Skip to main content

War Damage Bill

Volume 705: debated on Wednesday 3 February 1965

The text on this page has been created from Hansard archive content, it may contain typographical errors.

Order for Second Reading read.

4.10 p.m.

It would probably be convenient if I say that I have selected the Amendment in the name of the hon. Member for Orpington (Mr. Lubbock) and no other.

I beg to move, That the Bill be now read a Second time.

The object of the Bill is to restore the common law of England and the law of Scotland to the position which was generally thought to exist before the decision of the House of Lords in the case of the Burmah Oil Company v. the Lord Advocate early last year; and to provide that about 12 cases now pending—and I emphasise the word "pending"—before the court are disposed of on the basis of the law as it has always been thought to be.

More precisely, the Bill provides that where action is taken on the authority of the Crown, during war or in contemplation of the outbreak of war, resulting in damage to or destruction of property, the owner shall not be entitled to receive from the Crown compensation at common law. The Bill is concerned only with compensation at common law, and leaves unaffected other types of war compensation.

There are two parts to the Bill—the first establishing law for the future and the second applying this retrospectively to claims arising from the past. I understand that many Members have received a letter from the Chairman of the Burmah Oil Company—some of whose subsidiaries will be affected by the retrospective effect of the Bill—making a number of criticisms against it. I propose to deal with these criticisms specifically during my speech and to comment more widely on events and claims currently at issue which gave rise to the judgement of the House of Lords last year which prompted the presentation of the Bill.

I begin, however, with the question of the law for the future. The whole question of compensation for damage and destruction inflicted during war presents serious problems for a country whose Government are anxious to secure equitable treatment for their people. The incidence of losses is arbitrary, but it has seemed right to the Government of this country that the burden should as far as possible be shared. Damage and destruction may arise partly from identifiable enemy action or from defensive action of our own forces, or it may arise in the course of actual fighting in which the side responsible for the particular damage may not be identifiable.

Moreover, the scale of losses in total wars in this century has been so formidable as to make the idea of their reparation in full impossible. Indeed, the depleted resources of the victorious countries after the exactions of recent wars have made restoration and rehabilitation on any scale a heavy burden, and, quite apart from damage to property, there has been an appalling toll of killed and wounded, leaving widows, children and disabled men to be supported. There has, therefore, emerged—no other satisfactory solution would have been possible—the concept of sharing the burden of losses in the country as a whole, on whatever scale the country as a whole can reasonably be held to afford.

This carries two implications: first, there must be some equitable scheme for distributing such compensation as may be afforded in relation to the losses suffered by individuals; and, secondly, opportunity must not be left open to any special groups amongst those who have suffered loss to claim redress on a preferential scale. Any entitlement to compensation on an indemnity basis of common law would, in effect, give preferential treatment to those enjoying it.

Until the recent decision to which I have referred it has always been thought by the legal advisers to Her Majesty's Government, and by lawyers generally, that acts done by or on the authority of the Crown in defence of the Realm fell into one of three categories—first, those which are lawful at common law and give no right of action to anyone affected by them; secondly, those which are unlawful at common law which give a right of action for damages to anyone affected; and, thirdly, those which are unlawful at common law, but are authorised by Statute, in which the aggrieved person's right to damages is replaced by a statutory right to compensation, in accordance with a specified procedure.

Parliament has always legislated, and litigants have always fought their actions, on the basis that that is the law. However, from the judgment of the House of Lords on the Burmah claims it now appears that some of the acts which are lawful acts at common law may, nevertheless, give to persons affected a right to compensation, which is, in principle, indistinguishable from the right to damages, in respect of unlawful acts going beyond even the statutory compensation in the third class to which I have referred.

The line of argument which decided this case proceeds upon very fine distinctions and, moreover, its ambit has been left vague, since there is no clear line drawn between those lawful acts which do and those which do not give to persons affected by them a right to compensation. Let me take some examples to illustrate the position. If a military commander, during a retreat, orders the destruction of a building to serve as a tank obstacle, that will be battle damage, and no compensation will be payable. But if he orders the destruction of the same building because it is a factory which he thinks would be useful to the enemy's war efforts, and his order is carried out, that will be "denial damage", and full compensation will be payable at common law.

But if he mines the building and waits until it falls into enemy hands before blowing it up it probably will not give rise to compensation. Or if he waits until the enemy occupies it and then destroys it by artillery or aerial bombardment, that will be battle damage and no compensation will be payable even though his object in destroying it is one of economic warfare.

I cannot think that these are distinctions which the House will find acceptable. The first part of the Bill deals with these anomalies and it does so by abolishing any right at common law to compensation for damage or for destruction of property caused by lawful acts done by or on the authority of the Crown during or in contemplation of war. That does not mean that no compensation for such damage will ever be payable, but the right to such compensation, and the scale of compensation, must be based on what- ever war damage compensation scheme is able to be devised and afforded by the nation in the particular situation.

I now turn to the second part of the Bill. I am aware that many Members would readily accept the first part of the Bill, but would, nevertheless, feel anxiety about the proposal to give it retrospective effect. I fully share the view of such hon. Members about the general undesirability of retrospective legislation. There arc, however, well recognised exceptions to the general rule against retrospectivity, and it is only because I am satisfied that this case falls clearly within these exceptions that I am moving the Second Reading of the Bill.

I should, first, give hon. Members some account of events which gave rise to the claims affected by this part of the Bill. They number twelve, including those of the four subsidiaries of the Burmah Oil Company, of which many hon. Members are aware. The amount claimed by the Burmah Oil Group is over £31 million, together with interest at 5 per cent. totalling a further £36 million at simple interest or £96 million at compound interest. In addition, eight other claimants have claimed about £8 million together, plus interest. The total amounts claimed are therefore about £84 million or, at compound rates, nearly £160 million.

If the hon. and learned Gentleman will permit me to intervene, may ask, is he saying that the amount which, theoretically, on a basis of computation of all the interest, would be claimable by the company if it chose to exercise what it has been told are its full rights amounts to this very large sum of £84 million, or £96 million, or has he taken due note of the fact that the company is believed to have settled and assessed the claim that it intends to pursue at a very much lower figure—certainly not exceeding £30 million gross?

What I am stating is the amount which has been claimed on the face of the proceedings, which were commenced, as I shall explain in a moment, within relatively recent times.

The Crown does not, of course, accept the validity of the claims in this or, indeed, any other sums. If the Bill were not passed, and the litigation proceeded, the claimants might, on one view of the matter, recover nothing at all. The decision of the House of Lords was given under Scottish procedure on a preliminary point of law and the claimants have not yet established the facts in the case which they allege establishes their right to any particular sum of compensation or, as I say, to compensation at all.

The claims all arise from events in Burma in the spring of 1942. At that time, the Japanese armies were advancing through Burma. In the path of the enemy advances and clearly destined to fall into enemy hands in a short time were certain installations and properties of considerable military and economic value to their possessors, including oil installations, whose value to an enemy in war-time I need hardly stress. Under the "scorched earth" policy which was adopted in the retreat, a substantial number of these installations and properties was deliberately destroyed or extensively damaged under the orders of the military commander so as to deny their use and value to the enemy. This destruction and damage is the basis of the claims against the Crown.

Within a short time, the area concerned was in enemy hands, where it remained until the Allied Forces were able to win back the territory of Burma. Records from the period of enemy occupation suggest that the Japanese authorities themselves restored some of the property and installations which had been destroyed and they appear to have been redestroyed by the Japanese in the face of the allied advance. Later, the original owners or their representatives were able to resume possession of their properties.

The policy of His Majesty's Government regarding compensation after the war, applicable to Burma as to other dependent territories, was stated in this House on 18th February, 1943, in these terms:
"It will be the general aim of His Majesty's Government after the war that, with a view to the well being of the people and the resumption of productive activity, property and goods destroyed or damaged in the Colonial Empire should he replaced or repaired to such extent and over such a period of time as resources permit. If the resources of any part of the Colonial Empire are insufficient to enable this purpose to be achieved without aid, His Majesty's Government would be ready to give what assistance they can in conjunction with such common fund or organisation that may be established for post-war reconstruction."— [OFFICIAL REPORT, 18th February, 1943; Vol. 386, c. 1942.]
This announcement made two things clear: first, that it would be the part of the Colonial Territories to provide funds in the first instance, with His Majesty's Government's help only where colonial resources were insufficient and, secondly, that the object was to provide for rehabilitation rather than for full compensation.

In 1946, a Claims Commission was set up in Burma and other Far Eastern Colonies to register and assess claims. This involved no commitment to any right or amount of compensation. The Burma Claims Commission received claims totalling £165 million. Burma became independent soon after the war and before any arrangement had been made to deal with war damage in Burma. The independent Burmese Government from the outset declined to introduce any war damage compensation scheme.

Much damage and destruction of a similar nature had been suffered during the war in Malaya, and a rehabilitation scheme was introduced after the war and, in recognition of the limitations on Malaya's resources, His Majesty's Government made a contribution towards the cost. Representatives of British commercial interests who had suffered heavy losses through the "scorched earth" damage in Burma sought direct assistance from His Majesty's Government in 1947, but the Government took the view that any legal claim there might be to compensation would lie in the Burmese courts. Accordingly, suits were filed by some of the claimants in Rangoon High Court in December, 1947.

By 1948, it appeared clear that no Burma war damage scheme was ever likely to be introduced similar to the one in Malaya. Further representations were then made to His Majesty's Government and the then Prime Minister and Chancellor of the Exchequer agreed that the claimants had a case in equity for some measure of help. After a series of discussions in which it was made clear to Burma claimants that any sum offered would be for rehabilitation rather than for compensation and assessed on that basis a total of £10 million was offered as a final settlement. This was, in fact, the sum which had at that stage been made available to Malaya. This sum was later paid and distributed. Its distribution was not limited to those who had suffered the so-called "denial damage", but a very substantial share, about £4¾ million, did, in fact, fall to the Burmah Oil Company, the claimants concerned in the present action against the Crown.

No undertaking was sought from the claimants that they should accept these moneys in full satisfaction of their claims—largely, I think, because it was thought undesirable to do anything which might prejudice claims which were still before the Burmese courts. It was, however, made abundantly plain that this was a final payment and that no further compensation or assistance was to be looked for. Since then successive Governments have rejected further pleas by the claimants. Both Mr. Butler and Mr. Macmillan, as Chancellors of the Exchequer in June, 1952, and in May, 1956, maintained the view that there was no case for further payments being made at the expense of the United Kingdom taxpayer.

In 1960, the Burma High Court rejected the claims brought there upon the grounds, among others, that the military governor had acted under military necessity and in a national emergency and this gave rise to no claims in law. The claimants then brought actions against the Crown in the Scottish courts at the end of 1961. Her Majesty's Government of the day determined to resist them and, as hon. Members may be aware, took an important further step in giving an explicit warning to all the claimants in writing that, if the claims were successfully pursued, legislation would be introduced to indemnify the Crown and its agents—[HON. MEMBERS: "Disgraceful."] Hon. Members say "disgraceful". Perhaps they will wait to hear the argument.

The letter sent to them included the following sentences:

"Her Majesty's Government are, moreover, satisfied that the claim made is not, in any event, one which ought to be met by the British taxpayer. Her Majesty's Government have accordingly decided, that, in the unlikely event of your company succeeding, legislation would be introduced to indemnify the Crown and its officers, servants, or agents against your company's claim."
The present Government now take the same view and, the necessity having arisen as a result of the House of Lords judgment, are now proposing the appropriate legislation.

Three specific criticisms have been raised in the letter sent by the Chairman of the Burmah Oil Company to many hon. Members and I, should like to comment on them. First, it is said that this is retrospective legislation, virtually unprecedented. This is not so. There are ample precedents for retrospective legislation to grant indemnity against acts done in the public interest in war or other states of emergency. A clear example was the General Act of Indemnity, passed after the First World War.

An act of indemnity in such circumstances does not offend against the principle underlying the rule against retrospective legislation. That principle, I suppose, received its classical statement in a case familiar to first-year law students, called Phillips v. Eyre, where Mr. Justice Willes said:
"retrospective laws are prima facie of questionable policy and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts and ought not to change the character of past transactions carried on upon the faith of the then existing law."
Of course, where one is dealing with acts done under the Royal Prerogative in the public interest, in an emergency, no question arises of changing the character of past proceedings carried on upon the face of the existing laws. In the present case the claimants did not blow up their installations because they believed that they would get compensation. The military commander did not order them to be blown up because he believed that the claimants would be entitled to compensation. In such a situation no one directs his mind to these questions. Their actions are dictated by military necessity.

The only loss or liability incurred by the claimants on the faith of the existing law is their liability to costs in the current litigation and the Bill provides that this action can only be dismissed subject to such orders as to costs as the court shall see fit to impose. [HON. MEMBERS: "Generosity."] There is no question of generosity here at all. It is the law. I would advise the House, therefore, that even if the law had always been clearly understood by lawyers in the sense in which it has now been explained, there would have been full justification for making this legislation retrospective. The case is all the stronger when the effect of the legislation is merely to restore the law to what it was previously believed to be.

I can answer that best by quoting a passage from the judgment of Lord Radcliffe in the case. [An HON. MEMBER: "A dissenting opinion."] Certainly a dissenting opinion, but not any less an authority on a matter of this kind. Lord Radcliffe said:

"To begin with, one must clear the ground with one or two short propositions. There is not in our history any known case in which a Court of Law has declared such compensation to be due as of right. There is not any known instance in which a subject having suffered from such a taking, has instituted legal proceedings for the recovery of such compensation in a court of law. No payment has been identified as having been made by the Crown in recognition of a legal right to such compensation, irrespective of the institution of legal proceedings for its recovery. No text writer of authority has stated that there is this legal right under our law."
If any hon. Member can fault that, perhaps he will do so in his speech.

Secondly, the Chairman of the Burmah Oil Company contends that the Bill destroys the rights of the subject, deprived of his property by an act of State, to compensation. My answer to this is that even on the judgment of the majority in the House of Lords there are already a vast number of acts of destruction or damage which attract no right to compensation. Everything which falls within the class of battle damage, although it is the result of a deliberate act, carries no right to compensation. As I have said, if a building is blown up to serve as an obstacle to enemy tanks, the owner must bear the loss. All that the Bill does is to remove from a specially privileged position those persons whose property was destroyed not for the purposes of the immediate tactical situation, but for the wider strategic purposes of the war effort.

In an era of total war, special property rights should not be preserved which are based upon medieval conceptions of the nature of war. [HON. MEMBERS: "Oh."] This is not to say that no compensation should be paid in such cases. Of course it should, but in line with everyone else and to the extent which resources will permit. This is what has happened. The claimants have received substantial assistance, towards their rehabilitation, of £4¾ million. It is not right that they should now be singled out for more.

Thirdly, it is said that the Bill sets an appalling example of contempt for constitutional principles to newer and less experienced Parliaments.

Does the hon. and learned Gentleman mean that the £4¾ million which the company has received was paid as compensation for the damage to the plant which we are now discussing?

I have made clear in what I have said already that it was made clear at the time that it was not being paid as compensation but as rehabilitation.

Would not the hon. and learned Gentleman agree that it also goes rather further than that? The reason for the payment of the compensation which in my recollection was about £16 million altogether was primarily for the purpose of re-establishing Burma as a country, to rehabilitate the country and that it was only as part of that general rehabilitation that some part went to the Burmah Oil Company, which was one of the major industrial concerns engaged in such rehabilitation?

The moneys were not paid to the Burmese Government. They were paid to the claimants and, I think, totalled over £10 million, nearer £11 million perhaps. They were for the purpose of re-establishing the installations themselves.

I return to the claim that the Bill sets an appalling example to newer and less experienced Parliaments. The suggestion that the Bill is in some way confiscatory is simply not true. Its immediate application is to certain claims of British nationals in British courts and no question of breach of international law arises. This is a purely domestic piece of legislation. Moreover, it relates to the exceptional situation of war. There is no more justification for citing the Bill as a precedent for confiscatory legislation or for actions for breach of international law t Ian there has been of citing the Act of Indemnity of 1920.

The question before the House is an eminently practical one. Are we to contemplate now paying, for the benefit of the present shareholders of the claimant companies, damages which may total £20 million, £50 million, £80 million, or whatever it may be, in addition to the £42¾ million which they have already received before other equally meritorious claimants? Are they to be singled out, in our present circumstances, for specially favoured treatment? If, in some quixotic spirit, we are prepared to meet these claims, how are we to justify it to the hosts of other people who suffered ruin, who suffered the loss of their husbands or sons, the loss of their limbs and faculties who have had to make do with the level of war pensions which we are able to afford?

The House has recently passed legislation to increase war pensions, but I do not suppose that there is one hon. Member who would not wish to give them more, if our economic circumstances would permit it. The common law measure of damages for the widow of a man killed at work or in a motor accident may far exceed the value of a war widow's pension. I cannot believe that the House will think it right that the shareholders of the Burmah Oil Company should receive full compensation by way of common law damages in priority to these other at least equally worthy war damage claimants. It is perhaps of interest—

I am following the hon. and learned Gentleman's argument with interest. Would he not agree that the war pension is the direct result of what he has called "battle damage" suffered by the people or their fathers concerned? What we are concerned with here is denial, a quite different thing. Surely he should not mislead the House into thinking that the two things are on all fours.

I confess, approaching this matter as Treasury Minister rather than as lawyer, that I found the distinction of "battle damage" applied in this sphere wholly unreal. To answer the question I would ask, rhetorically: suppose a soldier was blown up by accident when these installations were being blown up? Would that have been battle damage or not? Under the terms of this decision it would not be battle damage. Of course, his entitlement to a war pension would be exactly the same as if he had been killed by an enemy bullet.

It is perhaps of interest to see what faith or expectation the market had in the value of these claims or, indeed, the companies themselves had. It is clear that, at the outset, the companies only thought that they had these common law rights. Had they done so they would not have wasted years in negotiation with Her Majesty's Government and with the Burma Government. They would not have brought claims in the Burmese courts. They would have stood upon their rights and sued for them here.

Was that not done on the advice of the then Chancellor of the Exchequer, who was a member of the Labour Party?

Sir Stafford Cripps, at the time, maintained the position which all Governments have maintained throughout—that they did not recognise any obligation here—and he advised them that if they wanted to pursue a legal claim they must do so in the Burmese courts.

The only point which I am making—and it is surely sound—is that, as advised at the time, the companies appear not to have thought that they had a valid legal claim in our courts here or they would have pursued it. It was not until nearly 20 years after the event that, availing themselves of the longer 20-year limitation period under Scottish law, they brought their action in the Scottish courts. By the time they won the first round of their action in the House of Lords last spring the previous Government had already made it clear that, if necessary, they would introduce legislation to defeat the claim.

This warning certainly seems to have been heeded by the market. When the House of Lords gave their decision there was no rise in the market price of the company's shares and, equally, when this Bill was published, a few days ago, not only did the shares not drop in value, but they actually rose by 3d., in line with a modest movement in oils on that day. When B.P. and Shell made a take-over bid to the stockholders of Burmah Oil, in 1963, the directors circulated the stockholders with an impressive summary of the assets and prospects of the company, and there was no mention of these claims.

I mention these matters not to suggest that in themselves they provide any reason for retrospective legislation, but merely to show that this is not a case in which retrospective legislation will deprive the claimants of existing valuable assets. What it will do is to deprive them of a somewhat speculative prospect and one which it would be difficult to justify to the legion of other citizens who suffered at least as much as these claimants, without similar compensation.

The Bill is, in essence, a Bill of indemnity. It is my view, and I hope that it is a view which commends itself to the House, that a Bill of indemnity arising out of wartime action is a proper use of retrospective powers. Any Government has not only a right but a duty to bring forward such legislation in order to see that equity is done between different victims of the scourge of modern war. That duty does not diminish because the need for the legislation only first becomes known in consequence of a judicial decision 22 years after the event. An Act of indemnity is an Act to ensure social justice, and it is as such that I commend the Bill to the House.

4.43 p.m.

Although this is one of the shortest Government Measures in my experience in the House, I think that it is also one of the most difficult. It is difficult, first of all, because the legal principle involved is complicated and far-reaching. I quite agree that the proposition that lawful acts done in exercise of the Prerogative should be the subjects of claims for compensation has long been disputed, certainly in English law, and even after the recent decision in the House of Lords there is some obscurity about it.

On a point of order. I wonder, Mr. Deputy-Speaker, whether you can assist us. Mr. Speaker indicated that the Amendment standing in the names of some of my hon. Friends and myself would be selected. Am I to take it that the right hon. and learned Member for Wirral (Mr. Selwyn Lloyd) is moving that Amendment on our behalf?

The hon. Member is mistaken. Mr. Speaker informed the House that the Amendment standing in the name of the hon. Member for Orpington (Mr. Lubbock) and the names of other hon. Members had been selected. The hon. Member for Devon, North (Mr. Thorpe) will be called upon to move it, if he wishes, at some stage in the debate. The fact that an Amendment is selected does not mean that it will necessarily be moved immediately after the opening speech.

The second reason why the Bill is difficult arises from the claims of the Burmah Oil Company and others. These claims were discussed with succeeding Administrations, when different Chancellors and Law Officers were in office. The Financial Secretary to the Treasury has referred to Sir Stafford Cripps, Mr. Butler and Mr. Macmillan. They were also discussed when I was Chancellor of the Exchequer and in the time of my right hon. Friend the Member for Barnet (Mr. Maudling). It is only fair to say that, rightly or wrongly, there was no difference of opinion between any of those in Government at these various times as to how to deal with this claim.

There were four broad reasons, right or wrong. The first was that the proposition that any lawful act of State attracts compensation could not be accepted. The second was on the ground of equity—and the right hon. Member has referred to this to some extent: a man who voluntarily denies his property to the enemy gets no compensation, but the man who does so after receiving an order to do so gets compensation. There would be a feeling of a certain lack of equity in picking out those who acted only upon receiving instructions. I am giving these as reasons, right or wrong.

