HC Deb 16 December 1969 vol 793 cc1297-312

11.45 p.m.

The Joint Under-Secretary of State for the Home Department (Mr. Elystan Morgan)

I beg to move, That the Police Pensions (Amendment) (No. 3) Regulations 1969, a draft of which was laid before this House an 25th November, be approved. These regulations have the effect of amending the Police Pensions Regulations, 1966, in one simple respect. The 1966 Regulations empower a police authority to grant what is known as an augmented award to the widow of a police officer who lost his life as a result of an injury received in the execution of his duty in certain defined circumstances.

An augmented award consists of, first, a pension which, with social security benefits, amounts to not less than one-half of the average pensionable pay of the deceased officer, and in addition a substantial lump sum.

Regulation 2 of the draft Regulations reproduces, in Regulation 14(1)(a) and (b), the existing provision in the 1966 Regulations; and, by way of paragraph (c), adds a new provision which has the effect of extending the circumstances in which an augmented award may be paid to those in which the officer was attempt- ing to save, or prevent the loss of, human life in circumstances in which there was an intrinsic likelihood of receiving a fatal injury. The new circumstances set out in paragraph (c) are the same as those which were recently introduced into the Firemen's Pension Scheme to enable the payment of a comparable augmented award to a fireman's widow. The new provision is unlikely to result in an increase of more than one or two in the number of augmented awards which arise for payment each year.

The House will note that the Select Committee on Statutory Instruments has made a Report on this Instrument. The Committee considers that the special attention of the House should be drawn to the Instrument on the ground that it appears to make some unusual use of powers conferred by the Statute under which it was made in that it deprives a prospective beneficiary of the right to an effective appeal against a decision of a police authority. I am grateful to the Committee for its Report and the care which it has taken in examining this Instrument.

The bulk of the Police Pensions Regulations, of course, provide an effective right of appeal, but it seems, for the reasons set out in the Home Office memorandum included in the Committee's Report, entirely appropriate that Regulation 14 should be exceptional in this respect because the circumstances giving rise to entitlement to augmented benefits are generally not capable of being proved as facts and are best dealt with as matters of opinion.

The object of Regulation 14 is to augment the widow's special pension in those cases where policemen are killed or die from injuries received in carrying out certain particularly hazardous duties. The words … in the opinion of the police authority". were included in 1953 in the original provision covering murderous attacks on policemen.

This is now contained in the draft regulations; that is, in Regulation 14(1)(a). Again, they appeared when the provision was extended in 1964, and that provision is now repeated in Regulation 14(1)(b). It is proposed that the new provision—that is, Regulation 14(1)(c)—should be similarly treated on the basis of a police authority's opinion. The wording has stood the test of time in that in the experience of the Home Office is that the police authorities have always exercised the discretion which the wording affords them fairly, and if there has been any doubt the decision has gone in favour of the widow.

Sir David Renton (Huntingdonshire)

Under the law, do I understand the hon. Gentleman to say that there is no appeal to quarter sessions under Regulation 14(1)(a) or (b)?

Mr. Morgan

That is not so. There is an appeal under Section 5(1) of the Police Pensions Act, 1948, in respect of each and every one of these paragraphs. It is not on the question of the presence or absence of the right of appeal which the Select Committee on Statutory Instruments has commented, but on the scope of that possible appeal on account of the use of the words … in the opinion of the police authority".

Mr. Eldon Griffiths (Bury St. Edmunds)

I thank the hon. Gentleman for having elucidated a point which was eluding some of us earlier. The appeal could, therefore, be in respect of the amount. It could not be, as I understand it now, in respect of the opinion of the police authority.

Mr. Morgan

The appeal could be on the whole issue. The comment of the Committee was only on the question whether the words "in the opinion" in some way or other cramped the possible scope of the appeal.

My view is that to make the nature of the circumstances a judiciable issue would circumscribe the position and render it more difficult, in a case of doubt, for the police authority to make a favourable award to the widow. On five previous occasions, going back to 1953, the House has approved a similar use of powers in Police Pensions Regulations in respect of these augmented awards, and has also accepted a similar provision in the firemen's pensions scheme.

