New Clause. — (Commencement.)

Bill Presented – in the House of Commons at 12:00 am on 2 March 1965.

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This Act shall come into force on such date as the Minister may by order contained in a statutory instrument appoint, but no such order shall be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House.—[Mr. Selwyn Lloyd.]

Brought up, and read the First time.

Photo of Mr Selwyn Lloyd Mr Selwyn Lloyd , Wirral

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

The Bill has caused a great deal of interest and concern. The Financial Secretary to the Treasury, speaking during the Committee stage, said: On Second Reading, we discussed its broad principles at great length in what, I think, hon. Members on both sides regarded as a debate of unusually high standard. The Bill raises important questions of principle and very difficult questions of decision for any Government."—[OFFiciAL REPORT, Standing Committee B, 23rd February, 1965; c. 17.] Most of us would agree, I think, with what he said about the Second Reading debate. Certainly, very vigorous views on the Bill were expressed by many of my hon. Friends. On the Government side, also, there were considerable doubts. The hon. Member for Oldham, West (Mr. Hale) ended his Second Reading speech with this sentence: The House is compelled, reluctantly and unhappily, to pass the sort of Measure which it would have wished to avoid."—[OFFICIAL REPORT, 3rd February, 1965; Vol. 705, c. 1112.] A number of other speeches were made on Second Reading by hon. Members opposite almost all of which, I think, expressed considerable doubt. The hon. Member for Manchester, Cheetham (Mr. Harold Lever) indicated that he could not support the Second Reading. The mood of the House was that there were important questions of principle and very difficult questions of decision for the Government. This interest and many of these doubts have been further ventilated in the public Press and in public discussion. Nobody can dispute, I think, that the Bill has produced some interesting problems of law, practice and political wisdom.

I certainly accept my share of responsibility—I have never sought to shirk it—for authorising the warning letter of June, 1962, and my share of responsibility for giving instructions for the drafting of the Bill. Both those actions were decisions of the last Government. But I never saw the Bill as drafted until it was presented by the present Government. My colleagues and I never approved its terms, and had we won the General Election it would have been for the Government which was then formed to decide whether and when to introduce the Bill.

We acted as we did because we thought it impossible for us or any Government to accept the proposition that full compensation should be paid for all war damage. That is not a new idea. In his speech in the House of Lords, Lord Radcliffe referred to the ruling of the Supreme Court of the United States on damage done during the American Civil War. There was reference to the extent of the damage, to the million men involved, to the duty to deny resources available to the enemy, and to destroy them, ending by saying that the safety of the State in such cases overrode all considerations of private loss. Salus populi suprema lex.

We felt that to be the general proposition, just as our predecessors did and our successors have, but although that may be the general proposition and justifiable on grounds of principle—and certainly on grounds of expediency—the aspect I want to deal with is whether Burmah Oil's claim and other similar claims should fall because of that general proposition.

There are five questions that I want to raise and the first is: should there be an exception to this rule when a Government has taken another line in similar cases? In the Standing Committee my hon. Friend the Member for Wanstead and Woodford (Mr. Patrick Jenkin) read the letter which the right hon. and learned Attorney-General had written to him about claims affecting Sarawak and Brunei. In that letter we read: The Agreement with the oil companies operating in Sarawak and Brunei was made in 1940—before Japan even came into the war—in pursuance of plans for denial operations the preparation of which had begun as early as 1936. It had been decided then that denial operations should be carried out in these oilfields immediately on the outbreak of a war in the Far East, partly on the grounds that they were thought to be indefensible, and partly on the grounds that the oil obtainable from them would not be required for our own use. The Attorney-General then goes on to say: No such plans were made for the oil fields in Burma. I do not think anyone regarded them as vulnerable to anything like the same degree as the oil fields in Sarawak and Brunei; and the oil obtainable from them was most certainly required by the allies so long as it was available to us. He ends with a reference to compensation: As compensation for the damage done in the course of the denial operations in the Sarawak and Brunei fields was paid under the Agreement, the Company was precluded from claiming under the statutory compensation scheme; it was the view, not only of successive Governments here, but also of the Burmah Oil Company itself, that the denial operations in Burma had been carried out in pursuance of rules made under the Defence of Burma Act, 1940, which gave the Company a statutory right to compensation."—[OFFICIAL REPORT, Standing Committee B, 23rd February, 1965; c. 7.] I had not heard of these matters—or, at least, I do not remember having heard of them when I addressed my own mind to decisions in regard to this issue.

What is the ground for differentiating Burmah Oil's claim from the other claims in Sarawak and Brunei? I must say that it seems to me that the date when denial operations began, or the defensibility of the installations or whether or not the oil would be wanted by us are completely inadequate reasons for drawing a distinction. I fail completely to follow the reasons given in the letter about the date, the defensibility and the oil being wanted as reasons for drawing this distinction. They are inadequate grounds on which to base the distinction, so I must ask: if a clear line of conduct has been adopted in regard to certain claims, should not, in equity, that line of conduct be applied also to similar claims?

The second question is: is it right to take away a common law right—which is what is being done by this Bill—without statutory provision for compensation on some scale? Whether or not the common law right is accepted, in fact it has been the practice to provide statutory compensation. I am told that examples are the Army Act, 1881, the Compensation (Defence) Act, 1939, and the War Damage Acts in the last war. Has there been any provision in this case for what I might call statutory compensation? Can the payment in 1949 be regarded as statutory compensation, or was it purely and simply a rehabilitation grant made in the interests of Burma and not of the company?

8.45 p.m.

Again, the Financial Secretary was quite categorical about that in Committee. He said this: The main purpose was to assist people who had suffered damage to rehabilitate, and the payment was expressed to be a payment towards rehabilitation."—[OFFICIAL REPORT, Standing Committee B, 23rd February, 1965; c. 21.] He went on to say that it was made clear that this was all that the company would get out of the Government. Of course, because at the time of the payment of this sum the Government thought that compensation was claimable from the Government of Burma. That appears in the last sentence of the letter which I have just quoted. That is why I read the final part of it.

The Government and the Burmah Oil Company were then taking the view that the company had a statutory right of compensation under the rules made under the Defence of Burma Act, 1940. That being the view of the Government and of the Burmah Oil Company, it is no wonder that the Government said at that time, "That is all you will get out of us". That seems to be a perfectly reasonable point of view to have taken. Therefore, I think that this is a legitimate question to pose. In this case, has anything which one could describe as statutory compensation, in fact, been paid?

My third question is: if it is accepted that compensation should be paid, even though on a limited scale, what are the consequences if the Executive fails to pass any Measure providing for such compensation? If the Executive is so sure of the law that it delays action, does not pass an Act, because it thinks that it is unnecessary—I think that it was understandable that the Government should not pass an Act when the litigation was going on in Burma—and allows a claimant to pursue his claim until victory in the highest court, does that make any difference?

This is an aspect which has offended many people. If, in 1949, Sir Stafford Cripps had said, "I shall pass an Act of Parliament to say that £4·7 million is all you will get. That is adequate compensation", many people would have accepted that then. What has genuinely bothered people is the business of the Government, of whichever complexion, not taking any action and the matter being allowed to be litigated to victory in the highest court. So my third question is this: is that a consideration which should be taken into account?

My fourth question, the answer to which directly affects timing and, therefore, the purpose behind the new Clause, is this: where are we, at this point of time, in regard to the Burmah Oil Company's claim? Is it wise, or indeed possible, to form a view about it now? The company is said to have won its case. It is suggested that the Bill will deprive it of the fruits of victory. That is not so at all. All that the company has done is to win on one point of law in a preliminary hearing. Are the other defences valid? I have read the reference in the Attorney-General's letter to one of them. I understand that that is one which is pleaded. Is it valid? At this moment, it is extremely arguable whether we are, in fact, in a position to take a final view about what would happen in this lawsuit.

The fifth point is the serious issue as to the measure of damages if the company gets over the other hurdles. I have already mentioned the speech of the hon. Member for Oldham, West, on Second Reading. The hon. Gentleman dealt with the question of damages in this way: 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."—[OFFICIAL REPORT, 3rd February, 1965; Vol. 705, c. 1111.] I quote that because I think that it puts a serious point very succinctly. We do not know whether it is a valid point, but it is possible that all this is a storm in a teacup.

The Financial Secretary to the Treasury dealt with that himself in Committee when he ended by saying: If only 6d. were involved nobody would trouble to legislate about the matter."— [OFFICIAL REPORT, Standing Committee B, 23rd February, 1965; c. 27.] We just do not know what is the measure of damages, or whether this is a very large claim. I was certainly led to believe at the time when I first addressed my mind to these problems that it was a matter of hundreds of millions of pounds, as I indicated on Second Reading. We do not know whether it is a large claim, or whether this is quite a minor matter which will be disposed of in some other way.

I do not want to go as far as to say that in no circumstances should a Bill of this sort be introduced. But I do think that it is wrong to pass the Bill now. I suggested on Second Reading that the Government should look at this again and consider whether it is possible to negotiate a settlement. I realise that the Government may be sensitive about withdrawing the Bill. No Government like to have to withdraw a Bill. Therefore, I and my right hon. and hon. Friends have tried to help by proposing this new Clause.

The advantage of the new Clause is that it gives time to explore the possibility of disposing of the matter by negotiation and the possibility of other aspects being litigated, the validity of those other defences, and the measure of damages. Where there are strong, almost passionate, feelings of resentment, as there are about this Bill, is it not wiser to avoid the dilemma so well put by the hon. Member for Oldham, West of the House being compelled reluctantly and unhappily to pass the sort of Measure which it would have wished to avoid?

If the Government accept the Clause, I will do all I can to urge my hon. and right hon. Friends, little as I know many of them like the Bill, to give it a Third Reading, but if the Government will not accept the new Clause I shall have to advise them to vote against the Third Reading, and I will certainly join them in the Lobby. The Financial Secretary knows me. I am much too reasonable a person to put this forward in any way as a threat. I am trying to help the Government in a critical situation, because there are wide misgivings about the Bill.

There is a general feeling of disquietude. This is not a party matter. Anybody who listened to the debate on Second Reading will have heard speech after speech from either side of the House indicating anxieties. To give one example, I spoke the other day to Lord McNair, who has a great reputation as an international jurist and a distinguished lawyer in this country, and he told me about his deep anxieties about the Bill. This is not party feeling at all. There is wide anxiety about it. It would be prudent and statesmanlike of the Government, even if they do not delay the further stages of the Bill, to include this new Clause, which provides for further thought and discussion and for legal decision if necessary.

I beg the Government in the interest of the House as a whole and of the respect in which our judicial system is held, to accept the new Clause.

Photo of Mr Frederic Bennett Mr Frederic Bennett , Torquay

Like my right hon. and learned Friend the Member for Wirral (Mr. Selwyn Lloyd), I am so genuinely anxious that the Government tonight should accept a very genuine effort to reach a compromise to satisfy consciences on both sides of the House that I do not propose for a moment to reopen arguments about retrospection and the removal of a common law right without compensation and all the other arguments which have been taken so clearly both on Second Reading and in Committee when I had the similar pleasure of facing the Financial Secretary who in due course will reply to this debate.

The Financial Secretary knows how hard I tried to get a rather more, thorough-going Amendment in Committee, without success. But we think that on this occasion with this new Clause we have found a method by which a genuine compromise could be reached which would meet to some extent everybody's point of view and at the same time prevent the Government having to give up altogether tonight something on which they so clearly have set their minds. Many of us, myself included, would have preferred on Amendment tonight which would have gone right to the root of retrospection. I am sure that I speak for many of my hon. Friends when I say that, if there be talk of sacrifices, there has been considerable sacrifice on this side of the House in not pursuing an Amendment of that kind. We should very much like to have pursued the same line as we did on Second Reading and in Committee, but we have made a genuine attempt here, to give an opportunity for the matter to be resolved.

Our debate in Committee, though very interesting, was quite short. There were some very good and interesting speeches, all from our side of the Committee, with the exception of that of the Financial Secretary—which was a pity, because we should have liked an expression of view from the benches opposite—but it clearly emerged from our proceedings in Committee that what was really wanted here was that the Bill should not be proceeded with and a great breach made in the law as regards retrospection unless it was absolutely necessary. I am sure the Minister will agree that this was the spirit which moved all the speakers in Committee last week.

In his speech a few moments ago, my right hon. and learned Friend the Member for Wirral read one sentence from the Financial Secretary's speech in Committee. I hope that I shall be forgiven if I read the two complete paragraphs not just one sentence, because I think that they have great validity and relevance for the point we are now discussing. The hon. and learned Gentleman was replying to an assertion from our side of the Committee that it was the principle which mattered, not the amount of compensation involved. I shall now read the entire passage, being quite fair to the hon. and learned Gentleman and not picking out bits to suit my argument. He said: This is an easy argument to deploy"— that is, the argument based on principle— that it does not matter whether it is a question of dealing with a sum of 6d. or £100 million since the question is one of principle—and, frankly, I think that this argument is unreal and unrealistic. When we are concerned with large sums of money we have a responsibility as the Government and Parliament has a responsibility as legislators and as those responsible, above all, for the control of public expenditure. We must, therefore, balance up the matter and decide whether it is right to allow compensation to be paid on what would be a large scale which would single out these claimants for a particular and high level of compensation which nobody else who suffered war damage recovered. Now comes the significant sentence in what follows: If only 6d. were involved nobody would trouble to legislate about the matter. It is only because there are substantial sums involved that the matter comes before the House of Commons. I make no bones about that and it is not a matter about which one need give any apology."—[OFFIciAL REPORT, Standing Committee B, 23rd February, 1965: c. 27.] Some of us may, perhaps, doubt the validity or objectivity of that statement, but, nevertheless, I presume that the Minister did not really mean just 6d., but he really meant that something between 6d. and an astronomical sum would convince him that it was not worth passing retrospective legislation in this matter. I am sure that, in reply, he would wish to say that he did not really mean just 6d. but he meant that there would be a sum—

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Order. I apologise for interrupting the hon. Gentleman, but I hope he will direct his remarks to the new Clause before us. I fail to see any connection at the moment.

Photo of Mr Frederic Bennett Mr Frederic Bennett , Torquay

I am sorry if I transgressed, Mr. Deputy-Speaker. I was following almost exactly the point made by my right hon. and learned Friend, much more expertly, that what we want to do is to provide—this was one of the five points he mentioned—an opportunity for negotiation to see whether a reasonable sum could be reached. If a reasonable sum could be reached, taking the very sentence which my right hon. and learned Friend read from the Financial Secretary's speech, it would not be necessary to go on with this legislation on the stand which the Government have already taken. That was the only aspect that I was pursuing in that respect. I thought that it was relevant because the opportunity for negotiation in order that this legislation need not go through was one of the points my right hon. and learned Friend made.