The third reason was the belief that had the installations been left intact for the Japanese to take, they would most certainly have been destroyed later. The fourth reason was the Treasury view—and one knows how unpopular the Treasury view is about the dispersal of public funds—that the sums of money involved in accepting the legal proposition, which I gave as the first point, were enormous because of the circumstances of war in which this kind of damage had been done.

The figures, as I recollect them, were that the claims from Burma—not the claims by this company alone—were £100 million and that even more might be involved in claims from other areas. The prospect of raising by taxation or funding sums of this magnitude daunted each Chancellor of the Exchequer in turn. In addition, there was the general consideration which the hon. Member mentioned: when one is dealing with war damage claims of this sort the way to deal with them is either by ex-gratia payment within the national means, or by a modified scale of compensation.

The arrangement which was made by Sir Stafford Cripps was, I quite agree, not put forward as compensation, but as money for rehabilitation purposes, and I think it involved just over £10 million altogether, of which —4·7 million went to this company.

My right hon. and learned Friend spoke of the reasons "right or wrong". Will he tell the House whether all the reasons were right or were wrong in his view; or, which were right in his view and which were wrong in his view?

I do not think that I am called upon to debate this matter. I am giving circumstances in which the Government came to this decision and I am not arguing—although I could argue at some length if my hon. and learned Friend wished—the merits of each of these points. I am trying to give the reasons which led each Administration in turn to reach this conclusion.

I do not intend to speak at great length, but I want to indicate a certain view to the Government, and I think that it would be more profitable for the House to hear this than for me to enter into this argument.

It was on this basis that Sir Stafford Cripps put forward the suggestion of £10 million compensation, and because of the views held by the Government, when the proceedings were instituted by the company and before they got beyond the preliminary stages, it was thought right to send a warning letter to the company. Then, as the House knows, after this expression of intent the matter was litigated upon. The decision was adverse to the Crown on the preliminary point of law.

Now we are faced with the Bill. It is impossible to deny that the Bill has raised strong feelings of opposition, both inside and outside the House. It is said that a successful litigant is being unfairly treated. It is said that, in fact, the claims are of nothing like the magnitude which had been expected. It is said that the international repercussions of the Bill have not been seriously considered. Those arguments all relate to the part of the Bill which concerns the past.

With regard to the future, there are different considerations, because, in the view of some of us, it would only mean putting on to the Statute Book for the future what for a long time has been thought to be the common law of England.

My conclusion is that the Government should give further thought to these matters. Having been a party to the decision to warn the company, I feel that I myself cannot honourably vote against the Second Reading. But, if the Bill gets a Second Reading, I hope that the Government will examine again in more detail what is involved, because, if my information is correct, the sums now at stake are very much smaller than they were thought to be.

I hope that the Government will consider, even at this stage, whether this rather disagreeable matter cannot be disposed of by negotiation. I do not think that this approach has been considered up to now. It is possible that the matter could be dealt with in this way. Then we could consider on its merits the proposition to establish the law in the sense desired for the future.

Would my right hon. and learned Friend mind answering this question? He has made a suggestion which I am sure will be very welcome to a large number of Members in the House. Would he not agree that there is one thread running through the opinions of both Lord Reid and Lord Radcliffe, namely, that compensation in respect of such damage by tradition should always be paid? It is clear from the opinions of both learned Law Lords that the company was wrong in its rather extravagant ideas of the damages it could get. This appears, for instance, at page 7 of Lord Reid's opinion.

Therefore, it is clear that a reasonable sum of money, which would not run into anything like the figures originally suggested, might bring about an accommodation which would enable us not to have on the Statute Book an Act which might be positively harmful in the future. Would not my right hon. and learned Friend agree that that expresses the sort of view he has in mind—something which would ensure a satisfactory solution between the company and the Government and a due respect for the decision of the House of Lords?

I believe that there is a reason for re-examination, because the original payment was made for rehabilitation purposes and was never intended to be, or described as, a form of compensation for the company. Had one been dealing with claims on anything like the scale put forward, it would not have been very profitable to suggest this, but my belief is that, as the amounts involved are so much less, it should be possible to dispose of the matter by negotiation and get a rather disagreeable business out of the way.

4.53 p.m.

My hon. and learned Friend the Financial Secretary is right in saying that some information has been circulated about the Bill on behalf of the Burmah Oil Company. The information was put temperately. It was certainly not put with undue or unfair controversy. It was presented decently, with some observations of The Times, which I read with sympathy.

The House should be very careful about passing retrospective legislation. We are over-generous in indemnifying Members of Parliament when they fail to understand the law. We have generally accepted, subject to the usual party controversy, that it may be necessary sometimes retrospectively to deal with gross evasions of tax of a deliberate kind which make use of some discovery of an error or a lack of understanding in the revenue laws. But we are reluctant to pass retrospective legislation.

We should be still more reluctant to pass a Bill which is retrospective back to about Edward II, or Henry VI. We should examine it very carefully before we do so. Although this is not the time to make Committee points, I hope that my hon. and learned Friend will have a look at the wording of the Bill, which seems to me to be unnecessarily wide and which might provide law which would restrict other cases and reduce the ambit of the law generally.

It has been said with some horror that the Treasury Solicitor wrote to the plaintiffs and said, "If you pursue your legal remedy to its conclusion and win, which we do not expect you to do, we shall pass an Act to rob you of the fruits of victory". At first sight, that was a very unpleasant letter, and I am sure that the Treasury Solicitor thought that it was a very unpleasant duty to perform. How much more disgraceful would it have been had he not said that, knowing what he did.

It was certainly not his fault. It was clearly his duty, if he knew that that was the likely consequence, to give the plaintiffs a fair warning of what was in the mind of Her Majesty's then advisers, Members now sitting on the opposite side of the house. Clearly, it was upon the instructions of the then legal advisers to the Crown that that course was adopted.

Should not this intention have been notified to the plaintiffs by the Government of the day and not by civil servants, if that was the Government's intention?

That is exactly what was done. The Treasury Solicitor is certainly not a civil servant in that sense. He exercises quasi-judicial functions on behalf of the Government. He was told what the facts were and he thought that it was his duty, as I am sure that it was, to write to the plaintiffs. Once he knew of the facts, he was a party to the litigation. After all, nobody has ever objected to a plaintiff or a defendant making full disclosure of relevant facts in his possession. It is clear that it was the Treasury Solicitor's duty to do this, however unpleasant it was.

Does the hon. Gentleman agree with the Lord President of the Inner House that this was an improper letter for the Treasury Solicitor to write to the lay client on the other side? Does the hon. Gentleman agree with the Lord President's statement that such an improper letter would not deter the Scottish courts from endeavouring to arrive at the justice of the case?

I do not know the Scottish procedure. I do not know whether solicitors were acting. Normally, such a letter would pass between solicitor and solicitor. However, I should not have thought that that was a point with which we need concern ourselves today. I am concerned to make it clear that, in my view, the Treasury Solicitor did only what was eminently proper in the circumstances, in the light of the information in his possession.

Something has been said about damage. The action of the Burmah Oil Company in taking this case to the House of Lords has given us the good fortune of being able to read some extremely able and erudite opinions on matters which, as my hon. and learned Friend said, have never been decided before and, indeed, on matters which the court itself makes clear have not been decided now. For some reason, which may be deep down in the body of Scottish law, or it may have been by agreement between the parties, the matter was argued in the first instance on the basis of the pleadings.

There was no contest and there was no argument on damage. The Crown was concerned to say, "This is the sort of claim we could never admit. We do not believe that it exists. Let us argue the matter of law in the first instance and decide whether such a law exists. Let us take the view of the court on whether some effect should be given to that law when the evidence has been heard as to the amount and nature of the damage".

Their Lordships confessed that they were in some difficulty about saying whether it was a matter of Scottish law or of Burmese law, or whether they had jurisdiction in relation to Burmese law now that Burma had become independent. Indeed, it is clear that such a claim could not have been made in any circumstances in any of our courts had it not been for the Act passed by a Labour Government after the damage was done which was designed to secure that a postman should not be deprived of his damages because his employer was the Crown, because the Crown Proceedings Act, 1947, removed the old procedure by tortuous petition of right in pursuance of the principle "Let right be done". It seems that there is a curious lacuna in the Scottish law which enabled the plaintiffs to bring the action there, they having a registered office in Edinburgh. This could not have been done from London because, as I understand it, the action would have been well statute-barred here in any event.

I do not like Statutes of Limitation, but 20 years after a war is a very long time to adumbrate a completely new principle. Their Lordships, in their interesting and erudite judgments, said, "There is no law upon this matter." We have to go back to Grotius. We have to consider the acknowledged authorities upon international law, which, of course, never existed, and, in considering the acknowledged authorities on international law, one is wholly debarred from taking into account the fact that a modern state of war has created wholly new circumstances. Indeed, the development of the modern conception of the philosophy of war has made these learned writers a little archaic and unreal, however brilliant they may be in the adumbration of first principles.

We are dealing now with a war in which whole towns were destroyed by mistake. It is a commonplace theory in France that the destruction of their homes was caused by American or British planes dropping bombs intended for the enemy. We are dealing with a war in which whole countries were laid waste. I would sympathise with the Burmah Oil Corporation in this respect at least, that it has not been treated so generously as the Krupp empire which is now being permitted to dominate the economics of Western Europe and is one of the unhappy arguments against the Common Market. I have never wanted to pursue a policy of venom against the vanquished. I was against the war trials and said so, though perhaps not so quickly as I should have done. But for a dozen years it has been the declared policy of the Conservative Government to break up the Krupp empire as a matter of justice, and only recently the then Prime Minister said it was their policy.

I come to the question of damages. As I read the judgments—and they were admittedly obiter dicta—it was clearly foreshadowed that their Lordships might well have said, "If there is any damage you have got to estimate it at the time the damage was done". The value of those oil installations was absolutely nil. For what sum would the Burmah Oil Company have sold those oil installations at the moment the damage was done? They were to be occupied by the Japanese in a day or two, and they would have been operated by the Japanese. If the Japanese won the war the company would not see the installations again. If the Japanese lost the war, they would destroy them on their way out. The amount involved in this case, therefore, is very slight.

I came here in 1945, not so young as all that, but still young enough to be naĨve and to have ideals. I am now addressing the House as an elderly cynic, with not so many illusions. But I came prepared to support the proposition that there should be some compensation for loss. I remember that at election meeting after election meeting I was interviewing mothers who said, "We do not want profit out of the death of our son, but our son was conscripted. He was ordered to go and be killed. He was our Ishmael. He was the man who supported the family. He was the lad who might well have been expected to give us a little better standard of living".

I brought this matter before the House and I appealed for support from hon. Members. I got some—not much. I cannot remember now whether, in the end, these people got a few shillings a week or not. I do, however, remember long negotiations in which it was said, "We cannot assume this responsibility." One hon. Member said, "If you apply to 'Vattel' you will find that the destruction of a son in battle is quite different. You might get compensation because you got shot for neurasthenia in the First World War, because that was not in battle."

The public would not allow any Government to say 20 years afterwards that we shall compensate this wealthy and prosperous company because it had the ingenuity or good fortune to have an office in Scotland and bring a claim there, having failed in the Burmese courts. Whatever one's principles, there is a pragmatism in this House and one has to try to give the impression that justice is being done.

We cannot, day after day, turn our backs on the crippled and the injured and then say, "All those who did not know about this, all those who never read 'Vattel' and who lost their houses by accident are statute-barred; they cannot claim." But this great company, which acted very properly at the time, and which, as I understand it, has had pretty substantial compensation already in the way of payment for replacement, cannot now maintain this claim before the bar of public opinion.

The House is compelled, reluctantly and unhappily, to pass the sort of Measure which it would have wished to avoid.

5.6 p.m.

I am not a lawyer, and to that extent I may be under some handicap, but, at any rate, I think there are considerations to be taken into account which concern the layman as much, if not more than, lawyers.

This is a thoroughly objectionable Bill, and I would say that if, as a result of another outcome of the General Election, this Bill were being promoted by my own party. There are three main reasons for taking exception to the Bill. First, it seeks to establish the dominance of the Executive over the judiciary. I have been brought up to believe that one of the safeguards of freedom and democracy in this country was the independence of the judiciary. But if, as a result of the whole processes of law, ending up in a final judgment in the House of Lords, their verdict is to be upset, where is the independence of the judiciary?

Secondly, to pass a Bill changing the law because of what has been found to be the state of the law would not of itself constitute an objectionable feature; but, having found what the law is, the objectionable feature is to seek to put the clock back and make it retrospective for a great many years.

Thirdly, there is the undoubted effect of the precedent which this Bill sets, which other countries may well treat as a precedent and which we may well seriously regret.

This is called the War Damage Bill, and I think it is a most misleading title. There may be technical reasons for its use, but at any rate we are not here concerned with war damage. We are surely concerned with damage brought about by what, for simplicity's sake, one calls denial. If these installations in Burma had been damaged by war as such, the case for compensation would not have been brought forward because, as I understand it, the case rests upon the fact that the destruction took place on the orders of His Majesty's Government.

I have a great deal of sympathy with what the hon. Member for Oldham, West (Mr. Hale) said about the scale of compensation which might well arise were the law to be permitted to take its course. What he said about the value of the installations at the time completely shattered the argument of the Financial Secretary to the Treasury that one of the fears in the Government's mind was that so large would be the claim that no Government could tolerate it on behalf of the taxpayers. I repeat that I suffer from the handicap of being no lawyer, but I understand that in establishing the law as it did, the court made no statement about the scale of compensation which in its view was likely to be justified.

I intervene only to clear one point. Is the hon. Member saying to the House that if the damage was small the Bill would be wrong but if the damage was high the Bill would be right? How does he justify that?

The hon. Member has no right to put innuendoes into what I said. What I am saying quite clearly is that when the Government seek to justify a Bill of this nature on the ground that if it is not passed there may be an intolerable scale of compensation claimed, that justification for the Bill ha s been completely destroyed by the hon. Member for Oldham, West, arguing, in my view correctly, that it may well prove to be the case, if opportunity is given, that the compensation is very small indeed.

The amount claimed was rather more than £30 million. This was in the statement of claim and this figure was never argued because the court was not called upon at that stage to go into that matter. It was £30 million with accumulated interest, which would bring it up no doubt to the figure given by my hon. and learned Friend the Financial Secretary. If the advice tendered to the Crown by the advisers of the last Government has been proved wrong in one respect it might have been proved wrong in the other, and this was a question of £80 million or so.

The hon. Member made clear that in his view the scale of compensation payable would be very small. He cannot seek to undo the impression made by his speech by talking now about the scale of claims which the company has made.

The hon. Member may have a later opportunity to speak. I want to make my speech in my own way.

We are therefore not concerned in the House at the moment with what compensation will be paid. We are concerned solely whether the right established to compensation shall be upheld or not. This right though upheld may prove in the event of relatively little value. No one can tell at this stage whether that right will be extremely valuable or not. A great many comparable claims in a similar field, we are told, are statutebarred. I find it difficult to believe that if the scale of compensation in this case is reduced to very modest proportions because of the value at a time of imminent destruction, it is likely that similar considerations would apply to any cases that might arise. If it is said that here a very dangerous precedent is being set because of the effect on the taxpayer, it is a completely illusory argument.

It is suggested that there can be nothing dreadful in seeking to establish the law as everybody thought it was. I suggest that this proposal made for the Bill is a most dangerous proposition. I seem to remember hearing discussions as to what it was thought the law was when the Rookes v. Barnard case was brought to public notice, and to the surprise of a great many people the law was found to be quite different from what they thought it was. If this precedent is to be accepted that it is a proper thing to put back the law to what people thought it was at that stage, what is to happen to the damages which Mr. Rookes obtained in the courts?

If a situation of this kind is created, we are opening the door to all sorts of retrospective opportunities to put back the law not only to what people may allegedly have thought it to be but to what the Government of the day want it to be. It seems to me therefore that we are treading on very dangerous ground on this matter and that we are striking at the very roots of the rule of law.

Quite clearly, there are plausible arguments why such a Bill should be brought forward. and it is only right that we should pay attention to those arguments In the first place, I have no doubt that the Government of the day took the view that as it was very unlikely that the litigation would emerge in the form that it has done they need not worry very much about it. That advice has been proved to be very unsound. Secondly, it has been argued whether it is ethical to consider compensation in a case where the damage is created on the instructions of Her Majesty's Government which would not have been payable had it been created by British bombers or enemy bombers.

As I understand it, the argument runs that it is quite untenable to consider a difference of that kind, but in describing the various alternatives which he listed, the Financial Secretary omitted to mention another alternative, namely the acquiring of property for use not as a barrier against tanks. If property is taken for use I have never heard it suggested that anyone should be denied compensation in such a case. It is therefore unreasonable to assert that the only alternative situations that could arise are those where no compensation would be payable.

Is not this a point which cannot be made against the Bill? I am talking about the early part of the Bill which deals with payment of compensation in respect of damage to or destruction of property. There is therefore no danger of infringement of the right to compensation for property acquired, which seems different from property destroyed.

I will not go over the ground again, but I think that the hon. Member did not quite understand the point which I was seeking to make. My point was that in praying in aid alternative types of destruction which could arise when no compensation is payable, it is unreasonable to leave out of account other effects on property where compensation would be paid.

I was impressed by the fact that even those judges who could not bring themselves to find in accordance with the majority view that there was a case at common law said nevertheless that compensation, in their view, should be paid. I said at the beginning of my speech that I think that this is a thoroughly objectionable Bill. The fact that my right hon. and learned Friend the Member for Wirral (Mr. Selwyn Lloyd) suggested that there was scope for negotiation, thus rendering the Bill totally unnecessary, seems to me to be strengthened by the idea that the Government are urged by dissenting lawyers to pay compensation, whether or not a case is established at law.

Does the hon. Gentleman consider the sum of £4¾ million paid in 1948 to be a sum of compensation at all? Secondly, in the circumstances of our country in 1948, does he not consider it to be a fair measure of compensation for the rehabilitation of this plant in 1948?

I do not regard the payment of £4¾ million as in any sense compensation in the context of this claim, and neither ought the word "compensation" to appear in the justification for its payment at all. It was made quite clear at the time that the £4¾ million as part of a larger total was paid in order to rehabilitate Burma and had no relation whatever to the loss of property of the shareholders of the Burmah Oil Company.

Would not my hon. Friend agree also that Sir Stafford Cripps, who was Chancellor of the Exchequer, was encouraging the company eventually to go to Burma and fight the case out?

That may well be, but, in 1965, we are concerned not so much with the advice which Sir Stafford Cripps may have given at the time but with the way in which we want Parliament to react to the findings of the House of Lords in a case on appeal.

I suspect that, with the aid of the Government Whips, notwithstanding the alliance, no doubt temporary, of the Liberal Party with some of us, the Bill may have its Second Reading tonight. I shall vote against it, but, if I am disappointed and it is carried, I hope that in another place second thoughts will prevail and time will be given by rejection in that House for negotiations to take place to deal with the claim. If this proves not to be so, we shall, I fear, have set a very damaging precedent which most of us will live to regret.

5.21 p.m.

It seems to me that there are two quite separate points in the Bill. The first is the reform of the law, brought about by Clause 1(1). About this part of the Bill, there can be comparatively little doubt. I was impressed by the argument advanced by my hon. Friend the Financial Secretary, that it is a somewhat illogical distinction to say that compensation is payable as of right for a claim in denial and not for battle damage. Of the examples which he gave, the one which impressed me was that, if the property had been voluntarily destroyed, there would have been no claim, but, if it had been destroyed on orders, there would be a claim. In addition, it seems to me that one cannot say that there would definitely have been a claim if, for instance, demolition charges had been left behind and these had been set off immediately after the Japanese had occupied the installations.

There is clearly merit in the view that, in the exceptional circumstances of war, the losses which are incurred should be considered as a whole, the recompense should be made on general principles of equity, and there should not be special classes of property which qualify for compensation and others which do not for destruction in wartime. Therefore, I feet that the first part of the Bill, Clause 1(1), can be supported without any qualm.

I think that the hon. Gentleman has overlooked one aspect of the matter, the point about "in contemplation of" the outbreak of war. We all take the point as regards battle damage and the point that it may be illogical if it is immediately prior to the battle; but the Bill goes a good deal further and deals with circumstances in contemplation of or in preparation for war. Supposing, for instance, someone were, in the next few weeks, invited to destroy his plantations in order to prevent the advance of Sukarno's troops, should we have an Act of Parliament providing that an order for destruction in those circumstances ought not as a matter of law to give rise to compensation?

I should like to think a little more about that. It seems to me to be a perfectly good Committee point which could be considered at that stage. Generally speaking, on the first part of the Bill, I have no qualms, and I do not share the view of the hon. Member for Aylesbury (Sir S. Summers) that one cannot, in effect, draw a real distinction between the acquisition of property for which payment can be made and the destruction of property which should be treated as war damage. On that part of the case, it seems to me that the opinion of Lord Radcliffe is clearly to be preferred.

My main doubts related to the second part of Clause 1, and I understand these to be the doubts of most hon. Members opposite. When I first read the letter in The Times from the hon. and learned Member for Northwich (Sir J. Foster), I was horrified to think that legislation of this kind was coming forward. I could not understand what the present Government were doing, and neither, for that matter, could I understand what the previous Government had been doing, because I should readily concede that they were as much concerned with the rule of law as we are. My objections were not, to some extent, the same as those raised by the hon. Member for Aylesbury. It does not seem to me that any House of Lords judgment should be sacrosanct. If one thinks that the law has been one thing, and one likes that particular situation, and then, to one's regret, a completely different decision is reached by the House of Lords, there is nothing sacrosanct about a House of Lords decision. The whole of law reform would be impossible if one treated every decision of the House of Lords as sacrosanct. The point which arises, of course, is the question not just of reversing a decision but making the reversal retrospective.

The other point which does not seem to me to be one which ought to colour or influence the decision to be reached here is the one about the amount of damages, in so far as one does not know definitely that the damages will be slight. The right hon. and learned Member for Wirral (Mr. Selwyn Lloyd) thought that, perhaps, we should reconsider this because there had been dicta in the House of Lords that the damages would be slight. One cannot be certain what the outcome of the claim for these damages would be.