I have the assurance of the Secretary of the Police Federation and the staff side secretary of the Police Council that, in each case, they are completely satisfied with the way in which police authorities have interpreted paragraphs (a) and (b) over the years and in each case are satisfied with the wording of the new provision in paragraph (c). The Police Council for Great Britain has been consulted on the draft regulations and is in agreement that they should be made. The House will, I feel, welcome the extension under which augmented awards may be paid.

11.53 p.m.

Mr. Graham Page (Crosby)

The Under-Secretary of State has assisted the House in describing the purpose of the draft regulations and the objection made by the Statutory Instruments Committee. The regulations deal with the pensions awarded to the widow of a policeman, and such a widow is, of course, entitled to a pension however her husband may have died. If he died in the course of his service, then she has an augmented pension. If he died in the circumstances described in Regulation 14(1), as amended by these draft regulations, then she gets, if I may express it thus, an extra augmented pension. There are, as it were, three stages of pension.

Under Section (5) of the Police Pensions Act, 1948, the widow has the right of appeal from the police authority's decision as to her pension to quarter sessions. That is rather firmly expressed in the 1966 regulations. But when one sees how she will exercise that right of appeal, having regard to Regulation 14 as it will stand under these draft regulations, one sees that she is precluded from any argument on the merits if she has to appeal to quarter sessions. The new part of Regulation 14 introduced by the draft regulations is in paragraph (c) and the award of her extra augmented pension under paragraph (c) would occur if the injury suffered by her husband was received in the course of duties performed in the opinion of the police authority for the immediate purpose of saving the life of another person, or preventing loss of human life and in circumstances in which there was an intrinsic likelihood of his receiving a fatal injury. The words which I wish to underline are "in the opinion of the police authority".

If it were necessary for her to appeal to quarter sessions, the widow could not say that the circumstances were as described in sub-paragraph (i) and (ii) of paragraph (c), because the answer would be that "in the opinion of the police authority" these circumstances did not exist. She would have no answer to that as the regulation stands. If the police authority expresses the opinion that certain facts did or did not exist, that is the end of it and she would have no effective appeal from that.

As in the parent Statute the widow was given a firm right of appeal, it seemed to the Statutory Instruments Committee that this was giving it with one hand in the Statute and taking it away with the other in the regulations. For example, if a police authority in all good faith—and I am sure that the hon. Gentleman is correct when he says that police authorities exercise discretion fairly—expresses the opinion that in the circumstances in which the policeman was killed there was not an intrinsic likelihood of his receiving a fatal injury, and does so fairly quickly after his death so that the widow may be certain whether she has a pension, and a prosecution, perhaps many months later, proves that the police authority's opinion was wrong and that the circumstances were within the terms of the paragraph, the widow would have no right of appeal. Her right of appeal would have gone and it would have been based entirely on the opinion of the police authority.

I have tried to discover in the parent Statute what right the Minister has to delegate a right or power to the police authority to express an opinion which deprives a person of her right of appeal which has been given by the parent Statute, and I can find no authority for it. Of course, if the widow is awarded a pension, if the police authority decides that the circumstances come within the paragraph, no appeal arises. It is only if the opinion is against her and if afterwards the facts come out to show that that opinion was wrong that the widow will be deprived of any right of appeal or any way in which to correct a decision concerning her pension. To that extent the Statutory Instruments Committee felt that these words deprived a potential beneficiary of a pension and a right of appeal against the decision of the police authority.

I admit at once that there are precedents for these words. That does not preclude the Statutory Instruments Committee from saying that perhaps it missed these on previous occasions, but it seems now, looking at it carefully, that these words ought not to have crept into the regulations. The Committee did call the attention of the House to these words in other regulations some months ago, relating to pensions for widows of firemen, but it was not pursued in the House then. This is not then, the first occasion on which the Committee has drawn attention to this point. It is one to which the Government ought to give some attention and allow a prospective pensioner to have the right of appeal in full, which the parent Statute purported to give.

