Commons Sitting of 29 January 1971

Preamble
The House met at Eleven o'clock
PRAYERS
[Mr. SPEAKER in the Chair]

COMPLAINT OF PRIVILEGE
11.4 a.m.
Mr. Arthur Lewis: On a point of order. I wish to raise with you, Mr, Speaker, a possible breach of privilege and to submit to you the details upon which I would ask you to rule whether a prima facie breach of Privilege has indeed been committed. I should like to put it to you on three bases, and first of all on the facts, which, I believe, are incontrovertible.
You and I and the House know that Mr. Speaker is the First Commoner in the land and as such is elected by the Members of this House. His first job is not only to protect the interests of hon. Members on both sides of the House but, by so doing, to protect the interests of the people of this country. Once Mr. Speaker is elected, no one—but no one—is entitled to question his Rulings or his instructions, unless a substantive Motion is placed on the Order Paper. He has supreme authority subject to the rules of the House, and what he does is the will of the House.
If Mr. Speaker is not here he delegates authority to various other people, including Mr. Deputy Speaker, the Chairman, Deputy Chairmen, and the Officers of the House. He has the excellent help and service of the honourable and gallant Gentleman the Serjeant at Arms. All this is incontrovertible and no Member in the House would in any way question that. Equally, when Mr. Speaker, or any of his appointed agents, gives an order, or asks for any action to be taken, whatever those actions may be those agents or servants, whilst so acting, are carrying out Mr. Speaker's instructions and are in fact acting for and in the place of Mr. Speaker.
This also applies when Divisions are called. You or your appointed Deputy, Mr. Speaker, will call upon the Clerk to take
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certain action, and you call "Clear the Lobbies" and "Lock the doors". By so doing you instruct the Serjeant at Arms, who, in turn, instructs his officials to do certain duties, which I shall not bore the House by enumerating. On behalf of all Members I would say that they do an excellent job, and we are all extremely proud of the honourable and gallant Gentleman the Serjeant at Arms and his officials, of whom you, Mr. Speaker, are in charge.
Every Member and every Officer of the House knows what happens, or should happen. Every hon. Member knows—or, again, should know—that according to the rules a Member has six minutes in which to get into the Lobby, whether the "Aye" or the "No" Lobby, and you, or your appointed agent, will say "Lock the doors" after six minutes, and immediately that happens it is really you yourself who will lock the doors but, of course, you yourself cannot physically do that and you ask the officers of the House to do it and they go into the physical process of locking the doors. All this is factually true and no one can dispute what I have said.
Incidentally, I would here interpose that it makes no difference if the official acting in accordance with your instructions does that in one minute or two minutes or three minutes or ten minutes. Provided that he does it under your instruction you, I say with great respect, are responsible whether the rule is or is not being carried out properly.
Having given the background, I will deal with the incident which I wish to report to you, which happened early this morning. The OFFICIAL REPORT is not yet readily available, but I have checked a proof copy to make sure that what I am saying is correct. I pay tribute to the excellent HANSARD staff. How they keep up with us I do not know, but within minutes of incidents happening our excellent HANSARD staff give us a verbatim report.
At or around 1.10 a.m., your Deputy, Sir Robert Grant-Ferris, acting with your authority, as he always does, gave orders for the calling of a Division. In accordance with normal rules and procedures, he later called for the locking of the doors. The Officers of the House, on the instruction of the Serjeant at Arms, proceeded to lock the doors of the Division

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Lobby. One of the two officers in the process of doing so was physically assaulted, pushed around and shoved by several hon. Members, who forcibly tried to push their way past him into the Division Lobby. Those hon. Members were preventing him from carrying out his duty to the House and your order, given through the Chairman, your Deputy. Whether or not the order was given at the correct time is not material at the moment.
It was later reported—no doubt by those hon. Members, but that is not material—to the Chairman that he had not allowed the normal time to elapse before calling for the locking of the doors. The Chairman apologised, and said that he had inadvertently made a mistake and had called for the locking of the doors before the expiration of the six-minute period which is laid down.
I pay tribute to the Chairman that he apologised to the Committee, and the Committee, as it must do, without question or query, accepted his apology. Whether or not there was a mistake on his part he did say, "Lock the doors", but even if only a minute had elapsed before he gave that instruction, hon. Members were in duty hound to carry it out. They can afterwards raise the matter with the Chairman, failing satisfaction, with you, and that has happened.
If any person, whether he be a Member of Parliament, an Officer of the House or the most important police inspector in the country, knowingly or unknowingly, consciously or unconsciously, deliberately or by accident, flouts the will of Mr. Speaker and his appointed agents while they are carrying out their duties, he is flouting the will of Parliament and committing a serious breach of privilege. No hon. Member has a right to take the law into his own hands or to take the rules of the House of Commons into his hands, and no Member of Parliament, be he a Privy Councillor or an ordinary back bencher, from the Prime Minister downwards, has the right to question your order or physically to assault one of your officials when carrying out the duty which you, Sir, through the House, impose upon him.
No hon. Member, whether he be one of 20 or 30 years' standing, or one who entered the House by election last June,
1116
can plead ignorance or say that the action was unintentional or accidental, or give any other excuse. Every hon. Member knows that the attendant would not be locking the door unless he had received instructions so to do. Even if the attendant were to break the rule of the House and to lock the door without your instruction, it is no part of the duty of an hon. Member physically to assault him and try to get into the Lobby. The duty of the hon. Member is to raise the matter with you, or with the Chairman, who would then decide that the Division had been wrongly called or that he had wrongly ordered the locking of the doors, and say that he would call another Division, which is what he did.
There is a precedent, although it was not quite so serious an occurrence, which concerned a Communist Member of Parliament, Mr. Phil Piratin. I refer you, Sir, to the complaint which he made on 19th December, 1946, when he claimed that he was in the process of a fracas. I will not go into the details, because the complaint was referred to the Committee of Privileges on 19th December, 1946, which sat on 3rd February, 1947. A fight took place between an hon. Member and a member of the public, not within the House or the precincts of the House, but in a bar of the House. This was not a case of an hon. Member using physical violence against an appointed Officer of the House acting on your instruction.
There is a great deal of violence in the country now, students are accused of using force unnecessarily and it is wrong that we in the House of Commons should use force. I have not mentioned any hon. Member by name. It makes no difference to me, and it should make no difference to the House, whether it be the Prime Minister, a Minister, my right hon. Friend the Leader of the Opposition or any other Member of Parliament. No hon. Member has the right to try forcibly to prevent the carrying out of instructions given by Mr. Speaker.
It is no answer to say that this was done accidentally, without thought, or without knowledge that the attendants were locking the doors. This is exactly what the students are saying, and the strikers.
I ask you to give serious consideration to this matter, Mr. Speaker, because it is very serious. Hon. Members must

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above all be seen to be doing the right thing, and they must be told that they must not attempt to use violence to upset Mr. Speaker's Ruling. Therefore, I ask you to have the matter investigated, to look into the details which are available, and to rule that prima facie this is a breach of privilege.
Mr. Speaker: Order. I am grateful to the hon. Gentleman for his submission. It is not part of the duty of the Chair to deal with the substance. I simply have to decide whether this is a matter which should be given precedence over other business. Having regard to the hon. Gentleman's submission, I am satisfied that the matter he has raised is of a kind which can be given precedence over the business. It is therefore open to an hon. Member to move a Motion.
The Parliamentary Secretary to the Treasury (Mr. Francis Pym): I beg to Move,
That the matter of the complaint be referred to the Committee of Privileges.
Question put and agreed to.
Mr. Arthur Lewis: I am very much obliged to you, Mr. Speaker, and to the Patronage Secretary.
May I now raise another matter? I do not want to push this question, but I think that it is essential.
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The normal rule on privilege, as I have understood it for very many years, is that an hon. Member who feels that he may have a prima facie case must raise it on the very first conceivable opportunity when the House is sitting. When the Committee adjourned to report progress at 5 o'clock this morning, and the House resumed, I tried to raise the matter immediately, because I felt that the rule was that I had to do so. But I was advised that I did not have to do it then but could do it at 11 o'clock today, which, of course, was another sitting day. This matter should be looked into, because my understanding has always been that such a matter should be raised immediately. In years gone by, hon. Members have even interrupted business to report a possible breach of privilege. Probably in the early hours things may have gone wrong, but for precedent may I ask that you look into this so that we may see just what the position is for the future.
Mr. Speaker: Order. I cannot make hypothetical Rulings on circumstances that have not yet arisen. It is the normal practice of the House that matters of privilege should be raised after Questions or after Ministerial statements. I think that the hon. Gentleman was perfectly proper to raise the matter when he did this morning, and I so rule.