Does that mean that, if the damages were large, the hon. Gentleman would take a different view? He said that one should not pay attention to the point if the damages were slight. Should one pay attention if the damages were large?

Perhaps I expressed myself badly. Obviously, if the damages were enormous, leading to a great increase in taxation, this would not be something which one could disregard. But what I meant to say was that one should not assume that the damages will be slight, and one could not say that this Bill should be allowed through because the damages would be slight or that one should not be concerned about the Bill because it covered only a trivial amount.

After I had looked at the matter further, it occurred to me that there is much more to be said for the second part of the Bill than I had at first realised. My doubts have not been entirely removed, but it seems to me that my hon. Friend the Financial Secretary made a point of considerable substance. In normal circumstances, this question would have been dealt with by one of the Acts of Indemnity passed at the end of the war. If an Act of Indemnity had been passed at the end of the war and we had said that no claims for compensation of this kind would be considered, no member of the public and no Member of the House could have objected to such an Act. What, therefore, is the difference between passing an Act of Indemnity in 1945 and making clear that one intends not to pay damages and saying that one regards the legal position as such that one need not pass an Act of Indemnity and reversing retrospectively—an Act of Indemnity also would have been retrospective—a decision of the House of Lords some 19 years later? The only difference is that there has been a legal decision in between, which there would not have been in the other circumstances. I agree—and this is one of the reasons why I still have some doubts about this—that it looks bad. But in substance I do not feel that there is any great difference of principle involved in the two situations. If one makes it quite clear that one takes a certain view of the law and intends to see that this is the view that prevails, then it seems to me that there is no real difference between passing an Act, on the one hand, or saying, "We will pass an Act if necessary but we do not think it necessary" and passing it 20 years later.

The hon. Gentleman who has given way must indicate to whom he has given way.

I thought that the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) was the first to rise.

I am much obliged to the hon. Gentleman. Is it part of his argument, to which I am listening with great care, that the circumstance that litigation has taken place should really be regarded as a circumstance which makes any difference to the merits of the argument?

It certainly looks worse, and I still have my doubts about it. However, I retain an open mind on the subject. If one looks at the principle of it and if it has been made clear what view is taken by the Government and if it is quite clear that an Act of Indemnity is something that would have been passed if considered necessary, then it does not seem to me that the difference in principle is very great.

Does not my hon. Friend think that his argument may possibly be reinforced by bearing in mind that an Act of Indemnity if passed at the time when he contemplated could only have been passed on the assumption that the law was as the House of Lords subsequently found it to be, as otherwise there would be nothing to be indemnified against? Therefore, there is no difference in principle in what my hon. Friend is arguing.

I take that point. Every Act of Indemnity takes away rights which people have and it seems to me that it is not only Acts of Indemnity which have provided precedents for the kind of thing done in this Bill. The fact that there are precedents does not necessarily mean that one must always pay attention to them. I was interested to see that there was no very great commotion in the House when it 1954 the Wireless and Telegraphy (Validation of Charges) Act was passed. That was an Act in which certain charges which had been exacted by the Post Office were retrospectively made legal, and as part of that Act it was provided that proceedings started after a certain date, before the passing of the Act and More the introduction of the Second Reading of the Bill, should be null and void and that any order made in the proceedings should be rescinded on the application of the parties. It further provided that any moneys paid over as a result of an order made should be repaid. That was far more retrospective in its effect than the legislation at present before the House.

Of course, there have been a number of Acts apart from Indemnity Acts after the First World War which have dealt with the principle of retrospective legislation and have taken away rights retrospectively. There was one Act in 1925, whose title I cannot remember, and in 1953 the Enemy Property Act. It is not a new principle which is being introduced but it is certainly one which we should regard with the gravest suspicion.

On reflection, I am impressed by the arguments advanced. It seems to me that the essential difference of principle between dealing retrospectively with the House of Lords decision and dealing retrospectively with the position of 1945 is not such a fundamental question of principle. There are, of course, undesirable aspects of it. I agree with some of the points made—for instance, that it looks an unfortunate precedent for other countries—but until I am convinced by hon. Members opposite to the contrary I propose to support the Second Reading of the Bill.

5.35 p.m.

Before I begin, and while I remember it, I should like to say that I do very much hope that there is no risk on this occasion of our being asked to send the Committee stage of the Bill upstairs, because it is very difficult on all arguments on either side to doubt that this is a deeply constitutional Bill going to the root of interest that any subject has either in his property or his reasonable expectations. I feel that if it were not to be taken on the Floor of the House, that would amount to a scandal.

I have one other prefatory remark to make and am a little surprised that someone else has not already made it. I hold a very few oil shares, not in this particular company, but as they are all intertwined with each other's holdings it may conceivably be that I have some slight commercial interest in the matter, and I thought that that perhaps ought to be stated.

I was encouraged a little by my hon. Friend below the Gangway who, I think, has so far been the only lay speaker, and who seemed to me to make the clearest speech so far. That encouraged me a little to forget my father's teaching that the only men worse than lawyers are forecastle lawyers and to set up a little as a forecastle lawyer myself. Although we know that we are all taken to know law, I hope the indulgence of the House will be extended to individual Members who can take it for granted, those who are not proficient and learned in the subject, that when they address the House they will enjoy the utmost patience.

"The appropriate legislation"—these are words from the Treasury Bench to which I hope to return; but I would like the House at this stage to observe that this legislation goes a great deal further than anything which could be said to be the appropriate way of dealing with the House of Lords decision, if that were all we wanted to do, and to remember that the whole of this discussion really goes a great deal deeper. It was an error of the Financial Secretary, I think.

Then, he referred to the jurists; he did not quote Bynkersholk, who was always my favourite among these chaps, but he did quote Grotius, and I think, if I may say so, he got them all wrong: if the hon. Gentleman will read the judgments—he will find that in one or more than one—he will see that the learned judge made it quite clear that he assumed these civilians were not endeavouring to state the international law but the minimum of municipal law necessary to make a State civilised. That was the point of those citations.

If I may, I would like to relate the events behind this to the House, not because I think I am better informed than anyone else but because I hope to be corrected if I get any of them wrong and if they are correctly stated they seem to me to amount to an argument, and I think, really an unanswerable argument. A person, a corporate person, a subject of the Crown, believed, and was competently advised, that it had a proper claim upon the Crown for property taken in time of war and under stress of war. What, therefore, did it do? What must it naturally have done? It had recourse to the proper courts.

There has been some talk by hon. Members opposite as though there were something disgraceful about it having recourse to the Scots courts, just as there has been some talk as though it were disgraceful that the maximum claim should have been made. There is nothing disgraceful about either, and in that I find support in the judgments of many or most of the 10 judges who have considered the case.

In the first hearing in Scotland Lord Kilbrandon decided—and the later judges agreed—that in Scots or English law, whether the taking was to destroy or to use or enjoy, in general the taking of that property by the Crown had been subject to compensation. But, at the same time, he issued the warning that his decision said nothing as to the value of such right to compensation.

It seems to me that the dimensions concerned, both of value in what was destroyed and of resources which the aggrieved party had and which might be held to be so great that it needed no more, and dimensions of time involved, especially when one considers that most of that time used has been time used upon the advice of Her Majesty's Government—in all this it seems to me that we make this case a good deal clearer if we leave out any question dealing more or less with the dimensions, of time or money or resources.

Incidentally, I would add in the dimension of sympathy. There are a good many of us on both sides of this as of other questions who are as keenly, and with as good right, aware of the infliction of bereavement by war and the infliction of damage to limb, and the use of that argument in this connection was a mistake.

But to return now to my narrative at the point following Lord Kilbrandon's decision. The case went to the Inner House at Edinburgh, the highest court in Scotland. That court dismissed the action, but I would be grateful to my two pupils on the Treasury bench—they are both ex-pupils of mine—

I am myself a pupil of the Temple and have been for rather over 50 years. That is one of the reasons why I ventured on this; but that was an interruption. I should be very grateful if my two pupils would listen to me on this point particularly, and on all later points particularly.

The Inner House dismissed the action. Lord Clyde said that, as a matter of general principle, a subject deprived of property by Prerogative is entitled to be compensated, with the exception of actual battle. I think that I have his words clear and I think that I am right in saying—hon. Members will find it most easily by looking up what was said by Lord Reid, who quoted them—that the other four judges in the Inner House agreed with Lord Clyde.

They all said, some of them in almost identical words, that it was necessary to decide against Lord Kilbrandon, but that it was highly regrettable and that as a matter of general principle there was no doubt that subjects had a right to expect compensation except in the case of what was called "battle damage".

Order. I imagine that the right hon. Member for Carlton (Sir K. Pick-thorn) is giving way to the hon. Member for Westhoughton (Mr. J. T. Price).

I shall not be a moment. The right hon. Gentleman is arguing very eloquently, assuming that there is an abstract right to damages, which is supported by the authorities quoted in the debate. Supposing it exists, it is surely only on the assumption that the Power which exercised the right, or is granted the right under its constitutional practice, won the war. It would be necessary for the Government to win the war for the right to be exercised by anybody. I think that that is a very important consideration. If the Government had lost the war this argument would not have been taking place today.

I am quite clear about that. Perhaps the hon. Gentleman his been reading the judgments, because that was made clear in more than one of them. My immediate point is that it is no use citing even the dismissive judgments as if they were deciding that there was not a right of compensation.

The company lost in the Inner House in Edinburgh. It then went to the House of Lords and there it won by three to two. Lord Radcliffe was one of the minority and has been most relied upon by the spokesman on the Treasury Bench. Lord Radcliffe decided against Burmah Oil. He said, towards the end of his judgment:
"None of this is an argument against the propriety or indeed urgent desirability of the State providing compensation."
He then, or rather a little later, went on:
"That there is something which may, by a permissible transfer of language, be called a public law which requires the careful attention of the State to damage that is inflicted, and calls on it to make such provision for compensation as the recognised equity in favour of compensation demands, I would be glad to agree."
So all five of the judges in the House of Lords did not think that the law was what right hon. and hon. Members opposite now assume that everybody thought the law to have been until, for some odd reason, so many Law Lords all over the United Kingdom suddenly decided that it was something quite different.

If I may indulge in a little more learning, let hon. Members opposite look at what Lord Dunedin said in the case of De Keyser, long before this case. It is quite untrue to pretend that what the Government are now doing is putting the law back to what all competent persons thought that it already was.

That is my statement of the facts as I understand them. I would make a very short commentary upon them. I am in my fifty-second year as a law student. I do not claim to be that much ahead of the Financial Secretary to the Treasury, who quoted from his first-year knowledge of what retrospection means: I think that it means a little more than the Eyre case proves. I think that there is a little further objection to retrospection than that: surely the fundamental objection to retrospection is that it is legal fiction: it is pretending that the law was at some date what everyone knows that it was not. I should be the last to be purist enough to claim that there can be no fiction in the law. Surrounded with learned hon. gentlemen as I am, that would be an absurd paradox. But there is a critical percentage of fiction in a system of law which, when passed by 1 or 2 per cent., results in a much debased system of law.

The question here is what is now the limit of retrospection. I did not wholly understand—and I beg hon. Gentlemen not to tell me now—the part of the argument about indemnity, who was to be indemnified or not indemnified about what. Of course, it is true that some kinds of retrospection are less tiresome of less wicked than others, but at the best they are all necessary evils. Someone said here in debate the other day that the Tories did not mind retrospection when it was to give something to someone. That is quite untrue so far as I am concerned, but it is less wicked, less vicious, retrospection which is, rightly or wrongly, intended to help to ease a human situation than when it is intended to have the opposite effect.

What now—and this is the first and great objection to the course of events which I have just recited—is the limit to retrospection? Incidentally, when will learned hon. Gentlemen learn that, when they are talking about what is, admittedly, a series of necessary evils, they do not strengthen their case every time they can spot something else which they can call a precedent; they weaken it. When talking about necessary evils, the fewer of them, the better, and every new admitted one, the worse. This is not a case in which precedent will help the arguments of hon. and learned Gentlemen in the least.

What is now the limit to what retrospection may be expected to do, without everybody getting up and howling and all the benches here being crowded to 10 o'clock, or to whenever we choose to go on, knowing that we shall always have a full House? Who now is to say that any kind of retrospection is vicious when there can be retrospection to deny three of the highest courts, including the very highest, and to change the decision of judges who have all admitted a great degree of justice and equity on the side of the claimants, although some of them were not able to give them a judicial decision?

After all this, after the passage of 23 years, half of them wasted from the demandants' point of view on the advice of Her Majesty's Government, after the attempt of Her Majesty's Government to stop the pursuit of the cause, which I still cannot think was right—and, incidentally, one of the Scottish judges said, for the benefit of solicitors on the other side of the House, that it was manifestly and plainly against all the etiquette of Scottish solicitors; I do not know whether English solicitors are the same—who now, in view of all that, when the Government legislate not only in order retrospectively to upset a decision, but also to alter a large branch of our law, the common law which relates to compensation expectable from the Crown for property damaged or taken by the Crown, a very important part of the law and, for many generations, one of the most important parts—and hon. Members who use the term "medieval" as a term of abuse had better consult the Encyclopaedia Britannica or something else within their reach and look up "purveyance" and find out what the law was then, for the common law is not worse when it is old, for its claim to respect lies in its age.

Who is to say where the limit is? Retrospection has been used not only to do what is alleged to be necessary in this case, but a great deal more—to alter the common law widely. A little time ago, we did not know what the common law was. Perhaps some of us guessed, but only if we guessed differently from the official lawyers. One of the oldest principles when altering the law is that one should make it clear what the law was before, what the gap in it is and what it is with which one means to fill the gap. I have forgotten the name of the case, but no doubt it will be remembered. It seems unbelievably impudent to do this amount of altering the common law without a great deal more discussion and inquiry than anybody has given to it.

Where is the rule of law now? Where are the human rights now?

Yes, I know. Where is Wullie Shakespeare now? I can tell hon. Members some of the things he would say about this.

How are we to stand up to any foreign authority which questions whether the rule of law here means anything? Where now is our reliance in any commercial or financial arrangement across frontiers? What courts will now be thought sure to be fair and what courts will be able to see that their judgments are effective and are not overborne by some local legislature? What are the answers to these questions? There may be answers, but there have been no attempts to give them this afternoon. The questions have been brushed aside, and until there have been clear and candid answers to these questions I feel sure that the House should not give a Second Reading to the Bill.

5.59 p.m.

With a large part of what the right hon. Member for Carlton (Sir K. Pickthorn) said, I found myself in entire agreement. It was the purist's view of retrospective legislation and, in so far as I am capable of appreciating the purist's view and agreeing with it, I would agree with the right hon. Gentleman. Unfortunately, we cannot apply the purist's view to the facts of political life, and it is equally clear that we cannot apply the purist's view to the circumstances of the war, particularly in Burma in 1942.

There is one fundamental misconception in the opposition to the Bill and it is that somehow or other the principle of retrospective legislation can be considered in isolation from the facts of the case. That cannot be done, especially when considering what happened as a result of a Government order in 1941.

Clause 1 does clearly contain a retrospective element. One's immediate reaction to it is to say that this is a Bill specifically designed to reverse a House of Lords' decision and that it is therefore abhorrent—abhorrent for many of the reasons given by the right hon. Gentleman. It offends the principle that a man is entitled to rest on the decision of the highest court in the land—which may be the first objection to the Bill—and it gets rid of the principle that the law should be certain as declared by the highest court in the land; also that the Bill is contrary to a certain basic idea of equity, that there is something basically unfair in allowing a man to litigate and then, when the decision goes against the Government, for the Government to turn round and reverse that decision. [HON. MEMBERS: "Hear, hear."]. I am much obliged to hon. Members opposite for saying their "Hear, hears". I am afraid that they will not be quite so vociferous in five minutes.

This was my initial reaction to the Bill. It is a natural reaction of a lawyer and, if I may say so, a very praiseworthy reaction, to such legislation. Frankly, one of Parliament's more jealously preserved duties is that it should be zealous when considering legislation of this sort. When legislation is brought before the House whose effect is to reverse a decision of the House of Lords, it should be looked at most carefully. If the legislation is such that it not only reverses a decision of the House of Lords but decides that, in a case in which A had won, from the time that the Act is passed B and not A should be deemed to have won, Parliament should be even more zealous in considering it.

May I make one more remark about some of the speeches which we have heard? For my own part, I cannot find it in myself to uphold the decision of the Treasury Solicitor, whoever took it—whether it was the Law Officers of the Conservative Government when they were in power I know not—to write the letter to the Burmah Oil Company in the course of the litigation. It was not a letter which should have been written or which should be relied upon by either side in this argument.

Having said that, may I pose what seems to me to be the important issue in the Bill and in the debate? It is not whether retrospective legislation is always bad because, although one may merely be adding to bad precedents, it is clear that from time to time this House and other legislatures have found it necessary to pass retrospective legislation. To that extent, therefore, it would not be right for the House merely to look at the Bill and say, "It is retrospective, ergo it is bad and therefore we must vote against it." In my opinion, that would be a wrong approach to the Bill. We must go behind the sole principle of retrospection and ask, not whether it is permissible as a general principle, but, rather in the particular circumstances of this case, should we as a House allow this retrospection to take place? When one considers that, it becomes impossible to divorce the facts of the litigation from the desire to overturn the decision of the House of Lords.

The real question is: in the particular circumstances of this case—as the hon. Member for Aylesbury (Sir S. Summers) said (and I agreed with the way in which he put the question)—should the decision of the House of Lords be upheld or reversed, or, to put it in another way, should retrospective legislation be passed?

What are the circumstances? This is a claim for denial damages; we are all agreed about that. We are also agreed that a clear distinction has been drawn in law between denial damage and battle damage. For my part, I do not see the distinction. If it is a distinction in law, it is a distinction which seems to me absolutely unreal in fact. May I give one example which I believe illustrates this fact and reinforces my point of view? On the day that the Burmah Oil Company was ordered to destroy its installations—if the House of Lords was right and if this House upholds that decision—if the company blew them up itself, as it did, it is entitled to compensation for the damage which it suffered. If that be the law, there is a perfectly legitimate claim for compensation for denial damage. If on the day after the Japanese arrived the Royal Air Force in Burma flew across the installations and were successful in dropping a bomb on the precise place where the voluntary explosions took place, the Burmah Oil Company would not be entitled to compensation.

It is this absurdity which seems to me to underline the fallacy of trying to divorce denial damage from what has been popularly called battle damage. If the installations were bombed, the company does not get compensation; if it is ordered to blow them up and does so, then, on the decision of the House of Lords, it is entitled to compensation. This is anomalous and absurd.

The right hon. Member for Carlton said that we should not drag in the question of war widows and people who had been ordered to die for their country. I would not drag it in as an emotional factor in this argument, because the emotion of that sort of argument does not advance the case for the Bill one iota. However, I should like to use it in this way. If it is the fact that the dependants of a man who dies for his country are not entitled to bring an action against the Crown and are not entitled to receive thousands of pounds in damages for the loss of the breadwinner which that family has sustained, it merely underlines the absurdity of trying to draw a distinction between battle damage and denial damage.

How in the circumstances of modern war can one divide the matter into compartments and say that the dependants of the man who dies receive no damages, that all that the man who is wounded gets is a military pension, and that the man who is injured on the road, for example, has to prove negligence in order to establish his claim, but that if the Army, out of military necessity, orders the Burmah Oil Company to blow up its installations to deny the use of a vital sinew of war to the enemy whom we are engaged in fighting it is entitled to vast sums of compensation? How can one say that it is entitled to compensation whereas these other equally meritorious cases are not?

If in 1946 a Bill had been introduced in the House which said quite simply that in the case of denial damage caused by the order of the military there should be no claim against the Crown, I have no doubt that it would have been passed and that hon. Members opposite would not have said much about it

If hon. Members opposite are with me this far, they seem to be agreeing that this is the sort of damage against which the Crown ought to indemnify itself. If they accept what I have said, they agree that what has loosely been called denial damage in time of war is the sort of damage which the Crown should not be under any liability to compensate for in this way, and that it is the sort of damage which should be compensated for out of the general public purse in exactly the same way as we would deal with any other members of the population who had suffered injury or damage as a result of war.

The hon. Gentleman is deploying a very interesting argument. He has described the hypothetical circumstances in which a Bill might have been introduced and passed by this House in 1946 abolishing the liability at common law for denial damage. Is he going on to suggest that it would also have been reasonable to have left the situation in that new but negative condition and not to go on and provide for statutory compensation for denial damage?

No, I am not saying that. What I am saying is that if in 1946 a Bill had been introduced which purported to take away the common law right to receive compensation for denial damage, I should have thought that it would have been passed. This is purely a matter of judgment, and hon. Members who have been in the House much longer than I have are in a better position to exercise their judgment on it than I am. But, given the fact that the war was then over, and given the immense amount of damage caused not only in Burma but to people in this country, I should have thought that this House would have accepted that the common law right to compensation should go. Whether the House would have gone on to enact a Statute by which denial damage was covered in the same way as the ordinary war damage by enemy aircraft was covered, I do not know. I must say this to the hon. and gallant Member for Worcestershire, South (Sir P. Agnew). Of course, that is not the position we are dealing with today. What we are dealing with and what this House must consider is whether we are prepared to accept now, in 1965, that a right to denial damage exists although in 1946 the House of Commons would have been prepared to accept a Bill of Indemnity denying the validity of that right. This seems to me to be the real question which the House is considering. We are now 19 years on and, therefore, it is necessary to consider whether this time scale has made any difference.

Perhaps I may help my hon. Friend. Of course, there was a statutory right to compensation for denial damage under the Burma rules—that is, under the laws of Burma itself. That right undoubtedly existed, but, unfortunately, it proved to be valueless.

I thank my right hon. and learned Friend for that intervention. It answers the point raised by the hon. and gallant Member for Worcestershire, South.