9.0 p.m.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

I hope that the hon. Gentleman will acquit me of discourtesy. I am not objecting to the argument he is advancing. I was objecting to his going over the ground in Committee which bore no relevance to the argument he is now putting.

Photo of Mr Frederic Bennett Mr Frederic Bennett , Torquay

I will do my best to keep it relevant, Mr. Deputy-Speaker. All I was trying to do was to produce an argument as to why there was a valid case for allowing an opportunity to delay so that negotiations could be entered into. I will not pursue this in view of what you have said, but I would recall that in Committee I said that this was the worst possible moment to force through this legislation because, although a point of law had been decided, we had no knowledge of what the ultimate sum in damages would be.

On the possibility that that sum would turn out to be 6d., or somewhere between 6d. and the figure up to which the Financial Secretary would agree that it would not be worth legislating about, it would surely be better if we waited and allowed the litigation to proceed. It might turn out to be 6d. or as near approximately to it for the Financial Secretary to secure his conscience and to retain his, if not our, sanctity of principle. Now we have an opportunity to allow a breathing space during which negotiations could take place or, alternatively, the courts could come to a conclusion about damages. The figure might be so small that, according to the hon. and learned Gentleman's own words in Committee, he might not feel it worthwhile pursuing the Bill-which he knows, and as every hon. Member knows, is genuinely repugnant to most of us.

It may be, in the opinion of hon. Members opposite, that the sum so far involved is an over-riding reason why this Measure should be brought in because of a theoretical sum involved. Here, however, they have a genuine opportunity, because of this Amendment, to see whether it is indeed really necessary to bring in a Measure which we all know that we do not like. In all the circumstances, I endorse the remarks of my right hon. and learned Friend and hope that the Government will accept the Amendment and thereby get themselves out of a very difficult position, which does not command the deep rooted support of their own supporters and certainly not of the country as a whole.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

I apologise to the hon. Gentleman for interrupting him during his speech. He was a long time making his point. I was obtuse in seeing that all the preliminary parts of his speech did lead up to the point.

Photo of Mr Edward Gardner Mr Edward Gardner , Billericay

This new Clause is clearly a compromise. I am one of those who accept it as such and would urge the Government to accept it. They must surely recognise by now that this Bill is one of the most unattractive and unprincipled pieces of legislation ever to come before the House.

It is the view of many of us on this side of the House that this piece of legislation is a complete contempt for justice. It has characteristics most likely to make the hackles of fair-minded people rise. It seeks to confiscate without compensation, to act retrospectively without any reason, and to deny to the successful party the fruits of a judgment by the highest court in the land.

When one comes to view legislation of this kind and to make, as indeed we are making in supporting the Clause, an offer to the Government which would enable a pause in which negotiations could take place to achieve an equitable settlement, then I submit that this is an opportunity which the Government would be very foolish to neglect. We have to bear in mind that the Bill pretends to amend the law for the benefit of all, whereas its true aim—and we all recognise this, as I am sure the Government do—is to reverse a judicial decision to the detriment of one identifiable victim, the Burmah Oil Company.

I am not disturbed by the fact that the claim is made by a large and no doubt prosperous oil company. I see that this may cloud what should be a clear outline of principle for the Government and some of their supporters. I see that if this claim had been made for widows and orphans many hon. Members opposite who now sit silent or hostile would be shouting their support of our opposition to the Bill. Personally, I am not agitated, and I do not believe that many, if any, of my hon. Friends are agitated, by how much the company is claiming. If the Government are alarmed by the size of the claim, they have the opportunity—and this new Clause gives them the opportunity—of negotiating it, and surely they can negotiate a reasonable figure.

There should be no difficulty, bearing in mind the evidential difficulties which the company would have to face if it brought this case to court. Nobody doubts that those difficulties would be formidable. It would have the difficulty, after this period of about 23 years, of distingtuishing with certainty between war damage as such and other damage. In my view, the actual figure can easily be settled, either by negotiation, or by the court, and the new Clause would give the opportunity either to have a negotiation, or for the case to be heard in court. I do not think that the figure is important, but whether the amount be a penny, a pound, or £1 million, the principle stands intact.

Personally, I do not protest because a large company may lose a great deal of money if the Bill becomes law. I protest, and I believe that many of my hon. and right hon. Friends and some hon. Members opposite protest, because of the principle involved. This is a principle which we cannot afford to neglect. If we do neglect it, we do so at our peril.

For those reasons, I implore the Government to consider the valuable advantages of accepting the new Clause so that in the period which will be allowed there will be the opportunity of negotiating, which is the proper way of dealing with this case.

Photo of Mr William Yates Mr William Yates , The Wrekin

I am sure that the Financial Secretary to the Treasury will now have reflected with care on his speech in Committee and will have heard the pleas from the Opposition Front Bench and from my hon. Friends who are involved in the law. Tonight, we are considering one of the most fundamental principles affecting our country. I was surprised to note the attitude of the Financial Secretary when he said: If only 6d. were involved nobody would trouble to legislate about the matter … I make no bones about that and it is not a matter about which one need give an apology."—[OFFICIAL REPORT, Standing Committee B, 23rd February, 1965; c. 27.] I have never heard such a shameful speech or such shameful words uttered by a member of our country's Executive. This is a total denial of the hon. and learned Gentleman's responsibilities to Parliament and to the country. There has been a very nasty smell about this place over the last three or four weeks.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

I hope that the hon. Gentleman will not trespass into the realms of hygiene. He must speak to the Clause before us. It is not for him merely to animadvert on the Bill. He must link whatever he has to say to the purpose of the Clause under discussion.

Photo of Mr William Yates Mr William Yates , The Wrekin

I quite understand your Ruling, Mr. Deputy-Speaker. I was endeavouring, in my Parliamentary way, to explain that throughout this House and the country an unfortunate aroma was caused by the Bill and that the new Clause was an "Airwick" which was badly needed both in this House and outside. I must congratulate my right hon. and learned Friend upon bringing it forward for discussion.

When I and other hon. Members spoke on Second Reading, we tried to persuade the Minister to realise that there was serious objection to the Bill on three grounds. First, it was fundamentally objectionable constitutionally; secondly, it was a Bill which the Government should not bring forward; and, thirdly, it would be rejected in another place. The Government took no notice of our warnings. They took no notice in Committee. For that very good reason, the new Clause has now been brought forward for the Government to think about.

I have some sympathy with the Government, because when one puts on old clothes of another Administration and runs around in them they are not too good, and the robes of Nessus occasionally cause injury. Nevertheless, on this occasion a change of raiment is offered by my right hon. and learned Friend which has had all the necessary purification done to it in this wonderful new Clause which we recommend to the House.

I have one objection to the new Clause on the ground of equity. My right hon. and learned Friend on the Front Bench asked whether there should not be negotiation to try to settle the matter. I say that fundamentally there should be no negotiation of the matter at all. The processes of law must be gone through first. I may be wrong—I am not a lawyer—but I should like first to see the question of damages assessed in relation to this case.

In Committee, we were told that the damages were likely to be £100 million. Then, somebody said that they were not likely to be as much as that; they might be £50 million, they might be 6d. or they might be nothing at all. What in heaven's name stops the Government from accepting the Clause and allowing the company to proceed at its peril and try to establish its claim for damages? Thereafter, I agree, occasion might arise when we have to reconsider the matter.

Therefore, on all counts, it is advisable for the Government on this occasion to consider carefully the offer of the new Clause and to accept it with good grace, otherwise they will suffer defeat elsewhere.

9.15 p.m.

Photo of Sir Spencer Summers Sir Spencer Summers , Aylesbury

I did not intend to take part in this debate when I came in, and I do so now for only two minutes to try to highlight one aspect of this discussion which I do not think has been given adequate prominence.

There are two aspects in the Bill—the decision to change the law from what it is deemed to be in the House of Lords, and the decision to make the new law retrospective. I take no exception to the first of those two objects. As I understand it, the main virtue of the new Clause is to see whether it is possible to render unnecessary the objectionable retrospective element in the object of the Bill. I say that because if, despite the additional time obtained, the Government were to accept the new Clause, the retrospective feature was still apparent when the Bill was ultimately brought to the House, I for one would wish again to take exception to it.

I seek only to highlight the chance of changing the law which this new Clause might make possible without the element of retrospection. That is its essential virtue, and it is for that reason that it is possible for some of us, on the one hand, to support it wholeheartedly, while, at the same time, reserving the right, if a Bill comes forward full of retrospection, to take exception to it on that occasion.

Photo of Mr Jeremy Thorpe Mr Jeremy Thorpe , North Devon

The new Clause put forward by the Opposition, and which I support, seems to be the fifth stage in what has been a long and unfolding drama. I congratulate the Opposition on having moved it. I do not think that it goes far enough, but at any rate it is a great improvement.

The first stage was when the Opposition, when they were the Government, fathered the Bill. At the second stage, namely, at the Second Reading, they at least admitted paternity. At the third stage, they expressed gratitude for adoption. At the fourth stage they tried to bastardise the issue, and now at the fifth stage they have suggested that there should be godparents who should decide when majority has been reached. That, at least, shows some theological improvement and recognition of ancestry.

I agree with the hon. Member for Aylesbury (Sir S. Summers). I think that the new Clause goes some way, not to improve the Bill but to improve the standing and the reputation of the Government. It will, for me, still have the noxious quality of retrospectivity, and, not only that, but of non-suiting pending litigants, and, therefore, I would support this as a second-best, and hope that there might be more substantial improvements in another place.

What would the new Clause enable the Government to do? It would, I think, be for them a useful measure of political expediency. Legal principle and political expediency are not always inconsistent. They usually are, but not always. I suppose that the clearest case where they were happily combined was the case of Lord Chancellor Brougham, who found that his coach was being pulled by a runaway horse. He tapped on the glass and said, "Coachman, drive into something cheap". He therefore, in one phrase, admitted his legal liability, while seeking to minimise the damages. That seems to me to have been a very happy arrangement.

Supposing, by accepting the new Clause, Her Majesty's Government are able to postpone the operation of the Bill until such time as an affirmative Resolution has been received by both Houses, what will this enable them to seek to do? We know, and they have been very frank about it, that their argument in introducing the Bill is not one of principle. It is one of expense. The Government say, "We are prepared to uphold principles provided that they are not too expensive to uphold. Once they become expensive we will throw them overboard".

Photo of Mr Jeremy Thorpe Mr Jeremy Thorpe , North Devon

It is no use the hon. Member for Barons Court (Mr. Richard), who has been holding a dock brief throughout these proceedings, indicating that this is not so. It has been admitted by right hon. and learned Members opposite that if only 6d. were involved—if the quantum were small—they would not have found it necessary to do violence to legal principles which at a more expensive level they find it impossible to uphold. They are not worried about principle; they are worried about quantum.

Let us, therefore, discuss the new Clause on the basis of that criterion. I disagree with the hon. Member for The Wrekin (Mr. William Yates). There is nothing dishonourable about successful litigants negotiating out of court. It often happens that a litigant who has been successful in the Queen's Bench Division subsequently finds that the other side has appealed against the decision to the Court of Appeal. Negotiations take place and there is a settlement so that the litigant will receive a measure of compensation while, at the same time, minimising the risk of his victory in the first court being reversed in the Court of Appeal. There is nothing shabby or exceptional about negotiations between litigants even after judgment has been given.

Let us suppose that the hon. Member for Oldham, West (Mr. Hale)—or was it the hon. Member for Manchester, Cheetham (Mr. Harold Lever)—were correct in saying that the measure of damages was very much much smaller than had been originally suggested. This is very relevant to the new Clause. The House would probably be prepared to admit that when litigants make claims, especially if they are of a liquidated nature, they are not notorious for underestimating the likely damages they will be able to obtain; there is never an unusual financial modesty on the part of such claimants. It may be that the initial figures which have been canvassed are wildly inflated.

It may be, as the hon. Member for Cheetham suggested, that the measure of damages will be very small indeed, in respect of those installations on the market, with the full knowledge that they might be taken by the enemy in a matter of days, or be destroyed by the enemy, or used by him and subsequently destroyed if he were forced to retreat. In such circumstances the quantum of damages might be very small.

Let us suppose that the Government were able to reach a settlement. Let us suppose that, through the instrumentality of an independent assessor, they were able to fix a figure which was cheap enough for them to afford to indulge in principles. Would it not be of great advantage if Her Majesty's Government, by accepting the new Clause, were able to resolve the claims of existing companies without having to introduce legislation which reversed the decision of the House of Lords establishing common law rights? Would not that be of very great benefit for the Government, who claim—certainly with some justification on their record at the time of the Crown Proceedings Act—to believe in the rule of law?

Would it not be of great advantage if, by the operation of the new Clause which provides a chance of negotiation, Her Majesty's Government could resolve the question without having to non-suit litigants, and having to do what happens in some other countries which have not quite the same regard for the rule of law? Would it not be a great advantage if Her Majesty's Government, by adopting the new Clause, were able to settle the matter without giving the appearance of flaunting the judiciary

Photo of Mr Jeremy Thorpe Mr Jeremy Thorpe , North Devon

When I want the right hon. and learned Member to correct me I shall ask for his assistance. I said "flaunting" and I meant it. If he does not know the significance of that I suggest that he consults one of the many psychiatrists in his division, in Harley Street.

Photo of Mr Quintin Hogg Mr Quintin Hogg , St Marylebone

I would far rather consult an English dictionary.

Photo of Mr Jeremy Thorpe Mr Jeremy Thorpe , North Devon

I readily concede that for the right hon. Gentleman that might be far less revealing—and certainly far cheaper.

Would it not be a great advantage to Her Majesty's Government to be able, by adopting this procedure, to resolve these matters without suggesting that the Executive were the final court of appeal in this country, who were always prepared, or who had at least established the precedent of intervening as a final court of appeal, wherever a decision was unpopular with the Executive or—in the eyes of this Government even worse—expensive in its outcome. Here then, I should have thought, is a formula whereby Her Majesty's Government would have a chance of achieving their objective without doing damage to the principles in which they claim to believe so passionately.