ORDERS OF THE DAY

  LAW REFORM (MISCELLANEOUS PROVISIONS) BILL
  Order for Second Reading read.
  11.22 a.m.
  Mr. Arthur Probert: I beg to move, That the Bill be now read a Second time.
  May I first correct two typographical errors in the Bill. In paragraph 3 of the Explanatory Memorandum,
  "Clause 2 and Schedule 2"
  should read:
  "Clause 2 and Schedule 1".
  In the fourth paragraph of the Explanatory Memorandum, the phrase
  "… the necessary transitional provisions are contained in Clause 2 and Schedule 1."
  should read:
  "… the necessary transitional provisions are contained in Clause 3 and Schedule 2."
  I apologise to the House for those errors.
  Before I deal with the Bill I should also like to express my deep apologies for its legal complexity, certainly after the very hectic moments of last night. But I am persuaded by my legal colleagues that the matter of limitation is very difficult to legislate upon. Further, I have been advised by the highest authority that the proposals as drafted in Part I are necessary. Who am I as a layman to spurn such advice? My only defence in presenting the Bill is that a layman is often naïve enough to think that a common-sense approach to the effects of the law, as it is, is part of the spur that gets the law changed to something better. I have been aware for some time, as have many of my colleagues on both sides of the House, of certain anomalies in the Limitation Act, particularly as I represent a highly industrialised constituency, where the incidence of industrial disease and industrial accidents is high.
  I shall not make a long speech, because many of my colleagues on both sides will wish to take part in the debate. I admit that the truth is that the shorter my speech, the less likely am I to reveal my ignorance of the law as it is. I have asked my hon. Friend the Member for Pontypool (Mr. Abse), if he succeeds in catching the eye of the Chair at an appro-
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  priate time, to try to answer points raised in the debate that require answer. That will allow me to deliver a more orderly address on the Bill and it will avail me of the extensive experience of my hon. Friend, to whom I am deeply indebted for the assistance he has given me in preparing the Bill.
  It will be apparent that although the Bill is divided into three parts there is a thread, however slender, of common interest running through it. It deals with the "when" and "how" of the amount of damages which may be assessed in claims for damages for personal injury, and for claims in respect of a person's death, where such claims can be sustained.
  Part I amends the Limitation Act, 1963. Part II provides that where there is a claim for damages for a surviving spouse her remarriage prospects shall be disregarded in certain circumstances. Part III attempts to put in explicit terms the interest which may be charged in the assessment of damages.
  It will be obvious that Part I is by far the more complex in its attempt to replace or amend the existing law. But I believe that if I am forgiven for ignoring the legal arguments and requirements I can put the position simply. The Bill will extend the period within which a claim may be made. It will extend the period of 12 months from the date on which an injured person has acquired knowledge of the facts relating to the cause of action to a period of three years, and provide the same period of three years for a claim on behalf of the estate and/or dependants of a deceased person from the date of his death.
  In many ways it is that second provision that has struck me as vital from the experience I have had of widows suffering in consequence of the existing legislation. The present position is that a widow is given no more than 12 months from the date of her husband's death to make a claim. I stress that it is the date of her husband's death and not the date on which she was made aware of the circumstances which brought about his death.
  I am glad to see two of my lady colleagues present, my hon. Friend the Member for Holborn and St. Pancras, South (Mrs. Lena Jeger) and the hon. Member for Birmingham, Edgbaston (Mrs. Knight), because they will appreciate

  1121
  what I am about to say. The widow is often in a state of shock on the death of her husband. Often, too, she is of an age when it is difficult for her to become aware of her rights. We all know that a widow more often than not cannot be consoled at the time of her husband's death, quite apart from discussing with her how her husband died.
  Time quickly elapses, and she hears rumours that her husband may have died as a result of an industrial disease or accident due to negligence of breach of duties by his employers. I have been told of a widow who had such rights for claim having to be admitted to hospital suffering from shock on her husband's death and being there for a considerable time. I need hardly elaborate. One does not need a great deal of imagination to see the position. The House will agree that a considerable and vital time may elapse before she hears that she should approach the union branch secretary or a solicitor directly.
  The case of Lucy v. Henley, which I shall not elaborate, has shown how rigid is the interpretation of the 1963 Act. I think that it is that case that has spurred a number of us to consider altering the existing provisions. In any case, if three years is permitted as the time in which an injured person may claim, uniformity should prevail, and the widow should be given the same rights.
  I could present all the arguments in the Report of the Law Commission on the Limitation Act, which was, coincidentally, published the day after I had deposited my dummy Bill in the Public Bill Office. But I should be wearying the House if I were to do so. Suffice it for me to say that that report recommends the extension of time to three years. In the case of a claim by an injured person, the reasoning behind the three-year limitation period applicable to personal injury cases under the Limitation Act, 1954 is that three years is a sufficient period for the mounting of a claim. I suggest that if it is accepted that an injured person who has remained ignorant of his rights should be allowed an extension of the normal time, then by the same reasoning as is behind the provision of three years in the 1954 Act, he should also be allowed three years from the date at which he became aware of his rights.
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  In Part II of Schedule 1 provision is made to extend the effects of the Clause to Scotland. I confess a great deal of temerity in doing this especially to my fellow Celts, but I thought that if England and Wales can obtain any advantages from this Bill, why should not Scotland? I am given to understand from conversations with my Scottish colleagues that they feel that it may not go quite as far as the Scottish Law Commission recommended, and naturally I defer to their better judgment. My information from other sources is that the Bill does what was recommended by the Scottish Law Commission. However, I suggest that my Scottish colleagues might wish to look at this matter in Committee, if the Bill receives a Second Reading, and they might wish to put down suitable Amendments.
  Paragraph 3 of Schedule 2 contains transitional provisions which are necessary to enable those whose causes of action have accrued before the Bill comes into force and who fulfil certain conditions to take advantage of the Bill. Schedule 2 also provides for the Bill to cover pending actions and also enables leave to be obtained in such cases, even though the action has already commenced. The Bill does not, however, enable a case to be reopened on the ground that the new limitation period would have enabled the plaintiff to succeed where a decision had already been reached. This follows the procedure laid down in the 1963 Act.
  I turn to Part II of the Bill, which has created a great deal of interest in the Press. I have had a good deal of correspondence from women's organisations, soroptimists, women's institutes, and others commending this Part of the Bill to the House. Part II provides that in a claim for damages by a surviving spouse her remarriage prospects shall be disregarded and only those facts which can be shown to have existed at the date of the death of the deceased shall be taken into account.
  I base my proposal on two main grounds. First, the Report of the Committee on Personal Injuries Litigation, under the chairmanship of Mr. Justice Winn, published in July, 1968, said in paragraph 378:
  "We are well aware and we have had passed on to us from your Lordships' office correspondence demonstrating that representative bodies concerned with the welfare of

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  women are gravely dissatisfied with the present practice … of forming a judgment as to whether there is a probability that the individual widow will remarry and, if there appears to be such a probability, of forecasting when this may happen."
  In paragraph 379 the Committee says:
  "We are unanimous in expressing the definite view that the law should be so changed as to obviate the continuance of the present practice."
  I do not suppose for an instant that Clause 4 will be all that is required to accomplish the recommendation of the Winn Committee and I have inserted the words:
  "… there shall be taken into account only those facts which can be shown to have existed at the date of the death of the deceased."
  in order to satisfy any fears that may be expressed by some of my legal friends.
  The second ground—and this is very important—concerns all the human problems associated with the present position in law. Two hon. Ladies are present, and I hope that if they have an opportunity to take part in this debate they will be able to describe the humiliating and degrading position in which a widow finds herself when confronted by a judge who has to make an assessment of her chances of marriage. It may be irrelevant, but we should also spare a thought for the judge in this embarrassing position, as wise as he may be. After all, who is he to decide on a woman's eligibility for marriage? It is not true that all gentlemen prefer blondes. I married a brunette and I am very happy that I did so. How often have we all heard the expression, "What on earth did he see in her to marry her?" May I say, without wishing to be blasphemous, that God often moves in a mysterious way, but the ways of man and woman are even more mysterious. No one, not even Freud, whom my hon. Friend the Member for Pontypool is so fond of quoting, can explain the mutual attraction of certain men for certain women, particularly when that attraction leads to marriage.
  I will not spend much more time on this matter, but before I leave it I wish to refer to an unpleasant aspect that arises in consequence of a judge having to decide upon the prospects of marriage. This can best be described by quoting from a letter from a father-in-law in
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  regard to such a widow. He says—and this occurred in Monmouthshire—
  "My daughter-in-law, who was left with two children—one thirteen months old when my son was killed and another born seven months after his death—has been greatly distressed by inquiry agents employed by the insurance company concerned in the claim for damages. They have watched the house for long periods and questioned her neighbours when she has gone out, about her mode of life 'Has she a job?' 'Has she lodgers?' 'Has she men friends?' 'Is she living with anyone?' and other questions of the same type. My daughter-in-law's reaction was 'People will think I am involved in some filthy divorce case'. I understand that it happens very frequently in such cases. Is it not a blot on British justice and a grave injustice to women?
  The fact that judges do presume to guess the probability of remarriage causes insurance companies to institute inquiries of this kind and also to delay settlement as long as possible in the hope that the widow will be forced by financial circumstances to accept damages far below that which she should receive or even resort to remarriage solely as a way out of her financial difficulties."
  That letter clearly illustrates the problem.
  Part III of the Bill deals with the interest on damages. I am again guided in my proposals by the recommendations of the Winn Report, and I will give the paragraphs concerned, namely, paragraphs 234 and 235, rather than quote them. Paragraph 235 outlines in explicit terms the rates of interest to be charged in respect of damages for personal injury. I have included the same principles for application in respect of fatal accidents. The Administration of Justice Act 1969 has proved, in effect, that the discretion left to the judge could mean inequality of treatment as between one case and another. I believe that something more explicit must be written into the law to allow fair treatment all round.
  In conclusion, I must express my appreciation of the help I have received from the Lord Chancellor and his Department. This help was freely given, and without it I could not have attempted to frame Part I of the Bill. I repeat also my gratitude to my hon. Friend the Member for Pontypool and my thanks to my supporters on both sides of the House. I trust that the Government spokesman will intervene at an appropriate stage. I shall listen carefully to what he says and I will consult with my hon. Friend the Member for Pontypool in regard to any assurances which my supporters and J may agree to give.