If one can project oneself back in time to 1946, the position would have been as follows. I should have thought that the House would have said that there was no common law right to compensation for denial damage; it would not agree that the people who had suffered denial damage should be put in a special category. Having said that, it would have gone on to reinforce that viewpoint by saying that in any event there were the statutory provisions in Burma which would be applicable to the particular circumstances or the Burmah Oil case.

The really important point, however, and the point which seems to me to be fundamental to the whole argument on the Bill, is whether this House is now prepared to say that people who suffered damage as a result of an order by the military in time of war should be put in a special category from anybody else who has suffered any other kind of damage in time of war, including personal injury or death. That is the point that is really before us.

If hon. Members are with me to that extent and if they agree that in 1946 that would probably have been the result, one must look at what has happened between 1946 and 1965 and then decide whether the fact of the litigation and the decision of the House of Lords somehow or other gives an extra right to denial damage which this House would not have considered that people should have had if the Bill had been presented in 1945.

The hon. Member is formulating a point which is not the point made from these benches and he is trying to answer something which does not exist. The point is whether retrospective legislation should ever deprive a person who has won his action up to that point of the fruits of his action. That is the whole argument.

I am obliged to the hon. and learned Member. That was the next point I intended to try to answer.

One cannot decide whether this retrospective legislation is or is not justified until one first decides whether the claim that one is trying to reverse would or would not be justified in itself. It seems to me that the attempt to divorce the two—[Interruption.] I am sorry if hon. Members say "Of course not", but it seems to me to be the height of absurdity if what one attempts to do is to say that in no circumstances should this House intervene to reverse the decision of the House of Lords retrospectively so as to overturn that decision and not merely reverse the point that has been decided.

If hon. Members opposite go that far, I am certainly not prepared to go with them, because it seems to me that what one has to do is to look at the type of claim which has been made and the type of claim which has been upheld by the House of Lords and then, having looked at that claim, decide whether it is the sort of claim that should be admitted. I use "ought" in its broadest sense. In this case it means whether, if in 1945 or 1946 this had been considered a valid ground for compensation, this House would then have legislated retrospectively. The foundation of my argument is that if it would have done so, one must now look at what has happened in the last 20 years.

Of course, there has been a decision of the House of Lords and there has been protracted litigation. I say it not as a party point, but the Bill would have been very much better introduced had it been brought in at the time the action was started in this country in 1960. It would have been far better had the Government then tried to protect themselves and sought to secure the complete indemnity which they must now secure retrospectively by saying in 1960 that this was not the sort of claim that the British Government should entertain. However, the Government did not do that. The action was fought, and all credit goes to the advisers of the Burmah Oil Company and their advocates. They must have been singularly skilful and clearly they have been extremely successful.

Having got the decision from the House of Lords, however, it surely amounts to no more than a decision by the House of Lords that in law a right to compensation for denial damage exists. It amounts to no more and no less than that. It is a declaratory judgment of what the House of Lords now says the law is.

For the life of me, I do not see the logic of saying that the Lords now having decided that that right exists, if we had thought that it existed in 1945 or 1946 we would have legislated for it, and then turning round and saying that because we did not think that it existed in 1945 and because the House of Lords has now decided that we were wrong, although we would have legislated then we will not legislate now. That does not seem to me to be logical or consistent and it seems to me to be the main point in favour of the Bill.

The effect of the Bill, if passed, would be to put the Burmah Oil Co. back in precisely the same position as it would have been if in 1945 this House had passed the retrospective legislation that, I suggest, it would have passed then. [Interruption.] The provision concerning costs is dealt with in the Bill. I entirely accept, as I know the Government do, that in passing the Bill and putting the Burmah Oil Company back 20 years, we have to compensate the company for the expense to which it has gone in the litigation. We would undoubtedly have to do that. Nevertheless, one comes back fundamentally to the point that by passing the Bill and by enacting it, although it be retrospective legislation, we are doing now precisely what we would have done 20 years ago had the House of Commons then realised that the law was what the House of Lords has now decided it to be.

I do not like retrospective legislation. I hope that that has been obvious from my speech. There are many of us on these benches who do not like retrospective legislation and there are many hon. Members on the Government Front Bench who do not like it either. I hope, however, that I speak for a large number of hon. Members on this side in saying that we see no reason whatever for isolating denial damage from all the other compartments of damage which might have been sustained as a result of that immense war which we so happily won and that we see no reason for paying to the Burmah Oil Company whatever the figure might be—I mind not for this purpose whether it is £100, £100,000 or £10 million—and putting the people who have suffered denial damage in such a special category. There seems to me to be little justification for it. I had better say as little as possible about the decision of the House of Lords.

6.20 p.m.

The hon. and learned Gentleman the Financial Secretary, moving the Second Reading, was careful, I think, not to grasp the real point of the debate. The point of the debate, as he ought to have appreciated, is that this Bill is depriving a person of a right which the House of Lords says he has; and a right to claim damages is a very real right. One might be able even to discount it somewhere, but it is obviously a right, and it is idle to say that it is not confiscatory, as a right will be confiscated by this Bill.

The hon. and learned Gentleman then sought to take refuge in, I submit, an entirely false analogy. He said the Bill was like an indemnity Bill. An indemnity of whom? Because the decision of the House of Lords was that the acts were quite lawful. So whom are we going to indemnify? Are we going to indemnify the servants of the Crown against the consequences of their lawful acts? It is not like an indemnity Bill. This is a Bill which decides that a person who has won the action up to that point has lost it. It is not an indemnity Bill. The oil company won; at the end of the Bill it has lost. There is nobody to be indemnified. The Bill exonerates the Government from the possibility of paying damages which the House of Lords says they might have to pay if the Burmah Oil Company wins the rest of the case. This is an exoneration for paying damages. It therefore confiscates the right to damages. That really is the whole argument.

The hon. Member for Barons Court (Mr. Richard) was saying that retrospective legislation is justified and retrospective legislation to confiscate the right of somebody is justified if the legislation was passed 20 years ago to deprive that person of that right. I do not think he can carry many people on that. It is not a justification of depriving a man of a right in 1965 because the House might have deprived him of that right. It was changing the law, but not depriving him of some right if it was said, "He should not bring an action." That is fair enough. We are being deprived of possible actions all the time by changes in the law, but it is the retrospective character of altering a decision of the House of Lords which is the gravamen of the charge.

It is very sad that this infraction of the rule of law should be committed—by two Governments, perhaps potentially by one Government, and actually by another Government—when so many of the members responsible belong to an organisation called Justice—the Lord Chancellor, the Financial Secretary, the Attorney-General. I would remind the House of another glaring instance, when the late Government committed an equally grave infraction of this rule in the case of Prince Frederick. Then the late Attorney-General and the right hon. Member for Taunton (Mr. du Cann), a leader of this party, both voted against the Government on this very principle. They went into the Lobby against the Government because they were so shocked, and they upheld the tradition of this organisation to which they belong. This organisation exists to bring Governments to the realisation of what they are doing when they want to ride roughshod over the rights of people.

It is probable at this stage that, the Whips having talked to the hon. Member for Lincoln (Mr. Taverne), the result will be that the Second Reading of the Bill will be carried, but I foretell that the opposition to the Bill will mount as people begin to realise what it involves, and it will amount to a crescendo in another place, and I would have thought that the Government will not have a chance of passing the Bill.

No, it is a warning that people who do not realise what they are doing, or whose consciences are dulled by party motives, will begin to see that retrospective legislation to deprive a person of the fruits of a judicial decision is never justified—never. There may be a precedent, but that precedent was wrong, the case of Phillips against Eyre. The opinion of practically all the lawyers was that it was a purely political decision which was entirely wrong in principle. It is one of the rights of man that he cannot be deprived of his rights which he has won in a court of law.

Is the hon. and learned Gentleman's argument, then, that there would not have been objection to this Bill if it had been brought in 1960 or even 1963?

No. There would not have been the same objection, and I, personally, would have been in favour of it, but the gravamen of this is the depriving of a man of a decision when it is in his favour. That is the point to meet. Of course, there cannot be the same objection to a Bill passed before the rights are established.

However, I was dealing with the arguments of the Financial Secretary when he dismissed the foreign aspect of the matter, saying it was purely a matter of indemnity and that there was no need to pay any attention to foreign opinion. That is not the point. The point is that the Executive are saying not only that the decision of the court was wrong but "We change the law so that it is wrong. We therefore hold the law to have been different." The man won his case and he has lost. That is wrong.

The hon. and learned Gentleman said this was not a matter of foreign litigation; he said this was purely a domestic company. All right. Imagine what is the case when an English oil company has a subsidiary in a foreign country and the subsidiary claims a concession and says that it is so and so, and that it is entitled to some amount of more land to explore, and the Government of that country say, "No, the concession means this," and the company fights it all the way up to the equivalent of the supreme court. Suppose that the Government of the foreign country say, "We do not care who wins in the court. We are going to reverse the law." Then the foreign Government have only got to say to ours, "But you adopted the principle of reversing retrospectively the judgment of your High Court."

That is the point which the hon. and learned Gentleman did not meet; and he did not meet other points, but I do submit that it is important for hon. Gentlemen on the other side not to try to draw a lot of red herrings over this, that they have to examine their consciences to meet this point and only this point. They have got to say why it is right to deprive a man of the fruits of a judgment, why it is right to confiscate a right which has been established by the highest court of the land.

The amount does not matter. Whether it is denial damage or war damage, I rather agree, is a foolish distinction, and therefore I would be in favour of Clause 1 altering the law; but that is irrelevant to this point. It is on Clause 2 that hon. Gentlemen opposite should concentrate.

At present, the public are deceived by a thing like this, when the lawyers bring up lots of arguments, but it is in accordance with the customs of this House that though hon. Members may differ from the view I am expressing they ought to meet the argument, and ought to say whether they think it right in this case to deprive a company of the fruits of victory, and why, and they should not simply say that this is a sort of ramp to give shareholders in Burmah Oil a lot of money, and I plead that hon. Members should not use the emotional argument as did the hon. Member for Oldham, West (Mr. Hale) about widows and orphans and so on. It has got nothing to do with it.

The hon. Member for Barons Court did try to meet the case. I do not agree with the way he met it. If I may say so without being patronising, he met it intellectually and logically, because he tried to find the reason why this kind of retrospective legislation is justified. I wish other hon. Members opposite would follow his example, because this is indeed a precedent, which will go all over the world, for this affects Anglo-Saxon law, and here is the House of Commons saying, "A man who has won, he has lost." I consider that a most improper principle.

6.28 p.m.

I confess that when I came into the House this afternoon for the purpose of listening to this debate I had been very greatly impressed by the criticisms of the Bill which had appeared both on the part of the applicants and in some of the more reputable newspapers, and I came in with a prejudice against the Bill. I hope that no one will feel that it is disrespectful if I say that, as a result of the argument I have heard in this debate, I am not quite satisfied that my hon. and learned Friend the Financial Secretary to the Treasury is right and that the House ought to accept the Bill.

If any speech might have influenced me the other way, it was the extremely lucid and attractive speech of the hon. and learned Member for Northwich (Sir J. Foster). If this really were a purely legal argument, I think that the hon. and learned Gentleman would have made his case overwhelmingly, but he himself said—and I agree with him—that this Measure which we are being asked to approve is not a matter of law. It is a political decision, and the only question for the House is whether it is a right political decision, or a wrong one.

I am not impressed by all the statements that we have heard during the debate from eminent lawyers about its not being correct for the Legislature to reverse decisions by the courts. This is one of the first duties of any legislature, and the House of Commons has done it repeatedly over the centuries. One has only to cite by way of example, without going into any argument about it, the Taff Vale and Osborne judgments, and the Acts of Parliament which were passed by the Legislature to reverse the results of those judgments, to know that if the courts reach a decision which is correct in point of law, but which, in principle, is regarded by the House as not being a good principle, it is not merely the right, but the duty, of the Legislature to change it. This has been done repeatedly, and there is nothing wrong with it.

It is a different point from the retrospective point, which I agree is a separate one. In the cases which I mentioned, no one sought to upset the established judgments so far as the rights of persons were concerned. What we did was to change the law for the future without affecting immediate decisions which we thought were right in law but wrong in principle and which we proceeded to reverse. If that is all that there were in this argument, I think that the opponents would have made their case.

Would not the hon. Gentleman agree that the parallel situation in modern times to the argument that he is advancing would be if the Government were to introduce legislation to affect the Rookes v. Barnard decision, not merely by reversing it prospectively, but by applying it retrospectively so as to deprive Mr. Rookes of the damages which he was awarded by the court?

I follow that, but I want to follow the challenge which, I think, was eminently legitimate and which I am attempting to meet.

I cannot judge how successful I am being in my efforts to meet the challenge to defend it as a political, as against a legal, principle. For that, let us look at the facts. In 1942 we were at a critical stage in the war. The Japanese were on the point of overrunning the whole of Burma, as eventually they did. The applicants here had a valuable property, valuable in the sense not merely that it was valuable to them as a piece of property, but valuable to whoever held it in a military and strategic sense.

Suppose that nothing had been done. Suppose that the directions of the Government to destroy the plant had not been given. Suppose the applicants had not voluntarily either in obedience to directions or without such directions, destroyed it. What would have happened? The Japanese would have taken it, they would have used it, and when eventually they were forced out again in their turn, they would have destroyed it.

That is a very good point in going to damages, but surely it goes to nothing else?

If my hon. Friend will hear the end of my argument, he may still think it is irrelevant, but he will be in a better position to form a judgment. [HON. MEMBERS: "Retrospectively."] What I am saying is that the actual loss was inevitable in the circumstances of the war—[HON. MEMBERS: "No."]—unless we are to contemplate that in those circumstances the Japanese would have been more generous to us than we were to them, which I find very difficult to accept as a plausible proposition. So, to prevent what must at that time have seemed a reasonable anticipation of events, directions were given to destroy this plant, and it was destroyed.

The question is: who should bear that loss? If a claim had been made against this Government at the time, it is inconceivable that they would not have passed an Act of Indemnity.

The company believes that it can provide positive evidence that the Japanese would not have destroyed these oil installations, because of their belief in co-existence between themselves and the people of the area. The hon. Gentleman cannot say "inevitably" or "certainly". There is a grave argument about that, because the Japanese believed that even if they lost the war they ought to keep the good will of the people of South-East Asia.

It may well be that if the Japanese had won the war this company would have established a registered office in Tokio and made a claim against the Japanese Government. I do not think that that is a matter which the House of Commons, in 1965, ought to be asked to take into account. The question is not whether the company was ultimately able to prove that the Japanese would not in those circumstances have destroyed it.

I would not accept the evidence even if it were produced, but that is not the point. [HON. MEMBERS: "The Hon. Gentleman is not the judge."] I am sure that hon. Gentleman will see what I mean, that ex post facto evidence of that kind has nothing to do with the case, because the practical question is, what caused the Government of the day to ask the company to destroy it? The thing that caused the Government to do that is precisely the point which everybody would have expected even if, ultimately, years afterwards, there could be some sort of pretence, or some sort of evidence, that it would not have happened.

I am saying that if the claim had been made in 1945, undoubtedly the Government of the day, apart from the compensation which they paid, which was by no means an immaterial sum, would have passed an Act of Indemnity. The hon. and learned Gentleman may think that that is the wrong word. He may prefer to call it exoneration, but whatever it is called there is no doubt that the Government would have done it. There is no doubt that they had the power to do it, and there is no doubt that every Member of the House would have supported them in doing it.

Let it be understood that every Act of Indemnity is restrospective, because, unless there is an established right, there is nothing to indemnify anybody about. Every Act of Indemnity takes away from somebody something which would have been his if the Act of Indemnity had not been passed.

That is the answer to the objection that is taken not so much to reversing by legislative means a judicial decision but the restrospective effect of it—because an Act of Indemnity is always retrospective; otherwise it would not be an Act of Indemnity. If we were right to do it then—and I am postulating that no one would have thought it wrong—how can it be wrong to do it now?

Here I differ from the view expressed in a remark made by my hon. and learned Friend in his extremely illuminating and valuable contribution. He seemed to accept the criticisms made of the Treasury Solicitor's letter. I know that he has considerable judicial support for that view, but I do not share it. The Treasury Solicitor's letter was absolutely and eminently right, and the real criticism would be not that he wrote it but if he had failed to write it.

What was he saying, in substance? Perhaps this is a paraphrase, but I hope that hon. Members will think that it is not an unfair one. He was saying, "We do not believe that you have this right. If you had this right we would have passed an Act to exempt ourselves from the damages that flow from it. We cannot do that, because we do not believe that you have the right at all. What we are saying to you, in all fairness, is that if you proceed and establish the right, then you will have provided the basis for an Act of Indemnity."

Does anyone really think that if the Government intended to do that—and quite obviously they always did—it would have been justifiable on their part not to have warned the applicants what their intention was? I cannot understand the judicial criticism, let alone support it. The letter was an eminently proper letter to write. I repeat: the real criticism would have been if the letter had not been written.

Surely there was an alternative course open to the Government at the time, namely, to introduce a Bill then, before the processes of law had reached their conclusion, to avoid the necessity for writing such a letter.

I am prepared to concede that that might have been more prudent. But I appreciate their difficulty. They did not believe that there was anything in respect of which to indemnify themselves. They did not accept the contention. It may be that they were badly advised; I do not know. But having formed the view that there was no right they could not pass an Act to indemnify themselves against the consequences of breaching it. Therefore, since they intended to exonerate themselves if the right was established, I say that it was right and proper that they should have warned the applicants of that intention.

I make my final point not upon a legal basis, but upon a commonsense, political one. I hope that I can make it without unnecessary emotion, and that we can keep emotion out of any matter where human beings are necessarily involved. I go back to the point made by my hon. Friend the Member for Oldham, West (Mr. Hale). If hon. Members wish to refer to it as the distinction between battle damage and denial damage, I do not mind about the jargon that is used. I am inviting the House to consider the common sense of the matter, never mind whether or not it is soundly based legally.

How can we say to a widow who, at an early age, has lost a young husband—the father of her children—"This is battle damage. We will do what we can for you, but only on an exiguous and extremely frugal basis, and in many cases pay you nothing at all, or nothing until you are old and unable to help yourself," while, at the same time, we say to a very wealthy, international firm, which has lost nothing whatever under these proceedings, "We shall concede the claim which, if you are right in the way you have formulated it, must amount to about £100 million"?

I say that if the opposition is put in those terms, and if we accept the hon. and learned Gentleman's challenge to ignore the legal and judicial issues and look at the matter as a purely political decision, the House should say that as a political decision it is eminently right.

6.45 p.m.

I beg to move, to leave out "now" and at the end of the Question to add "upon this day six months".

In effect, this is an Amendment to reject the Bill in toto.

I say, first, to the hon. Member for Nelson and Colne (Mr. Sydney Silverman) that as I heard the speech of the hon. arid learned Member for Northwich (Sir J. Foster) he did not invite the House to dismiss all legal and judicial issues and to decide the matter on purely political grounds. Anyone who knows the hon. arid learned Member for Northwich would find it extremely difficult to believe that he ever would put forward such an argument.

I am sorry to interrupt so early, and I shall try not to do so again, but the hon. and learned Member for Northwich (Sir J. Foster) is present and can defend himself.

If the hon. and learned Member will take the trouble to read his speech as reported in HANSARD tomorrow he will see that he appealed to the Government to stop pretending that this was justified by law or by judicial principles, and to defend it, if they wanted to defend it, as a political decision.

I hope that the hon. Gentleman will allow me to attempt, by retrospection, to improve the record as far as the hon. and learned Member's speech is concerned.

I was somewhat surprised and disappointed that the hon. Member for Nelson and Colne, who is a lawyer and who, therefore, I would have expected to argue the matter on legal grounds, put forward women, children and orphans—the only things that we did not have thrown into the argument were the limbless and the Almighty—in furtherance of an argument in favour of undermining the rule of law in this country, because that rule of law is just as important to the widow who comes into the High Court, legally aided, to recover damages in respect of the death of her husband, and to the man who loses a limb in a factory, as it is to the large, wealthy international company. Therefore, I hope that it will be possible to discount the sentimental arguments, which do far more damage to humble people who rely upon the independence of the judiciary and the courts of this country than they do to international corporations.

It was no surprise to me that the Minister who introduced the Bill should have been a Treasury Minister, because this is a Treasury Bill. The Financial Secretary spoke not as a lawyer but as a Treasury Minister. I was staggered to find the Treasury seeking to advance the case of a Bill, the effect of which is to take away clearly established common law rights; to enhance the arbitrary power of the Executive; and to bring in retrospection not only to reverse the view of the House of Lords but to non-suit existing litigants by saying, "Market fluctuations showed that this was not going to have a great effect on the company. The company never mentioned this to its shareholders. The company did not think that it would be successful in litigation. Its expectations were not very great." That is totally irrelevant to the principle that we are discussing.

Another aspect of the debate which horrified me was the intervention of the Attorney-General. He is a learned lawyer, and, unlike some Law Officers, is recognised to be such not only by politicians but by his own profession. That seems to be the acid test of the expertise of a Law Officer. When he questioned the hon. Member for Aylesbury (Sir S. Summers) he asked whether the hon. Member did not think that when a sum of nearly 4¾ million was paid in compensation to this company it was a generous settlement. He then retracted somewhat, and agreed that it was not compensation but rehabilitation, accepted by the company on those terms and, indeed, paid by the Government on those terms. What the Attorney-General seemed to be suggesting was that the size of the amount of money paid, the magnitude of the compensation, in some way could influence the strength or weakness of the principle involved. That may well be a Treasury point, but, with respect to the learned Attorney-General, it is not a lawyer's point.

With respect to the hon. Gentleman, I was merely intervening to correct what appeared to be a statement of fact by the hon. Gentleman that no compensation has been paid. I was endeavouring to point out that 4¾ million had been paid to the company.