It might fail. It might well be that the outcome would still be too expensive and, therefore, their principles would not rise to the Bill. That is possible, but surely we are talking about what are, after all, very cherished principles and valued in this country; the principle, for example, that, an ordinary man may get legal aid so that he may sue a Government Department to recover damages for the negligence of a Minister's servants. That is a very great thing in this country. However expensive or opprobrious the Minister might regard that judgment, and however expensive it might be to the Treasury, that decision may not be upset save in a superior court of law. That is a very valuable principle in this country.

It may happen that in this case it is an oil company, but the principle remains the same. Surely, if the Government believe passionately in upholding the rule of law and the independence of the judiciary, they would welcome an opportunity to accept a formula—a product, if they like, of the death-bed conversion of an Opposition, but, at any rate, a formula which should be looked at on its merits—which will enable them to try to see whether they can initiate and produce a result which, in the end, will save them the bill, which they are obviously frightened to have to pay, which will not further involve them in the financial obligations which they deplore, but which may well have the effect of preserving the principles which they claim to cherish.

9.30 p.m.

Photo of Mr William Van Straubenzee Mr William Van Straubenzee , Wokingham

The hon. Member for Devon, North (Mr. Thorpe) opened his speech by commending this new Clause to the House on the grounds that it would do something to restore the reputation of the Government and, to use the hon. Gentleman's analogy, he wanted the Financial Secretary to be a "new Brougham." I do not think that it is that reputation which this new Clause might do something to restore. I think that it would be the reputation of the House. I—as I imagine are all hon. Members—am far more jealous of the reputation of this House than ever I am of the passing reputation of this Government or that.

It must ha said frankly—it has been said quite frankly—that both Governments have responsibility for this Bill. I came into the Chamber tonight determined, if we should reach that stage, to vote firmly, whatever was said, against the Third Reading. I listened to begin with—let me say with no great enthusiasm—to the arguments in favour of this new Clause. It seemed to me that the more I listened to the arguments the more persuasive they became. I cannot think that when the Minister comes to reply he will be able seriously to resist the arguments which have been put before him.

I am quite certain that the difficulty here lies in the fact that we are dealing not only with a company but with a company dealing in oil. There is something almost psychological about oil companies. It is rather like manufacturers of detergents. They are a class by themselves, and we always consider all those dealing in oil as of limitless wealth and power and, therefore, not demanding of the understanding and sympathy of the House. I believe that if it had been a company dealing in almost any other commodity we would not have had the arguments to which we have listened put forward for a Bill which makes law retrospectively, when the company had used due processes of the law of which we are very proud.

But there is a further reason which has not yet been advanced, which I put to the Financial Secretary.

Photo of Mr Ivor Richard Mr Ivor Richard , Barons Court

Does the hon. Member apply the same strictures about our action on this side of the House over an oil company to his own party's attitude to the same oil company in 1962, when they intimated their intention of introducing this sort of Bill? Does the same criticism apply then, or is this yet another example of a change of principle with a change of Government?

Photo of Mr William Van Straubenzee Mr William Van Straubenzee , Wokingham

It is most refreshing to have a contribution at last from that side of the House. It is a contribution made without having listened to what I had to say. Let me spell it out again to the hon. Member in absolutely clear terms. I was the person who, in introducing what I had to say, conceded with absolute frankness that this was a Bill for which both Governments were responsible.

Photo of Mr Ivor Richard Mr Ivor Richard , Barons Court

But this Government are more responsible?

Photo of Mr William Van Straubenzee Mr William Van Straubenzee , Wokingham

If the hon. Member will contain himself in patience, what I was saying was that neither Government, in my judgment, would have dared to put forward these views if they had not been dealing with oil companies. That is what I am saying.

Let me add that I believe that if a Conservative Government had sought to discuss these Measures with their own back benches—as Governments do—by contrast with the other side, they would have concluded, particularly if they had a narrow majority, that they could not get it through the House. One of the most disturbing features of this business is that hon. Members opposite have sat supine, in Committee and elsewhere, when we know, in ways which I hardly dare mention in the presence of the hon. Member for Colne Valley (Mr. Duffy), that many of them are very unhappy about it.

I return to the new Clause in adducing a further reason for pressing upon the Government that some measure of delay would be wise. I feel particularly bitter about this as my very modest war service was in this theatre, as was that of other hon. Members. I feel a personal sense of responsibility for the Bill years later as a Member of this House. This is a part of the world where we are being assailed by legislation broadly similar to this, brought in by Governments in those countries. I must not go too far outside the narrow confines of the argument, but I am not the only hon. Member who has constituents of very limited means who are being tragically assailed by legislation in Burma of a very repressive nature.

Photo of Mr George Pargiter Mr George Pargiter , Southall

On a point of order. May I ask your Ruling, Mr. Speaker, on whether the hon. Member's remarks should be addressed to the Clause which we are discussing or to the principles of the Bill?

Photo of Sir Harry Hylton-Foster Sir Harry Hylton-Foster , Cities of London and Westminster

The difficulty is that they are mutually involved. I understand that the hon. Member is addressing his argument to the need for an opportunity for reflection before the commencement of the Bill. That is why I think he is in order.

Photo of Mr William Van Straubenzee Mr William Van Straubenzee , Wokingham

I am obliged, Mr. Speaker. The hon. Member joined us only very recently or he would have heard exactly this point dealt with earlier in our discussions.

The second example—and I am not going outside the confines of the argument—which I give is that of Ceylon, where many of our constituents are very gravely and grievously affected by legislation broadly of this kind.

What I am saying to the Government is that they have not had sufficient time to weigh up the grievious consequences of what they propose to do. That situation would be helped by adopting precisely this new Clause. It gives, in an honourable way, a period of reflection. I tell the Economic Secretary frankly that my right hon. and learned Friend the Member for the Wirral (Mr. Selwyn Lloyd) is one of the few people who, after that brilliant speech, could persuade many of us to give the Bill a Third Reading with this new Clause. But I frankly concede that we on this side of the House have a measure of responsibility and this, I venture to suggest, is a way in which both sides of the House can honourably discharge that responsibility.

Photo of Mr Ivor Richard Mr Ivor Richard , Barons Court

We have had a very interesting discussion so far on the new Clause. I am obliged to the hon. Member for Devon, North (Mr. Thorpe) for saying that I had a dock brief. Any time that he has £2 4s. 6d. in his pocket I shall be only too happy to defend him with just as much vigour as I try to defend the Bill.

Among the sponsors of the new Clause there are no fewer than three members of the present Government. [HoN. MEMBERS: "The previous Government."] I meant three members of the previous Administration. I cannot even claim that the slip of the tongue was due to my having been in the House before last October. Those three are the right hon. and learned Member for Wirral (Mr. Selwyn Lloyd), the right hon. and learned Member for St. Marylebone (Mr. Hogg) and the hon. Member for Glasgow, Hillhead (Mr. Galbraith). The other three sponsors are the hon. Members for Torquay (Sir Frederic Bennett), Haltemprice (Mr. Wall) and Wanstead and Woodford (Mr. Patrick Jenkin).

An interesting point about the six sponsors is that three of them have been firm in their opposition to the Bill. The three back bench Members who appear as sponsors of the new Clause have, throughout, opposed the Bill. I entirely accept that they have opposed it in the House, in Committee and in the columns of the Press on a question of principle. I give them credit for that, and I trust that they will give credit to those on this side of the House who hold opposite views, but who hold them just as much on principle as they hold their views. Those hon. Members have written letters to the Press about it.

I entirely accept that the hon. Member for Wokingham (Mr. van Straubenzee) opposes the Bill on grounds of principle. I also accept that had the previous Administration introduced the Bill before 15th October, before they moved on to the Opposition benches, some of those hon. Members would have tried to oppose it with just as much vigour as they are trying to oppose this Government during the passage of the Bill.

If I may pay a tribute to the hon. Member for The Wrekin, (Mr. William Yates), on Second Reading he said: When the Bill was prepared, who by and who knew about it, has been carefully cloaked. Indeed it has. He continued: 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…".—[OFFICIAL REPORT, 3rd February, 1965; Vol. 705, c. 1197.] The hon. Member for The Wrekin would have been sorry and no doubt, with that independent turn of mind which I have seen from him in the House since I have been here, and which I read about before I came here, he would have pursued his opposition to his own Government.

Unfortunately, the same cannot be said of the right hon. and learned Member for Wirral, the right hon. and learned Member for St. Marylebone or the hon. Member for Glasgow, Hillhead, because they were all members of the previous Administration; and certainly, in relation to the first two right hon. and learned Gentlemen, they were members of that Administration when the decision was taken by the previous Government to legislate retrospectively. I am pleased to see the right hon. and learned Member for Wirral in his place again, because I would not like to say anything about him or quote what he said on Second Reading without him being present.

The right hon. and learned Gentleman said: 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."—[OFFICIAL REPORT, 3rd February, 1965; Vol. 705, c. 1106.] The identical argument was vigorously attacked by hon. Members opposite when used by my hon. and learned Friend the Financial Secretary to the Treasury, namely, that the weight of principle depended on the amount of cash involved—the very argument put by the right hon. and learned Member for Wirral on Second Reading. Let us at least have some reciprocity about this part of the argument. The only hon. Member who is entitled to cast that stone is the hon. Member for Devon, North. The amount of weight which he can put behind the stone when he throws it may have some bearing on the direction in which the stone is cast.

9.45 p.m.

If one goes a little further to see the decision which the right hon. and learned Member for Wirral thought that he could not honourably oppose, it is interesting to note that on 13th June, 1962, in the course of the litigation then continuing between the Burmah Oil Company and the Crown, the then Government wrote to the company a somewhat unusual letter. [HON. MEMBERS: "Oh."] It was unusual. There can be no question about that. It was not the sort of letter that one might consider would normally be sent in the course of litigation of that sort. The letter, which has been greatly attacked by hon. Members, stated: 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. That was the first sentence of it, as quoted on Second Reading by my hon. and learned Friend the Financial Secretary. So the two right hon. and learned Gentlemen who have sponsored the new Clause presumably decided, and satisfied themselves, at that stage that the claim made was not one which ought—and I emphasise the word "ought"—to be met by the British taxpayer. That was their state of mind when they came to the decision in the second sentence of the letter, which stated: Her Majesty's Government have accordingly decided, that, in the unlikely event of your company succeeding, legislation would be introduced"— not "might" or "will be considered" but "would be introduced"— to indemnify the Crown and its officers, servants, or agents against your company's claim."—[OFFICIAL REPORT, 3rd February, 1965; Vol. 705, c. 1097–8.]

Photo of Mr William Yates Mr William Yates , The Wrekin

The hon. Gentleman has been helping the House as best he can in dealing with this matter of principle, but he must realise that the Government at the time were taking advice from the Treasury and doing their best to consider it, but now, since the matters have been further examined, they have decided that there is a change of circumstances.

Photo of Mr Ivor Richard Mr Ivor Richard , Barons Court

If the hon. Gentleman really expects us to accept that the advice tendered to the previous Administration was wrong, and that they are entitled to change the view which they so clearly held, it seems to me a curious principle.

As at 13th June, 1962, therefore, the previous Administration—the two right hon. Members opposite—had themselves decided not to attempt to settle this claim by the Burmah Oil Company. On a matter of principle—not on a matter of cash—they decided, first, that the claim ought to be resisted—in fact, it was resisted in the courts—and, secondly, that if the Burmah Oil Company were to win, again as a matter of principle, the Governments, had it still been in power, would have introduced legislation of this sort.

With the greatest respect to the right hon. and learned Member for Wirral, it is not good enough for him now to say that the Bill was not in draft when he left office, that he did not see the wording of the Bill and, therefore, cannot be bound by what it appears he agreed in June, 1962.

Photo of Mr Ivor Richard Mr Ivor Richard , Barons Court

The right hon. and learned Gentleman shakes his head. He started his speech—I took note of it; no doubt this will be confirmed tomorrow morning in HANSARD—by making an excuse for his change of attitude on the Bill, saying, "I did not see the draft of the Bill. It was not in draft". The Bill as drafted and as laid before the House expresses clearly and unmistakably the decision reached by the previous Administration and which had been expressed by them in their letter of 13th June. We are told that different circumstances exist now from those which existed in June, 1962. I should like in a moment to consider what those different circumstances purport to be.

Photo of Mr Jeremy Thorpe Mr Jeremy Thorpe , North Devon

If I am right, the hon. Gentleman's argument, so far, has merely been about whether or not Her Majesty's Opposition have any entitlement to criticise Her Majesty's Government for a Bill which, presumably, the House is considering on its merits. May I ask the hon. Gentleman this: is he not sufficiently filled with Christian charity to be able to rejoice at the repentance of not one sinner, but 50 sinners? Is this not capable on its merits of filling his heart with joy? Why does he dash this down? He is given the bread and he treats it like a stone.

Photo of Mr Ivor Richard Mr Ivor Richard , Barons Court

I dash it down because it is not repentance. Right hon. Gentlemen opposite have been lured from the path of true virtue by the blandishments of people like the hon. Member for Devon, North. This is a case in which we do not rejoice. We are sorrowful that at one stage right hon. Members opposite decided something as a matter of principle and that now it appears that, because their own back benchers—and perhaps the Liberal Party—do not like that decision, and because they do not like the attitude of mem- bers of the Front Bench opposite to the Bill, it is convenient, as a matter of principle, I suppose, to change their attitude on the Bill. This does not strike me as a principled attitude.

I thought that I started by saying that I accepted that a large part of the opposition of back bench Members opposite is based on principle. What I do not accept, and what my hon. Friends find it extremely difficult to accept, particularly in view of what the right hon. and learned Member for Wirral said on Second Reading, is that the change of heart is due to anything more than the fact that some of their hon. Friends on the back benches are getting restive about the way in which they originally approached the Bill. If this be the truth, I will be greatly obliged if somebody on the Opposition Front Bench will say so.

Let me turn now to examine what are alleged to be the differences between now and a few years ago. The right hon. and learned Gentleman made five points the first of which was: is there an exception in this case if a similar view had been taken in relation to Sarawak or Brunei? That was answered in the Standing Committee, but my answer is that if a claim had existed in common law, the one thing that could not have happened would have been for the companies in Sarawak and Brunei to have found it necessary to have entered into the agreement with the then Government of the United Kingdom. If the claim had existed in common law, the company would not have needed that agreement.

Secondly, the right hon. and learned Gentleman asked: is it right to take away a common law right without a statutory compensation for it? On the face of it, that is very attractive. He then asked: what about the £4¾ million? Can one consider that to be statutory compensation? He then went on to convince himself that it could not be because, after all, this was something given to the Burmah Oil Company when it was told to go away to litigate in Burma.