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  I am fully conscious of the fact that I have over-simplified my presentation of the Bill and what it proposes, but I am presumptuous enough to think that, as a layman, this will be my best tactic, leaving it to the lawyers to disentangle the legal knots that I may inadvertently have created. I commend the Bill to the House.
  11.40 a.m.
  Mrs. Jill Knight: I think that hon. Members on both sides of the House will wish to congratulate the hon. Member for Aberdare (Mr. Probert) on introducing the Bill and on doing so in his customary modest, gentle, and yet extremely efficient manner. It is pleasant, after the exigencies and hostilities of the night, to find an atmosphere of unanimity and sweet reasonableness dawn upon the Chamber this morning.
  I am particularly anxious to support Part II of the Bill dealing with damages for widows. We need not use much imagination to appreciate that for a woman to lose her husband in a fatal accident must be a terrible experience. The hon. Member for Aberdare spoke of this and of a wife's shock. Indeed, many women suffer grievously from shock. This is not a condition which disperses quickly in such circumstances. It will certainly continue for weeks, probably for months, and possibly for years.
  At such a time the widow must also face what may be the worst financial worries of her whole life. She may have young children, and therefore it is not easy for her to go out to work to keep herself and her children. Perhaps insurance has been inadequate.
  At all events, the widow will then wish to claim damages from whomsoever caused the fatal acdident. The law requires the judge, who certainly finds his task distasteful, to assess damages. An important part of that assessment is whether, in the judge's opinion, the widow has prospects of remarrying. The law is not just being an ass in this instance; it is being utterly callous. To subject a poor woman, who has already suffered greatly, to the ordeal of standing up in court, like a houri in an eastern slave market, or a horse at a bloodstock auction, for some man to assess her personal charms is the most humiliating and cruelly degrading practice in the whole of our
  1126
  judiciary system. We do not even subject the most hardened criminal to such cruelty. No other section of the community has to submit to such barbarous treatment in court.
  Imagine the feelings of the widow of whom a judge, quoted in The Times, said:
  "She would be fortunate indeed if she did marry. But, being realistic, one must assess the chances as low."
  Poor woman! That was said in court. I do not know whether the judge made that observation because she had several children or was perhaps at an age when she might not be thought to be readily or easily marriageable. It may have been that her style of beauty did not commend itself to that judge.
  As the hon. Member for Aberdare said, this is a most extraordinary arrangement because of the multiplicity of choice. Indeed, human nature being what it is, men and women being so different one from another, if it were not that a woman to one man is appealing and to another may be appalling, the human race would not have existed so long.
  The Conservative Political Centre, in March, 1969, produced a document called "Fair Share for the Fair Sex". On page 15, it states:
  "Thus at present a judge is required to assess the value of the widow's likelihood of remarrying on the theory that her dependence on her late husband would cease on remarriage, and on this basis to reduce what would otherwise have been rewarded. Such an assessment, which the judges often find so difficult as to verge on the impossible, undeniably involves an affront to the dignity of womanhood at a peculiarly inappropriate time in a widow's life."
  That thought has obviously struck the hon. Member for Aberdare, because he has enshrined it in his Bill. I support it most warmly. It is absolutely right, it is fair; it is, indeed, long overdue.
  Although this document is not a Conservative manifesto, nevertheless, I hope that my party, in office, will support the Bill in this regard.
  I am told that the judges themselves object strongly to this barbarous practice. As a matter of fact, there is a rumour—I do not know whether the hon. Member for Aberdare has heard it—that already it has become case law that the judges will no longer apply themselves to this task. I have sought diligently through the Library and through

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  Press cuttings, but I find that it is only a rumour; it is not true at all. It is certainly true that the judges find this task distasteful and would, I am sure, be only too glad to have it removed from their shoulders.
  But even if it were to become case law, it would still be absolutely vital that it be made statute law. Surely if it were only case law, any decision could easily be reversed on appeal. If a concept is wrong it ought to be recognised to be wrong in the laws of the land.
  I come to the point where some people would indeed still argue that it is not wrong. They may say, "But is it wrong? When you think about it, a woman might get substantial damages and be married again within the year." So she might. On the other hand, she might not. Justice ought not to depend on the use of a crystal ball. Whether or not a woman remarries does not alter the culpability of the person who caused the fatal accident. It is absurd to cling to a rule which means in practice—when one spells it out the stupidity of it is apparent—that if one is going to knock down and kill a man it is essential to pick one with a pretty wife, because it will not be nearly so expensive.
  If one continues to follow that train of argument, to pick a man with a pretty wife, it is better to kill him, not just to maim him, because the latter could cost a great deal. Therefore, one should do the job properly. That is how ridiculous it is. The same person making the same argument might say, "If you collide with a man who has an ugly wife and four children, heaven help you." Stating that as a bald fact shows how stupid the situation is.
  The other argument and difficulty about assessing damages after a man has been killed in an accident is that the widow may have been living apart from her husband at the time of his death. Again I refer to "Fair Share for the Fair Sex" because this thought has also struck those who compiled it. On page 17, it states:
  "We recommend that in assessing damages under the Fatal Accidents Acts the Courts should be entitled to take into account only those facts which can be shown to have existed at the date of death of the deceased and that any subsequent evidence of the
  1128
  claimant's remarriage prospects should be disregarded."
  There we have it in a nutshell.
  The hon. Member for Aberdare has enshrined precisely the same concept in Clause 4, which clearly states that:
  "only hose facts which can be shown to have existed at the date of the death of the deceased"
  shall be taken into consideration.
  The point here is that what ought to be taken into consideration is the degree of dependency of the widow on the man at the time he was killed. That is the crux of the matter. If that were clearly enshrined in statute law, there would be no question but that if the woman was living with another man at the time of her husband's death it would be right and fair for that to be taken into consideration, because her degree of dependency on her husband at the time of his death would have been very small indeed. That is clearly enshrined in the Clause, and it therefore seems to me that the whole Clause is a very well-written part of an extremely necessary Bill.
  I have immense pleasure in being one of the sponsors of the Bill. I again congratulate the hon. Member for Aberdare, and I commend the Bill to the House.
  11.51 a.m.
  Mrs. Lena Jeger: I am glad this morning to follow the hon. Lady the Member for Birmingham, Edgbaston (Mrs. Knight). I rarely agree with the hon. Lady, but this morning the agreement between the two sides of the House augurs well for this important Bill.
  It is fair for the House to recognise that it is the law relating to fatal accidents, the law for which the House must take responsibility, which imposes on judges this difficult task, and, because the House is responsible for the law of the land, it is proper that this morning we should examine those aspects of it which, because of the burdens that we impose on judges, give rise to these unfortunate circumstances for widows claiming damages.
  The present situation is not only cruel and unacceptable, but is, I submit, grossly inefficient. This is shown by the way in which, in many cases, the amount of damages is varied on appeal. In one case, the first court awarded a widow