If the Attorney-General will forgive me, there are two comments I would make on that. The first is that he has linked it to the economic situation prevailing at the time, thereby intimating generosity, and I would respectfully urge on the House that generosity was mentioned in order to indicate a weakening of the principle we are debating. The second point is that there was no compensation, the money was specifically paid for rehabilitation. It was given as such and accepted as such. Whether or not the company wished ex gratia to debit that sum against any sum of compensation which it might subsequently receive is a matter for it. In all the circumstances it was not, nor was it intended to be, nor was it accepted as compensation at the time.

The second argument which seems to me to be advanced by those who appeal to be in favour of this Bill is that advanced by the hon. Members for Lincoln (Mr. Taverne) and Barons Court (Mr. Richard). They say, "We might have introduced certain legislation in 1947. Had we done so, this company would not have a cause of action today. We did not introduce legislation so it has a cause of action. But let us pretend that we did and therefore it has not the right to litigate, and that if it has litigated, let us retrospectively take away the right because we could have introduced legislation which would have made it impossible for it to have done so, had we done so."

The hon. Gentleman has not got that quite right. It is not that we could have introduced legislation but that we would have introduced legislation.

With respect, that is an even more metaphysical argument. It is now putting the hypothesis in the form that, with the most utter certainty, this House would have passed a particular piece of legislation. It is therefore an even more dangerous argument, in my submission.

I make one other comment about the speech of the hon. Member for Nelson and Colne. I do not think that what the Japanese would or would not have done is relevant. When the Germans left Roumania in the Second World War the majority of the Ploesti oil wells were left undestroyed. Some destruction was done by American bombers, and little destruction was done by the Germans. It should not be assumed that a retreating enemy would destroy all the installations. When the hon. Gentleman asks who should bear the loss, I would re-echo the words of many learned judges at various stages of this case who have said that the loss should be borne by the community which has benefited by the destruction, and the community, of course, would include those who have suffered part of the damage.

It is with some trepidation, as a retired lawyer, that I approach this subject. For different reasons I share that situation with the Financial Secretary to the Treasury. He also is a retired lawyer, perhaps on higher grounds than mine, as being Ministerial and mine being different. When this matter was introduced, I wondered whether it would be in furtherance of a legal principle or political expediency. No one who has any intellectual honesty would assert that it is anything but foisted on the House for the second reason.

What, in fact, are we asked to do? What in fact, is the background to the Bill? First, it is plain that successive Governments have been persistent in trying to escape liability for paying compensation. They have been quite consistent about that and we must concede that fact. At least the doubtful virtue of consistency has been adopted by various Governments. Sir Stafford Cripps not only advised but requested the firm to sue in the Burmese courts. Anyone reading the letter written by Sir Reginald Dorman Smith on 23rd January in The Times would realise straight away that the responsibility for the destruction was no decision of the civil administration of which he was the Governor, it was purely a military decision taken on the advice and instructions of His Majesty's Government in this country. Therefore, I should have thought that was a delaying tactic which was not prefaced by very profound legal advice.

There is the letter of the Treasury Solicitor which has already been mentioned. I would only suggest that had it been a matter which an ordinary Solicitor had submitted, there might well have been a case for committing the solicitor in question for contempt. It is true that the letter was not addressed to the learned judge, but it was quite obvious that it was intended to influence the court in its subsequent decision. Now we have this final Bill to reverse the decision of the House of Lords. So Governments have failed all down the line. They have failed to push off responsibility to another Government. They have failed in threatening the litigants, or frightening them off litigation. Finally, they find the decision of the House of Lords against them, so they bring legislation to relieve them of their embarrassment.

The first thing they seek to do is to destroy once and for all the common law right of compensation in cases where property has been destroyed by act of the Prerogative. I find it staggering that the Financial Secretary should say that the law was not as it was generally thought to exist. I concede that it might have generally been thought to be what the Financial Secretary says it to be in his own mind. It was certainly not the position in the minds of all the learned judges whose judgments may be read in the three courts, but quite the reverse.

The next thing we are asked to do is to increase the arbitrary power of the Executive by increasing the power of the Prerogative. I must confess that I am sorry that the Solicitor-General is not present in the Chamber. He comes from a family with a long Cromwellian tradition. One of the great arguments against the Stuarts was that they sought to exercise the power of the Prerogative without any recourse to the courts and without any deference to Parliament.

I hold no brief for Cromwell either—I think that they were all bad lots. It was a very patchy period in our history. But as Lord Reid pointed out in his judgment in the House of Lords, even at the time of John Hampden's case, when the power of the Prerogative had never been greater, it was never suggested that property could be confiscated without compensation being paid.

The third thing we are being asked to do is retrospectively to reverse a decision of the House of Lords and also to non-suit existing litigants. Just to make abundantly certain that the Government have not failed to offend any canons of constitutional law they also gravely challenge the independence of the judiciary.

It is true that compensation generally has been paid in these cases under Statute and the most obvious would be the Compensation Statute of 1939. It was under that Act that, for the most part, compensation was paid in these cases, but there has always, in my submission, been a clear common law right.

The Financial Secretary mentioned that the jurists had not held this view. How wrong he is. If he takes the judgment of Lord Kilbrandon in the Outer House, the Court of First Instance, which is reported in the Scottish Law Times of 1962 at page 353, he will find that there is summarised what had been the view of jurists cited. I apologise for wearying the House, but since the Minister has told us categorically that jurists have never taken this view—

With respect, I am subject to correction, but certainly it is my recollection—

And mine. The hon. Gentleman will forgive me, but the only reference of any kind, or any passage which I stated, was from the judgment of Lord Radcliffe.

If that be the sole suggestion which the Financial Secretary made about this matter, which I took it he was putting forward as one of his own arguments, I would, in even greater trepidation, say that Lord Radcliffe should on this issue refresh his memory. The learned judge Lord Kilbrandon said:

"There is an inherent right in sovereign which exists and which none can revoke to take the property of private persons and, in the case of necessity, to destroy, to deny its enjoyment to the Sovereign's enemies. This prerogative right is independent of any right of private persons to act in the case of necessity. The Sovereign exercising this right is bound to determine the lost cause and to share it among the beneficiaries, with whom is included the private owner of that property."
That is just a summary of the view of distinguished lawyers, such as Dicey, Grotius, De Vattel, and many others. In the First Division Lord Clyde cited the judgment of Lord Moulton in the case of the Attorney-General and De Keyser's Hotel to show quite clearly that the exercise of the Prerogative does not, in itself, give a lesser right to compensation than it would had the Crown acted by virtue of the current Statutes prevailing each one of which had had a built-in right to compensation. It has been suggested that the only reason that the court found against this company was that it held that the destruction was done in the course of actual battle, a view which was subsequently overruled by the House of Lords.

It is in the House of Lords that one finds the greatest assistance. I concede straight away that the distinction between battle damage and denial is artificial. I accept that. There are many other definitions and distinctions in our law which are hopelessly academic. Perhaps the best is that which occurred in the Dilke case in regard to adultery—that proof that A committed adultery with B is proof that A committed adultery with B. It is not proof that B committed adultery with A. Of course there are many illogical distinctions. In the law of tort it is cheaper to kill than it is to maim. But this is no argument for the House of Commons being asked to bring in legislation not only to reverse a principle but to reverse a specific decision already arrived at.

An hon. Member mentioned the Osborne case, but in that case the legislation followed because the principle established was held to be wrong and therefore the law was reformed for the future but not to deny a man the right which he had already been able to establish. That is what is different about this Bill and any other form of Bill which in effect reverses a decision. We are asked to abolish the common law right which all these judges, not, unfortunately, with the agreement of the Financial Secretary, have held has existed from time immemorial, not only on the strength of the learned jurists but upon decisions of the courts stretching over many years.

The hon. Member keeps talking about "all the judges". In fact, of course, the weight of opinion was six judges against four. If one takes all the judges, six of the judges found in favour of the point of view which had been expressed by my hon. Friend and only four found for the opposite point of view.

I am grateful to the hon. and learned Member, but surely he will agree that it is perfectly true that all the judges held that if property were taken under the exercise of the Prerogative there followed a right to compensation. Now, the ratio decidendi of those judges who said that this company could not recover was that in their view the damage, although under the Prerogative, was war damage and flowed from the operation of battle and therefore was one of the exceptions to that general rule.

My main contention remains, namely, that it was clearly established and was agreed by all the learned judges that when there is a taking by the Sovereign under the exercise of the Prerogative, compensation must be paid.

With respect, what was decided was surely that there was a moral right to compensation and what was decided by six judges to four was that there was not a legal right. This is the basis of the argument.

I hope the hon. and learned Gentleman will bear with me. I think the decision was that there were judges who held that this company should not recover, and many of these judges said that although they reluctantly came to that view, they still felt that there was at least a moral right. The reason they came to that view was not that they held the view that a taking under the Prerogative disentitled somebody to compensation. They thought there should be compensation paid for any taking under the exercise of the Prerogative. The reason the company failed, in the view of this minority of judges, was that this was war damage. This was the view of Lord Radcliffe and Lord Clyde. This was the view of the dissenting judges, but they never departed from the principle that compensation should be payable.

I understood the hon. Member to be conceding that if the courts came to a decision in principle which was thought to be for any reason politically or socially objectionable, there was no harm in the legislature reversing it. He added that what it is wrong to do is to interfere with the established rights in the individual case. What my hon. and learned Friend the Member for Warrington (Mr. W. T. Williams) was pointing out to him was that although it is proposed to interfere with the established rights as settled by three votes to two among five judges in the House of Lords, a preponderance of judicial opinion goes the other way.

I never said that at all, although I am grateful to the hon. Gentleman for trying to suggest what I might have said. What I said was that if it is felt that a judgment produces unexpected consequences which are contrary to the wishes and the policy of the Executive, the Executive has a right—indeed, it may have a duty—subsequently to bring in legislation but that that legislation should only operate in future cases and not to deny persons who have already succeeded under previous laws. That is clearly the case in this Bill. What I find astonishing is that this is being adopted—though, admittedly by both Conservative and Labour Governments—by a party which, to their credit, brought in the Crown Proceedings Act in 1947. Before that Act, as the Attorney-General will know, there was no action in tort against the Crown and there was no action in contract against the Crown, unless one got the fiat. This Bill will, in effect, destroy a part of the Crown Proceedings Act because it is taking away from the subject a common law right against the prerogative. Therefore, this is undermining the principles of the 1947 Act which Labour brought in.

I shall not weary the House, but may I give the House a few examples of what can happen under this Bill? Supposing, when this country was at war with Egypt in 1956—I am well aware that Lord Avon says this was merely "armed conflict"—a man had been knocked down in this country by a lorry which was travelling to Dover to get on a ship to go to Egypt. As the law would stand under the Bill, he would have no right to compensation because it would be an act which was done in furtherance of "or in contemplation of" a war. He would have no recourse—

The hon. Member gives this example, but if he looks at the Bill he will see that it says

"No person shall be entitled at common law to receive from the Crown compensation in respect of damage … caused … by acts lawfully done by, or on the authority of, the Crown".
Somebody driving a motor car in such a negligent fashion would not be doing so on the authority of the Crown.

I do not wish to get into an argument about construction, but I point out that there is an alternative in the Clause—either/or. In my submission, it is possible under the Bill for a person to be injured and to have no right of redress against the executive.

I am sure that the hon. Member does not wish to mislead the House. The Bill is confined solely to the consequences of acts lawfully done—acts done by the Crown or done on the authority of the Crown. In either event they have to be lawful acts before the Bill is relevant at all.

Then I am sure that the Financial Secretary will agree with this: if it were desired for example, as in cases quoted not in the House but in correspondence, to extend a runway which was being used for troop-carrying planes to land and take-off, it would be wholly right under the Bill, if those planes were going to Malaysia to deal with the situation in respect of Indonesia, to destroy the house of a person on that runway without having to pay him any compensation at all. That would be quite possible under the Bill as drafted. If I am wrong, then there is a whole battery of Law Officers present as well as the Financial Secretary, and I stand subject to correction.

I should have said that it would be unlawful under the law and under the Bill. The Crown is not entitled lawfully to take the property of people in this country when a war is going on in Malaysia. The denial cases, dealing with property only and not with personal injury, are within a very narrow range when the Crown has acted in the teeth of the enemy when there is imminent danger of invasion. The Crown, under the law as I understand it, is not under the Prerogative normally entitled to take the property of the subject—otherwise it would be a tort, unless there were statutory authority for its actings.

With respect to the former Attorney-General, if he reads the Bill as drafted he will find that it is most instructive. The Bill does not restrict such acts to those committed in a theatre of war or to those where there is a present threat of the enemy. It is drafted so that if it is held by the Executive to be necessary in furtherance or in contemplation of a war to destroy property even within the United Kingdom, then if it is done under the power of the Prerogative, no compensation may be claimed. That is what Clause 1 says.

There may be something in the point or there may not, but surely it is essentially a drafting point which can be considered in Committee and which is irrelevant to the principle.

If the suggestion which I am making is correct and if it establishes that the consequences of the Bill are far graver than the Government have thought, by the very same token it indicates that they have not sufficiently appreciated the damage which they are doing to the wider principle, which is the rule of law itself. This Bill goes far further than merely trying to get the Government off the hook as far as the Burmah Oil Company is concerned. It goes very much further than that.

I have given way many times and taken up a lot of time, and I must bring my remarks to a close.

On this principle of retrospective legislation, supposing the House of Lords were to come to a decision on an interpretation of the Finance Act which was a complete surprise to the Government of the day—a decision which suddenly denied the Government sources of revenue on which they had relied—would the Government be entitled to introduce a Bill the effect of which would be retrospectively to tax those whom the House of Lords had said should be relieved of that obligation? Of course, that would not be suggested, but that is what is being suggested in the Bill.

I would make one comment about the principle of retrospection. It is generally accepted that it is important that the laws in this country should be certain and clear, so that if the subject does an act which is legal today he does not wake up tomorrow and find out that in fact it was illegal. The reason why we introduce retrospective legislation in this country is to protect people from the consequence of illegal acts. It is not to take away accrued or existing rights. If hon. Members look to the views of Dicey, who was perhaps one of the most eminent jurists to deal with this question, they will find no example given, no case cited, in which existing or accrued rights have been taken away. It is rather to protect people from the consequence of illegal acts.

This has been the principle behind such legislation as the Indemnity Acts in the 18th century, which were to protect the dissenters who took municipal office not having received the sacrament. If hon. Members look at the Indemnity Act of 1920 they will see that it was to relieve people from the consequence of illegal acts committed during the Great War. There were also the Gold Standard (Amendment) Act and the Essential Commodities (Reserves) Act. These were not to take away existing rights but to protect people from the consequences of illegal acts. This is why I suggest that the retrospection claimed in this case is not comparable with other retrospective Acts which we have had in the House.

In the last Parliament the Labour Party was constant in its criticisms of judges being used for political purposes—judges being used for purposes by which their judicial position was undermined and in which they were implicated in political decisions. I agreed with the Labour Party. Could it not also be said that today the independence of those same judges is being undermined by that same party now in Government? The fact that a man obtains a judgment in a court of law under the common law of England as it stands may not necessarily he final, because there is to be another court of appeal, above the House of Lords, which is the Treasury Front Bench. This seems to me to be wholly wrong.

There is the argument that the compensation will be very, very expensive. I do not know whether it will be expensive or whether, when the measure of damages is assessed, it will be very much less than anyone thought. But that is not the issue. This is the reverse of the argument of the unmarried mother, who said, "The baby was only a little one". The Government's argument is that their action is all right because the claim may well be a big one and therefore they are entitled to take this action. That argument is just as unprincipled and just as irrelevant.

I therefore suggest that this is a bad Bill. It is a Bill which undermines the independence of the judiciary—but it is not the first time that British Governments have sought to evade their obligations in these matters. In 1920 there was a comparable case which was heard before Mr. Justice Darling in the King's Bench Division about the destruction of the Ploesti oil fields in Roumania. A Member of this House destroyed those oil fields, and, with the full authority of the British Government, signed a memorandum to the effect that there would be entitlement to compensation at the end of the war. He accepted the valuation of a firm of chartered accountants, the senior partner of which was also a colleague of his in the House of Commons. The Government fought that tooth and nail, but the company won in the High Court. It was taken to the Court of Appeal. It went to the House of Lords. The Government deliberately spun it on until the company went bankrupt, and then washed their hands of it.

I am somewhat interested in that case, not only because it is comparable, but because the Member of Parliament who destroyed the oil wells and who gave that personal undertaking was my grandfather. Therefore, I have had some little knowledge of the perfidy of Governments who destroy property to obtain their own very proper ends for the good of the nation and then, when the day of reckoning comes, try to find loopholes for escape.

I suggest that it may do for Ghana to try to reverse decisions of courts; it may do for South Africa, but it certainly does not do for this country. I am pleased that the Solicitor-General has arrived. No one knows better than he does how bitterly his Cromwellian ancestors fought the exercise of the Prerogative by the Crown and fought for the independence of the courts and for the independence of the House of Commons. Charles I lost his head for trying to do precisely that. I warn the Solicitor-General that his will not sit very happily on his shoulders if he is visited by the spirits of his ancestors in the weeks and months ahead. I suggest that the Bill undermines the independence of the judiciary. It is brought in because a particular decision is embarrassing to the Legislature. It is not consistent with the traditions which the House has of maintaining the rule of law.

We intend to press our Amendment. I am delighted that 48 hon. Members have signed the other Amendment. I assume, as their Amendment has not been called, that all of them will support our Amendment. It is interesting to reflect that, had they taken their opposition to the vote in the last Parliament—no one suggests that their principles in any way alter with the changed geographical position they occupy in the House now—it would have been sufficient to have brought down the Tory Government of the day. I hope, after the advice of the Leader of the Opposition last night, that we shall not have any hon. Members abstaining in order to try to keep the Labour Government in office. According to him, this is apparently an impossible position for any hon. Member to find himself in—being unable to agree with one view or the other. This is a position which in the minds of the Tories does not exist. I therefore hope that we shall have the overwhelming support of those hon. Members.

The right hon. and learned Member for the Wirral (Mr. Selwyn Lloyd) is clearly embarrassed by his own misdeeds. I suggest that an act of repentance would not be amiss. This applies also to those hon. Members opposite who are lawyers but who, try as they will, have not convinced themselves by the power of their own logic. We shall take our Amendment to a Division, and I hope that we shall, to use the words of perhaps one of our greatest Parliamentarians, take this Bill out and wring its wretched neck.

7.23 p.m.

I wish to make it quite clear that I am against retrospective legislation. It may be legally justified, but in my view it is morally unjustifiable. In this connection, I must with diffidence join issue with my hon. Friend the Member for Barons Court (Mr. Richard) and agree with the hon. and learned Member for Northwich (Sir J. Foster). The argument of my hon. Friend the Member for Barons Court was, if I understood it rightly, that taking the situation as it was—

On a point of order. I apologise to the hon. Gentleman for interrupting him. Would it be possible for you, Mr. Speaker, for the convenience of the House, to inform us whether you propose to put the Question, "That the Bill be now read a Second time" after you have put the Question on the Amendment you have called, or do you propose to put only the Question on the Amendment?

The practice is this. I put the Question, "That the word 'now' stand part …" Should the House decide that it stands part, I am then obliged by the Standing Order to declare the Bill read a Second time.

The argument of my hon. Friend the Member for Barons Court appeared to be this. If we now pass this legislation, depriving the company of a right which the court said it had, we are saying, "If we had passed legislation in 1946, you would not have had this right. Therefore, we are putting you in the same position now as you would have been in if we had passed that legislation". That is all complicated by an ugly little fact. The legislation was not passed then. It would be just as bad if now we passed legislation making it an offence for hon. Members to speak for more than half an hour and made it retrospective for five years, saying, "We are putting you in the same position as you would have been in if we had passed this legislation five years ago".

So, were it not for one fact, I would feel constrained to abstain from voting. The one fact is that this case bears strong resemblance to a case which occurred in 1954. In 1953 it was discovered by a member of the Bar, quite by accident, that all wireless licence charges levied by the Postmaster-General were ultra vires, or unlawful. A case was brought by Davey Paxman against the Post Office In that case, the then Attorney-General, Sir Reginald Manningham-Buller, had to submit to judgment. Davey Paxman obtained judgment for about £150 unlawfully charged as fees for wireless licences. They were all ultra vires. The Act gave the power to the Postmaster-General, with the consent of the Treasury, to make Regulations fixing fees for wireless licences. The Postmaster-General had never obtained the consent of the Treasury, nor had he made any Regulations.

When we came out of court, it was realised by the Postmaster-General that he would owe the sum of about £360 million to subscribers who had paid their wireless licence fees like good boys. A flood of actions was started. People came from far and wide trying to get back the money they had paid. The Postmaster-General then issued a notice in clear terms stating that, if any action after Davey Paxman's was prosecuted to a successful conclusion, the money would not be paid, because a retrospective Act would be passed. These people had notice that nothing more would be paid. Accordingly, no action was brought. There was not a word of protest about that. It was considered natural.

No, because the notice was not given when Davey Paxman brought its action. In this case the Government gave notice to the Burmah Oil Company that they would not pay but would pass retrospective legislation.

In this case notice was given before the House of Lords' hearing. I understand that it was in fact given before the action was started.

As a matter of fact, was not the letter sent in the course of the hearing before the single judge? No decision in the initial hearing had been taken at the time the letter was written.

At any rate, notice was given, and there was no point in prosecuting the action up to the House of Lords, because the Burmah Oil Company knew very well that if it won it would not get its money. The case is on all fours with Davey Paxman v. The Postmaster-General. Notice was given to the population at large to this effect "Do not bring any action against the Post Office. An Act will be passed". Then came the Wireless Telegraphy (Validation of Charges) Act, 1954. If it was justified then, as in my submission it was, it is justified now. Therefore, the Government having redeemed themselves by this margin, I shall vote for the Bill.

7.29 p.m.