The fact is that the £4¾ million was given to the Burmah Oil Company after the then independent Government of Burma had intimated that they were not prepared to be bound by the war damage legislation introduced in Burma. So it was not a question of giving the company £4¾ million and then telling it, "You can get a bit more if you apply to the Burma authorities." Precisely the opposite was the case. One of the reasons why the £4¾ million was paid out was that by then it had been found impossible to get statutory compensation from the newly independent Government of Burma.

The right hon. and learned Gentleman's third point was about the matter being allowed to go on to litigation, his fourth was that it was still going on, and his fifth point, as I understand it, related to the measure of damages. If this litigation went on to 1961, and to judgment, it went on for one reason and for one reason alone, and that is that right hon. Gentlemen opposite who were then members of the previous Administration did not see fit to introduce this Bill before the litigation had started.

This matter has, till tonight, been dealt with on both sides as an issue of principle. It seems to us that whereas there are strong arguments—and I accept the strength of the argument on the other side—that it is always wrong to legislate retrospectively, there are equally strong arguments on the other side in favour of the Bill; that it is wrong to treat denial damage in an entirely separate category from any other form of war damage, and that in those circumstances, in order to produce a fair result it is necessary to legislate in this normally abhorent way.

I accept this abhorrence, and I accept that this is the last sort of Bill we would like to produce, but, in the circumstances of this case, it is impossible to arrive at a fair, just and equitable result without going through the lengthy business of passing this Measure through the House in order to reverse the decision of the House of Lords, and thus placing the Burmah Oil Company in exactly the same position as any other litigant.

The right hon. and learned Member for Wirral was invited on Second Reading by the hon. Member for Devon, North, to repent of his misdeeds. I am sorry that he has thought it necessary, in the circumstances of this case, to change his position to such an extent, and for reasons which, apparently, he has in mind.

Photo of Mr Norman Cole Mr Norman Cole , Bedfordshire South

We are dealing with a quite extraordinary matter. I hasten to say that I have no interest to declare. I have no interest in the company, I have not been able to make any intervention previously, I was not a member of the Standing Committee, nor did I speak on Second Reading. Nevertheless, since this business first started, I have been most concerned over what we are about to do. To start with, I am concerned about the Title of the Bill. This is not war damage. This was deliberate damage carried out by our own citizens or by members of our Forces to deny these installations to the enemy.

Photo of Sir Harry Hylton-Foster Sir Harry Hylton-Foster , Cities of London and Westminster

Order. I appreciate the hon. Gentleman's point, but it seems to be a little foreign to the new Clause.

Photo of Mr Norman Cole Mr Norman Cole , Bedfordshire South

I bow to your Ruling, Mr. Speaker. I suggest, from my knowledge of the House over the last 14 years, that if the Whips had not been on on Second Reading the Bill would not have been granted a Second Reading. Further, if the Whips were not on tonight the Clause would be accepted, with support from both sides, because I detect support amongst hon. Members opposite. I have enough respect for my friends in another capacity on the other side of the House, as indeed I have for my colleagues on this side, to know that we all think along the same lines. Without in any way wishing to be patronising, I believe that the House should think deeply about what is being done this evening.

The Clause moved by my right hon. and learned Friend the Member for Wirral (Mr. Selwyn Lloyd) is a compromise aimed at trying to find a way out of a desperate situation. The Bill ought never to have come before the House. It ought never to have been initiated or conceived by any Government. This law is wrong. It does not matter whether the amount involved is large or small. Today I was speaking to a man from a foreign country. He asked, "How do you get on when dealing with your constituents?". I said, "I do not mind at all, except when I have to deal with anything on which a legal decision has been given by a court. I regard my function and that of other hon. Members as being to pass laws and to leave the judiciary to carry them out".

The hon. Member for Barons Court (Mr. Richard) came very near to a question I want to ask about the Bill. He asked why the Bill was not introduced before the legislation started. I support him in this respect. At least that would have been fair to this company and to others. They would have known where they stood. I want to ask Front Bench speakers on each side this question. Would the Bill ever have been conceived if the company had lost its case? I am not misled by the fact that only one company is mentioned in this connection. I suspect that there are a number of others on the sidelines of the match waiting to see which way this one will go, because their claims are comparable in equity and in amount and have arisen through this form of denial.

We should face the fact that the new Clause is better than the original effort. If the new Clause is not accepted and the Bill goes through in its present form, tonight the House of Commons will, for the first time in its history, indulge in a practice which to my knowledge over long years has been abhorrent to every Member of the House, irrespective of party. It will destroy in one major matter confidence in our legislative system. In future no one who takes any action against the Crown, with or without legal aid, can be certain that there will not be a Bill later to destroy the very rights he has obtained in court. It does not matter whether it is the Burmah Oil Company or anybody else. If the Bill is given a Third Reading, what we shall forfeit is worth far more than the cost of the claim which we might have had to meet from this company.

I say all this not only because of the principle and the question of integrity involved, but because of the example we are supposed to set other legislatures. Other legislatures look to us and I suspect that they will be looking to us at this moment. This is not just a philosophy. It is what has raised this Parliament to its unsurpassed elevation. It has always been sacrosanct that once a litigant has beaten his opponent, whether the opponent be the Crown or a private person, in the courts of this land properly constituted under the legislature, that litigant has won his case. After that, it is for the Government of the day to pass legislation so that such a thing cannot happen again if they think that such an action is not desirable. But, for the time being, that litigant has won and his position is unassailable.

It being Ten o'clock, the debate stood adjourned.

Ordered,That the Proceedings on the War Damage Bill may be entered upon and proceeded with at this day's Sitting at any hour, though opposed.—[Mr. Lawson.]

Question again proposed, That the Clause be read a Second time.

Photo of Mr Norman Cole Mr Norman Cole , Bedfordshire South

I must not keep the House too long, but I feel most strongly about this, probably more strongly than I can adequately express. I believe that I am expressing the fundamental views of all hon. Members. I heard someone say that this matter can be settled in the Division Lobby. That is not the answer. This is more important than any question of numbers and of Divisions. It goes right to the roots of the sanction under which we legislate. I say without hesitation that even with the new Clause, which is admittedly an improvement, and most certainly with the Bill, we shall be in danger of doing something which may set a very unfortunate precedent for Governments of the future and something which will destroy the confidence of many people in the integrity of Parliament for many years to come, long after we have passed from the scene of things which we will much regret having done.

I appeal to the Government and to my hon. and right hon. Friends that we may somehow find a way of avoiding such a situation. I have no detailed information whether the damage is great or small, but if the Government feel that they can accept the new Clause they will at least provide a breathing space and it may be possible for all concerned to negotiate and find some way or other round the present difficulty. We have seen the House in the past get itself into a complicated position and afterwards by some magic peculiar to the British way of compromise find a way out. I hope that this will happen in this case.

Otherwise, I look forward with some trepidation to the day when the Bill—and I suspect that the word "Bill" in this context has more than one meaning—will become an Act. I hope that it never will and that, based on the temporary hiatus provided by the new Clause, integrity will triumph and the good name and reputation of the House and indeed of the Executive—both of this Government and the last—will remain. I hope that people will never point to us and say, "You did something when you went back because you did not like the decisions of various courts". This is the thing which hits at most of us to our very hearts. We do not like the fact that—

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Order. The hon. Gentleman is getting very nearly towards a Third Reading speech on the Bill.

Photo of Mr Norman Cole Mr Norman Cole , Bedfordshire South

I am sorry, but I am coming to the end of my speech and I am sure the House will be glad of that. What I am trying to say as an ordinary every-day person is that we do not like the State using the whole power of the House to countermand something which the court has said it should do and which it does not want to do. This is the whole nub of the matter. I wish that we had never been called upon to make a decision like this. For my part, I shall vote for the new Clause and I shall vote against the Third Reading, irrespective of what any of my hon. and right hon. Friends may do.

Photo of Hon. Sam Silkin Hon. Sam Silkin , Camberwell Dulwich

I shall not detain the House long at this hour, but, having heard the speeches from the benches opposite, I must say that, if the hon. Member for The Wrekin (Mr. William Yates) is shocked by the terms of the Bill, I confess myself thoroughly shocked by what I regard as a shabby attempt at compromise contained in the new Clause. I am amazed to hear hon. Members who are parading their principles in regard to the Bill say that they are prepared to support a Clause of this kind which does nothing whatever to salve their principles.

It is pleasant, no doubt, to hear the Opposition showing their tender solicitude for the conscience of the Government Front Bench, but it was not, in fact, for the conscience of the Government Front Bench that they were showing their solicitude. What they have been attempting to do—I put this quite frankly and plainly—is to get their own Front Bench, and the right hon. and learned Member for Wirral (Mr. Selwyn Lloyd) in particular, off the hook. I am sorry that the right hon. and learned Gentleman is not here now, but I will tell the House why I say that.

On Second Reading, as has already been said, the right hon. and learned Gentleman said: Having been a party to the decision to warn the company, I feel that I myself cannot honourably vote against the Second Reading."—[OFFICIAL REPORT, 3rd February, 1965; Vol. 705, c. 1106.] That was when the Bill was before the House on Second Reading. Today, it comes before the House on Third Reading in exactly the same state as it was then. [HON. MEMBERS: "Not Third Reading yet."] How can the right hon. and learned Gentleman, who could not find it in his conscience honourably to vote in favour of the principle of the Bill on Second Reading, find it in accordance with his conscience to do that to the same Bill unamended on Third Reading?

Photo of Hon. Sam Silkin Hon. Sam Silkin , Camberwell Dulwich

I understand that, Mr. Deputy-Speaker. But what we are considering is the Bill as it comes back from the Committee, and we are discussing a Clause which it is proposed should be inserted in order to avoid that difficulty when we come to the Third Reading. This is the last chance the House will have to amend the Bill before it reaches that stage.

Let us see what the new Clause does and to what extent, if at all, it does anything to salve these matters of honour. If the Bill is passed into law with the Clause now proposed, it will become law with the second part of Clause 1 in it, that is, with the retrospective part to which such objection in principle has been taken by hon. Members opposite. All that the Clause will do will be to defer for a period the operation of what will then be an Act embodying the principle of retrospection which hon. Members opposite say is so abhorrent. How can that possibly salve the consciences of this Front Bench or of right hon. and hon. Members opposite?

What is the purpose of the deferment suggested? Two purposes have been adumbrated. One is to negotiate, but to negotiate holding the pistol of what will then be an Act in the Government's hands, saying to the Burmah Oil Company, "Unless you accept our terms, we shall put this into effect although it is abhorrent to do it retrospectively". That is what is suggested by some hon. Members.

The hon. Member for The Wrekin (Mr. William Yates)—I am sorry that he is not here to give an answer himself—said that he would not negotiate. What would he do? What he said, in effect, was that we should wait and see. He said that in relation to the question of whether the courts would ultimately decide that damages should be small or that they should be large. He said that the litigation should continue, the courts allowed to decide the damages and then we could decide whether to put the Act into operation.

I understood him to mean, in other words, that if the damages proved to be exceptionally large we should put the Bill into effect, but, that if they turned out to be minimal we need not bother. This was the very honourable Member who said how disgraceful it was that the Financial Secretary should say on Second Reading that it would be a very different situation if the damages were small from the situation if they were to be very large.

The whole principle behind this attempt at delay is anathema. It is a shabby compromise. It does not get the right hon. and learned Member for Wirral off the hook at all, because it would allow a Bill to go through and become law which hon. Members opposite regard as abhorrent in principle. It would provide a short period of delay in which the whole thing could be covered up. I would regard it, even if I considered the principle of the Bill as bad, as far worse to support the new Clause than the Bill itself.

10.15 p.m.

Photo of Mr Patrick Jenkin Mr Patrick Jenkin , Wanstead and Woodford

The hon. and learned Member for Deptford has accused some of us of corroding our principles.

Photo of Hon. Sam Silkin Hon. Sam Silkin , Camberwell Dulwich

It was the hon. and learned Member for Dulwich (Mr. S. C. Silkin.)

Photo of Mr Patrick Jenkin Mr Patrick Jenkin , Wanstead and Woodford

I am sorry. I meant the brother of the hon. and learned Member for Deptford.

Photo of Hon. Sam Silkin Hon. Sam Silkin , Camberwell Dulwich

I am afraid that my brother is not learned.

Photo of Mr Patrick Jenkin Mr Patrick Jenkin , Wanstead and Woodford

I trust that the hon. Member for Deptford (Mr. John Silkin) will find that an advantage on this Bill.

The point at issue was put very well by my hon. and learned Friend the Member for Billericay (Mr. Gardner) who said that the real mischief of the Bill is that it sets up Parliament as the final court of appeal from the House of Lords. The hon. and learned Member for Dulwich (Mr. S. C. Silkin) talked about the corrosion of principles. I think that the most frightening thought about the introduction of the Bill is that the Government should have been able to rely blandly on the fact that 100, 200 or 300, whatever it may be, Socialist Members will tramp faithfully through the Lobbies in support of the Bill.

Photo of Mr Ivor Richard Mr Ivor Richard , Barons Court

Would the hon. Gentleman care to tell us whether his party has the Whips on tonight?

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Order. There are many interesting side pieces coming into this debate. I do not think that the question of the Whips arises on this Clause.

Photo of Mr Patrick Jenkin Mr Patrick Jenkin , Wanstead and Woodford

The hon. Member for Barons Court (Mr. Richard) has the unique distinction of being, as far as I know, the only member of the Government side who has consistently and without qualms supported the Bill on Second Reading, in Committee and on Report. I hope that he gets the corn he has earned.

The case for the new Clause put by my right hon. and learned Friend the Member for Wirral (Mr. Selwyn Lloyd), and one must wholeheartedly agree with this, is that, in view of what has emerged during the passage of the Bill, it would be quite wrong for it to take effect without there being what one might call a locus poenitentiae to enable second thoughts to be made, a delay so that even if the Bill reached the Statute Book, there is time for the Government at the very least to negotiate, as they have consistently refused to do, with the claimant and to reach a just settlement.

Since the Bill was introduced, a number of new facts of cardinal importance have come to light, and in this context I refer particularly to the treatment of a number of other oil companies with installations in the Far East and about which information came in a letter to me from the Attorney-General.