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  £28,000. Perhaps the judge on that occasion was not particularly attracted to the lady. The insurance company appealed. The judges in the appeal court obviously thought her more attractive than did the judge in the lower court, and they knocked £5,000 off her damages.
  En another case, damages were reduced on appeal from £8,500 to £6,000, again showing how impossible and unrealistic the assessment must be. How is it that one judge can make it £8,500, and another judge can decide to knock it down to £6,000? I submit that this is an impossible auction atmosphere which is not conducive to good law, and it certainly is not humanity.
  In another case, damages were reduced from £8,000 to £5,500. This was a young widow of 26 who had two children, and Lord Justice Davies said of her:
  "It would be a matter of surprise if this young lady had not remarried by the time she was 30",
  and that was the basis on which he cut her damages from £8,000 to £5,500. This woman has no redress. If she reaches the age of 30 and has not remarried, she will not be able to go back to Lord Justice Davies and say, "You made a wrong guess. Please may I have the rest of the money?". I am trying to make the case that this is not a sensible way in which to administer the law.
  In many instances judges themselves have frankly expressed their difficulties. I was particularly impressed by a statement of Mr. Justice Phillimore who, confronted with such a case, said:
  "Am I to assess the lady on her appearance? If so, I should have to call in assessors and ask her to put on a bathing dress, because the witness box is calculated to disguise the figure.
  Am I to label the lady to her face as attractive or unattractive? If I have the temerity to apply the label, am I likely to be right?
  The fact is that this exercise is a mistake.
  It seems to me that this particular exercise is not only unattractive, but one for which judges are not equipped.
  Is a judge fitted to assess the chances of wishes of a lady about whom he knows so little and whom he has encountered for only 20 minutes in the witness box?
  I venture to suggest it is time that judges were relieved of the need to enter into this particular guessing game."
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  It is a guessing game and the House must recognise that guessing games do not make good law.
  As far as I can remember, I was not inordinately or excessively plain when I was widowed 17 years ago, but I remember the clumsy and quite unacceptable sympathy of people whose first thought was to say, "You are sure to get married again". That is totally unpredictable, it is impertinent, and quite unacceptable.
  What can we do? I think that my hon. Friend has done a great service by bringing in the Bill, but there is just one suggestion which I want to put before the House. I recognise the difficulties involved, but I put this forward in an effort to be helpful. I wonder whether it would be possible to consider awarding damages, not always in the form of a lump sum, but possibly in the form of an annuity, so that if the time came when a widow remarried, the damages would cease? If she did not remarry, they would continue.
  I recognise that there would be difficulties in that. It would be difficult for insurance companies to have an openended commitment. There may, of course, be a need for adjustments of the sums concerned, in view of the change in the value of money, but this is a policy which is followed in other spheres. A war widow, or a widow claiming benefit under the National Insurance Scheme, is paid a steady sum, subject to remarrying.
  It may be argued that my suggestion would be a disincentive to a widow remarrying when she had a chance of doing so because she would not want to lose the money. But that argument applies equally to the war widow and to the National Insurance widow. I think that that is rather a cynical attitude to adopt. If people want to get married, they do so, and there are many examples of widows having given up pensions to enjoy a second marriage. That argument is not tenable.
  There may be serious legal difficulties about my suggestion. I think that the ideal would be for it to be possible for the court to award a lump sum in partial damages and then to make some regular payments available.
  Whether or not that is a helpful suggestion, I do not know, but what I do know is that the present situation ought

  1131
  not to be allowed to continue. It is bad enough for the widow to have to stand up in court and hear all the details of the accident recounted. This must be extremely harrowing for a bereaved woman at a particularly vulnerable time of her life. It is ordeal enough for most women to go into a court at all, in any circumstances, and for a woman to have to stand up in court while a judge eyes her and makes his decision is totally unacceptable.
  The logic of the situation is that, being entirely cynical, one ought to advise a widow who finds herself in that situation to go into court looking her plainest, not having been to the hairdresser for a month, wearing her oldest clothes, squinting, and leaving her false teeth out, in the hope that the judge before whom she appears is not kinky about women with no teeth or dirty hair.
  I do not wish to appear too lighthearted about this situation, but the logic of it leads one to appreciate the stupidity, inefficiency and callousness of the present situation. Whether or not my hon. Friend's Bill can be accepted as it stands. I hope that the Government will be able to promise us some measure of reconsideration of this aspect of the law.
  12 noon.
  Mr. David Weitzman: My hon. Friend the Member for Aberdare (Mr. Probert) is to be congratulated on utilising his luck in the Ballot to bring forward what, to say the least, is a very useful and necessary Bill. For a layman to tackle matters of this legal complexity is particularly praiseworthy.
  Part I of the Bill contains three important provisions. Under the Limitation Act, 1939, a limit of six years was imposed in regard to all actions founded in simple contract or tort. The Law Reform (Limitation of Actions, etc.) Act, 1954 reduced that period to three years, subject to certain exceptions. The case against Jopling and Sons Ltd. illustrated the difficulty that arose with regard to exceptions to the rule. In that case, seven persons and the representatives of two others who had died issued writs claiming damages on the ground that they had contracted pneumonconiosis during their employment. The disease had developed over many years, and the fact that it was going to result in severe injury was not
  1132
  apparent in the early years. The employers were found guilty of breaches of their statutory duty under the Factories Acts. At the trial, in 1959, damages for all the claimants were assessed at £25,000; but because the actions had been commenced more than six years after the cause of action accrued they got nothing, despite the fact that they could not possibly have known what damage would be caused to them at the time, and also that they had commenced their actions within the statutory period after they had first learned that they had contracted the disease.
  In the case of Cartledge against Jopling and Sons Ltd. the House of Lords held, in 1963, that only in a case where the resulting damage had been concealed by the defendant's deceit did the law provide for the time to run from the date when it became or ought to have been apparent to the plaintiff, and they therefore dismissed the appeal, but in doing so, they severely criticised the existing state of the law.
  Then came the Limitation Act, 1963, which, as stated in Clause 1(1)(a) of the Bill, provided that the plaintiff had a further period of 12 months of the date on which all the necessary facts on which he founded his action became or might reasonably have become known to him. That cured the difficulty that arose in the terrible Jopling case. The Bill extends the time to three years. Clause 2 and Schedule 2 make corresponding provisions
  "on behalf of the estate or the dependants of a deceased person."
  I welcome this extension. I agree with my hon. Friend the Member for Aberdare that it is necessary to extend the period, in the interests of justice.
  I have some doubt about Part II—that is Clause 4—of the Bill. I recognise that considerable criticism has been expressed of the right of a judge, under the Fatal Accidents Act, in respect of a claim following the death of a person, to take into account the possibility of the remarriage of a widow. As we know, on many occasions judges have expressed themselves as having doubts on the matter, and have implied that it is a difficult and rather distasteful task to assess damages.
  My hon. Friend the Member for Holborn and St. Pancras, South (Mrs. Lena Jeger) rightly pointed out that widows

  1133
  might come to court in dreadful garb, trying to look their worst in order to get he judge to increase damages.
  We must remember that under the Fatal Accidents Act a widow who has suffered the loss of her husband is compensated for the pecuniary loss, as the dependant of the deceased. To assess such compensation is a difficult task in any case. If she remarries within the years that follow her husband's death her dependency will normally cease, and therefore the pecuniary loss that she has been suffering will also cease or be reduced. It is difficult for a judge to say that a widow will remarry.
  I note that the Clause provides that
  "any subsequent evidence of the claimant's remarriage prospects shall be disregarded."
  Let us suppose that the widow has already remarried at the time when the action is heard. Is it clear that such a remarriage has to be disregarded? There is a much more serious objection. Let us suppose that when the husband was killed the wife was injured, or is a lady of mature years, and in the view of the judge is unlikely to remarry. If a judge were trying such a case today he would increase the damages by holding that there was little prospect of the widow's remarrying, but under this provision he must disregard the claimant's remarriage prospects. It might be argued that that provision would appear to operate to the detriment of a widow in the case I have instanced. I am sure that the promoter did not intend that possibility. I hope that the provision will be considered carefully in Committee.
  I was interested in the suggestion made by my hon. Friend the Member for Holborn and St. Pancras, South. There are various ways in which the matter may be tackled. It is a serious matter and I hope that the Committee will look at it carefully. Something must be done about it.
  Part III of the Bill puts into statutory effect some of the recommendations of the Winn Committee on Personal Injuries Litigation, with regard to interest. I find the provisions in the Bill more complicated than those recommendations. The recommendations were intended to be guidelines upon which a court could act, and I suggest that these provisions should be carefully considered
  1134
  in detail in Committee. In paragraph 521 of the Winn Report the Committee said that in order to provide protection for the defendant who correctly appraises a situation, he is empowered to give notice to the plaintiff—dealing with liability or quantum, or both—and this should have an operative effect on the liability for costs. Paragraph 325(e) points out that by doing this he should be able to stop the accrual of interest.
  The promoter of the Bill has inserted in Clause 5(2)(g) a much wider and wiser provision which enables the court to reduce the rates of interest and the period if the claimant is shown to have been dilatory or to have refused a reasonable offer.
  I am sorry that the opportunity has not been taken to deal with the definition of "dependant" under the Fatal Accidents Act, but has thought fit to deal only with damages to a widow under Part II.
  Section 1 of the Fatal Accidents Act, 1959 extended the classes of dependant under the 1846 Act to include any person who is, or is the issue of, a brother, sister, uncle or illegitimate child of the deceased. This definition is restrictive and has resulted in many hard cases. May I instance just two actual cases?
  A husband whose wife had left him was, with his disabled son, living with the wife's parents. The husband was a traveller. When with them, he paid them £5 a week and £5 towards his son's keep. When he was away travelling, he paid the £5 for his son and a little less for them. This went on for many years. He was killed. The wife's parents, now old-age pensioners, had little means and were clearly partially dependent upon him. The disabled boy has a claim; they have not.
  The second case is of a woman living with a man for many years but not married to him. She herself may be unmarried or married to someone else and awaiting a divorce. There are two children, and the elder is illegitimate, not the son of the man she is living with and not adopted. The second is illegitimate, but the son of the man she is living with, and all of them are dependent on the man. He is killed. The second son has a claim. The woman and the first son, who were entirely dependent on him, have no claim.