I must, first, declare an interest, in that I hold a few shares in the Burmah Oil Company. Normally, this fact would have prevented me from seeking to catch the eye of the Chair, in case people thought that what animated me was the possibility of making a small personal gain. The reason why I take the risk of my action being misunderstood is that I feel very strongly that a great constitutional issue is at stake and that it would be cowardly of me, because of possible personal embarrassment, if I did not give expression to views about which I feel most strongly.

I have listened to the arguments in the House today and I have read comments in the Press. It seems to me that part of what has been said is not entirely relevant to the constitutional issue which we have to decide tonight. I naturally accept what my hon. and learned Friend the Member for Northwich (Sir J. Foster) said, because he was completely "on the ball" all the time. The hon. Member for Oldham, West (Mr. Hale) suggested that because the Burmah Oil Company was a rich company it did not need compensation. Others have argued that because so much time has passed it was not worth bothering about.

The Financial Secretary to the Treasury seemed to me to get very close to suggesting that there was something not quite above-board in the company bringing the action in the Scottish court because there was a 20-year period of limitation. But, of course, the Burmah Oil Company is a Glasgow company. The founder of the company had his home in my constituency. It was, therefore, the most natural thing in the world that the company should bring that action in a Scottish court.

Other hon. Members have argued at great length and in a metaphysical way which I could not quite follow—the hon. Member for Barons Court (Mr. Richard) did so—that if the country did not share in the vast loss inflicted by enemy action in the course of battle, why should it share in the loss caused in anticipation of the enemy's advance? There are the possible effects which a Bill like this may have on foreign countries, which would be detrimental to our investments in those countries. There are interesting arguments on these points which we could go on discussing for a long time, but they seem to me to be side issues and to miss the main point.

The important thing surely is this. The Burmah Oil Company felt that it had a right to compensation. This is denied by the Government. In those circumstances, the company did what any individual would do in the same circumstances when there is an argument as to who is right. It took the matter to the courts. In the end, it received judgment in its favour, stating that it was entitled to compensation. Nothing was said about the amount of compensation, and I understand that there are difficulties in proving precisely what the amount should be. But according to the highest court in this country, it has been decided that the company has a right to compensation, and it is this right, after judgment has been given in the company's favour, that the Government now intend to take from it by the Bill.

Perhaps I should not say "the Government", because that possibly introduces a party political flavour which I should like to avoid, as if I were attacking this Government because it is a Socialist Government. I am not doing that at all. It is not because Her Majesty's present Government is a Socialist Government that I am attacking it. It is the Executive, the Crown, irrespective of party, that I am attacking. It is now seeking to deprive a subject of his rights which have been judicially established by due course of law. What appears to me to be wrong is that there seems to be a spirit in all Governments of all parties which is arrogant and dictatorial. It is a spirit of the Executive power, intolerant of any restraint upon what it considers is the proper course of action, and it is this spirit which, in the Commons, we have in the past always fought against; and it is this spirit which, quite clearly, we must continue to fight against.

How could we, as Members of the House of Commons, submit to the arrogant assumption that the laws are there to bind the people, but are not there to bind the Crown? Surely, it was to establish this very rule of law, binding the Crown and the people alike, that the great constitutional conflict, to which the hon. Member for Devon, North (Mr. Thorpe) referred, was fought in this House in the seventeenth century. Yet, in spite of the triumphs of this House then, in spite of the success in achieving the rule of law, we have today the Crown, the Government, the Executive—call it what you like—seeking to act as arbitrarily as any Stuart king.

Our predecessors in this House, who sat through the stormy Stuart times, and whose courage subordinated the whim of kings to the rule of law, would be horrified to think that this House, which has always been the champion of the subject against the Executive, should now become a docile instrument to rubber-stamp Executive decisions and give a kind of cloak of legality to the arbitrary spirit of power which seems to corrupt all Governments and which it is our duty in the House of Commons to curb and restrain within the confines of the rule of law.

It is perfectly right on an ordinary party political issue for any Government to be able to crack the whip and to expect a ready response from its supporters. After all, in those circumstances, all that the Government would be doing would only be trying to implement its election policy. But to crack the whip today on this issue, in the year in which we are celebrating the 700th anniversary of Simon de Mont-fort's Parliament, which was set up to defend the subjects against the Crown and against the Sovereign, is surely an affront to all our democratic traditions.

I hope very much that, when it comes to the vote tonight, hon. Members, wherever they sit, will feel that they are House of Commons men first and foremost, champions of the subject against the tyranny of the Executive today, just as much as ever their forefathers were, and that it is only when the rule of law is secure—and it cannot be secure if the Bill is passed—that they will allow themselves to submit their consciences to the dictates of their party Whips.

7.38 p.m.

Unlike my hon. Friend the Member for Nelson and Colne (Mr. Sydney Silverman), I came here with a very strong prejudice in favour of the Bill. First and foremost, the Attorney-General is the head of my chambers as well as being a close personal friend, and I thought that it must tell strongly in favour of the Bill if he was going to support it.

Secondly, some of the arguments that I heard from the hon. Member for Devon, North (Mr. Thorpe) I heard in the Lobbies of this House, and they struck me as being somewhat ridiculous and intellectually contemptible. For example, it was stated with much emotion that this was a House of Lords decision. What has that got to do with it? There are not different grades of legal decisions. There is a legal decision in accordance with the law, and there is a legal decision not in accordance with the law, so to speak. It does not matter whether it is the Court of Appeal which has the final decision, or the House of Lords or the judge at first instance.

Perhaps I may be allowed to continue my speech. If a citizen obtains judgment, be it from the meanest county court judge or magistrates' court, that judgment, if it is not appealed against and remains a judgment, is lawful and binding within our system of law. It seems to me that the hon. Member for. Devon, North has fallen into the grave error, for which he rebuked others, of sentimentality when he was seeking to reinforce with emotion and sentiment his claim which could be raised simply on the point that this was a decision of law.

Again, the same nonsensical permutations of computing how many judges said what and in which court is beside the point. The only point to be decided by the House is whether in certain circumstances a lawful judgment obtained by a citizen should be retrospectively set aside. It seems to me juvenile, nonsensical, if not intellectually contemptible to argue what the majority said or did not say, and who said what in which lower court or higher court or any court at all. The simple question that we have to decide is what we are to do about a judgment lawfully obtained and binding according to the system of law which we all respect, and whether in the circumstances we can properly and reasonably and retrospectively abrogate that decision.

A similar mistake is to talk about what the minority judges said. When minority judges talk about anything except a legal decision, they are giving moral advice and it is only persuasive. It is not binding upon Members of this House, all of whom are capable of making decisions about the moral issues involved. The weight of what a judge says at any level lies in its legality whereby a citizen obtains a legal decision in his favour. Let us therefore discard majorities and minorities, the number of courts, who decided what and what the minority judges said about the morality of the matter. All these matters are beside the point.

So is the dangling of ogres about the independence of the judiciary. The independence of the judiciary is not at stake. That would be threatened if the judges were under pressure from the Government that if they found one way or another they would be made to suffer because of Executive power. To tell a judge that if he finds in a particular way the Legislature will retrospectively or otherwise alter the claims, as the judge found them then to be, in no way interferes with the independence of the judiciary. We can, therefore, leave that out. As far as I can see, all the arguments for the Amendment go out of the window as being absolutely untenable.

As I have said, I have the prejudice that the Attorney-General supported the Bill. I have the further prejudice that most of the opponents of the Bill are hon. Members opposite, but having listened to the argument I must say that it is not possible to sustain support for the Bill. One has only to list the arguments which have been made out. They completely convinced me that the Bill is bad. The arguments that convinced me were not those of those who moved and supported the Amendment but of those who sought to prove that the Bill is a just one. I shall recite them one by one, and it will be painfully obvious that nobody on the arguments advanced can support the Bill with a good conscience.

First, there is what I might call the widow and orphan argument. This is like what Prudhomme said—that all property is theft. It is that when one contests anybody's claim to his property compared with the claim of a widow of a soldier who has died in defence of his country nobody has a claim to property. This is an argument for the confiscation of everybody's property and reapportioning it on a moral and not a legal basis. The trouble about the widow and orphan argument, therefore, is that one has to overthrow property rights and recreate them according to the anarchistic principles of whoever have the power to do the reallocation.

The hon. Member is confusing himself. That is not known as social justice. It consists in the legislative reapportionment of rights and burdens according to State power as wielded in a democratic society. That is not total repudiation of any property at any time on the ground that somebody at any given moment may have a moral claim to one's property as opposed to a legal claim.

The widow and orphan argument is not discarded by me because it is a sentimental argument. Sentimental argument rather appeals to me. I would be inclined to accept the dictum that reason should always be the slave of the passions rather than the other way round. I reject this argument not because it is sentimental but because it would produce a state of affairs which to me and to most of my fellow citizens would be intolerable. I could advance it to the House only if I had adduced similar principles to my electors before they elected me, and I dare say that if I had done that my majority would have been diminished.

Another argument, equally convincing in an opposite sense to that intended by those who advanced it, is that the claim made by the Burmah Oil Company was illogical and that the law was illogical in that a man should have a claim for denial damage and not battle damage. This is to me simply another way of saying that the law as established can be overruled if anybody thinks that a better law might have been enacted but was not at the time. Just as the widow and orphan claim calls all rights into question on the ground that somebody thinks that he has a better moral claim to one's property, so does this argument on the ground that someone finds an illogical way of legally depriving one of one's rights and giving them to others. This is a way of saying that people who suffer battle damage should get compensation as well as those who suffer denial. It only proves that one is attempting to overrule rational laws which have been established.

It has been urged that this is a wealthy company. I did not know that anybody had yet gone as far as to suggest a means test for justice. It seems to me a singularly inappropriate argument to be heard in this Parliament. It has been said also that the ex gratia payment was generous and that we must not forget that. These were the arguments which persuaded me to dislike the Bill. They were all without exception advanced in support of the Bill but not necessarily by the Government.

My hon. Friend the Member for Nelson and Colne pointed out that we should not forget the considerable ex gratia payments which have been made. I confess that in deciding whether or not an action is right it is hardly an argument to say that the man who is alleged to be unrighteous has made an ex gratia payment in respect of that unrighteousness. Even King David did not urge in his self-defence for stealing Naboth's vineyard that he made a substantial ex gratia payment. I do not know how the argument of my hon. Friend the Member for Nelson and Colne commends itself to the House of Commons, but I do not think that King David would have commended himself very strongly to the prophet Nathan if he had sought to produce that argument.

Some of my hon. Friends have convinced themselves that Parliament in 1945 or 1946 would have passed retrospective legislation. All that is exceedingly hypothetical. What it has to do with this point which we are discussing today completely escapes me. It would have been very important to argue what Parliament should do in 1945—in 1945. I am by no means saying that we can establish a principle that never in any circumstances may the State retrospectively deprive a citizen of his rights. I think that there are such cases, though very few, and the prima facie presumption is strongly against retrospection being justified. Nevertheless, as I say, one cannot establish an iron-clad rule that in no circumstances could Parliament retrospectively take away a citizen's rights or confiscate his property.

Incidentally, to revert to the wealthy company argument, there is a case which, I suggest, would be more appropriate to come from these benches. If one feels that this wealthy company's compensation ought to be paid by other wealthy companies, that is a respectable argument. It might be said that we should pay this compensation, which is just, but we would raise the money by a tax on other companies so that all companies shared the burden. That is a fair enough argument. It would be a matter of social justice, to revert to the point made by the hon. Member for The Wrekin (Mr. William Yates). It would be a political argument in which we could engage after the judgment had been honoured, an argument about the apportionment of liability among other companies rather than upon widows and orphans. It would be a question of social justice, but it is not the question which we are discussing now.

I am not impressed either by the argument that the Japanese would have destroyed this propery anyway. To go back to the case of Naboth's vineyard, it would hardly have helped King David in his argument with the prophet if he had said that he had reason to believe that there were robbers in the neighbourhood who were going to destroy the vineyard anyway and that he, King David, had merely anticipated them. The fact is that it was King David who took the vineyard and it was he who had to answer for it to the Prophet Nathan.

The question of whether he was at war or not is beside the point. What is in question is the righteousness of the matter. I am not saying that there is not a point at which it is necessary to decide whether one is at war or not. But it is necessary here to stick to the arguments which are relevant, and the relevant question here is whether, because of the wartime circumstance, the Government can exculpate themselves from liability. It adds nothing to the point to say that the property would have been lost just the same or that most of it would have been lost. This would be a matter going to the amount of compensation. It is not a matter going to the question whether one should pay compensation or not. The Bill provides t Pat there shall be no compensation. It does not provide that there shall be only a little because the Japanese would have destroyed more or less of it. This is why it seems to me that my Naboth's vineyard case seems more to the point.

For the sake of religious and historical accuracy, was it not Ahab who took Naboth's vineyard, and was not the object of King David's affections the wife of Uriah the Hittite?

I hope the House will be indulgent with me. This is not a prepared speech. I came here ready to be an obedient and respectful supporter of the Government, and these Biblical parallels have occurred to me in considering the argument. I admit that it was Bathsheba, but if, instead of to the vineyard, I referred to the beautiful Bathsheba, the principle would remain the same, and the amount of compensation would probably be greater.

The right hon. Member for Carlton (Sir K. Pickthorn) appeared to make the remarkable assertion that one could never have retrospection, going so far as to say that one might not even regard as righteous those other occasions when people receive a retrospective gift from the Government. There is no possible analogy with a retrospective gift from the Government, which is freely consented to. No one is obliged to take it. It is like Members' salaries. No one can resent it if, retrospectively or otherwise, he has his salary raised as a Member of the House. He is not obliged to take it. The same applies to retrospective gifts. What is objectionable in retrospection which confiscates is that it is done coercively to deprive a man of what he seeks to have, namely, his property awarded to him by the court.

I am sorry to spend so much time destroying arguments which I regard as not valid. There is only one argument of some validity, and that was the one advanced by my hon. Friend the Member for Nelson and Colne when he rightly said that what we are considering is not a judicial matter but a political matter, namely, ought we to confiscate this claim which has been adjudged to belong to the Burmah Oil Company? In deciding it, we have to realise that it is a political matter of the highest importance not to bring into contempt the whole system of law which we have erected and the rights of property which we have in this country where we live, trade and pass property one to another, from father to son, and so on. In a country such as ours, it seems to me that one needs the strongest possible argument for destroying by retrospection this kind of claim established by the courts after full discussion and argument.

My hon. Friend the Member for Watford (Mr. Raphael Tuck) thinks that the letter sent by the Treasury Solicitor excuses what is proposed and urges it in favour of a political decision to destroy the Burmah Oil Company's claim. With respect, this produces the opposite result in my mind. Once accept that the Treasury Solicitor is entitled to write to citizens saying, "Do not trouble to have your claim litigated because we shall take retrospective action afterwards", what claim is secure against the Government thereafter? It erects bluff and menace into a political principle.

I am sure that the Treasury Solicitor acted in good faith, intending to be candid and fair to the Burmah Oil Company, and I do not criticise his good intentions. But to approve that action and say that it is desirable, even justifying retrospection thereafter, seems to me to approve something which would be an even greater menace than retrospection without the letter of warning. It would encourage Government Departments to assume a right which they have not got, namely, to anticipate what Parliament will do and compel the citizen to obey not what is the law but what Government Departments threaten they will make the law. This is to coerce and intimidate the citizen from even bringing his claim across the threshold of the court. How could lawyers advise their clients in such circumstances, faced not with an interpretation of the law as it is but with the threat of a Government Department that it would alter the law in a manner which would enable the State to evade its liability?

Would my hon. Friend say that the Davey Paxman case was also a matter of threat and coercion when the notice was given that no further claims would be entertained because the total was £360 million?

I am sorry to go on for so long, but I must deal with that point since it has been raised. Paxman's case exactly illustrates the mischief about which I am talking. All that my hon. Friend proved by the Paxman case—I hope that the House is seized of the facts—was that there had been a successful bluff by the Treasury Solicitor which deterred other people from getting the £150 back which the Paxman plaintiff very properly and successfully got. When the Paxman decision was obtained, the Government did not have the courage to come to the House of Commons and say that they wanted retrospectively to take that claim away.

They did. They passed an Act, the Wireless Telegraphy (Validation of Charges) Act. They gave notice that they were going to pass that Act so that people were not led into a false sense of security and the belief that they would get back the —150 which the Post Office then owed.

But this is precisely the point. They did not retrospectively take away the judgment which the Paxman plaintiff had been awarded. It is another argument to say that the House might feel that it ought retrospectively to deprive people of claims for which they had not got judgments, but that is not this case. But that is not what this Bill seeks to do. The fundamental point of the Bill is to deprive someone who has already got a judgment of his claim, which is exactly what the Paxman retrospective legislation did not do. It did not deprive the established judgment of the claim.

There is another mischief in the Bill. We all know that this is not a Measure to change the common law for any future war or to protect the Government from innumerable cloudy, inchoate claims. It is to deprive one company of one judgment established by law in the courts after argument.

My hon. and learned Friend shakes his head, but we can test that point in a simple way. If an Amendment to exempt that judgment from the Bill was successful, the Government would not waste the printers' ink necessary to proceed with the Bill, because the Burmah Oil Company judgment is the only judgment to be affected by it.

My hon. Friend keeps assuming that a judgment has been obtained. No judgment has been obtained. A ruling has been given on a preliminary point of law.

This is judgment on a preliminary point of law. [HON. MEMBERS: "No."] It was a plea of demurrer, as I understand it. The object of the Bill is to deal with the judgment on demurrer found in favour of the Burmah Oil Company. If that were to be excluded from tae Bill most hon. Members would vote far it. But if it were to be excluded the Government would not waste the printers' ink necessary to proceed with the Bill. They would not have brought it forward in the first place.

We should be clear about this. This is not a general alteration of the law at all but a Bill to deprive the Burmah Oil Company of the benefit of the judgment given in its favour in the House of Lords. That judgment would not necessarily be followed by an award of damages, for flat would remain to be decided in accordance with law.

The letter I have referred to shows the whole point of our discussions—indeed, the only point we are discussing. It concerns what should be done by the Government when, faced with a situation in which they feel obliged, in the public interest, to confiscate by retrospective legislation the right of a citizen. The answer clearly is that they must go immediately to the House of Commons and seek its permission by legislation to deprive the citizen of the claim. To put a letter on the file is what the Government simply must not do. They must nail their colours to the mast.

The Government may feel that they have a good legal answer to the claim in which case they must stand and fight the claim and, if they lose, pay it. Or they must say, "We must protect ourselves by retrospective legislation." What they are not entitled to do, and what, if they do it, brings into dubiety our whole system of law and the rights of a citizen against a Department of the Crown, is to seek to have it both ways, for they do so not only at the expense of the citizen but also at the expense of our system of law.

It does not matter very much whether the Burmah Oil Company gets a few millions of £s or not. What matters is whether the Government behave in a manner consistent with our system of law of completely defy that system of law under which our property and judicial rights are established by taking away a right judicially established after a protracted fight by the Government.

For these reasons, I cannot support the Bill. I wish, however, to make it plain that it is an unfortunate legacy saddled on this Government by the last Administration. Both Governments and both parties are responsible for this, but that cannot make the legislation any more palatable to the House.

8.6 p.m.

The Financial Secretary to the Treasury, as he has listened to the debate, must have realised, if he did not realise at the outset, that he has introduced a Bill which no one really wants, although I do not doubt that if it is taken into the Division Lobbies the Whips will enable him to get most of his supporters in on his side. I think that he would be the first to acknowledge that many of them, to judge by their speeches, will go through with heavy hearts and leadened feet.

Most of the arguments we have heard today have been almost purely legal, some of which I have found it difficult to follow. I do not propose to go over the legal and constitutional arguments which have been put much better by hon. Members on both sides of the House. What I want to apply myself to is the practical question of where we go now, what we do with this unlovely Bill, about which even those who profess to support it have clearly indicated that they have the gravest misgivings.

The Bill presents us with a dilemma. For the Government, it means introducing retrospective legislation of a most reprehensible and even shocking kind. But they are not the only people in the dilemma. In fact, the Opposition are also in something of a dilemma, because it has been said—and I have never heard it contradicted—that the Bill was drafted by the previous Government, so to that extent it must be presumed—indeed, we have had one or two speeches from this side today to that effect—that some hon. Members on this side of the House are, perhaps, in favour of this legislation. On the other hand, for most of us on this side—I am sure that I am right in saying this—it does mean disowning, as it were, a Bill for the parentage of which some responsibility did rest on us when we were responsible for these matters.

So the Government are embarrassed and the Opposition are, to some extent, embarrassed. For the Burmah Oil Company it means, if the Bill goes through, the denial of its right to compensation which, after about 20 years of litigation, it has fought through the courts and which it believed it had. For Parliament as a whole, it means a dilemma, too. We all dislike in our bones, whether we admit it or not, these large encroachments by the Executive. It is not, if I may put it so, what we are here to put up with. Outside the House, British trade and industry and enterprise overseas must get a chilly feeling when the House seeks to legislate in this way. I would regard the Bill as a deadly blow to confidence, particularly for those enterprises which function mainly overseas.

If we are honest with ourselves, we will admit that the real reason for the Bill is not political and has nothing to do with justice, but is a matter of pure economics. The Government—and their predecessors were probably in rather the same plight—are not prepared to contemplate paying the possibly enormous sum which might arise if nothing were done. That might be a very bad reason for legislating in this way, but it is a practical difficulty which we have to take into account in our discussions.

I suspect that there is also the feeling that to do nothing might involve sparking off a number of other claims. I am not sure that that is a very strong argument, for I understand that most of them are time barred anyway. However, I believe that it is the economic argument which has motivated the Bill. Although it may be nothing to do with the law the amount seems to be rather important.

The Financial Secretary produced a number of largely hypothetical figures, in one case going up to a notional £100 million or so. I am sure that that is grossly overstating what the Government might have to find in compensation if nothing were done. The correspondence in this connection which I have studied suggests a figure of £20 million. I do not know what validity that has, but I am sure that the Burmah Oil Company would be very ready to compromise, or to discuss the amount of compensation if it were once accepted that some kind of out-of-court settlement, as it were, could be made.