These facts have been outlined by my right hon. and learned Friend and I need not repeat them, except to say that in the letter it was sought to justify a distinction between the oil companies in Sarawak and Brunei on the one hand, and the oil companies in Burma on the other, on the ground that in the former case the necessity for denial damage was foreseen and an agreement consequently made with the companies, agreeing that they should destroy their installations in return for compensation.

The installations were destroyed on the very outbreak of war, as soon as Pearl Harbour was attacked; whereas in Burma no necessity was foreseen and so no agreement was made and where the installations were not destroyed in order to deny them to the enemy until almost the very day when the enemy arrived on the site; with the result that the oil companies in Sarawak and Brunei got their compensation, while the oil companies in Burma were refused.

The Government's argument, set out in the Attorney-General's letter and read in Committee by the Financial Secretary and which I am therefore entitled to regard as the main point of the Government's argument for rebutting our case, was twofold. The first argument was broadly one of fact, although it may be mixed fact and law. It was that the Burmah Company's rights arose not under the common law, but under the Defence of Burma Act, 1940, an Act of the Burma Legislature, that the company had a statutory right to compensation and that, although it had pursued that statutory right in the Burmese courts, it had brought them little joy.

It is argued that this gives no common law right to the company to compensation in the United Kingdom. The Government go on to say by way of justification that the United Kingdom Government contributed to all the claimants in this case the same sum which it would have contributed if Burma had remained a dependent territory, and that the company has had its share of that sum.

The second argument is that there was no common law right because otherwise why was an agreement necessary? The agreement was necessary because there was no common law right, runs the argument. The Government entirely leave out of account the fact that the House of Lords has decided that there is a common law right, but even so the argument—

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

I am waiting for the hon. Gentleman to link his argument with the Amendment before us. He is now making a Second Reading speech.

Photo of Mr Patrick Jenkin Mr Patrick Jenkin , Wanstead and Woodford

My argument is directed to the point that these facts about other oil companies have come to light since Second Reading. This is all directed to the validity of a Clause which is designed to give a locus poenitentiae, as I put it. The argument was that because of the agreement there was no common law right. One might as well argue that because in Burma there was no agreement, there must have been a common law right. Both arguments are equally silly.

On the first argument on this point about the Defence of Burma Act, 1940, the company has never agreed that its rights arose under that Act. This was made clear throughout the preliminary proceedings in the courts in this country. Even at an early stage—this goes to the merits of the case and the reason why the Government should have this pause to negotiate or to allow the case to continue—in the negotiations with the Government in 1947 the company all along recognised that it did not have a claim under the Burma legislation but that it might well have a claim under United Kingdom law.

I should like to refer to a Minute of the Burma Office dated 28th October, 1947, which sets out the discussions which those interests had with the Government, and particularly with the late Sir Stafford Cripps.

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

Order. I am trying to be fair to the hon. Member. He must not merely argue the case of the Burmah Oil Company versus the Government. He must produce arguments in favour of the Clause which he is supporting.

Photo of Mr Patrick Jenkin Mr Patrick Jenkin , Wanstead and Woodford

I defer to your Ruling, Mr. Deputy-Speaker. I was trying to make the point that justice requires the Government to have time to look at the case again, time if necessary to allow the company to finish its legislation and time if necessary to negotiate. That is the justification for introducing a Clause of this nature at this stage. All these facts have come to light since the Bill was introduced. But perhaps I do not need to labour the point.

The substance of the matter is that compensation, as we now know, was paid to all the other oil companies and that there is really no difference between them and the company in Burma. It cannot make a difference that in one case there is a common law right, but that in the other there was an agreement, that in one case the oil was needed and in the other case that it was not, and that in one case the damage was done on the outbreak of war and in the other case it was done when the enemy was at the gates. There is a cause of action.

The Government should let the company pursue its case in the courts. It should be entitled to prove the facts on which it relies, and that it is entitled to judgment. Above all, the compensation should be quantified. Nothing would be lost. It would still be open to the Government, if the Bill reaches the Statute Book, to defeat the company's claim, but, at least, they would do so with a full knowledge of the facts and of the amount of money involved. Let them, however, pay up and clear the outstanding cases and without the retrospective element bring the Bill into effect. This would seem to be a sensible, honourable and constitutional way of dealing with this difficult problem. It would avoid the embarrassment to which many hon. Members have referred.

If the Bill is passed without the new Clause, it will be another nail in the coffin of the rule of law. It would be a further undesirable precedent to be added to the existing list of undesirable precedents and, thereby, a further bad example to younger territories which are only too eager to seize upon bad precedents which they can use as examples.

If it is still legitimate to quote Virgil in this House, facilis descensus Averni, which can be roughly, but not inaccurately, translated as "Retrospective legislation is a damned slippery slope". Let the House dig its heels in and say that it will have no more of it.

Photo of Mr Harold Lever Mr Harold Lever , Manchester Cheetham

If retrospection is a damned slippery slope, hon. Gentlemen opposite have fallen flat on their faces in the mud on this occasion. The hon. Member for Wanstead and Woodford (Mr. Patrick Jenkin) said that the Government could only have drawn up the Bill because of the servile manner in which they expected their supporters to vote in the Lobby for an obnoxious Bill. I am tempted to ask on what assumption the hon. Gentleman thinks the Conservative Government, who drafted the Bill before we came into office, drew it up.

We are assured, of course, with many bold words from hon. Gentlemen opposite, that so profound is the attachment of hon. Gentlemen on the back benches opposite to the fundamental principles assaulted by the Bill that, even if their own Government had been in office, they would, by the mighty weight of their moral fervour and determination, have revolted against the Government and compelled them to withdraw it.

I find it difficult to believe that any such heroic moral exercise would be undertaken, in the light of their be-haviour in relation to the new Clause, because it accepts everything that is devastating, contemptible and unsavoury about which complaint has been made on both sides of the House, and it seems impossible to suppose that hon. Gentlemen opposite, who have not got the guts to stand up for their rights in opposition, would have shown more dignity and courage, had their leaders been in Government, than the relatively harmless opposition that is available to them today.

The new Clause does nothing to mitigate or to minimise in any way the evils of the Bill if it is held that the Bill is an evil one. I agree in detail with what was analytically and carefully said by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin). I go further. It is said that negotiation can take place. I can only echo the words used by my hon. and learned Friend, that it is bordering on extortion for a Government to negotiate with a subject under the threat of an Act already passed, of a confiscatory and retrospective character, which one holds over the subject's head as one conducts the negotiations.

What sort of moral principle are hon. Gentlemen opposite defending? Is it the right of the Government to pass a confiscatory Bill, but not put it into effect until they have negotiated the hapless citizen, in so-called free negotiations, into parting with his rights, with the obvious implication that if he does not do so voluntarily he will have them confiscated by an Order in Council under the Act which has been passed?

It has also been suggested by the right hon. and learned Member for Wirral (Mr. Selwyn Lloyd) that the Government would have time for reflection. This is an interesting argument to address to the House after the moral fervour which we went through on Second Reading, as I thought with sincerity, by many hon. Gentlemen opposite. Reflection for what? As to whether to oppress the subject, or not to oppress him? If one holds the view that it is an oppressive, unfair, and unjust Bill, what do the Government want it for? For what do they need time to reflect? As to whether to confiscate subject's property, or, after all, to decide not to do so?

Photo of Mr Selwyn Lloyd Mr Selwyn Lloyd , Wirral

Time to reflect what weight should be given to the views expressed by hon. Members during the Second Reading debate.

Photo of Mr Harold Lever Mr Harold Lever , Manchester Cheetham

It is all right for the right hon. and learned Gentleman. He does not claim to have any serious moral principles about the Bill. I am not rebuking him. He is entitled to his views, as much as anybody else is to his. I made by views on the Bill clear during the Second Reading debate, and so, I thought, did many hon. Gentlemen opposite.

Why should they support the right hon. and learned Gentleman? Not to get him off the hook, but to give some semblance of repentance to a man who, on this issue, has forfeited the right to lead his party, and forfeited the right to advise the House. The best thing that he can do is to be silent, abstain, and apologise for having been responsible for the Bill in the first place. By attempting to mislead his followers he is not making amends. By proposing this obnoxious new Clause he cannot wipe out the stain of what was originally proposed.

The right hon. and learned Gentleman has my personal esteem, and that of the House, but in this case he is the fox who has lost his tail, and in this somewhat complex manner is seeking to persuade the small handful of foxes on the benches opposite, still endowed with tails, to part with them by supporting the new Clause. I hope that whatever views hon. Members have about the Bill, the House will reject the new Clause with contempt.

10.30 p.m.

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

The hon. and learned Member for Billericay (Mr. Gardner), who is no longer with us, described the new Clause very accurately as a compromise. My hon. and learned Friend the Member for Dulwich (Mr. S. C. Silk in) described it as a shabby compromise. I suggest that that description is equally accurate.

Let us get clear between whom it is a compromise. It is a compromise between the Front Bench opposite and the back benches opposite—between those who dislike the Bill completely in its retrospective aspects, and would not want to see any retrospectivity at all—the back bench Members opposite—and those who take the view that it is a quite proper retrospective Measure, which is the view certainly held by the right hon. and learned Member for Wirral (Mr. Selwyn Lloyd), for I have not heard him resile from it, although he nevertheless wants to reach a compromise with his backbench hon. Friends who have been opposing the Bill so vigorously.

The only interesting arguments we have heard have been those which have been directed, once again, to the major questions which were discussed in the Second Reading debate, and upstairs in Committee, namely, the deep and difficult question of principle involved whenever one is considering any proposal for retrospective legislation.

Before dealing with this point let me turn to the Clause itself. What is suggested by it is that we should have a pause. I should have thought that the right hon. and learned Member for Wirral would have known better than to make further suggestions on that basis. His last one was somewhat disastrous. What does he want the pause for? He said that he wants it for further litigation, and for further negotiation. What is the further litigation to be for?

Surely one thing is quite clear, namely, that in the stage that has been reached in connection with these claims any self-respecting Government must make up their mind now, at this stage—indeed, they might have made their mind up earlier, at the time of the previous Government—what attitude they are proposing to adopt to these claims; whether they are proposing to allow them and to meet them in full, whatever the decisions of the courts, or whether they are to act in accordance with the warning given by the previous Government and by the Treasury Solicitor, when the right hon. and learned Member for Wirral was Chancellor of the Exchequer.

The right hon. and learned Gentleman has taken full responsibility tonight for the letter which warned the claimants that if they proceeded to litigate and succeeded in establishing the principle they were contending for, legislation would be passed to indemnify the Crown. This legislation is being brought forward to implement the warning contained in that letter. Clearly, the Goverment must decide what attitude they propose to take—whether they propose to implement that warning or not—and if they think it is a proper course they must bring forward a Bill, as we have done, to indemnify the Crown in respect of these claims.

What are we to allow the litigation to proceed for? What are we to negotiate about? It has been suggested that we should negotiate to reach a fair settlement. The case for the Crown—and I speak for the Crown throughout the period of successive Governments—is and has been, since 1948, that we have negotiated, and have negotiated a fair settlement, under which the Burma claimants were paid over £10 million, of which one group of claimants—the Burmah Oil Company, upon whom hon. Members opposite seem to have concentrated their solicitude, although there are eight other claimants—have received £4¾ million. That was considered then to be a very fair offer and was accepted by the company at the time. It was considered in the—

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

If the hon. Gentleman cares to read the debate on Second Reading, he will find that we went over all these matters fully.

The position, if he wants me to state it again—and I shall try to state it shortly—is that the view of the Crown throughout has been that the action which resulted in the denial damage, and which was taken by the military commanders, was action which, under the Burma rules, would entitle the Burmah claimants to compensation. When the new independent Government came into power in Burma, they repudiated the Burma rules and refused to accept any obligations under them.

The result was that these claims, which our Government took the view could quite properly be made before the Burmese courts, were rejected. That is the reason why that advice was given. The point is that Her Majesty's Government recognised not a legal but a moral obligatiol towards compensation for—[HON. MEMBERS: "No."] It was compensation. Hon. Members seem to think that moneys paid with a view to rehabilitation to help the company to rebuild is not compensation. Of course it was compensation; it was paid with a view to rehabilitation. It was accepted as such, and, I understand, it was used by the company as such. If an hon. Member's house were destroyed by a bomb and he was paid, by the Government, money to rebuild the house, would he say that it was not compensation? Of course it is. It is a form of compensation.

Her Majesty's Government paid £4¾ million to the Burmah claimants. That was the position when those moneys were paid in 1948. It was during the period of the previous Administration that the Burmah claimants approached the Government again—after the rejection of their claims by the Government of Burma—to see whether they could obtain further compensation from the British Government. When they were Chancellor of the Exchequer, both Mr. Macmillan and Mr. Butler stood by the previous action which had been taken, and said that that was the full amount of compensation—

Photo of Sir Kenneth Pickthorn Sir Kenneth Pickthorn , Carlton

If the sum of which the Financial Secretary has just spoken was compensation, how does he explain the plain fact that every judge, in his judgment, whether accepting the Burmah case or rejecting it, whether in the majority or in the minority, said that there ought to be compensation? What the hostile judges said was that there was no remedy at common law in this set of circumstances. Why do the Government say that there ought to be compensation, when there already was some?

Hon. Members:

Hear, hear.

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

I think that all those hon. Gentlemen who growl, "Hear, hear" so forcefully would do better to read the judgments to which the hon. Member for Carlton (Sir K. Pickthorn) refers. The answer is that in saying that there was no legal claim, the learned judges said that they considered that there was a moral claim to compensation. It is precisely because Her Majesty's Government share that view that £4¾ million has been paid to the claimants. It was paid as a moral claim and purely on a moral basis. If hon. Gentlemen would look at the judgment, they would see that the learned judges did not say that there was a moral claim to more than £4¾ million. What they said was that it must be for the Government of the day, who are responsible for the Exchequer, to decide what can and should be afforded. They never suggested and never said that there was a moral claim to full compensation for common law damages. This is the basic question on which I thought practically all hon. Members were agreed.

Photo of Sir Spencer Summers Sir Spencer Summers , Aylesbury

How can the hon. Gentleman justify his statement tonight that this is compensation when, as reported in column 1100 of the OFFICIAL REPORT, he said: …I have said already that it was made clear at the time that it was not being paid as compensation…".

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

Perhaps the hon. Gentleman would read accurately what I said, which was: 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. In that debate the hon. Member had interrupted to ask whether it was paid as compensation and I said, "No, it was paid as rehabilitation". I was never pressed on the point, but I have made it clear in every speech I have made on the subject that a payment as rehabilitation is a form of compensation.