  1135
  I am sure that the House will agree that hardships of this kind should be remedied. It could be done simply by enacting that any person to whom and for whose benefit the deceased has been making regular payments or contributions for their support and who could reasonably have expected, but for his death, that such payments would continue, should be held to be a dependant within the meaning of the Act—or words to a similar effect. I hope that it will be possible to deal with this matter in Committee.
  With these reservations, I support the Bill and look forward to its passage.
  12.12 p.m.
  Mr. Martin McLaren: I, too, congratulate the hon. Member for Aberdare (Mr. Probert) on introducing the Bill and the hon. Lady the Member for Holborn and St. Pancras, South (Mrs. Lena Jeger) and my hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight) on their appealing speeches. I think that the proposals in the Bill are fair and reasonable. This is one of a series of Bills passed in recent years extending periods of limitation and making it easier for plaintiffs to recover damages.
  Perhaps there is a modern tendency to think that the plaintiff should always recover, and that if there is a rule of law which prevents him from succeeding, that is a bad rule, which should be abolished. After all, it is said that defendants usually have insurance companies behind them and that it is better that an insurance company should pay than that a plaintiff who has suffered misfortune should go unrewarded. Saying that, I should perhaps declare an interest, as a member of Lloyd's.
  Judges are sometimes irreligiously described as either plaintiffs' judges or defendants' judges. The former tend to be sympathetic, while defendants' judges look whether liability has been established. Of the two classes, the defendants' judges are usually the better lawyers. In the end, we may arrive at a different system altogether, with a right to compensation for personal injuries through a State insurance scheme, without the need to prove negligence.
  It is fair that if people did not know and could not have known the facts
  1136
  needed to establish their claim, the period of limitation should be extended, and that is one of the Bill's principal proposals. I also agree with the provision about remarriage and that it is distasteful that widows should be looked over in court to assess their prospects of remarriage.
  However, I have some grave doubts about the wisdom of the other limit in Clause 4, which says:
  "… in any action under the Fatal Accidents Acts … there shall be taken into account only those facts which can be shown to have existed at the date of the death of the deceased …"
  The usual provision, surely, is that, in assessing damages, the court is entitled to look at the circumstances as they exist at the date of the trial. Even then, the court has to peer uncertainly into the future.
  It would surely be very odd if the court had to look back to the date of the death of the deceased and to ignore any circumstances which had happened since. Suppose, for example, that the widow plaintiff had died by the date of the trial. What would then have become of her dependency? Or suppose that, by the date of the trial, the widow had already remarried? Should not that be taken into account? We should then be concerned not with remarriage prospects, but with a fait accompli.
  There is a case which bears indirectly on this situation, called Curwen v. James, reported in 1963 Weekly Law Reports, Volume 1, page 748. That was a fatal accident case. The plaintiff widow remarried not before the trial but very shortly afterwards and before the time for an appeal had run out. The Court of Appeal there held that that new event should be taken into account.
  Lord Justice Harman, whose recent death we all so much regret, said some things in his judgment which are very apposite:
  "It seems to me that there is an important principle here involved and it is this, that the court should never speculate where it knows. That is a principle which is involved where there is a change in value in property, for instance."
  He then referred to an earlier case where the judgment stated:
  "If the question goes to arbitration, the arbitrator's duty is to determine the amount of compensation payable. In order to enable

  1137
  him to come to a just and true conclusion it is his duty, I think, to avail himself of all information at hand at the time of making his award which may be laid before him. Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he calculate? With the light before him why should he shut his eyes and grope in the dark?"
  Then Lord Justice Harman said:
  "The principle is the same. Why should we, when we know that the lady has married, pretend that we do not know it and assess the damages, as we are assessing them anew here, on the footing that she may or may not marry? As we know the truth we are not bound to believe in a fiction.'
  So I think that we should revise those words in Clause 4 about relating back only to those facts which existed at the time of the death.
  Subject to that, I support the Bill. Perhaps an agreeable by-product of it will be fewer claims for negligence against solicitors, who have a fatal tendency not to issue a writ until the claim has become Statute barred.
  12.21 p.m.
  Mr. G. Elfed Davies: Being a layman, I trust that the House will forgive me if I do not comment on the matters which were raised by the hon. Member for Bristol, North-West (Mr. McLaren).
  I wish, at the outset, to congratulate my hon. Friend the Member for Aberdare (Mr. Probert) on his good fortune in the Ballot and on bringing this Measure forward. The Bill will be of great importance to many people and will, I trust, be wholeheartedly welcomed by hon. Members.
  Being a layman, I will not delay the House on what is an extremely technical matter. I wish to raise only one point which is concerning the National Union of Mineworkers, which is naturally extremely interested in this Measure. It concerns the vast number of accidents the cases about which are hanging fire. This particularly relates to cases of pneumoconiosis.
  The need for the 1963 Act to be amended was highlighted by the settlement in January of last year in the Pickles case. It is generally accepted that 12 months must elapse between the date of the settlement in that case and cases being brought. It is important, therefore, to
  1138
  ensure that there is provision for those whose cases fall between that time; that is, between the date of the Pickles case and February of this year. We must make sure that the position of these people is covered by the Bill.
  May we have an assurance from the Solicitor-General that these cases are covered by the Measure as worded? If they are not, will he undertake to table an Amendment at a later stage to ensure that they are covered? Clause 3 partly deals with this matter in its transitional arrangements, but I would rather have the assurance of the hon. and learned Gentleman than rely on my reading of what is a complex Bill.
  I am happy to be a sponsor of the Measure and I hope that it will reach the Statute Book quickly.
  12.24 p.m.
  Mr. Ernle Money: I congratulate the hon. Member for Aberdare (Mr. Probert) on bringing forward a wise, humane and valuable Measure. It is particularly pleasing from the lawyer's point of view because it has the blessing of being blessedly straightforward, especially compared with so much of our legislation relating to the administration of the courts.
  Obviously the second part of the Bill will attract the greatest public interest, in that it deals with a matter about which real concern has existed for some time, both in the judicial and public mind. This point was dealt with movingly by the hon. Member for Aberdare and I agree—one has proof of this from the letters one receives and observations from the judicial bench—that the cattle market aspect of this situation is offensive to plaintiffs, who find themselves in an intolerable position through no fault of their own, and because it produces some very strange decisions indeed in law.
  There was some wisdom in the misgivings expressed by the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzmann) about the way in which this part of the Bill is likely to be applied. I hope that those and similar misgivings will not be permitted to cut at the central point of the Bill, which is to get rid of the present intolerable state of affairs. However, I share the misgiving of my hon. Friend