I very much hope that we do not have to go into the Division Lobbies on this issue tonight. The Financial Secretary must be feeling rather unhappy at the Bill's reception and hon. Members of his own party would probably be as relieved as most of us on this side of the House if this rotten old albatross were not around their necks. In this situation we have to be a little more flexible.

How can we get out of this difficulty without too much discredit all round? I am tempted to say that the simple way is to abandon the Bill, but I do not delude myself into thinking that that is a solution which will commend itself to the Government. On the other hand, something has to be done. I suggest that the Financial Secretary should adjourn the debate, or find some other device so that we do not have to take a decision tonight. Let him send an emissary to the Burmah Oil Company, or ring up the company and tell it to send someone to him, and let him frankly say, "We are in a jam. We do not want to introduce this hateful retrospective legislation. The House does not like it and I am having difficulty persuading my own side to support me on it. Can we not reach some sensible accommodation and then get our lawyers to work to put it in a form which will be perfectly respectable?"

I concede that the Treasury would have a fit at any such suggestion of such a practical approach. One can imagine the pursed lips and wagging heads, but the Treasury should be pressed. After all, the legal advisers produce some bad advice and it is now up to them to get the Government out of this mess. Unofficial conversations should start between the company and the Government about a figure. It need not be called compensation and need not have any name like that. It could be called a pat on the back for a contribution to the export trade. The Government would find that the company would accept a sum vastly less than the airy-fairy figures which have been tossed about the Chamber tonight.

Perhaps an alternative formula to effect a settlement in this matter might be for the hon. and learned Gentleman to give an undertaking that in Committee the Government would move an Amendment to take the retrospection out of the Bill. The Financial Secretary has indicated that he does not regard the. Bill as being a Measure to disentitle the Burmah Oil Company to its claim and the natural logical following on from that would seem to be that there would be no objection to not making the Bill retrospective. If it were not retrospective, there might be no need for a Division tonight.

I am grateful for that helpful intervention. My hon. Friend is plainly of the same mind as I am. We have to use a flexible approach if we are to salve our own consciences and do the right thing by the country and the company.

My hon. Friend keeps talking about salving our own consciences on these benches. I ask for information when I ask whether our consciences are at fault. I knew nothing whatever about the Bill when it was drafted by my own party. Ought I to have known? If there was no reason why I should have known, why should my conscience be uneasy?

I can easily answer that. In referring to consciences, I was speaking of the collective feeling of the House, which does not like doing anything which enlarges the power of the Executive.

In that case, my hon. Friend will agree that it is better for us to vote against the Bill and throw it out.

I am perfectly ready to vote against the Bill tonight, and intend to do so, but I fear that in that case the Government may possibly win the day. If they do, the matter may get worse than it is now. The point of my argument is to suggest that the Government should have a more flexible approach and either embark on negotiations with the company, as I have suggested, or support the suggestion of my hon. Friend the Member for Colchester (Mr. Buck). What I want to avoid is putting ourselves into a posture so that the Government use their strength in the Lobby to make the position irretrievable. It would be much better if we could avoid that by being more flexible and opening negotiations.

I hope that the Attorney-General will consider this very seriously. Is my hon. Friend considering an additional ex gratia payment as a possible alternative to any idea of compensation as established in law? The Financial Secretary said that the £4·7 million was the company's share of a total of £10 million some years ago and seemed to indicate that that was a reasonable form of compensation for what happened during the war, although most of us on this side of the House would say that that was intended not as compensation, but as rehabilitation for Burma.

Is my hon. Friend now proposing—if so, I would certainly support him—that the figure suggested to us by the company this morning, when it said that it was thinking of a figure of about £20 million, and would be prepared to set the ex gratia £4·7 million against that, say, about £15 million, should be paid in addition to the £4·7 million?

I would rather not be drawn on how much it might be. I would rather not be drawn on the precise name to be applied to it, because that might apparently admit a liability which the Government might not wish to admit. I am concerned not so much with the form of things as that there should be a negotiated payment. If the Government were ready to negotiate, they would find the company very ready to respond. After all, if the Bill goes through, then, apart from all the consequential damage, the company will get nothing at all.

I put forward that suggestion because there is a practical side to all this which is different from the constitutional and legal arguments which we have heard. I hope that it is the argument of common sense and equity and that it will commend itself to the House. There are the seeds of an honourable solution here and I hope that it will commend itself to the House and the Government.

8.20 p.m.

I feel proud to be able to take part in this debate, as I feel that this is the House of Commons at its best, challenging the power of the Executive, which has for long been our traditional rôle. This is what we are here for, and one could not have a better battleground than this Bill. I regard this as a very nasty little Bill. It ought never to have seen the light of day. It was conceived, if I may say so, in dishonour and it ought to have been strangled at birth. I hope that this evening we will strangle it.

It is not for me to criticise the correctness or otherwise of the speeches in the House of Lords, although anyone who has read, as I have, the speech of Lord Reid cannot but have been impressed by the weight of authority with which he reinforced his decision and by the logic of the arguments which he deployed. One's conviction that a right decision on the law as it stood was reached is only marginally shaken by the very powerful judgment of Lord Radcliffe.

One point which it has been attempted to make slightly in the House and, to some extent, outside is that the company's case lacks merit because it succeeded in bringing the matter before the courts by chance, using the law of Scotland because it happened to be registered in Scotland and had a registered office in Glasgow. That, of course, is not so. On the substance of the legal point on which the House of Lords decided, all five learned Law Lords expressed the view that the law of Scotland and the law of England were exactly the same and that had the case been brought in in the English courts their decision would have been the same.

I entirely concede that Lord Radcliffe approached the matter from the other end. He said that the law of England would never have admitted such a right and, therefore, the law of Scotland did not, either.

The substantive law was accepted by both sides as being the same, and the judges so held. The procedural law is different. If the claim had been brought in the English courts it would have been statute-barred. But I am not making any complaint, or suggesting that there was an impropriety in the Burmah Oil Company bringing its claim in the Scottish courts. It was perfectly entitled to do so.

I am grateful to the Financial Secretary. The only relevance of the Scottish law is that in Scotland there was a 20-year limitation period and not the six-year limitation period which would have applied in England. Had this been a Bill to bring these two limitation periods into line, although I have no knowledge of the reasons why the Scottish law has maintained the 20-year period, I should have thought it was a reasonable reform. But this is not so. What the House of Lords decided was that the company's case was well-founded.

A further point which one must make is that this is not, in a sense, something new. When any court, and still more the highest court in the land, gives a judgment, what it is saying is that this is the law, that it has always been the law—and was the law in 1942 in this case. This is the element of retrospection.

One of the points which the Financial Secretary made was that no compensation had been paid to claimants in cases like this before. I think that the point has already been made that until the Crown Proceedings Act, 1947, this could hardly have happened. There were one or two cases which managed to reach the courts without there having to be an action in tort against the Crown, such as the Attorney-General v. De Keypers Royal Hotel and one or two others. For the most part, the action would never have got off the ground. Ever since the reign of Queen Anne the position has been largely governed by Statute. Of course, it is open to Parliament to change the law. The Taff Vale judgment and Osborne v. Amalgamated Society of Railway Servants are perfectly good cases in point. We will consider the Rookes v. Barnard case in a few days. Parliament is entitled to do this, but not so as to defeat accrued rights.

The second point which has been made is that the claim which the Bill seeks to defeat is devoid of merit and that it is based on a legal technicality. The hon. Member for Barons Court (Mr. Richard) dwelt on this point at some length, saying that a very artificial distinction is drawn between compensation for denial damage and compensation for battle damage. The learned Law Lords did not feel that the case was devoid of merit, particularly the Lord President, in the Inner House, in Edinburgh, and Lord Radcliffe, in his dissenting judgment in the House of Lords. Both went out of their way to indicate that they felt that the company had a very strong moral claim.

The fact of the matter is that there is a narrow and, it may seem, artificial and, indeed, illogical line drawn between compensation for denial damage and compensation for battle damage. If one looks at the line through a microscope, as it were, and ignores the areas on both sides of it, it is difficult to defend. But once we accept the broad proposition which the House of Lords accepted that the Crown cannot take the property of any subject for use or destruction without giving compensation—and this applies to the most obvious case, the occupation of land, or the taking of supplies, the right of purveyance, and so on, right through to the destruction of property to prevent it from falling into the hands of the enemy—but that it does not extend to property destroyed in battle, one is reaching the point at which the line must be drawn.

The line must be drawn somewhere, and inevitably this is the point at which it has been drawn. Illogical it may be, but if one looks through the spectrum of the circumstances in which these rights can arise, it is not too illogical.

It has been suggested, and was suggested in the letter from the Treasury Solicitor sent in 1962, that this was a claim which ought not to be met by the British taxpayer. Why not? Ever since the reign of Queen Anne, when the Legislature has given powers to take property supplanting the prerogative powers of the Crown it has always legislated for compensation. This was done in the Compensation (Defence) Act, 1939, and one can go right the way back. It has always been felt that the community as a whole should bear the cost of defending the country in time or in threat of war and that this should not fall on the people whose property is taken or whose land is used or property destroyed.

It is sometimes said that this would create a precedent and that if the Burmah claim were admitted, there would be other heavy claims. It is questionable whether this would be so. They must be all statute-barred by now. The argument, however, which says that we cannot be just to a man because that would mean that we would have to be just to a lot of other people as well seems to me to be an argument with singularly little merit.

The fact is—and here I come to a very important point—that there is a precedent for the Crown paying compensation to an oil company for denial damage as a result of damage done during the last war. I will quote a short passage from the Sarawak Gazette of 7th June, 1949 and I shall be grateful if the Attorney-General will comment on these facts when he replies. I quote from a report of a war compensation scheme commission which was active in that part of the world.

After referring to the total amount of money paid by the Government, it states that
"Of this total of 57 million dollars, 40 million dollars is represented by claims in respect of oil extracted from the wells or burnt in the wells by the enemy and it has been decided that claims of this nature are not admissible from any industry."
That is battle damage.
"Payment has been made to the oil companies by His Majesty's Government for the destruction carried out by themselves and the British Malayan Petroleum Company has, in addition, benefited considerably by the remission in Brunei of import duty on replacement machinery."
Compensation was paid in that case for denial damage and, apparently, it is not intended that that compensation should be repaid. Why is it that, now, this Burmah case, which came up to the House of Lords and was decided in this country for damage in an exactly similar case in Burma, should be thought to be so wrong that this unfortunate piece of retrospective legislation should be introduced?

I should like to ask the Attorney-General a couple of questions. The Bill seeks to abolish the right to compensation in common law in the circumstances envisaged but it does not, apparently, at the same time seek to abolish the prerogative right of the Crown to demand that destruction be wrought or property be taken. Is Parliament to be asked to make this a statutory power? If so, why not in this Bill? If we are to be asked, as has been done so often in the past, to convert a prerogative and, therefore, inevitably a somewhat uncertain power into a defined and certain statutory power, are we to be asked to do it with no right of compensation? Parliament has never been asked to do this before. It would be quite unprecedented.

My second question, which I have already adumbrated, is why it was possible to compensate the British Malayan Petroleum Company and yet to say in the Treasury Solicitor's letter, and to repeat again today, that the British taxpayer "ought" not to compensate the Burmah Oil Company?

The real mischief of the Bill, as so many hon. Members have said, is its retrospective element. Parliament is supreme, but this carries with it a corresponding duty upon us to act with extreme circumspection. We must be very slow to alter with retroactive force the legal basis on which subjects have acted and have determined their rights.

Some attempt was made—I am surprised this has not been referred to earlier—by the Financial Secretary to the Treasury to argue that the retrospective element is irrelevant in this case because in 1942 no one's mind was directed to the question of whether he would get compensation. As the hon. and learned Gentleman rightly said, in moments of supreme crisis of that sort nobody thinks of that; it did not enter anybody's mind. The hon. and learned Gentleman attempted to argue from this that, therefore, no injustice is done if the Bill is made retrospective so as to abolish the right. I regard that as a wholly improper argument and quite irrelevant to the case.

It has been said over and over again that ignorance of the law is no excuse if one commits a breach of the criminal code. In exactly the same way, ignorance of the law should never be used as a means of depriving a subject of his right to benefit under the law. Still more should we hesitate to legislate to make a retrospective interference with the rights of the subject when these rights have been judicially determined by the courts. We have strict rules about anyone's attempting interference with the judicial process, and very severe penalties for anyone who does. Indeed, one judge referred to it some years ago as "poisoning the fount of justice at its source", and so it is.

In exactly the same way, any retrospective intereference with judicial process is just as much a poisoning of the fount of justice, and none the less to be deplored, when it happens to be done by due legislative process. The French jurist Montesquieu based his celebrated doctrine of the separation of powers on the British constitution—and, as all constitutional lawyers know well, sadly misunderstood our constitution; but in one matter he was absolutely right, and that is, the separation of the powers of the Executive and of the Judiciary.

A Bill such as this, with the express intent to overrule retrospectively a decision of the House of Lords, is dangerous because it blurs that very necessary separation and legal safeguard. Parliament, I say, should be extremely chary of the way in which it exercises its powers in this regard.

I started by saying that this was a nasty Bill. Nothing I have heard in the debate this afternoon has convinced me otherwise. I sincerely hope the House will not give it a Second Reading. I think that it was Disraeli who said that nothing that is morally wrong can be politically right. If we throw out this Bill tonight I can imagine that wily old Jew looking out of his window in Heaven with pleasure and with approval in his eyes, smiling down on us and saying, "Well done".

8.37 p.m.

I think we must all agree that this debate so far has really been a field day for hon. and learned Members. I shall not attempt to intervene in the legal niceties of the argument, but I want very briefly to put to the House what I believe to be the view of the man in the street, and I think that anyone who has looked at the correspondence columns of The Times has seen where his opinion lies. It is definitely opposed to this Bill.

The principle which we have all been discussing is that of retrospective legislation. It cannot be denied that this Bill is designed not only to introduce retrospective legislation but deliberately to prevent the payment of compensation, which payment has, as far as I understand, in the opinion of the highest court of the land been justified, and that seems to me to be wholly wrong.

The facts are not in dispute. In 1942 the military gave legal orders to carry out demolitions, and the people who carried them out were embodied in Her Majesty's Forces. There are precedents for compensation. The first, and it has been referred to by hon. Gentlemen who have spoken earlier, is the case of the Roumanian oilfields in the First World War. From what I understood from what was said about it earlier this afternoon, the courts ruled that compensation was payable, but implementation of the judgment was strung out so long by the Government of the day that the company went into liquidation. However, I do not think that that invalidates the case as a precedent. Then there was the question of the Sarawak company in the Second World War, which has also just been mentioned, and there again compensation was paid.

I made some inquiries the other day to see what happened rather nearer home. We all remember Dunkirk. We remember the photographs of the oil installations in Dunkirk going up at the time of the withdrawal. I wondered very much whether the French Government had paid compensation for those oil installations, and on inquiry I found that under law passed in 1946—Articles 9 and 35—they paid compensation for the destruction of these installations and buildings and also for three months' stock.

Again another example, nearer us, perhaps not in geography but in time. The House will remember that in 1962 India was threatened with invasion by China. The company which we are discussing today, or a subsidiary of it, has oilfields near the India-China frontier. I am told that during that time preparations were made by the Indian Government to have the oilfields, or the oil installations, demolished in case the Chinese overran them. It was clear then that the Indian Government were prepared to pay compensation to the company should it be necessary to blow up those oilfields. There are, therefore, four clear precedents to show that the Bill is wrong and that compensation is morally justified.

I think that the company has acted properly. It carried out litigation in Burma on the advice of the then Chancellor of the Exchequer. It then carried cut further litigation in Scotland, and finally it went to the House of Lords. Now we have this Bill, and the reason for it is that the highest court in the land has decided in favour of the company. As I understand it, the basic argument is that justice is too expensive, that we cannot afford to pay this large claim to one company, and therefore we are asked to approve this Bill to make the law what the Government thought it was because it now finds its advisers were wrong in their advice—advisers on both Front Benches—and that, in fact, the company was right in its supposition with regard to the actual legal position.

I should like to refer to the question of cost, because people who have airily discussed this matter have talked about precedents that will cost the country hundreds of millions of pounds I think that the Financial Secretary referred to a figure somewhat nearer £100 million. But this is not a question of war damage. We are not concerned with war damage which, as we know, could amount to astronomical figures. The company thinks that it can justify a claim of £31 million, but the Carter Commission was set up to try to assess the real value of the damage, and it was on this Commission's report that the ex gratia payment of £5 million which has been referred to was reached. The Commission said that the approximate figure for the damage done by denial, not by bombing, was about £17½ million. I do not know what the company has in mind, but it seems that £17½ million is about the right figure, from which one might well deduct £5 million ex gratia payment. I think, therefore, that in terms of money the maximum figure that we are contemplating is about £12½ million.

What strikes me so forcibly is that, as I understand it, the Government have not approached the company to try to reach some settlement on the lines suggested by several of my hon. Friends. Had they done so, I imagine that they could have reached some agreement with the company about a figure which would not, presumably, beggar the Treasury, which would fulfil what the company felt could be regarded as a just settlement, and it would not then have been necessary to bring in this Bill which introduces this bad principle—and we are all agreed that it is a bad principle—of retrospective legislation.

It has been asked, though not in this debate, why should one company get this large sum; why should the taxpayer finance big business? I understand that the stockholders of this company number 134,000, of which 131,000 are individuals, and that of those 131,000, 95,000 hold stock worth £500 or less, so we are not really dealing with one large company, but with a large number of small individuals.

I believe that the Bill will have a detrimental effect on the Commonwealth and on our relations with certain foreign countries. I think that it will decrease the likelihood of British investment in frontier areas—I gave the House the example of the China-India war. I think that a lot of people will feel that we in Parliament have set aside the rule of law; that we have used war as an excuse to do so.

But if we accept that, where do we go next? Are we going later to make the excuse of a national emergency? Is a national emergency always to be a question of military combat of some kind, including a civil war, or could it be just an economic emergency? Are we really saying that we are giving the State the right, in certain circumstances which are undefined, to take over property without compensation?

I am not suggesting that that is what the Bill actually provides, but that is what the average man in the street, and certainly the average Government abroad, will believe. I believe that it will be very detrimental to British interests abroad. Certain Governments are only too pleased to follow the example of this House. I think back to the examples of nationalisation we had under the new Government after 1945, which were followed by Abadan.

If we introduce retrospective legislation of this type many Governments may take the opportunity to use it as a precedent to default on debts, or to take over the property of British subjects which happen to be in their country. I think of the claims that we have made against the United Arab Republic and other Governments. Many new African Governments would very much like to introduce retrospective legislation if they thought it proper and if there was a good precedent for it. If the Mother of Parliaments does it, why should they not follow its example?

I sum up by saying that we are asked not to recognise the law as it stands because to do so will be rather expensive for the Treasury. This is an argument of expediency, and I do not believe that it is justified. The principle involved is of great importance, and the effect of breaking it will be far-reaching and wholly detrimental to British interests throughout the world. I hope, therefore, that the House will reject the Bill.

8.47 p.m.

I do not like the Bill. I view it with distaste, and I believe that most back benchers of all parties view it with distaste, with varying degrees of intensity. The reason I dislike it, and why I believe the majority of back benchers dislike it, is that its purpose has been deliberately concealed by the Government. The Bill is not brought in with the intention merely of amending the law in order to remove an anomaly which most of us would recognise, and perhaps some of us would say ought to be removed; it is brought in for the primary purpose of defeating the right of a company to a claim which has been upheld by the supreme court of this country. That I find quite repugnant.

The arguments of expediency which have been adduced by the Government—as delivered from the Dispatch Box today by the Financial Secretary—are quite disreputable. To say that there will be other claims if this one is allowed is merely to say—as one of my hon. Friends has remarked—that we do not want justice to be done in this case, or that case, or any other case. I am not concerned with how much the ultimate claim of the company, or of any other company or individual, will be; whether it be 6s., £6 or £60 million, the principle is unassailable.

This is a right that has been determined after the most careful and exhaustive examination of the law, and it is a right that ought to stand in relation to the company that is claiming it. It is a right that has now been in existence for 23 years, and to bring in a Bill at this stage for the purpose of destroying that right, under the guise of a piece of legislation aimed at removing an anomaly relating to war damage, battle damage, or denial damage, seems to me to be sophistry of the most dangerous kind.

It has been argued by hon. Members opposite that we ought to approach this as a political problem. It has been conceded, certainly by the hon. Member for Nelson and Colne (Mr. Sydney Silverman), that the law, as it was—if I may say so with respect—so brilliantly displayed by my hon. and learned Friend the Member for Northwich (Sir J. Foster), was correct. But, it is said, this is politics and this matter should be treated as a political decision. It has always seemed to me that politics has a supreme and a clear aim. I hope that those of us who come here to serve this House, and to pursue the philosophy embodied in polices, have as our principal aim the pursuit of justice, and that politics has its basis, its excuse and its reason in the ambition to achieve the maximum amount of justice for the maximum number of people.

Accepting that, let us look at this politically. Suppose, as has been suggested, that this claim, were it allowed and not defeated by the Bill—as it will be if the Bill is accepted—were to cost the Government about £20 million. That is a great deal of money, but, in all gravity, I submit that the reputation of this country throughout the world as an upholder of the rule of law is worth very much more than £20 million—it is priceless. Once we show ourselves so facile in our approach to problems of this kind Coat we can conceive legislation to defeat well-founded claims, what is there to prevent that from being taken as an example by other countries throughout the world and in the Commonwealth?

That is a danger which I believe the Government ought to recognise. It ought to be a brake upon any indiscriminate legislation of this kind. I submit that foe only way in which this legislation could be made acceptable would be to remove, or to give an undertaking to remove, the retrospective aspect of the Bill by saying that we shall not proceed with Clause 1(2) but content ourselves with Clause 1(1), the first part, dealing with the removal of an anomaly in law.