Photo of Sir John Foster Sir John Foster , Northwich

Sir John Foster (Northwich) rose

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

If the Financial Secretary does not give way, the hon. and learned Member for Northwich (Sir J. Foster) must sit down.

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

I shall be delighted to give way to the hon. and learned Member when I have finished dealing with the interruption which was made previously. I cannot deal with more than one at once. [HON. MEMBERS: "The hon. and learned Member cannot even deal with one."] The distinction which I was making was between compensation in the sense of full compensation and rehabilitation in the sense of limited compensation to help the company to rehabilitate itself. Would it convince hon. Members more to bear in mind that the Burmah Oil Company has apparently made it plain—although it has not put it in its pleadings—that it considers that it should give credit for the £4¾ million which it has received by way of rehabilitation against any claim which may be made?

I gather that some hon. Members say that it was an ex gratia payment. But any hon. Members opposite who are lawyers will find it very difficult to conceive, if it came to an award of damages being made to the company in respect of these claims, that the court itself would not deduct the sums paid by way of rehabilitation.

Photo of Sir John Foster Sir John Foster , Northwich

As reported in column 1096 of the OFFICIAL REPORT the hon. and learned Gentleman said: After a series of discussions in which it was made clear to Burmah 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. He said there that it was not compensation.

Photo of Mr Raphael Tuck Mr Raphael Tuck , Watford

On a point of order. Has whether it is compensation or rehabilitation anything to do with the new Clause?

Photo of Dr Horace King Dr Horace King , Southampton, Itchen

The hon. Member must address the House only on points of order. That was a point of argument.

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

If the hon. Member looks at the top of the column from which he is quoting he will see that I made the point which I made a moment ago: and, secondly, that the object was to provide for rehabilitation rather than for full compensation".— [OFFICIAL REPORT, 3rd February, 1965; Vol. 705, c. 1096–1100.] That is what I referred to, as reported at the foot of that column, which the hon. and learned Member quoted.

I return to the question of what it is proposed that we should negotiate about. Who is to determine what is to be the fair contribution which can be made from the Exchequer towards the damage which was suffered by the oil company? [An HON. MEMBER: "The official referee."] I am told, "The official referee". On what basis? The level of compensation must be determined by the Government, who are responsible for the Exchequer, unless we say that we should pay full compensation.

That is something which could be assessed, but unless there is some statutory scheme of compensation which could be enforced by the courts, the only alternative is to make a payment according to what the nation can afford; and that is something which must be, and was, determined by the Government of the day.

10.45 p.m.

I suggest, therefore, that plainly at this stage either we have to stand by the payment we made, or say, "We will pay full compensation". However, I cannot see how we could reopen the matter now, at this stage, and start negotiating. It might be that a Government might take the view—which we do not—that we were wrong in the original amount paid, the £10 million to the Burmah claimants, and that another £4 million should be paid. This was not the view of the Government in 1948.

It was not the view of Mr. Macmillan when he was approached. It was not the view of Mr. Butler when he was approached. It was not the view of the Government at the time of the litigation and at the time the letter was written when the right hon. and learned Member for Wirral was Chancellor of the Exchequer. The Government stood by their payment and said, "This is what we consider to be a fair and proper contribution for Her Majesty's Government to make towards the compensation of the Burma companies."

Then, if it is to be further litigation, what is the further litigation to be about? Are we to go on and litigate to see if the Crown is successful in defeating the Burmah claimants, which might happen if we continued to litigate? Are there further legal arguments by which the claimants might be defeated? It might be found on assessment of damages that the value of the claims was nil; that the Japanese would have destroyed the installations in any event. What do hon. Members suggest should happen then? Should the Burmah Oil Company repay the £4¾ million it has received?

Several Hon. Members:

Several Hon. Membersrose

Photo of Mr Edward Gardner Mr Edward Gardner , Billericay

If that is to be so and if these are the possibilities—if not the probabilities—what have the Government to fear? Why are they passing this legislation? Why not have it tried out in the courts and so satisfy everybody?

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

I will follow the argument through. That is one possible result. But suppose that the courts say, "We consider that the full compensation should be, say, £10 million, of which they have had £4¾ million, and we award judgment for £5¼ million now". What happens then? Do Her Majesty's Government then decide that this is a sum which we are prepared to pay, or do we say we are not prepared to pay it? Suppose, further, that the damages awarded, including interest—which has been claimed—amount to £60 million? What then?

Hon. Members must consider these points. I hear an hon. Member opposite asking, "Why suppose"? It has been suggested that we have a pause. I am trying to investigate what might be the possible alternative results of this pause. To where would it lead? I suggest that it would lead to an impossible situation because, at the end of the pause, the Government would still be confronted with having to make a decision—a decision which we have had the courage to make now and which we now invite the House to make. It is to decide whether the contribution of £10 million, which was made to the Burmah claimants, was a fair, sufficient, and proper contribution for Her Majesty's Government to have made. If not, we should pay more, whatever the courts say. What do hon. Members consider?

Photo of Mr Jeremy Thorpe Mr Jeremy Thorpe , North Devon

The hon. and learned Gentleman asked two questions, to which, presumably, he is seeking answers. His first was who will assess the damages, or how will they be assessed? He now agrees that it would be perfectly possible for the courts to continue this ligitation and to assess the damages. Presumably, therefore, his first question has been answered by himself. When he moved to his second question—as to the quantum of the damages; that they might be £1 million, £10 million or £60 million—surely he is well aware—

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

On a point of order, Mr. Deputy-Speaker. What remedy have I if I give way to an hon. Member to ask a question and find that instead he is making a second speech?

Photo of Sir Samuel Storey Sir Samuel Storey , Stretford

An intervention is purely for clarification and should be kept brief.

Photo of Sir Samuel Storey Sir Samuel Storey , Stretford

Order. The hon. and learned Gentleman did give way.

Photo of Mr Jeremy Thorpe Mr Jeremy Thorpe , North Devon

One final question—

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

On a point of order—

Photo of Mr Jeremy Thorpe Mr Jeremy Thorpe , North Devon

Further to that point of order—

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

I gave way to be asked a question, Mr. Deputy-Speaker. I have not yet been asked a question. Do I have to give way indefinitely, in the hope that a question may come?

Photo of Sir Samuel Storey Sir Samuel Storey , Stretford

I understood that a question was being asked. I did ask the hon. Member for Devon, North (Mr. Thorpe) to make it brief.

Photo of Mr Jeremy Thorpe Mr Jeremy Thorpe , North Devon

If I am given the opportunity, I will do so.

Can I not ask the Financial Secretary this question? Surely it is possible for the likely damages to be assessed in just the same way as any counsel in private practice is asked to assess what the likely quantum of damages is likely to be if the matter is litigated. Is the hon. and learned Gentleman suggesting that it is not possible for Her Majesty's Government to do that?

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

The hon. Gentleman has not been following the argument in support of the Clause, which is not that we should have a pause in order to assess, and try to negotiate, what damages the court might award on the basis of full compensation but, I understand, something less than that; some fair sum which Her Majesty's Government should pay now, having already, years ago, paid a total of over £10 million to the Burmese claimants. If that were the argument, it is that we should abandon the retrospectivity, that we should accept the claims and pay in full. We have already on Second Reading stated our reasons, and the House has accepted them, for believing that it is not proper, and not fair or just, looking at the total responsibilities of the Government in respect of war damage, to single out these claimants for this favoured and special treatment.

This suggestion of negotiation under the threat that retrospective legislation would still be possible at the end of the day would be a most extraordinary form of negotiation. I have heard of the suggestion in negotiations that there should be pistols for two and coffee for one, but this seems to be a suggestion of coffee for two and a pistol for one, with the pistol held by Her Majesty's Government at the head of the Burmese claimants. I should have thought that to be an extremely undignified posture for Her Majesty's Government to be asked to adopt.

We either accept these as proper claims which we should honour and for which the taxpayer should pay or, as was said by the right hon and learned Member for Wirral on Second Reading, alternatively, we should take the view that these are not claims that are justified in equity or that the taxpayer should be expected to honour.

Photo of Mr Frederic Bennett Mr Frederic Bennett , Torquay

The Financial Secretary has set out two quite clear alternatives, but can he explain how he made the third—that if the damages turned out to be 6d., he would drop the Bill?

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

I did not say that if the damages turned out to be 6d. I would drop the Bill. That remark has been grossly distorted, as I thought it probably would be. I never said, as the hon. Member for Devon, North (Mr. Thorpe) suggested, that my argument was that if the amount at stake was only 6d. we would not legislate, and that, therefore, we were not concerned with principle. The fact that we would not legislate if there was only 6d. involved does not give us the proposition that if there is £100 million involved it is, therefore, wrong to legislate, or that there is no question of principle involved.

We have said from start to finish that we consider this to be one of the rare exceptions in which it is proper to make retrospective legislation. I cannot develop that without going over the whole of my Second Reading speech, and I think that the House has already reached the stage where it wishes to reach a conclusion on the matter.

Let me briefly answer the specific question asked by the right hon. and learned Member for Wirral. The distinction between this claim and the Sarawak and Brunei claims is quite clear. It is that an agreement had been reached with the oil companies in the Sarawak and Brunei cases before even the destruction took place and that damages were paid pursuant to a contract. He at least would appreciate the distinction involved there.

The sum paid to those companies was less than half the amount that is being paid to the Burmah oil claimants in this case. They received £2¼ million whereas the Burmah claimants have received £4¾ million. Furthermore, because they had been paid their compensation pursuant to the contract they were disentitled to further compensation under the war damage scheme which applied to that part of the Far East.

The right hon. and learned Member for The Wirral asked if it was right to take away the common law right that is sought to be established here without statutory compensation. I make two answers to that. First, the compensation has already been paid here before the right was established. I know that hon. Members do not like to be reminded that it was compensation and it was £4¾ million, but that is the fact.

11.0 p.m.

Secondly, I remind hon. Members of the provisions of the Indemnity Act, 1920. When I sought to justify this Bill on the basis that it was in effect a Bill of Indemnity that argument was met with scorn, particularly from the hon. and learned Member for Northwich (Sir J. Foster). I have such respect for the hon. and learned Member's knowledge that I have looked up the provisions of the Act to see what effect they would have had on this claim.

The result if such an Act had been passed after the last war would have been that the Burmah claimants would not have been entitled to a penny piece and could not have succeeded on this claim before the House of Lords because of the provisions of the Act that No action or other legal proceeding whatsoever, whether civil or criminal, shall be instituted in any court of law for or on account of or in respect of any act, matter or thing done, whether within or without His Majesty's dominions, during the war before the passing of this Act, if done in good faith, and done or purported to be done in the execution of his duty or for the defence of the realm or the public safety… That was expressly made retrospective so as to affect proceedings instituted before the passing of the Act. But hon. Members say, "Ah, there were provisions under that Act for a scheme of compensation and people were not being deprived of their rights without compensation." That only applied to claimants who suffered damage within the United Kingdom. People who suffered damage outside the United Kingdom were not entitled to any statutory compensation at all, and that is my answer to the right hon. and learned Member for The Wirral.

Photo of Sir John Foster Sir John Foster , Northwich

The Financial Secretary has forgotten that the Act of Indemnity was indemnifying against acts which otherwise would be wrongful. The Act of Indemnity of 1920 was not concerned with damage caused by lawful acts because in one's pleadings one does not say that "X did this wrongfully and therefore I am entitled to damage" but says "This was done by the Government and it entitles me to damage under common law because of the principle of denial damage."

Mr. MaeDermot:

I invite the hon. and learned Gentleman to look again at the Act. He will find that it is in no way restricted to claims in respect of unlawful acts. I have read the words and I invite him to look at them in HANSARD if not in the statute itself. He will see that they are completely wide. Of course at that time—and this is another of my major arguments—it was generally thought that there was no right to compensation in respect of lawful acts. That does not alter the fact that the Act of Indemnity was sufficiently widely drawn to have excluded such action even if someone had brought it.

Photo of Mr Gilbert Longden Mr Gilbert Longden , South West Hertfordshire

Does not the Financial Secretary admit that the difference here is that the Act which he cites sought to deprive a citizen of a potential right whereas this Bill seeks to deprive the citizen of a right given by the highest court of the land?

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

I turn now to that argument. It has been suggested that whereas it would be right to pass retrospective legislation to defeat a claim which had not actually been made, and I think that it is accepted that it would have been right even if a writ had been issued but no proceedings had been started before the court—and I assume that this is thought right in respect of the other eight claimants—nevertheless the Burmah Oil Company is in a different position because it has obtained judgment. Here, hon. Members mistake what the true situation is, which is that the company has not obtained judgment. It has not obtained final judgment. A decision has been given on a preliminary point of law covering one—I concede, a major one—of the legal arguments involved in the case, but the company has not obtained final judgment. It is in exactly the same position as the eight other claimants, namely, that a legal right has been established, and, provided that the company can bring itself within the ambit of facts to establish its claim, it would be entitled to judgment. The Burmah Oil claimants here are not in any different position from that of the other people who have already started proceedings but have not yet obtained judgment.

Photo of Mr Gilbert Longden Mr Gilbert Longden , South West Hertfordshire

They are in a very different position in that the others have not got a judgment.

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

With respect, it has not. If it has a judgment, I invite the company to sue upon it. But, in fact, it cannot.

Photo of Mr Gilbert Longden Mr Gilbert Longden , South West Hertfordshire

The company has a judgment which states that it has a right to claim compensation.

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

It has no judgment that it has a right to compensation. All that has been established is the legal principle that, if certain facts alleged by the company are proved, then it would be entitled to compensation.

If hon. Members are worried about this, let me remind them of some precedents in previous decisions of the House in similar circumstances. In Committee, my hon. Friend the Member for Stockport, South (Mr. Orbach) reminded us of the introduction of the Truck Act, 1940. A Mr. Pratt had successfully contended that his employers were in breach of the Truck Acts in supplying him with food as part of his wages, and he recovered about £400 damages. That decision of the House of Lords was given in February, 1940. On 18th April, 1940, the Home Secretary announced that a Bill would be introduced retrospectively making the employer's practice lawful, and he justified the retrospectivity by a Home Office Circular of the 19th century which had expressed the view that the practice was lawful. At the time of his statement, there was a large number of actions which had already been started before the courts. In July, 1940, a Bill was introduced, which went through all its stages in seven days, unlike the present Measure, retrospectively depriving all those claimants of their claims without any compensation. Those claimants were in the same position as the Burmah Oil Company today, namely, that a point of law at issue, a major point of law, had been decided in their favour and they had actions pending on which judgments had not yet been determined by the courts.