12.2 a.m.

Mr. Eldon Griffiths (Bury St. Edmunds)

We are very much indebted to the Statutory Instruments Committee for having brought this point to the attention of the House. I am particularly grateful, because in the workings of Parliament I am constantly discovering that there are groups of colleagues working away in the background, doing things of which I know very little and for which we all have good reason to be grateful. I am in a dilemma, because I find that the exact legal propriety of what is now to happen, namely, that there will be no appeal mechanism, is something that I cannot support. On the other hand, I am bound to say that, in practice, police authorities are almost always exceedingly generous in the way in which they handle the affairs of widows.

When I come to weigh on the one hand the case for the very strict legal propriety, advanced by my hon. Friend the Member for Crosby (Mr. Graham Page) and the practicalities of the situation on the other, I come down on the side of the Minister. Let me assess the weight of the arguments. As to the legal propriety, and this is an amateur view compared with that of my hon. Friend, it seems that the regulations go beyond what the superior Statute, from which they derive, originally intended. There cannot be much dispute about that. Secondly, it is making the police authority the final court of decision in a case in which it has a pecuniary interest, because 50 per cent. of the widow's pension is paid by the authority. It is objectionable in principle that it should be the final arbiter, without any appeal.

On the other hand, as the Minister says, the Home Office has been more than careful to consult fully with the Police Federation and the Police Council, and has taken into consideration the various points made. It is a matter of record that a police authority concerned with the morale of its men, perhaps much more aware than a court of law would be of the local pressures for a generous settlement, will end up with a far more generous approach than we could assume the quarter sessions might arrive at, even if it was—and we know it is not—the actual instrument for settling the financial arrangements.

I have had to decide between strict legal propriety and the practical advantages to police widows. I come down on the side of the police widows, while accepting the real duty which the Statutory Instruments Committee has discharged to the House.

12.5 a.m.

Mr. John Horner (Oldbury and Halesowen)

I want to express my gratitude to the hon. Member for Crosby (Mr. Graham Page), and my sympathy with the hon. Member for Bury St. Edmunds (Mr. Eldon Griffiths).

This matter is before the House because of circumstances which arose some months ago in the fire service, where the fire authority was anxious to provide an augmented pension for the widow of a fireman who lost his life when he was trying to save someone else's life. The regulations were so drafted as to prevent the fire authority from doing what it wanted to do, and I am glad that my right hon. Friend the Home Secretary was able, in the Central Fire Brigades Advisory Council, to ensure that an amendment was made to the fire service pension scheme.

It is right, therefore, that that change should be followed by a consequential change in the police pension scheme. I nearly referred to him as my hon. Friend the Member for Bury St. Edmunds, because in this matter we are at one. The fire service having made a change, it is only right that the police pension scheme should be changed accordingly.

I agree with the hon. Member for Crosby that the right of appeal ought not to be restricted in any way by any amendment of the scheme, but what is the appeal about? It is about the circumstances which are implicit in the conditions in which a man loses his life. It is a matter of opinion, and, as someone who has had a long association with the fire authorities, I must tell the House that when a fire authority is required to use its discretion in determining the circumstances which have led to the loss of a fireman's life it uses that discretion in the manner intended in the regulations.

I hope that nothing will be done to restrict the discretion exercised by fire and police authorities. If the regulations are left as they are, certainly the fire service would not wish any further amendment to its scheme.

12.9 a.m.

Mr. Hector Monro (Dumfries)

We welcome the regulations, but do they provide for all known widows as at 5th July, 1948, or are there people who were widowed before that date who are not covered?

Second, would it be possible to make the provision that is intended to operate from 1st January, 1970, retrospective so that all widows who lost their husbands in recent years for the reasons given in the regulations would be covered? I am sure that there are not many of them, and such a provision would be of tremendous benefit to these widows. Perhaps the Minister will comment on that.