This is eminently a matter, it would seem, for back bench Members. This provides an opportunity for hon. Members on the back benches of both sides of the House to show that they do not sit idly in this Chamber without any influence. This is a thoroughly bad Bill and back benchers on both sides should take good care to destroy it.

8.53 p.m.

I first became interested in this matter very soon after the Second World War. One of my constituents—he is now dead—raised the matter in his capacity as a shareholder in the Burmah Oil Company. I hope that I am not in any way saying anything derogatory of the dead if I say that he was a somewhat bucolic character. I cannot remember his indignation—which was frequently expressed to me on other subjects—ever being greater than when he referred to this question. He was aware of what the company had had to do on Government instructions. As a shareholder, he considered this a matter which should be dealt with fairly by the Government of the day.

If hon. Members have studied the Questions asked and Answers given, and the Adjournment debates which took place during the period of the 1945–50 Parliament, they will agree, I think, that at that time Sir Stafford Cripps was saying that this was a matter in which the Government wished first to ensure that the Burma Government would do all it should and then to leave it open—as I understood it—as to what would happen in the event of the failure of the company's claim against the Burma Government. As far as I know—and I hope the Attorney-General will answer this—the company was never told that if the claim against the Burma Government failed the British Government would not be prepared to consider the matter any further. The fact remains that the company acted on the advice of His Majesty's Government and pursued the claim with the Burma Government. The Burma Government and Burma courts would not have it. One can understand that, perhaps, because I suppose that the present law of Burma might possibly be so framed as to exclude everything which happened before its present establishment. Nevertheless, once that decision has been arrived at, there is a clear alternative open to the Government of the day in the United Kingdom; either the Government follow what has been the normal practice, I think since Tudor times, and certainly since the time of Queen Anne, or the Government say. "We prefer this not to be dealt with through the courts and we shall deal with it on its merits in an ex gratia manner." These are the alternatives before the Government.

Why I think this debate is so important is because not only are we dealing with the conduct of a Government trying to reverse the decision of the House of Lords, sitting as the final court of appeal, but we are also getting a sense of obligation of an outgoing Government to an incoming one. I have always assumed that no expressed intention is irrevocable until it has been implemented. Whatever the last Government may have said about its intention in the event of the House of Lords supporting the company's claim, the intention had not been implemented at the time of the outgoing of the last Government. If I had been a member of the last Government—which was extremely unlikely—I should certainly not regard myself in the least bound, especially when I knew that circumstances have changed very considerably.

It would seem to me that the one thing which has come out absolutely clearly is that the intention which was expressed by the last Government has been changed or qualified very considerably by what all the learned judges had to say about the moral rights of the company. I would say that no right hon. Gentleman sitting on the Government or the Opposition Front Benches need be under the slightest inhibition about voting against this Bill after what those judges have said, and whatever may have been the declared intention. So I would go back to this. It seems to me that the Government, if they are going to bludgeon the House of Commons and force this Bill through, should at least be prepared to consider the only other alternative open, that is to say that, recognising that there is an enormous moral case, believing, apparently with the previous Administration, that the law should be qualified—certainly for the future—and being prepared to follow what I think is a very unwise course and reverse the finding of the House of Lords, they are nevertheless prepared to go further on an ex gratin basis over and above the £4·7 million which has already been paid to the company in connection with the rehabilitation of Burma. The company has constantly made it clear that the £4·7 million was never intended as compensation in the legal meaning of the term.

I find it extraordinary that the Bill should be described as a War Damage Bill in view of the definition of the words "war damage" in the War Damage Act, 1943. I see no relation whatever between action taken in denial of the enemy and what was included in the definition of war damage in Section 2 of the 1943 Act. Section 2(1) deals with
"Damage occurring (whether accidentally or not) as the direct result of action taken by the enemy, or action taken in combating the enemy or in repelling an imagined attack by the enemy …"
Nobody suggests that the destruction of the assets of the Burmah Oil Co. in Burma in anticipation of the Japanese advance was repelling an enemy.

May I finish this part of my argument? Section 2(1,b) reads:

"Damage occurring (whether accidentally or not) as the direct result of measures taken under proper authority to avoid the spreading of, or otherwise to mitigate, the consequences of such damage as aforesaid …"
I do not see how denial of the enemy comes into that. Section 2(1, c) deals with accidental damage, and there are two further paragraphs with which I need not bother the House. I do not think that anybody would pretend that what the Burmah Oil Company did on the Government's instructions in this case was in any way accidental. It was deliberate. The Bill is therefore misnamed. It is not a War Damage Bill in the strict meaning of war damage as defined in the 1943 Act. Perhaps the Attorney-General will deal with this.

Would my hon. and gallant Friend care to suggest to the Government that they should give an undertaking to amend the title of the Bill? That procedure was followed on the Machinery of Government Bill, the title of which was amended in another place. Perhaps my hon. and gallant Friend will invite the Government to give an undertaking, before the Bill is read a Second time, that an Amendment will be made. That is quite a normal think to ask.

That is a legitimate point, and I ask the Government to give appropriate weight to it. I feel that the point which I have been making is less important than the two main issues concerned, and in conclusion I will come back to them. We must recognise that we are not dealing with just a board of directors. We are dealing with 135,000 shareholders, over 70 per cent. of whom hold less than £500 of stock. Therefore, we are dealing with a large number of people and their proper interests.

Their board, on the Government's instructions, took certain action during the War. It seems to me that the order given to them was proper, sensible and understandable. Nevertheless, the Government today have introduced a Bill which was originally drafted by the previous Administration, presumably before they new what the House of Lords decision would be. I see that the Financial Secretary shakes his head. Do I understand that the Bill was drafted after the decision of the House of Lords? We are entitled to know.

Ask right hon. Gentlemen on the Opposition Front Bench. They know.

I have assumed that the Bill was being prepared when the letter was sent from the Treasury Solicitor. I regard that letter as very nearly blackmail—the most outrageous letter which has ever been written by a Treasury Solicitor and well in keeping with an observation which was once made to a very great friend of mine, who was formerly a Member of the House but has now passed on, by a very senior officer of the Inland Revenue, who openly boasted one evening that he could honestly claim that in every year during which he had held his office the Inland Revenue had got more from the taxpayers than it was entitled to by law had all taxpayers exercised their rights. This is the attitude of mind one gets from that Department. It is absolutely outrageous that that letter was sent. I deeply deplore the fact that my right hon. Friends were in office when it was sent.

The letter having been sent, in the light of the House of Lords decision the Government have one of only two courses which they can honourably take. Either they leave out the retrospective part of the Bill, or they go to the company and make a reasonable offer for an additional ex gratia payment over the £4·7 million.

9.5 p.m.

I rise with some trepidation, as a new Member of the House, to speak in a debate which has been extremely technical and complicated. I should be failing in my duty if I did not stress the fundamental basic principle which lies at the root of our argument, because I believe that it is a principle which is of concern to everyone. It is not a narrow issue that we are debating. It is an extremely broad issue, which strikes at the very fundamentals of the rule of law.

Earlier in the debate it was suggested that the question of compensation should in some way be considered on a relative basis between the various groups which were hurt during the last war. I am sure that the House is deeply conscious of the debt which we all owe to those who suffered in the war. We should be equally clear that those who fought that war fought very much for the principles which are being struck at in the Bill.

I therefore suggest that we must consider carefully the whole point raised here of retrospective legislation. We should consider very carefully the precedent which will be created in this country by the thin end of the wedge put before us this evening. We should also consider its effect on other countries. As has been rightly stressed, this cannot be overlooked in the way the Treasury Bench overlooked it in opening the debate. We must remember that this Parliament is an example to the rest of the world.

If we go about our affairs in the way suggested and overrule decisions of the highest court of appeal in the land, the effects on foreign investment from all over the world and for British investment elsewhere in the world will be serious. We should not take such action because of the narrow objective of the Bill as it stands at present.

It is clear that what we are being asked to do is to say that the Executive can say in its letter, as it did, what it thinks the law is; then it can find out, by a decision of the House of Lords, that the law is not what it thought it was and can then introduce legislation to make it what it wants it to have been but never was. This is a principle which we cannot accept.

There has been a good deal of discussion about the amount involved. This is not at issue at this point. It may be an issue at a later stage, when the question of damages is considered. We should make it abundantly clear that, whatever the damages may be, it would be a very high price if we were to abandon our principles because we think that the cost of meeting a particular claim or even potential claims would be too high. We must stick to our principles and not introduce retrospective legislation of the kind now put before us.

The hon. Member for Barons Court (Mr. Richard) was inclined to stress that this was a situation in which the opinion of the highest court in the land had been taken, but that the matter then suddenly became a political question. It is abundantly clear that if we allow legal decisions to be overruled, we are, in effect, setting up this House as a court above the highest court in this land. This, I would have thought, is something which we simply cannot allow.

Therefore, I trust that hon. Members on both sides of the House—because I do not think this is a party political matter—will consider the reputation of the House, if, as a new Member, I may presume to say so, and will vote to throw out the Bill. I believe that it is completely wrong in seeking to overrule a principle which people in this country have defended throughout the centuries.

9.11 p.m.

am sure that we have all heard with interest the speech of the hon. Member for Worthing (Mr. Higgins).

Surely tonight of all nights we are dealing with a matter of principle. One fundamental thing which Disraeli said was, "I am a man whose policies are laid down in principle and not in expediency." If ever there was an expedient Bill, this is it. What has happened? We all know. The Treasury could not get its way. At the end of the day the Treasury thought, "The only thing we can do is to go to Parliament and alter the law, because we have lost the day." The Government are asking us, of all people, to endorse that decision.

What is this House doing? Surely, this is an occasion when every back bencher, on both sides of the House, must unite against the Executive. Our ancestors spent centuries here protecting the individual from the greed and avarice of the Crown. During the course of the years the Executive took over those pre- rogative rights, and one of them was to act in certain ways to protect the property of the individual. But in doing that there was the understanding that if the property should be acquired compensation must be paid.

Are we solemnly, tonight, to allow a Bill of this nature to go through without the most violent protest? In a short time the people of this country will find out the facts. They will find out: all the words of the lawyers, all the nice speeches, the fact is that it was needed just for a political deal. As the hon. Member for Nelson and Colne (Mr. Sydney Silverman) said, this is a political deal. Is this a political deal? If so, is that the right way to tackle the matter, by means of a political deal? Are we to judge it on political expediency?

It seems that one of the fundamental principles of liberty is to be decided as a matter of political expediency, to suit whom?—the Executive of the day who, to their utter shame, inherited something which the Conservative Party ought never to have produced. I have no doubt that the Administration at the time were under great pressure from the Treasury to bring in this Bill, but Ministers of the Crown, when they they see principles being defied, must stand up and take on the Treasury, and we shall help them to do it.

This is a serious occasion for the House. I congratulate the hon. Member for Devon, North (Mr. Thorpe) on moving the Amendment. Surely, this matter should be dropped for one reason alone. Do we know how much the claim is to be? Have the damages been assessed? Of course they have not. Then by what right are figures bandied about—£10 million, £12 million, £14 million, £15 million, and even £100 million? Does it matter in a case of principle whether the amount involved is only 6d?

We have heard about the people who lost their relatives in the war. Certainly, that is a serious matter. But whether it be a large sum or a small sum of money, what does that matter from the point of view of the principle? It is the principle that counts. I beg the House to stand up for the principle that retrospective legislation is wrong and should not be allowed to be passed by this House. I am sorry to have dealt with the Opposition Front Bench—the Government Front Bench—so firmly in this matter.

My hon. Friend did, after all, refer to the Opposition Front Bench and suggested that it was my party who had produced the Bill. [An HON. MEMBER: "It was."] It is also true to say that it did not introduce the Bill. There are a great many unsatisfactory Bills floating about in Government Departments. Will my hon. Friend make clear to the House that many of these poisonous Measures floating about in Government Departments never gee the light of day because of the wise action of the Government of the day, and that if the present Government tad been wise this Bill would not have reached the House.

I will not split hairs with my hon. Friend. When the Bill was prepared, who by, and who knew about it, has been carefully cloaked. I am certain that very few hon. Members on the back benches knew that the Government were considering or preparing a Bill of this sort. I cannot see, therefore, why we should be blamed for it. But if the Conservative Party was instrumental in producing a Bill of this nature I am sorry, but I bow to the understanding of my hon. Friend the Member for Bristol, West (Mr. Robert Cooke), who knows more about it and who says that it was not.

Here we are to have to take a decision to throw the Bill out, because I cannot see any other way in which we can deal with it. Some people would like to consider an ex gratia payment and whether the Burmah Oil Company could trot down to the Treasury and fix up a little deal, but that is not the way to deal with the matter. If a person has a right, then he has a right, and we should uphold the right which has been won in the court. We do not know yet what the value of it will be, but until we see the full process of the law take place in this claim we should not seek to use the power we possess to overrule a decision which should be taken in the courts.

It will be a bad day for Parliament, and certainly for the Government, if the Government are to be able to hammer the Bill through the House. If we are incapable of standing up to it both here and in Committee I hope that in another place they will murder it.

The hon. Member has dealt very effectively with the Treasury Bench opposite and I agree with every word he has said. Unfortunately, at least one right hon. Gentleman from his own Front Bench has indicated that he will abstain. Will the hon. Member deal with that?

On a point of order. The hon. Member for Devon, North (Mr. Thorpe) has had his share. Is it in order for him to make a second speech in the form of an interjection addressed to the hon. Member for The Wrekin (Mr. William Yates), who actually had just sat down?

There is yet no abuse in the interjection. It depended on the hon. Member for The Wrekin (Mr. William Yates) being willing to accept it.

I am not here as the keeper of other Members' consciences on a matter of such a serious nature as this. Why does not the hon. Member for Devon, North consult other hon. Members in the Lobby about it?

9.19 p.m.

This has been a very valuable debate, and valuable only because whatever happens to the Bill tonight—and I hope that it will not receive a Second Reading—the manner of its presentation by the hon. and learned Gentleman the Financial Secretary to the Treasury showed the Bill at the outset of the debate in colours totally different from those in which it has been subsequently revealed and exposed. It masquerades under the title of a War Damage Bill when it is nothing less than a Bill of confiscation. No words spoken from the Government Front Bench are persuasive when they describe it as a Bill of indemnity.

Most people think, when there is a question of indemnity, that some person, some citizen, is to be indemnified against penalties which he would otherwise suffer as a result of his actions, actions of such a deserving character as to merit treatment of that kind by the House. There are many examples of indemnity. One with which we are familiar came at the beginning of the last Parliament. We indemnified by Act of Parliament several hon. Members who had taken their seats, having won their elections, not knowing that they would be liable in the circumstances to a fine of £500, or whatever it is, per day for doing so until the House took legislative action accordingly.

As for retrospection, I must be sincere and say that I am not able to condemn out of hand all retrospective legislation. I cannot, because, if I were to do so, I should find myself unable to accept the increases in salary which the House has recently awarded to its Members and which certainly have retrospective effect. But when retrospective legislation or other action of the State penalises the citizen or confiscates his property or rights, then nearly all private Members of whatever party will be united in condemning it. I am well aware that on the Government benches the party Whips will be faithful in doing their duty as instructed, but on our side of the House there is to be a free vote on this matter.

I wish to say something now in reply to the hon. Member for Oldham, West (Mr. Hale). I have no doubt—this is how his speech impressed me—that the hon. Gentleman was entirely sincere in his approach, although, in my view, quite mistaken. He sought to compare the desires and aspirations of what he described as this rich international company in hoping to be able to keep for itself the good fortune which it had obtained as a result of the recent case in the House of Lords with the plight of the widow of the soldier who gave his life for his country. It is now quite a long time, more than 100 days, since the election, and if the war widow's pension is inadequate there has been plenty of time for Her Majesty's Government to put the matter right.

Is the hon. Gentleman forgetting that the House has already passed a Bill which does precisely that?

If that is so, it did not stop the hon. Member for Oldham, West saying that the widow's plight was still a very sorry one. I believe that the House considers that, on the whole, so far as the financial aspect of it goes, it is adequate, although everyone will always sympathise with a woman who loses her husband on active service for his country. There is no doubt about that.

What is the real character of the company which desires not special treatment but to be allowed to reap what my hon. and learned Friend the Member for Northwich (Sir J. Foster) said was the proper fruit of the hazards of going to law? According to the information which I have, as much as 70 per cent.—[An HON. MEMBER: "It is all in the letter."] Yes, it is, and it ought to be put on record. As much as 70 per cent. of the holdings in this company are held by people with shares amounting to not more than £500. The principal shareholders are not immense corporations or the Co-operative Wholesale Society or great banks or even great trade unions. For these reasons, I appeal that no case has been made out that the course of the law should be interfered with and its rule upset in the way that this Bill proposes.

What of the future? Supposing this Bill reaches the Statute Book. We shall be faced with a situation where entirely negative action will have been taken by Parliament. The rights of common law which are believed to exist—believed even by the Government to exist because the Preamble of the Bill says that its purpose is to destroy them—will have been taken away and nothing put in their place. I am sure that the ordinary citizens believe that, if the public interest demands that the property of an individual person or company should be taken away or destroyed, the whole community should bear the cost of restoring the value to that individual. This legislation, if the House is so ill-advised as to pass it, will destroy that concept. For these reasons, I shall be glad to join those of my hon. Friends who, I believe, will do so in considerable numbers, in voting against the Bill.

9.27 p.m.

The House has had a most interesting debate in which important and difficult issues of law and public policy have been voiced. The welkin has been made to ring by several hon. Members opposite. I permit myself to wonder whether their opposition would have been as vehement had this Bill been introduced by the previous Conservative Government, who were committed to introducing it and would, I believe, in honour have introduced it in the circumstances in which this Administration now find themselves.

I do not want to pass the burden of this on to the previous Administration. The Bill is introduced by the present Government and we accept responsibility for it. But I want to make one thing perfectly clear at the outset, in view of certain observations about attitudes towards justice and law which have fallen from the lips of hon. Members.

I make it perfectly clear that the Labour Government are as dedicated to the rule of law as were any previous Administrations, including Liberal Administrations. The Labour Governments since the war have manifested their faith and have worked for the rule of law not merely by words, but by introducing historic legislation. There were the Crown Proceedings Act, 1947, and the Legal Aid and Advice Act, 1949, which gave a reality to the rule of law for people whose circumstances would otherwise have deprived them of access to the courts. We do not render lip-service to the rule of law, but do something about it. Next week, we shall introduce a Bill to create a statutory law commission for the reform and modernisation of the law. We do not need lectures from either the Liberal Party or the Conservative Party on respect for the maintenance of the rule of law.

I come immediately, as the House would expect me to do, to the main matter which has caused anxiety, namely, the fact that the Bill is to have retrospective effect. As a lawyer and most particularly as one of the Law Officers of the Crown, I have a special reluctance to lend support to retrospective legislation, but I am bound to say that I certainly do not go as far as several hon. Members who have spoken to the effect that all retrospective legislation is of itself objectionable whatever its circumstances or con tent.

I note that the hon. and gallant Member for Worcestershire, South (Sir P. Agnew) agrees with that point of view.

There are many who have been in the House throughout the whole of the debate and when the moment comes, if the train of what I am pleased to call my thought is not excessively interrupted, I shall be glad to give way, but the hon. Gentleman does not come into that category.

I was about to say that there are clearly circumstances—happily the occasions are exceptional and rare—when retrospective legislation is not only justifiable, but necessary in the public interest and not contrary to the rule of law. As my hon. Friend the Member for Nelson and Come (Mr. Sydney Silverman) pointed out in his helpful contribution to the debate, the necessity for the Acts of Indemnity after the Great War, like the Act of Indemnity, 1920, are a classic example of justifiable retrospective legislation, and I accept his view that in principle this Bill is similar in character to that legislation.

I venture to give from the experience of the previous Administration two illustrations of the need for and the introduction of retrospective legislation. There were two such Acts with retrospective effect in 1954, and on those occasions the Government warned that any proceedings brought after the date of their announcement of legislation would be set aside by legislation. When it was introduced, the legislation contained the provisions for the setting aside of judgments which had already been given and for the abatement of proceedings which were pending.

One of those Acts was the Charitable Trusts (Validation) Act, 1954. I cannot refrain from noting with interest that the Second Reading of that Act was moved by the right hon. and learned Member for Chertsey (Sir L. Heald), whose name appears among the list of supporters to the Amendment,
"That this House declines to give a second reading to a Bill which involves retrospective legislation reversing a decision of the highest Court of Appeal",
which is precisely what the Measure which the right hon. and learned Gentleman introduced did. That Act was purely retrospective and was intended to validate certain trust instruments and was intended to prevent residual legatees or next-of-kin from taking action. We see in Section 4 of the Act the kind of provisions which it contains:
"Subject to the next following subsection, effect shall be given to the provisions of this Act in legal proceedings begun before its commencement, as well as in those begun afterwards.
(2) This Act shall not affect any order or judgment made or given before its commencement in legal proceedings begun before"—

Just a moment. Do not get too hopeful about that—

"begun before the sixteenth day of December, nineteen hundred and fifty-two"—
this is a 1954 Act—
"or any appeal or other proceedings, consequent on any such order or judgment.
(3) Where in legal proceedings begun on or after the said sixteenth day of December, any order or judgment has been made or given before the commencement of this Act which would not have been made or given after that commencement, the court by which the order or judgment was made or given shall, on the application of any person aggrieved thereby, set it aside in whole or in part and make such further order as the court thinks equitable with a view to placing those concerned as nearly as may be in the position they ought to be in having regard to this Act".
That was a classic piece of retrospective legislation, but it is quite true that in respect of those affected by it a warning was given. Whatever else has emerged from this debate, it is clear that the Burmah Oil Company was warned consistently over the years that if it brought litigation the Crown would act to prevent the company from enjoying the fruits of any successful litigation in respect of the denial action.

I wonder whether the Attorney-General would agree that there is a very clear distinction between the Act which he has just mentioned and what we are discussing? In this case, the Burmah Oil Company carried out the instructions of the Crown. There is no question of anybody being denied rights as a result of that under the other piece of legislation.