It may be that a distinction to be drawn between those cases and this is that they were not a claim against the Crown, but I remind the House in that case of the provisions of Section 39 of the Finance Act, 1960, which also was passed in consequence of a decision of the House of Lords, in the case of Whitworth Park Colliery Co. v. Inland Revenue Commissioners. That case held that the Revenue had wrongly deducted tax at source from certain interim payments made by the Minister of Power under the provisions of the Coal Industry Nationalisation Act. At the time of the Finance Bill, there were six cases pending in which writs had been issued claiming repayment of the sums deducted.

Again, the position was similar. The legal point had been decided in the claimants' favour, but they had not yet obtained judgment. Section 39 operated retrospectively to defeat those claims, and there was a debate raised in the House, by the right hon. Member for Carlton (Sir K. Pickthorn), on the desirability of making it retrospective. The retrospection was defended by the learned Attorney-General of the day in these words: There is nothing unusual or wrong, in my submission, in making the law accord"— in the context, it meant accord retro-spectively— with what everyone has for years thought it to be and in accordance with which people have acted without the slightest complaint."—[OFFICIAL REPORT, 26th May, 1960; Vol. 624, c. 814.] That is one of our justifications for making the provisions of this Bill retrospective. We have taken a firm view of this matter, as did the previous Administration. The right hon. and learned Member for Wirral has accepted responsibility for the sending of a letter warning the Company that, in the circumstances which have now materialised, a Bill of Indemnity would be introduced. All I can say to him is that we at least have the courage of his convictions.

Photo of Mr Quintin Hogg Mr Quintin Hogg , St Marylebone

I must confess that I was bitterly disappointed both by the tone and the form of the reply of the Financial Secretary. Without detaining the House too long, I hope, at this hour, it is my duty to argue, and, I believe, to point out, that the one hon. Member who has established beyond doubt the case for the Clause, not as a compromise but on its merits, is the hon. and learned Gentleman himself.

I do not want to pursue now the question of negotiations. It may well be that the parties are too far apart. We do not know. We have not been told. Obviously, we would not wish to deter any negotiations. But, on the assumption that negotiation for one reason or another is impossible, what the Financial Secretary has succeeded in doing beyond doubt is to establish that the parties ought to be allowed to go on litigating their rights right up to judgment. That is the logical conclusion of his argument, and the only logical conclusion.

It is because we on this side of the House take that view fundamentally that we think we are entitled to press the hon. and learned Gentleman to accept the Clause. The one hon. Member who is not entitled, in my submission, to describe that attitude which I certainly sincerely hold as a compromise is the hon. and learned Gentleman himself, because it was he—however he seeks now to deny it—who in Committee said: If only 6d. were involved nobody would trouble to legislate about the matter.

Mr. MaeDermot:

Is the right hon. and learned Gentleman suggesting that if the claim had been for only 6d. the letter would have been written?

Hon. Members:

Answer.

Photo of Mr Quintin Hogg Mr Quintin Hogg , St Marylebone

I will answer if I am given the chance. The hon. and learned Gentleman cannot get out of it that way, because the whole purpose of his argument and the whole effect of it was that if the sum involved were small the principle of retrospection is so odious that the Bill would both be unnecessary and undesirable.

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

I do not know whether the right hon. and learned Gentleman has read my speech in Committee. If he has, perhaps he would be good enough to quote the passage he is referring to in which I said that was my argument.

Photo of Mr Quintin Hogg Mr Quintin Hogg , St Marylebone

Certainly. I will read the whole passage as I have been invited to. [Interruption.] The hon. and learned Gentleman must contain himself. I did not interrupt him during his very long, tortuous and unconvincing argument. He has asked me to quote his speech. I am proposing to do so if he will allow me. He said: The hon. Member then criticised my argument on the basis of the vast sums that are involved. This is an easy argument to deploy—that it does not matter whether it is a question of dealing with a sum of 6d. or £100 million since the question is one of principle—and, frankly, I think that his argument was unreal and unrealistic. When we are concerned with large sums of money we have a responsibility as the Government and Parliament have a responsibility as legis-lators and as those responsible above all, for the control of public expenditure. We must, therefore, balance up the matter and decide whether it is right to allow compensation to be paid on what would be a large scale which would single out these claimants for a particular and high level of compensation which nobody else who suffered war damage recovered.If only 6d. were involved nobody would trouble to legislate about the matter…It is only because there are substantial sums involved that the matter comes before the House of Commons. I make no bones about that and it is not a matter about which one need give any apology."—[OFFiciAL REPORT, Standing Committee B, 23rd February, 1965; c. 27.] In the light of that explicit passage, how can the hon. and learned Gentleman say that the whole nub of his argument in that passage was not that the crux of the matter might turn on the amount to which the plaintiffs in the action were ultimately entitled? The conclusion to draw from that is that, at any rate in the view of the hon. and learned Gentleman, it is a crucial matter to know, before introducing the principle of retrospection, which he conceded to be odious, how much money is involved.

Of course, it is true that the hon. Member for Devon, North (Mr. Thorpe) does not accept that, and that a number of my hon. Friends do not accept that. They say that this is a matter of principle. I am bound to say that I have never quite taken that view, and I say so quite frankly, but the one conclusion to draw from the view which the hon. and learned Gentleman pressed upon the Committee was that one must first find out, before introducing this odious principle into legislation, what the size of the claim is. On his argument this evening, that is precisely what cannot be done until the litigation is concluded.

Photo of Mr Quintin Hogg Mr Quintin Hogg , St Marylebone

I have not yet concluded my point, and I hope that the hon. and learned Member for Dulwich (Mr. S. C. Silkin), who described the new Clause as a shabby compromise, will allow me in the course of making that point to reply to the arguments which he presented.

As a matter of fact, the judgment of the House of Lords, as the Financial Secretary precisely said, did not decide either liability or quantum, and in this matter there are still four substantial questions before the courts which should be determined before the ultimate liability or the quantum is determined. The first is that it is not yet established whether Burmese or Scottish law applies, and, if Burmese law should apply, whether it gives any right of action at all. That appears in the first paragraph of Lord Reid's judgment.

It has yet to be established—and this appears in the same paragraph—whether the action is not barred altogether by the effect of the Defence of Burma Act, 1940, and the rules made under it, because, if it is, the action will fail altogether. It may well turn out that the true measure of damage will turn on what a prudent purchaser would have given for the wells at the time of the Japanese advance, and that might very well be a very small sum indeed, and that was the hon. and learned Gentleman's argument.

I do not want to embarrass him in his efforts to escape from the language he used about rehabilitation and compensation, but for the point of this argument that is irrelevant, because he himself said that, whether it be rehabilitation or compensation, the £4,750,000, if that is the right sum, which was paid was for rehabilitation and as rehabilitation would have to be, or might be, taken into account as a matter of law before giving any compensation to the plaintiffs in this action. The result is that, although they could in principle recover a sum, say, of £3 million, or £500,000, on the true measure of the damage, they would still not get a penny on this litigation if it amounted to less than £4,750,000, on the hon. and learned Gentleman's view, which is that this is open to litigation, and that it is open to litigation appears plainly from the judgment.

11.15 p.m.

The result of that is a decision to say whether the plaintiff company is entitled to a penny or not. The Financial Secretary's argument, after the introduction of this odious principle about what would happen if the sum were sixpence, is that legislation must be brought in at this time. The hon. and learned Member for Dulwich is not right in any way at all to describe this Amendment as a shabby compromise when that appears to be the only logical conclusion to be deduced from the Financial Secretary's argument.

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

Does the right hon. and learned Gentleman argue that the proper time for the introduction of the Bill is after the courts have awarded compensation which the Government do not think it proper to be paid?

Photo of Mr Quintin Hogg Mr Quintin Hogg , St Marylebone

We have made it quite clear that that can be the subject of an affirmative Resolution if we know what is the argument of the Financial Secretary.

Photo of Mr Ivor Richard Mr Ivor Richard , Barons Court

Would the right hon. and learned Gentleman explain what are the arguments which should prevail upon the House at the time when such a Resolution comes before it? Let us suppose that the damages were assessed at about £60 million. What advice would he then give to the House?

Photo of Mr Quintin Hogg Mr Quintin Hogg , St Marylebone

I say that the House could not come to a conclusion on this issue of retrospection on the very argument—the only argument—which he puts forward. It might very well be that the two sides of the House would differ in its opinion when that time came, but it is the sheerest hypocrisy for the hon. and learned Gentleman to present to the House as a basic argument that the question of retrospection, which he admits is , being applied, can apply only if the sums involved are large and, at the same time, then to say "We do not know if the sums are nothing or millions" while also asking for the Clause to be rejected, a Clause, I would remind the House, which has as its object postponement of the operation of this Bill until the House has had time to consider his own argument.

Photo of Mr Ivor Richard Mr Ivor Richard , Barons Court

Could the right hon. and learned Gentleman tell the House how much money was in the minds of himself and his colleagues on 13th June, 1962, when they took the decision to introduce retrospective legislation?

Photo of Mr Quintin Hogg Mr Quintin Hogg , St Marylebone

I am not trying to run away from my political responsibility as a member of the Cabinet which authorised that letter. I can also say that the Department of Education and Science had no particular sums in mind; and I further say that I was ready to believe that the size of this claim was large. There were other clams, and the point I was intending to say, since I have been asked specifically, was that at the time I thought the sums involved were very large.

I have since then read the judgments of the House of Lords and think that they are likely to be relatively small or nonexistent.

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

The House of Lords judgment was delivered in April, 1964, and the Government of which the hon. and learned Gentleman was a member had three months during which it could have studied the judgments and to decide whether or not it was right to bring forward legislation. We now understand that they decided to bring forward legislation, and the right hon. and learned Gentleman shared responsibility for the drafting of the Bill.

Photo of Mr Quintin Hogg Mr Quintin Hogg , St Marylebone

The hon. and learned Gentleman is entirely wrong. We decided upon the drafting of a Bill, and the result of that was this Bill. That is what we did, and we did not decide to introduce the Bill which is before the House tonight. I would remind the Financial Secretary that what we did was to give instructions for a Bill to be drafted, and what resulted was this Bill. That is quite different. We did not decide to introduce this Bill. No Government decision had been taken. Although it is true, no doubt, that the hon. and learned Gentleman, who was then pursuing with great skill his lucrative profession at the Bar, read those judgments with great care at the time, I did not.

The moment that I read the House of Lords judgments, however, I came to the same conclusion that the hon. and learned Gentleman ought logically to come to as a result of the argument, which he has presented to the House tonight, that there is at least a sufficient doubt as to whether the liability exists at all, or whether the quantum of damages is nil or millions, to entitle this House to say that we must know how the matter stands at law before we introduce the odious principle of retrospection. For that reason, I ask my right hon. and hon. Friends to go into the Lobby in support of the new Clause.

Question put, That the Clause be read a Second time:—

The House divided: Ayes 137, Noes 149.