12.10 a.m.

Mr. Tom Driberg (Barking)

Hon. Members who have spoken have made extremely valid points, and I speak as one who has no special as distinct from general interest in this matter.

It is not inappropriate for one who spoke and voted tonight in a way which would not perhaps be approved by all members of all police forces, though by some, to say how glad we are of any regulations that will tend to improve, however slightly, the conditions of policemen and their wives or widows. We hope that there will be very few widows, and none arising out of the matters that we were discussing earlier. We all unite in our admiration for the police force, with very few exceptions. We know that it does a magnificent job.

The references we have made have been to men and to widows, but there are a number of policewomen in the force. It may seem a little far-fetched, but it is not impossible that policewomen, radiantly charming as most of them are, should gradually age and that one of them might have a dependent husband who is perhaps disabled. In the terms of the regulations, does "widow" embrace "widower"?

12.12 a.m.

Sir David Renton (Huntingdonshire)

This is a parliamentary day of dilemmas. Many of us were faced with a dilemma in the last debate, and my hon. Friend the Member for Bury St. Edmunds (Mr. Eldon Griffiths) has defined one dilemma which arises on these regulations. On the one hand, he finds it unsatisfactory that there is to be no appeal against a complete refusal by a police authority of the nevi kind of award under the regulations but, on the other, he says that that will be all right because police authorities are generous.

I will come to this question whether it lets us out of our parliamentary duty for the Home Office to ride out on the general proposition that police authorities will be generous. I do not think that it does.

There is yet another dilemma. If we do not approve the regulations tonight as they stand, welcome though they are as far as they go, in what the Select Committee on Statutory Instruments and I consider to be a defective state, bearing in mind that they are to come into force with effect from 1st January, 1970, and are not retrospective, they will have to be postponed, and some widows may be deprived of this new benefit.

But if we approve the regulations there will be no right of appeal, in effect, where the police authority has expressed its opinion that there should be no award made at all. These words have been written into the regulations; the opinion of the police authority has been made the test, although in Section 5(1) of the 1948 Act, Parliament said that there should be a right of appeal by a person aggrieved.

This is a rather serious matter. I do not think that we can necessarily reproach ourselves for not having taken up this point on the earlier regulations, much though we may wish that we had done so. It is a somewhat technical point which we would not necessarily expect hon. Members to have spotted without the advice given, through the Select Committee on Statutory Instruments, by counsel to Mr. Speaker. I have served on that Committee in the past. I know how it works and how thoroughly Mr. Speaker's counsel does the work. But it is not a satisfactory situation which is now revealed, whether there was any default on our part in the past or not.

Let us examine the particular point which the Select Committee has taken, which has already been dealt with by my hon. Friend the Member for Crosby (Mr. Graham Page). I endorse his remarks when he says that Parliament, by approving these regulations, will in effect be giving with one hand and taking away with the other and will be depriving a potential beneficiary of a right of appeal against a complete refusal by a police authority. That, in practice, will be the effect of having approved the regulations, as they were before, by making the test the opinion of the police authority.

Hon. Gentlemen who have not only read the report of the Committee and the Home Office memorandum, but also the evidence, will see that the Home Office spokesman, a gentleman I know and have known for many years and for whom I have great admiration, has sought refuge in the point that it is better not to have a right of appeal to the police authority. He makes that point for what I consider to be a very strange reason. He suggests that we write into the regulations that the matter shall be one which, in the opinion of the police authority, gives rise to entitlement—I am paraphrasing—and let it rest there. He goes on to justify that by saying that we should let the opinion of the police authority be a condition precedent to entitlement and not let it be a question of fact.

That is what I find so strange. How can the police authority reach any opinion on this matter unless that opinion is based on some facts? To suggest that there is no decision on facts must, in my opinion, be misstating the position altogether and is creating an artificial situation for Parliament to consider when depriving somebody in effect of a right of appeal as an aggrieved person.