  1139
  the Member for Bristol, North-West (Mr. McLaren) about the words in Part II:
  "… only those facts which can be shown to have existed at the date of the death of the deceased and any subsequent evidence of the claimant's remarriage prospects shall be disregarded."
  I share his misgiving not for the reasons he adduced but because I fear words or saving provisions of that type. Although such saving provisions may be inserted with the best will in the word, when they fall into the hands of some of my professional colleagues—I say this without any disrespect—it is possible for them to open up a whole class of action which might result in the entire history of a marriage being raked over on the death of the husband.
  I was particularly glad to hear what the hon. Member for Aberdare said about the activities of inquiry agents. The present state of affairs is completely intolerable and I look forward to seeing an end to the present set-up immediately.
  I accept straight away the need for an extension of the period of limitation in this class of case, though there are other types of case which the hon. Member for Aberdare did not mention, though he spoke feelingly about those suffering from certain types of diseases. One can anticipate that this would apply to Reynaud's phenomenon. This type of eventuality should, perhaps, also be covered by the Bill.
  My only misgiving on this score is that an extension of the period of limitation in any circumstances might in some cases act as a charter for the inefficient lawyer. I would, of course, have such a misgiving about any period of limitation, though I accept that in this case it is right that such a period should exist. However, I hope that it will be secured with a continuation of the judicial process which has applied over the years. I trust that there will be no letting up in the increased pressure that is placed on the legal advisers of plaintiffs in the form of the dismissal of applications for want of prosecutions. This is happening now in the High Court. I trust that it will continue because we do not want to be in the intolerable position of prosecutions failing because it is virtually impossible for the High Court judge to try a matter as a result of the case going stale in the minds of witnesses.
  1140
  While I therefore accept the need for a period of limitation, I doubt whether there will be any benefit from a general extension of the period. This is one advantage of retaining the present aspect of the law, so as to obviate a matter which counsel so frequently meets; of being handed papers which are delivered at the last moment along with the discouraging remark, "Counsel will see from the date of the accident herein that the period of limitation runs out in three weeks' time. He will please deal with it immediately in consequence."
  This is one aspect of the law for which the whole profession has been very much to blame over the years and on which the public expects that there should be a considerable tightening up. I hope that there will be an extension in the future of what one might call "the test case". So often one has a series of cases, such as the unfortunate thalidomide children, and matters of that sort, which could be dealt with on the question of negligence in one action. One would hope that, on the prolix issue of different writs by different complainants, by establishing a common interest at once and by a consultation of actions, the amount of preliminary work and the action which takes place in front of the courts could be reduced.
  Part III of the Bill is very valuable. It will act as a spur to the law as a whole and, because it refers in essence to personal injury and fatal accident schemes, to those insurance companies who sit, always quite deliberately, and settle only at the door of the court. One has seen that type of case over and over again. The list for civil actions, particularly at assize, has become intolerably weighed down with cases which were never to be tried before a judge and which become desperate last-minute discussions at the door of the court, with no benefit to either of the parties, especially the unfortunate plaintiff who has had to wait an intolerably long period sometimes for damages to which he or she is entitled.
  I hope that in Committee some of the wording here will be looked at carefully. I am a little unhappy, for instance, on Clause 5(2)(g) about the provision that there should be a reduction in interest either in cases where the plaintiff has been shown to be dilatory—that is

  1141
  obviously a fair provision—or if the claimant has refused an offer subsequently found to be reasonable. Here one is dangerously close to an extension of the principle of the payment in, which is one of the matters which has caused more worry, perhaps, to practising lawyers than anything else. I have always found it the most unhappy aspect of civil actions of any sort for personal injuries, where one has constantly the spectre of the payment in hanging over the head of one's client. That is bound to sway one's judgment as to the amount which should properly be accepted in settlement. I hope that that provision will not become another matter which has to be taken into the mind of a plaintiff's legal advisers, having the effect of blackmailing them into settling when no settlement would be proper.
  Subject to those misgivings, I welcome the Bill and congratulate the hon. Member for Aberdare (Mr. Probert).
  12.35 p.m.
  Mr. Brynmor John: The Bill has commanded and will command general support in the House. As the only new Member who is privileged—I stress that word—to be a sponsor of the Bill, I should like to say that I think that the hon. Member for Aberdare (Mr. Probert) deserves the warmest congratulations.
  The Bill will confer real benefit to the community. That benefit particularly arises in Clause 1, where the situation as in the case of Pickles and the National Coal Board is dealt with. In that case for the first time, men who had suffered from a disease which can properly be described as a living hell were shown that they were not without remedy in establishing responsibility for the contraction of that disease.
  Inevitably, as a result of this sudden extension of the frontier of case law, many such cases are now pending. Unless this Measure is passed by the House there is a danger that, because of this sudden logjam, many deserving cases will be denied their rights under the law. Consequently, it is a Measure which must be welcomed.
  I welcome Part II, which deals with damages for widows. If there is one word which might be taken as a consensus word for the existing state of the law about the assessment of damages and
  1142
  remarriage prospects, it is "distasteful", because there is an insoluble and intractable problem of how to avoid being a mere seer and at the same time how to avoid humiliating the person who has already suffered the grief of a death.
  I am sorry that the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) is not in his place. I could not follow his argument in one particular. He said that it is difficult on this wording to comprehend some of the points. I do not take the technical point, but I cross swords with him when he said that an advantage would be lost if this right is taken away. We are faced with a reduction in a total sum of damages for remarriage prospects. If remarriage prospects are low, widows will not get an additional bonus. That is my hon. and learned Friend's error. I hope that he will reconsider that matter. In his absence, I say that in the kindest spirit and I know that he will accept it.
  Despite my strong support of the Bill I should like to deal with some aspects which cause me a little anxiety. The hon. Member for Ipswich (Mr. Money) has spoken of his reluctance to extend periods of limitation. I shall not get involved in a demarcation dispute with him, but as one who practises on the other side of the legal profession I can assure him that it is not always a question of the dilatoriness of solicitors. It is very much a problem that many persons even now are generally unaware of their rights under the law. It is right that we should try to make the law regarding the limitation on actions as uniform and as comprehensive to members of the general public as possible. There is no good purpose to be served by making the limitation periods so varied that they become a legal minefield.
  A point which I want to make, and one which I hope can be taken up in Committee, is the problem; of where the defendant in an action dies, because the present limitation period in connection with this is six months from the taking out of letters of administration. This, without any lack of diligence, can provide the most fearful hazard.
  The Solicitor-General (Sir Geoffrey Howe): The hon. Gentleman was kind enough to mention to me that he would refer to this point. Law reform proceeds so fast these days that one cannot be

  1143
  certain that one is absolutely right, but I understand that the rule to which he is referring was amended by the Proceedings Against Estates Act, 1970. Thus, the former necessity for commencing proceedings within six months of the taking out of letters of administration has been replaced by the ordinary rule. That is as I understand the position. I cannot identify which Member of which House it was who had the good fortune to sponsor that reform.
  Mr. John: I thank the Solicitor-General for that intervention. This will have been a worth-while exercise if it publicises only that development in the law and brings it to the attention of people.
  Clause 5 deals with interest on damages. I have two anxieties on this matter which come within subsection (2)(d) and (g). There are genuine reasons why in some cases actions are not set down within 18 months of the date of the accident. It may be that the trade union organisation to which the plaintiff belongs has been engaged in negotiation; it may be that the legal adviser has engaged in negotiation and therefore does not set the matter down within that period; it may be that the plaintiff himself is unaware of his rights. To put a period of 18 months after the accident and say that, from that date, no interest shall be payable until the setting down, causes penalty upon the injured person concerned. I would welcome a rendering consistent of this provision to give him discretion, so to speak. In many circumstances it would be unreasonable to penalise the plaintiff for failure to set down in the time. I commend that suggestion to the House.
  On subsection (2)(g), my concern is in part reflected by the speech of the hon. Member for Ipswich, because the claimant may have refused an offer subsequently found to be reasonable upon grounds which at the time of the refusal appeared to him to be reasonable. Secondly, where the claim is shown to be dilatory, again I fear that this may equate the claimant with his legal adviser. I would welcome an Amendment which would make it applicable that a rejection will take place only if the claimant himself is shown to be personally dilatory in taking up his rights for no good reason.
  1144
  But these are properly matters for consideration in Committee, so I conclude by saying that I welcome the Bill, admire it and commend it to the House.
  12.43 p.m.
  The Solicitor-General (Sir Geoffrey Howe): I join in congratulating the hon. Member for Aberdare (Mr. Probert) on his good fortune in securing a place in the Ballot and taking the opportunity of introducing a law reform Measure of this kind. Also, without in any sense, I hope, seeming to exercise a lawyerly type of patronising approach to the matter, I congratulate him on the great skill and lucidity with which he presented the arguments for this very human package of law reform measures.
  The hon. Member for Rhondda, East (Mr. G. Elfed Davies) almost apologised for intervening in what appeared to be a lawyers' field day. I hope that it will never come to the day in this House when that kind of apology is called for, because the law is for laymen and lawyers must listen to laymen and, indeed, as my hon. Friend the Member for Ipswich (Mr. Money) pointed out, to the anxieties of laymen about the dilatoriness and inadequacies of the law. This House is one of the places in which law and laymen are brought into contact with each other, and it is right that that should happen.
  There is something almost appropriate, I suspect, in the fact that the hon. Member for Aberdare should have the good fortune to advance and improve the 1963 Act, which was founded upon the recommendations of the Committee presided over by Lord Justice Edmund Davies, a "Mountain Ash boy who made good in the law", and it is significant that so many hon. Members from Wales—the hon. Member for Pontypool (Mr. Abse), the hon. Member for Rhondda, East, the hon. Member for Pontypridd (Mr. John) and the hon. Member for Aberdare himself—are taking part in the debate.
  As a "Port Talbot" boy myself, I may make a modest claim in the same direction. My father was coroner for West Glamorgan and he dealt with very many tragedies of industrial life in that part of the country. One remembers from those days some of the terrible dust diseases which have been the scourge of the mining industry. This subject is therefore something in which the whole House has a genuine interest and it is