Division No. 68.]AYES[11.20 p.m.
Agnew, Commander Sir PeterCarlisle, MarkGower, Raymond
Allan, Robert (Paddington, S.)Chataway, ChristopherGrant, Anthony
Allason, James (Hemel Hempstead)Clark, William (Nottingham, S.)Griffiths, Eldon(Bury St. Edmunds)
Astor, JohnCole, NormanGriffiths, Peter (Smethwick)
Awdry, DanielCooke, RobertGrimond, Rt. Hn. J.
Baker, W. H. K.Cordle, JohnGarden, Harold
Batsford, BrianCorfield, F. V.Hall-Davis, A. G. F.
Bell, RonaldCurran, CharlesHamilton, M. (Salisbury)
Bennett, Sir Frederic (Torquay)Davies, Dr. Wyndham (Perry Barr)Harvey, John (Walthamstow, E.)
Berry, Hn. Anthonyd'Avigdor-Goldsmid, Sir HenryHawkins, Paul
Bessell, PeterDean, PaulHeald, Rt. Hn. Sir Lionel
Biffen, JohnDeedes, Rt. Hn. W. F.Higgins, Terence L.
Biggas-Davison, JohnEden, Sir JohnHill, J. E. B. (S. Norfolk)
Birch, Rt. Hn. NigelElliot, Capt. Walter (Carshalton)Hirst, Geoffrey
Blaker, PeterErrington, Sir EricHogg, Rt. Hn. Quintin
Bossom, Hn. CliveFarr, JohnHooson, H. E.
Bowen, Roderic (Cardigan)Fell, AnthonyHordern, Peter
Boyd-Carpenter, Rt. Hn. J.Foster, Sir JohnHornby, Richard
Boyle, Rt. Hn. Sir EdwardFraser, Ian (Plymouth, Sutton)Hornsby-Smith, Rt. Hn. Dame P.
Brinton, Sir TattonGardner, EdwardHutchison, Michael Clark
Bromley-Davenport,Lt.-Col.SirWalterGiles, Rear-Admiral MorganIrvine, Bryant Godman (Rye)
Brown, Sir Edward (Bath)Gilmour, Ian(Norfolk, Central)Jenkin, Patrick (Woodford)
Bruce-Gardyne, J.Glover, Sir DouglasJohnson Smith, G.
Buck, AntonyGoodhew, VictorJohnston, Russell (Inverness)
Jopling, MichaelOnslow, CranleySummers, Sir Spencer
King, Evelyn (Dorset, S.)Page, R. Graham (Crosby)Taylor, Sir Charles (Eastbourne)
Lambton, ViscountPearson, Sir Frank (Clitheroe)Taylor, Frank (Moss Side)
Legge-Bourke, Sir HarryPeel, JohnTemple, John M.
Litchfield, Capt. JohnPercival, IanThorpe, Jeremy
Lloyd, Rt. Hn. Selwyn (Wirral)Peyton, JohnTurton, Rt. Hn. R. H.
Longden, GilbertPickthorn, Rt. Hn. Sir KennethTweedsmuir, Lady
Lubbock, EricPitt, Dame Edithvan Straubenzee, W. R.
MacArthur, IanPounder, RaftonWall, Patrick
Mackenzie, Alasdair(Ross & Crom'ty)Powell, Rt. Hn. J. EnochWard, Dame Irene
Maokle, George Y. (C'ness & S'land)Price, David (Eastleigh)Weatherill, Bernard
McMaster, Stanleypym, FrancisWebster, David
McNair-Wilson, PatrickRamsden, Rt. Hn. JamesWells, John (Maidstone)
Mathew, RobertRedmayne, Rt. Hn. Sir MartinWhitelaw, William
Maude, AngusScott-Hopkins, JamesWilliams, Sir Rolf Dudley (Exeter)
Maxwell-Hysiop, R. J.Sharpies, RichardWilson, Geoffrey (Truro)
Maydon, Lt.-Cmdr. S. L. C.Shepherd, WilliamWood, Rt. Hn. Richard
Meyer, Sir AnthonySinclair, Sir GeorgeWylie, N. R.
Mills, Peter (Torrington)Smith, Dudley(Br'ntf'd & Chiswlcx>Yates, William (The Wrekin)
Mills, Stratton (Belfast, N.)Stainton, Keith
Miscampbell, NormanStodart, J. A.TELLERS FOR THE AYES:
Morgan, W. G.Stoddart-Scott, Col. Sir MalcotmMr. McLaren and Mr. More.
Murton, OscarStudholme, Sir Henry
NOES
Abse, LeoGinsburg, DavidNorwood, Christopher
Alldritt, W. H.Gregory, ArnoldOakes, Gordon
Allen, scholefleld (Crewe)Grey, ChariesOgden, Eric
Armstrong, ErnestGunter, Rt. Hn. R. J.O'Malley, Brian
Atkinson, NormanHamilton, James (Bothwell)Oswald, Thomas
Barnett, JoelHamling, William (Woolwich, W.)Pentland, Norman
Baxter, WilliamHannan, WilliamPerry, Ernest G.
Beaney AlanHarper, JosephPopplewell, Ernest
Bellenger, Rt. Hn. F. J.Harrison, Walter (Wakefield)Price, J. T. (Westhoughton)
Bence, CyrilHart, Mrs. JudithPursey, Cmdr. Harry
Bennett, J. (Glasgow, Bridgeton)Hayman, F. H.Rhodes, Geoffrey
Bisnop E. S.Hazell, BertRichard, Ivor
Blackburn, F.Heffer,Eric S.Roberts, Albert (Normanton)
Blenkinsop, ArthurHerbison, Rt. Hn. MargaretRobertson, John (Paisley)
Boardman H.Holman, PercyRogers, George (Kensington, N.)
Boston, T. GHorner, JohnRoss, Rt. Hn. william
Bowden, Rt. Hn. H. W. (Leics S.W.)Houghton, Rt. Hn. DouglasSheldon, Robert
Boyden, JarnesHowarth, Harry (Wellingborough)Short, Rt.Hn.E.(N'c'tle-on-Tyne,C.
Braddock, Mrs. E. M.Howell, Denis (Small Heath)Short, Mrs. Renee (W'hampton, N.E.)
Broughton, Dr. A. D. D.Howle. W.silkin, John (Deptford)
Brown, Hugn D. (Glasgow, Provan)Jamessilkin, S. C. (Camberwell, Dulwich)
Brown, R. W. (Shoreditoh & Fbury)Hunter, Adam (Dunfermline)Slater Joseph(Sedgefleld)
Carmichael, NeilHynd, John (Attercliffe)Small, William
carter-Jones, LewlsJanner,Sir BarnettSnow, Julian
Coleman, DonaldJones, Dan (Burnley)Solomons, Henry
Craddock, George (Bradford, S.)Jones, J. Idwal (wrexham)Soskice, Rt. Hn. Sir Frank
Crawshaw, RichardJones, T. W. (Merioneth)Spriggs, Leslie
Crosiand, AnthonyKelley, RichardSteele, Thomas
Cullen, Mrs. AliceKenyon, CliffordStones, William
Dalyell, TamKerr, Dr. David (W'Worth, Central)Summerskill, Dr.Shirley
Davies, G. Elfed (Rhondda, E.)Lawson, GeorgeSymonds, J. B.
Davies, Ifor(Gower)Lever, L. M. (Ardwick)Tinn, James
Davies, S. O. (Merthyr)Lewis Ron(Carlisle)Tuck, Raphael
de Freitas, Sir GeoffreyLomas, KennethVarley, Eric G.
Dell, EdmundLoughlin, CharlesWalden, Brian (All Saints)
Dodds, NormanMcBride, NeilWalker, Harold (Doncaster)
Doig, PeterMacColl, JamesWallace, George
Duffy, A. E. P.MacDermot, NiallWarbey, William
Dunn, James A.Mclnnes, JamesWatkins, Tudor
Dunnett, JackMacMillan, MalcolmWhitlock, William
Edwards, Rt. Hn. Ness (Caerphilly)MacPherson, MalcolmWilkins, W. A.
English, MichaelMahon, Peter (Preston, S.)Williams, Alan (Swansea, W.)
Ensor, DavidMahon, Simon (Bootle)Willis, George (Edinburgh, E.)
Fernyhough, E.Manuel, ArchieWilson, William(Coventry, S.)
Fitch, Alan (Wigan)Millan, BruceWinterbottom, R. E.
Fletcher, Ted (Darlington)Milne, Edward (Blyth)Woodburn, Rt. Hn. A.
Foot, Michael (Ebbw Vale)Moiloy, WilliamYates, Victor (Ladywood)
Fraser, Rt. Hn. Tom (Hamilton)Morris, Charles (Openshaw)
Freeson, ReginaldMurray, AlbertTELLERS FOR THE NOES:
Galpern, Sir MyerNeal, HaroldMr. Gourlay and Mr. McCam.

Motion made, and Question put, That the Bill be now read the Third time:—

The House divided: Ayes 146, Noes 135.

Division No. 69.]AYES[11.30 p.m.
Abse, LeoGregory, ArnoldOakes, Cordon
Alldritt, W. H.Grey, CharlesOgden, Eric
Allen, Scholefield (Crewe)Gunter, Rt. Hn. R. J.O'Malley, Brian
Armstrong, ErnestHamilton, James(Bothwell)Oswald, Thomas
Atkinson, NormanHamling, William(Woolwich, W.)Pentland, Norman
Barnett, JoelHannan, WilliamPerry, ErnestG.
Baxter, WilliamHarper, JosephPopplewell, Ernest
Beaney, AlanHarrison, Walter (Wakefield)Price, J. T. (Westhoughton)
Bellenger, Rt. Hn. F. J.Hart, Mrs. JudithPursey, Cmdr. Harry
Bence, CyrilHayman, F. H.Rhodes, Geoffrey
Bennett, J. (Glasgow, Bridgeton)Hazell, BertRichard, Ivor
Bishop, E. S.Heffer, Eric S.Roberts, Albert(Normanton)
Blackburn, F.Herbison, Rt.Hn.MargaretRobertson, John (Paisley)
Blenkinsop, ArthurHolman, PercyRogers, George (Kensington, N.)
Boston, T. G.Horner, JohnRoss, Rt. Hn. William
Bowden, Rt. Hn. H. W. (Leics S. W.)Houghton, Rt. Hn. DouglasSheldon, Robert
Boyden, JamesHowarth, Harry (Wellingborough)Short, Rt.Hn.E.(N'c'tle-on-Tyne, C.)
Braddock, Mrs. E. M.Howell, Denis (Small Heath)Short, Mrs.Rence(W'hampton,N.E.)
Broughton, Dr. A. D. D.Hoy, JamesSilkin, John (Deptford)
Brown, Hugh D. (Glasgow, Provan)Hughes, Hector (Aberdeen, N.)Silkin, S. C. (Camberwell, Dulwich)
Brown, R. W. (Shoreditch & Fbury)Hunter, Adam (Dunfermline)Slater, Mrs. Harriet (Stoke, N.)
Carmichael, NeilHynd, John (Attercliffo)Slater, Joseph (Sedgefield)
Carter-Jones, LewisJanner, Sir BarnettSmall, William
Coleman, DonaldJones, Dan (Burnley)Snow, Julian
Craddock, George (Bradford, S.)Jones, J. Idwal (Wrexham)Solomons, Henry
Crawshaw, RichardJones, T. W. (Merioneth)Soskice, Rt. Hn. Sir Frank
Crosland, AnthonyKelley, RichardSpriggs, Leslie
Cullen, Mrs. AliceKenyon, CliffordSteele, Thomas
Dalyell, TamKerr, Dr. David (W'worth, Central)Stones, William
Davies, G. Elfed (Rhondda, E.)Lawson, GeorgeSummerskill, Dr. Shirley
Davies, Ifor (Gower)Lever, L. M. (Ardwick)Symonds, J. B.
de Freitas, Sir GeoffreyLewis, Ron (Carlisle)Tinn, James
Dell, EdmundLomas, KennethTuck, Raphael
Dodds, NormanLoughlin, CharlesVarley, Eric G.
Doig, PeterMcBride, NeilWalden, Brian (All Saints)
Duffy, A. E, P.MacColl, JamesWalker, Harold (Doncaster)
Dunn, James A.MacDermot, NiallWallace, George
Dunnett, JackMclnnes, JamesWarbey, William
Edwards, Rt. Hn. Ness (Caerphilly)MacMillan, MalcolmWatkins, Tudor
English, MichaelMacPherson, MalcolmWhitlock, William
Ensor, DavidMahon, Peter (Preston, S.)Wilkins, W. A.
Fernyhough, E.Mahon, Simon (Bootle)Williams, Alan (Swansca, W.)
Fitch, Alan (wigan)Manuel, ArchieWillis, George (Edinburgh, E.)
Fletcher, Ted (Darlington)Millan, BruceWilson, William (Coventry, S.)
Foot, Michael (Ebbw Vale)Milne, Edward (Blyth)Winterbottom, R. E.
Fraser, Rt. Hn. Tom (Hamilton)Molloy, WilliamWoodburn, Rt. Hn. A.
Freeson, ReginaldMorris, Charies (Openshaw)
Galpern, Sir MyerMurray, AlbertTELLERS FOR THE AYES:
Ginsburg, DavidNeal, HaroldMr. McCann and Mr. Howie.
Gourlay, HarryNorwood, Christopher
NOES
Agnew, Commander Sir PeterGarlisle, MarkGrant, Anthony
Allan, Robert (Paddington, S.)Chataway, ChristopherGriffiths, Eldon (Bury St. Edmunds)
Allason, James (HemelHempstead)Clark, William (Nottingham, S.)Griffiths, Peter (Smethwick)
Astor, JohnCole, NormanGrimond, Rt .Hn. J.
Awdry, DanielCooke, RobertGurden, Haroid
Baker, W. H. K.Cordle, JohnHall-Davis, A. G. F.
Batsford, BrianCorfield, F. V.Hamilton, M. (Salisbury)
Bell, RonaldCurran, CharlesHarvey, John (Walthamstow, E.)
Bennett, Sir Frederic (Torquay)Davies, Dr. Wyndham (Perry Barr)Hawkins, Paul
Berry, Hn. Anthonyd'Avigdor-Goldsmid, Sir HenryHeald, Rt. Hn. Sir Lionel
Bessell, PeterDean, PaulHiggins, Terence L.
Biffen, JohnDeedes, Rt. Hn. W. F.Hill, J. E. B. (S. Norfolk)
Biggs-Davison, JohnEden, Sir JohnHirst, Geoffrey
Birch, Rt. Hn. NigelElliot, Capt. Walter (Carshalton)Hogg, Rt. Hn. Quintin
Blaker, PeterErrington, Sir EricHooson, H. E.
Bossom, Hn.CliveFarr, JohnHordern, Peter
Bowen, Roderic (Cardigan)Fell, AnthonyHornby, Richard
Boyd-Carpentor, Rt. Hn. J.Foster, Sir JohnHornsby-Smith, Rt. Hn. Dame P.
Boyle, Rt. Hn. Sir EdwardFraser, Ian (Plymouth, Sutton)Hutchison, Michael Clark
Brinton, Sir TattonGardner, EdwardIrvine, Bryant Godman (Rye)
Bromley-Davenport, Lt.-Col.Sir WalterGiles, Rear-Admiral MorganJenkin, Patrick (Woodford)
Brown, Sir Edward (Bath)Glover, Sir DouglasJohnson Smith, G.
Bruce-Gardyne, J.Goodhew, VictorJohnston, Russell (Inverness)
Buck, AntonyGower, RaymondJopling, Michael
King, Eveiyn (Dorset, S.)Onslow, CranleyStudholme, Sir Henry
Lambton, ViscountPage, R.Graham (Crosby)Summers, Sir Spencer
Legge-Bourke, Sir HarryPearson, Sir Frank (Clitheroe)Taylor, Sir Charles (Eastbourne)
Litchfield, Capt. JohnPeel, JohnTaylor, Frank (Moss Side)
Lloyd, Rt. Hn. Selwyn (Wirral)Percival, IanTemple, John M.
Longden, GilbertPeyton, JohnThorpe, Jeremy
Lubbock, EricPickthorn, Rt. Hn. Sir KennethTurton, Rt. Hn. R. H.
MacArthur, IanPitt, Dame EdithTweedsmuir, Lady
Mackenzie, Alasdair (Ross & Crom'ty)Pounder, Raftonvan Straubenzee, W. R.
Mackie, George Y. (C'ness & S'land)Powell, Rt. Hn. J. EnochWall, Patrick
McMaster, StanleyPrice, David (Eastleigh)Ward, Dame Irene
McNair-Wilson, PatrickPym, FrancisWeatherill, Bernard
Mathew, RobertRamsden, Rt. Hn. JamesWebster, David
Maude, AngusRedmayne, Rt. Hn. Sir MartinWhitelaw, William
Maxwell-Hyslop, R. J.Scott-Hopkins, JamesWilliams, Sir Rolf Dudley (Exeter)
Maydon, Lt.-Cmdr. S. L. C.Sharpies, RichardWilson, Geoffrey (Truro)
Meyer, Sir AnthonyShepherd, WilliamWood, Rt. Hn. Richard
Mills, Peter (Torrington)Sinclair, Sir GeorgeWylle, N. R.
Mills, Stratton (Belfast, N.)Smith, Dudley (Br'ntf'd & Chiswick)Yates, William (The Wrekin)
Miscampbell, NormanStainton, Keith
Morgan, W. G.Stodart, J. A.TELLERS FOR THE NOES:
Murton, OscarStoddart-Scott, Col. Sir MalcolmMr. McLaren and Mr. More.
Bill accordingly read the Third time, and passed.
ADJOURNMENT
Resolved, That this House do now adjourn.—[Mr.Fitch.]
Adjourned accordingly at twenty minutes to Twelve o'clock.