I hope that the Under-Secretary will listen to this with an open mind. We are dealing with an unusual situation, as has been described. It is a situation in which 'the injury was received in the course of duties performed, in the opinion of the police authority—

  1. (i) for the immediate purpose of saving the life of another person or of preventing loss of human life, and
  2. (ii) in circumstances in which there was an intrinsic likelihood of his receiving a fatal injury …".
The police authority must reach an opinion as to what, in the mind of the police officer who died, was his purpose in doing this heroic act.

There are many occasions in law when the courts are asked to infer from such facts as are available what was in a person's mind, whether that person is now dead or is still alive. Intention in criminal cases is an obvious example, and the intention of a testator in a dispute over a will is another—perhaps in some ways, strangely enough, more analagous to what we are discussing. When the courts—and the courts are in the same position as that in which we envisage a police authority being—make an inference, they are reaching an opinion. They are reaching an opinion having established the facts as well as they can. They may not be able to find every possible fact which might help them to reach an opinion, but from such facts as are available they must do their best.

So to say that no question of fact comes to be decided, as the Home Office spokesman said in his evidence to the Select Committee, is not accurately describing the situation. The true situation is that the police authority will first have to establish the facts as nearly as it can, and then it will have to reach an opinion from such facts as it has been able to get.

When people are asked to do that it is possible for them to make a mistake in the inference they make from the facts, in the opinion which they reach, and if a police authority makes a mistake there should be a right of appeal to quarter sessions. But for the reasons which the Home Office intends, I cannot think why it should have intended this—and which the Select Committee on Statutory Instruments has pointed out, there will in effect be no right of appeal, because of the phrasing of the regulation. I think that that is wrong, and it places us in a very awkward and unfortunate position tonight. We are in a real dilemma.

My hon. Friend the Member for Bury St. Edmunds (Mr. Eldon Griffiths) and the Joint Under-Secretary of State have said, "Never mind. That is a little technical difficulty. Police authorities are generous. There will be very few cases—only three or four a year, we hope. All those cases will of course arouse great sympathy. We can rely on the police authorities to be generous". So instead of getting the law right, which it is our duty as legislators to do, we can forget the difficulty in the law and need not trouble to get it right. We can rely on the generosity of the police authorities dealing sympathetically with the very few cases that will arise.

Mr. Eldon Griffiths

I well appreciate the point my right hon. and learned Friend is making. I am sure that he will accept that the point I was putting to the House is not at all that Parliament should fail in its duty but rather that in the dilemma in which we have been placed we must come down one way or the other. I wish that we had not been placed in the dilemma, but, given that we are, I indicated the side on which I felt bound to come down.

Sir D. Renton

I had always felt that my hon. Friend was on the side of the angels whenever any kind of principle arises, and now he has confirmed that. I am delighted that he has done so.

This brings me to the attitude of the Police Federation—also people whom we admire. The Under-Secretary of State has told us again finding a way out of the technical difficulty in which he finds himself: "Let the House of Commons not worry! The Police Federation says that it is O.K." It is the sort of thing that any Minister of Agriculture has said after a rather feeble Price Review on the rare occasions when the National Farmers' Union, much to the annoyance of one's constituents if they are not satisfied, have accepted the Review. But it is not good enough for Parliament. It is a very poor substitute, greatly though we admire the Police Federation, for getting our legislation right.

This is a very important matter, I feel most unhappy about the present position. I have what I believe to be a constructive suggestion which may help the hon. Gentleman to overcome the several dilemmas which have arisen at any rate in this debate. It is that he should take these regulations away, think about them again, bring them back to us in the new year, and still have 1st January as the operative date. That would be technically feasible, and I earnestly hope that he will do it.

12.27 a.m.

Mr. Elystan Morgan

With your leave, Mr. Deputy Speaker, and that of the House, I will try to deal first with some-of the minor points.

The hon. Member for Dumfries (Mr. Monro) referred to cases that might have arisen in years past. No pre-1948 cases under paragraphs (a) and (b) of subsection (I) of Regulation 14 are known. We are not aware of any deaths of police officers in the circumstances covered by Regulation 14(1)(c), which is the life saving provision.