  1145
  a welcome provision in Part I that extends the period within which claims may be brought under the 1963 Act.
  As the hon. Member for Aberdare said, this is of particular importance for the widow. He was supported in this by the hon. Lady the Member for Holborn and St. Pancras, South (Mrs. Lena Jeger). The problem of the widow who does not have knowledge is one of the matters dealt with in these provisions. The Government manifestly welcome the alteration in the law put forward in this Part of the Bill.
  I was asked by the hon. Member for Rhondda, East to deal with the question of cases where proceedings are now being started, where the facts also subsist, and what is the impact on these pre-existing cases of the provisions of the Bill as it stands. I have studied it myself as far as I can and have also taken advice. I understand that, under the provisions of Schedule 2, such cases—that is, those cases where the facts now exist and which might be caught adversely by the present law—will be able to take advantage of the provisions of the Bill, with the exception of those in which final judgment has already been recorded, as the hon. Member for Aberdare pointed out. The hon. Member for Rhondda, East can be reassured in that respect. This is important in the light of the backlog and build-up of cases that is taking place.
  I turn to that Part of the Bill which deals with the assessment of damages under the Fatal Accidents Act. Some hon. Members—and I suppose that this will always be the case—expressed the hope that the Bill would reform many other aspects of the law which require reform. The hon. Member for Holborn and St. Pancras, South discussed the possibility of annuities in place of lump sum damage awards. I was a member of the Cripps Committee which considered this matter. We found that, like most matters of law reform, it is not as easy as it looks. I feel that this is not the time at which or the vehicle in which a fundamental reform of that kind could be embodied. Nevertheless, it is right that her suggestion should be discussed in this kind of debate.
  The hon. Lady was even more anxious when she criticised the fact that appeals in this class of case take place as often as they do. It is right to say that, in this class of case, a change of mind by
  1146
  the judiciary at different levels underlines the lottery element of the present system of awarding damages to widows. It would be asking too much to expect the risk or prospect or possibility of appeals to disappear altogether so long as we depend upon human beings rather than upon computers to try our cases. But, within the narrow context of this Part of the Bill, it is plain, as all hon. Members have agreed, that the present system is unattractive. It has scarcely found a voice to defend it on either side of the House. It is unattractive certainly to the widow and certainly in so far as it involves the activities of inquiry agents. It is also unattractive to the court.
  My hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight) discussed the possibility that the courts might have already eroded the present provisions. One learned judge—I think it was Lord Justice Phillimore—tried to escape by pioneering reform of the law. Unfortunately, he was brought back into line by the Court of Appeal subsequently.
  Finally, it is unattractive to advisers. I have always found it unattractive to have to ask my instructing solicitors in this kind of case whether they considered the way in which the widow was likely to present herself to the court lest she should appear too attractive and thereby impair her recovery of compensation.
  It becomes more difficult when one looks at the right way in which to produce reform. We considered, in the light of the Cripps Committee, various alternatives, and it is right that we came down in favour of the one embodied in this Bill, but the Winn Committee, when it looked at it, could not agree on an answer, and it is certainly right, as several hon. Members have pointed out, that this proposal, in which one has regard solely to the facts existing at the day——
  Mr. Leo Abse: It is not quite right to say the Winn Committee could not agree on an answer. It unanimously, as my hon. Friend stressed, wanted to be rid of this, but said that under the procedural terms of reference which it had, it could not devise an answer.
  The Solicitor-General: I think that that is right. It certainly said, even as to procedure, that it could not agree on how

  1147
  to set about it, and I suspect that it regarded the substance as outside its terms of reference. I merely cite it as an illustration of the fact that not all is easy in this field, and several hon. Members have pointed out that there are, in the proposals embodied even in the Bill before the House, difficulties which were not, I confess, apparent to me when considering this as a member of the Cripps Committee. The more one looks at these things the more complex they become.
  This proposal certainly involves, as the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) pointed out, an unrealistic element for compensation for the widow who has remarried by the date of the trial. So it is imperfect. It may be that we shall almost have to have an imperfect system. If one were to look at it in the light suggested by my hon. Friend the Member for Edgbaston and consider only the degree of dependency at the date of death, one would exclude the situation where at the date of death the widow was working and the death of her husband leads to a breakdown in her own health and she can no longer remain at work, so that her dependency would thereby have been increased. But one could not take account of that. There is also, of course, as my hon. Friend the Member for Bristol, North-West (Mr. McLaren) pointed out, the case where the widow has died between the death of her husband and the date of the award.
  I mention these matters not because I wish to challenge the principle—it would be hard indeed for me to do so—but to lead up to this point: this very matter is now among those being considered by the Law Commission very closely. The Commission is taking account of views which have been expressed by many bodies, expressed by the women's representative organisations, and expressed by Members of the House. I remember the proceedings on the Administration of Justice Bill in 1965 when the same matter was considered. It may be that, when this Bill gets to Standing Committee, if it does, the sponsors of the Bill will consider that, however well supported in general terms this principle is, it might be prudent to await the final and con-
  1148
  sidered deliberations of the Law Commission. It is not my temperament, nor something to which I come happily to argue, to defer any reasonable measure of law reform, but I do see here, and the House may share this view, the necessity of ensuring that a matter of this kind is well and properly done, and it may well be therefore that at the same time the question of dependence, which the hon. and learned Member for Stoke Newington and Hackney, North raised, should be considered. It is a matter at which the Standing Committee would, no doubt, look in connection with this Bill.
  Finally—and I wish to take no great time about this—we have Part III of the Bill, the proposals for changing the principles by which the courts assess interest on damages. In the light of the recent statutory change and the decision of the Court of Appeal in Jefford v. Gee, it appears to the Government—and I must confess that the more one looks at it the more it seems a commendable view—that the principle suggested in Clause 5(2) of the Bill may tend to multiply the difficulties which face courts and parties on this matter, at least at this point in time.
  The Winn Committee, it is true, suggested a reform in the law, and that reform is embodied in Section 22 of the Administration of Justice Act, 1969. If one looks at the relevant part of the Winn Committee's Report, and I do not want to weary the House with it now, one could argue that the Winn Committee wanted to enlarge the discretion in a general way and did not wish to have embodied in statutory form the procedure which is set out in Clause 5(2).
  I know that some criticism has been advanced of the principles enunciated by the Court of Appeal, but it occurs to me, and it may well occur to the House, that the principles here set forward as alternatives are equally open to criticism, the more one looks at the detail of this, and the hon. Member for Pontypridd and my hon. Friend the Member for Ipswich both cited examples. If it is dangerous, as my hon. Friend suggested, to shackle the courts by saying that they ought to have regard only to the facts existing at the date of death, how much more difficult it might be to shackle the courts with all the matters suggested in Clause 5(2).

