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The War Damage Act 1965

- Why was it introduced (political sociological context)?

The Act was introduced after it became apparent to the Government that there was potential for the Government to be found liable for damages to private property as a result of recent wars the UK was involved with, most notably the Second World War. This was prompted by a high profile case being brought against the Government for damages caused directly by Britain during the war. Specifically, in order to deny use of certain oil fields owned by Burmah Oil Co Ltd to the Imperial Japanese Army (oil being a critical resource for modern warfare and Japan being particularly vulnerable due to insufficient oil suppliers and reserves) Britain destroyed the oil fields via bombing them. This was critical in the strategic and historical context of the War in the pacific, since Japanese aggression was in many ways precipitated by lack of resources (oil perhaps chief among them) and subsequent US embargoes – due to the obvious need of the Japanese war machine for oil, denying them the Burma oil fields was critical to the Allied war effort considering the British military was unable to stop the Japanese from occupying Burma. Some time after the war ended, the Burmah Oil Company decided to sue the government for losses arising from this action. This was eventually resolved in the case of Burmah Oil Company Ltd v Lord Advocate[1965] AC 75. The War Damage Act 1965 was in fact promulgated as a result of this case, as the government ultimately lost.

- What was the aim of the Act (legal context)?

The problem for the Government, legally speaking, was that there was no clarity as to its liability for damage done to private property during the war, particularly as a result of Government action. While the Emergency Powers (Defence) Act 1939 and the Defence Regulations enacted pursuant to it, dealt with the ability of the government to requisition property, there was no clear rule as to damaged property. What is more, it was unusual to introduce an act with retrospective effect. The way the court dealt with the case in of Burmah Oil Company Ltd v Lord Advocate[1965] AC 75 was to hold that destroying private property in furtherance of the war effort was substantially the same as a requisition. This made it lawful in that sense but still meant that the Government had to pay compensation. The government sought to avoid precisely this outcome and what the act aimed to do legally was to retroactively change the law to stipulate that the government does not have to pay compensation for property which is damaged during a war. What is interesting is to consider that the legal context for this act includes the Hague Convention of 1907, which stipulated that “A belligerent Parry which violates the provisions of [this Convention) shall, if the case demands, be liable to pay compensation, It shall be responsible for all acts committed by persons forming part of its armed forces”. In general that convention is treated as protecting civilian property during war and mandating compensation. From one perspective the War Damage Act 1965 does not fit well with it, but what could be argued is that it is concerned with what a country does to its own citizens in the end, with the aim of winning a war and thus ultimately protecting them, whereas the Hague Convention of 1907 envisages  damage done by an aggressor.

- What main changes did it make to the law?

The main alteration to the law introduced by the War Damage Act 1965 was the removal of Government liability at common law for damage lawfully done during a war. To be specific, the act’s section 1 states:

“No person shall be entitled at common law to receive from the Crown compensation in respect of damage to, or destruction of, property caused (whether before or after the passing of this Act, within or outside the United Kingdom) by acts lawfully done by, or on the authority of, the Crown during, or in comtemplation of the outbreak of, a war in which the Sovereign was, or is, engaged.”

The introduction of this act, particularly in this way, had a couple of notable effects. First, it managed to clear the slate for Government common law liability for the entirety of World War II (particularly with regard to lawfully damaged property). More than that, it also established a principle of no Government liability in such cases as the act was obviously not only retroactive. The introduction of the act did, however, also have a constitutional impact in that it advanced the notion of passing such retroactive legislation. This is something which happens rarely in the UK and it is significant that it was carried out for something as major as this, given the sums involved in a war scenario (especially in the context of the Second World War).


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