My hon. Friend the Member for Barking (Mr. Driberg) asked whether the reference to the male policeman included also the female. I can here rely on the Interpretation Act, but as a former Professor of Law at the University of Wales used to say: "In an Act of Parliament, as in many other places, man embraces woman."

Sir D. Renton

No, with respect—woman embraces man in this case.

Mr. Morgan

The embracing is mutual.

The hon. Gentleman the Member for Crosby (Mr. Graham Page) said that the Regulations deprived the widow of her right of appeal. I noted what the right hon. and learned Gentleman the Member for Huntingdonshire (Sir D. Renton) said later, and it may well be that there is a difference of emphasis. But I emphasise the fact that the Regulations do not purport to deprive a widow of her right of appeal accorded by the 1948 Act, Section 5(1) of which expressly provides that a matter which under the Regulations is left to the discretion of the police authority is not to be reopened on appeal. Further, while the existence of a relevant opinion by the police authority is a condition precedent on the entitlement and on appeal, the only question is the existence or non-existence of that opinion.

I do not want to go into lengthy arguments about the question of whether or not we should postpone these Regulations. I invite the House to pass them, but I hope that the right hon. and learned Gentlemen, having heard what I am about to say, will not feel displeased with that because I believe it would not be proper for us in view of the fact that we have ample precedents since 1953 to do something that has been done before and that has not given rise to any difficulty. If we were doing this for the very first time there might be a case for excessive caution, but in the circumstances such a case is not made out.

The issue before us here is whether or not we tie down the conditions in which an augmented payment in these circumstances should be made in such a way as possibly to lead to cases which would be outside those rigid canons of definitions—that is one alternative—or, on the other, whether we should proceed in this way giving the police authority what would appear on the face of it to be a very wide exercise of discretion. I emphasise that that discretion cannot be used capriciously. I appreciate the argument put forward by the right hon. and learned Gentleman that there must be an assessment as to certain facts. So the difference between us is probably a very slight one, but it is a difference which might catch one or two cases. It is a difference which might mean that one or two widows for a period of years would get an augmented award rather than lose it. I cannot imagine any other way of protecting such a widow than to do it in this way.

I appreciate that it would be far better if we could define these circumstances with a legal exactitude which would not allow any deviation at all on the part of the police authority, but we are dealing with circumstances where very often there will be no living witness of what happened. We are dealing with a situation where we have to gauge what was the condition of a man's mind at the time he met his death and that secret has died with that person. The sole object of drafting these Regulation in this way was to cover a case where it would be extremely difficult to come to a decision one way or the other, but in those circumstances we may feel that the Regulations have been drafted in such a way as to allow slightly greater latitude—that is a measure of the difference between us—in the exercise of that discretion than would be the case if the formula adopted by the right hon. and learned Gentleman were to be extended.

I think, however, that there may be one particular case where it would be right for us to consider a right of appeal beyond that which exists. That is where the police authority has come to the conclusion that, the facts being such, it could not hold the opinion that paragraph (c) obtained and then, quite out of the blue, some time later some evidence turns up which shows its opinion to have been completely wrong. In those circumstances I am sure the House would feel that it would be proper for a right of appeal to lie. Therefore, if the House agrees. I will consult further the Police Council for Great Britain on this point with a view to defining more closely the circumstances in which an appeal would lie and accommodating such a situation as I have described.

Sir D. Renton rose—

Mr. Speaker

Order. The right hon. and learned Gentleman has exhausted his right to speak. He may intervene before the Minister sits down.

Sir D. Renton

May I have the leave of the House just to express my appreciation to the hon. Gentleman for what he has just said and the hope that in his further discussions with the Police Council the whole of this debate will be borne in mind and not merely the last point he has made.

Question put and agreed to.

Resolved, That the Police Pensions (Amendment) (No. 3) Regulations 1969, a draft of which was laid before this House on 25th November, be approved.