walsall)
Dobbie, W.Martin, J. H.West, D. G.
Driberg, T. E. N,Mathers, G.While, H. (Derbyshire, N. E.)
Dumpleton, C. W.Mellish, R. J.Whiteley, Rt. Hon. W.
Durbin, E. F. M.Mitchison, G. R.Wilkins, W. A.
Evans, S. N (Wednesbury)Moyle, A.Willey, O. G. (Cleveland)
Ewarl, R.Nichol. Mrs. M. E. (Bradford. N)Wills, Mrs. E. A.
Fairhurst, F.Noel-Buxton, LadyWise, Major F. J.
Farthing, W. J.Paget, R. T.Woodburn, A.
Gallacher, W.Parkin, B, T.Yates, V. F.
Ganley, Mrs. C. S.Paton, J. (Norwich)Younger, Hon Kenneth
Gordon-Walker, P. G.Pearson, A.
Greenwood, Rt. Hon. A. (Wakefield)Popplewell, E.TELLERS FOR THE AYES:
Mr. Simmons and Mr. Hannan.

NOES

Baldwin, A. E.Buchan-Hepburn. P. G. T.Darling, Sir W. Y.
Beamish, Maj. T. V. H.Byers, FrankDavies, Clement (Montgomery)
Boles, Lt.-Col D. C (Wells)Carson, E.Dodds-Parker, A. D,
Bower, N.Challen, C.Drewe, C.
Boyd-Carpenter, J. A.Conant, Maj. R. J. E.Dugdale, Maj Sir T. (Richmond)
Bracken, Rt. Hon BrendanCrosthwaite-Eyre, Col. O. E.Fyfe, Rt. Hon. Sir D. P. M.
Bromley-Davenport Lt.-Col, WCrowder, Capt. John E.Galbraith, Cmdr T. D.

compensated. He has not explained why that agreement, of which we are informed for the first time today, should not be put in the Bill. I cannot see any reason why one agreement should be put into the Bill and not the other, and in order that the Government may reconsider this point I beg to move, "That the Chairman do report Progress and ask leave to sit again."

Question put, "That the words proposed to be left out stand part of the Clause."

The Committee divided: Ayes. 124; Noes, 51.

George, Maj. Rt. Hn. G. Lloyd (P'ke)Lucas, Major Sir J.Prior-Palmer, Brig. O.
Gridley, Sir A.Lucas-Tooth, Sir. H.Ramsay, Maj. S.
Grimston, R. V.Macdonald, Sir P (I of Wight)Roberts, W. (Cumberland, N.)
Hannon, Sir P. (Moseley)Maclay, Hon. J. S.Ross Sir R. D. (Londonderry)
Haughton, S, G.Manningham-Buller, R. E.Smithers, Sir W.
Hinchingbrooke, ViscountMoore, Lt.-Col. Sir T.Teeling, William
Holmes, Sir J, Stanley (Harwich)Morrison, Maj. J. G (Salisbury)Wheatley, Colonel M. J.
Jeffreys, General Sir G.Neill, W. F. (Belfast, N.)Williams, Gerald (Tonbridge)
Joynson-Hicks, Hon. L. W.Noble, Comdr. A. H. P.
Kingsmill, Lt.-Col. W. H.Orr-Ewing, I. L.TELLERS FOR THE NOES:
Lloyd, Selwyn (Wirral)Prescott, StanleyMr. Keeling and
Mr. Charles Williams.

Motion made, and Question proposed, "That the Clause stand part of the Bill."

I should not like to take part in any controversy on this Bill and I am sorry that there should have been any controversy on this matter. It is one on which the Committee has a sound outlook and wishes to do its best. I am very sorry that owing to the unfortunate obstinacy of the Law Officer there should be any feeling in the House on this matter. May we hope that things will be better now that the Law Officer is not here?

Question put, and agreed to.

Clause ordered to stand part of the Bill.

Clauses 7, 8 and q ordered to stand part of the Bill.