  1149
  Whilst one can recognise, and the Government do, that the working of Section 22 of the 1969 Act and the courts in the light of Jefford v. Gee certainly needs to be kept under review to make sure that they are going down the right road, it is the Government's view that it would be premature to legislate in this way on this topic. So that, too, is a matter which hon. Members who are sponsoring the Bill may like to consider when it goes to Standing Committee.
  Certainly this Bill in its totality the House may wish to welcome enthusiastically—as, indeed, it has done; but in these two matters, compensation for widows under the Fatal Accidents Acts, and the assessment of interest, there may be room for further thought along the lines I have suggested.
  Mr. Probert: Has the hon. and learned Gentleman any idea of the time when the Law Commission may be considering damages to widows and when it may be able to report? I can await a reply.
  The Solicitor-General: I fancy that I would be better advised to check this, rather than utter a possibly inaccurate answer, but this has certainly been under the Commission's consideration for some time, and I know that at the time when the Cripps Committee's Report was published we then had a response from the Chairman of the Law Commission. This has been on its plate, and one hopes, therefore, that it will come off its plate in the not-too-distant future.
  1.0 p.m.
  Mr. S. C. Silkin: May I begin by adding my congratulations to my hon. Friend the Member for Aberdare (Mr. Probert) for taking upon his shoulders these extremely important and valuable matters and bringing them before the House in the form of a Bill. In introducing the Bill he made a most moving speech. He apologised for the fact that he was dealing with matters that are often dealt with by hon. and learned Members of the House although he himself made no claim to that title, but he will recall what the poet says:
  "A little learning is a dang'rous thing;"
  Some of us who may be entitled to call ourselves "honourable and learned" none the less have only a little learning, and in that respect he has the advantage over us, as he amply showed.
  Sir Stephen McAdden: Will the hon. and learned Member complete the quotation?
  Mr. Silkin: I will.
  "Drink deep, or taste not the Pierian spring:"
  We also wish to welcome the Solicitor-General and express our gratitude to him, after the rough passage which he has had recently, and, no doubt, after a minimum of sleep, it any, for coming to the House to give the views of the Government. In addition to welcoming him, we may to some extent commiserate with him for having to do so, but at least he will be able to take consolation from the fact that it is a far far better thing that he does today than anything that he has done in the last few days.
  The Solicitor-General drew attention to the fact that, not unnaturally with a Bill which contains the subject flatter of Part I of this Bill, it was to be expected that many hon. Members representing Welsh constituencies would feel it desirable to stay in Westminster rather than to return to their constituencies. He sought to place himself in that category by origin if not by constituency. I will not be outdone by that. I also am a boy from Neath—even if it was only a passing incident. I am glad, therefore, to be able to take up the cudgels in a matter which so much concerns miners everywhere and, in particular, those in Wales.
  As my hon. Friend the Member for Pontypridd (Mr. Abse) emphasised, there is no doubt that the way in which the common law has developed over recent years in relation to diseases of the nature of pneumoconiosis has been wholly beneficial and desirable. It was a blot upon our legal system when it was believed that the horrible incidence of diseases of that kind could not give rise to a cause of action for damages for negligence. Once the principle was established, it became more important that a sensible system should be introduced for dealing with the question of limitation—what one might perhaps call the guillotine—operating on a claim as a result of the sheer ignorance of those concerned of their rights——
  Notice taken that 40 Members were not present;
  Sir S. McAdden: Is it in order for the hon. Member for Glasgow, Hillhead Mr. T. G. D. Galbraith), having called a count, to leave the Chamber?
  Mr. Deputy Speaker (Sir Robert Grant-Ferris): Yes.
  Mr. Abse: Further to that point of Order. If, as a result of the hon. Gentleman's activities, this Bill, which shows so much the concern and compassion of both sides of the House for widows and others, is jeopardised, he must have left this House in shame.
  Mr. Deputy Speaker: The hon. Gentleman must realise that that is not a point of order for me.
  House counted, and, 40 Members being present—
  1.7 p.m.
  Mr. Silkin: Mr. Deputy Speaker, if it is in order for me to comment upon the procedure in which we have just participated, all hon. Members who have taken part in the debate and all but one who have listened to it, will feel that it is quite disgraceful that a Measure which has the general support of those who have spoken and of hon. Members generally should have been subjected to tactics of this kind. I certainly hope there will not be a repetition. In a Bill which is supported by hon. Members on both sides of the House it is a deplorable occurrence.
  I was dealing with diseases such as pneumoconiosis which are dealt with in Part I of the Bill, and I had pointed out that delays are often due to a lack of knowledge of the facts and of the rights of the claimant. We should give every possible latitude to those who, through ignorance, possibly through a very affecting bereavement, which has been referred to in relation to Part II, are not placed in a position in which they can make a claim. I entirely agree with my hon. Friend the Member for Pontypridd that delays of lawyers ought not to be visited upon potential claimants. The principle involved in this Part of the Bill is much more important than the question of delays of lawyers, and this aspect will equally apply when we come to Part III of the Bill.
  My hon. Friend the Member for Rhondda, East (Mr. Elfed Davies) referred to the question of retrospectivity.
  1152
  Like the Solicitor-General, I think that it is adequately dealt with in Schedule 2. I raised the point with the Attorney-General at Question Time, when he announced the Government's broad support for the Law Commission's proposals and promised to look into the question. I hope that the provisions of the Schedule will be carefully scrutinised in Committee to make quite sure that all possible retrospectivity is given, because that is a very important factor.
  In relation to Part I, I would also draw attention to the desirability expressed by the Law Commission in its advisory report that the law of England and Scotland should be common, by which I do not mean that it should be the common law but that it should be the same. If there are any doubts about that, I hope that they, too, will be set at rest in Committee.
  Mr. T. G. D. Galbraith: Does the hon. and learned Gentleman mean that the law of England and Scotland should be the same only in respect of this Bill or is he suggesting wider changes, which might perhaps lead to the removal of the Court of Session?
  Mr. Silkin: If the hon. Gentleman will take the trouble to read the debate on the introduction of the Law Commissions Act, he will see that I and many other hon. Members expressed the feeling that it is desirable that the law of England and Scotland should gradually become assimilated together. That was one of the purposes of the setting-up of the two Law Commissions. Which law, if either, is the better in any particular circumstances, is not for me to say.
  I should now like to say a word about Part III, leaving Part II, which is perhaps the more contentious part, to the end. I think that the Solicitor-General recognised that the decision in Jefford v. Gee has created difficulty, and his problem was to consider whether the way in which the Bill seeks to solve them, by following almost entirely the wording of the proposals in paragraph 325 of the Report of Lord Justice Winn's Committee, is the best way of dealing with the matter. The provisions of the Bill have been approved as being more flexible than those of the Winn Committee, but the hon. Member for Ipswich (Mr. Money) and my hon. Friend the Member for Pontypridd (Mr. John) suggested that even now they are

  1153
  rather too rigid. If I understood correctly the Solicitor-General's remarks, this is probably generally in line with the Government's view that once we start to put these matters in a Statute, rigidity is a danger that we must accept. This question should also be looked at very closely in Committee. I hope that the Government will not take the view that because of the difficulties of improving upon the present situation nothing should be done about it in the Bill.
  Although I would not for a moment suggest that the provisions of the Bill are the last word on the matter, they are better than the situation today, and I hope that they can be improved in Committee. I agree with my hon. Friend the Member for Pontypridd that it would be wrong to equate the claimant with his legal adviser in visiting upon him any penalty that there may be for delay. I hope that that principle will be followed.
  Part II deals with the question of a widow's prospects of remarriage. This matter received the attention of the Winn Committee, which was unanimous that the present situation should be changed. I believe that the House will regard that as very significant, having regard to the composition of that Committee, which consisted of many distinguished people operating in this field in particular. They had no doubt that a change should be made, though they were unable to say precisely how.
  My hon. Friend the Member for Holborn and St. Pancras, South (Mrs. Lena Jeger) suggested that wider issues are involved as to the way that damages generally should be allocated. I have a great deal of sympathy with her view. This point, too, was considered by the Winn Committee, which did not find itself able to support the suggestion that damages should be paid on an annuity basis. This matter should be carefully examined, because undoubtedly the present system is very hit-or-miss.
  I agree unhesitatingly with those who have suggested that the present system of assessing a widow's remarriage prospects is unattractive and humiliating. In addition, there are two most important fallacies in the present law. Attention is drawn to one in paragraph 378 of the Winn Committee Report, which refers to the difficulty of
  1154
  "forming a judgment as to whether there is a probability that the individual widow will remarry and, if there appears to be such a probability, of forecasting when this may happen."
  This has been referred to extensively in the debate. We may well say that it requires deep psychological insight on the part of a judge to be able to make either of those forecasts. Even if he has it, he is highly likely to be wrong.
  A number of hon. Members pointed out that one cannot go simply on whether a woman appears or sounds attractive. People marry for wholly different reasons, and they refrain from marrying notwithstanding that they are attractive, particularly when they have lost a very loving husband in a very happy marriage. Therefore, it would be quite wrong to assume that merely because a widow is young and attractive there is a higher probability that she will decide to remarry than a woman who is perhaps not apparently so attractive but who may have many more sterling virtues.
  In addition, there is another fallacy to which attention has not been drawn during the debate—namely, assuming the widow remarries, whom will she marry? Is it to be assumed that a bereaved Lady Chatterley will marry someone of her own social class, if I may use that expression, or might she marry a gamekeeper? Who can foretell matters of this kind? Yet, the whole basis of a reduction in the damages awarded because of remarriage prospects must be on the assumption that the widow, on remarrying, will be put broadly into the same category of income and social statuts that she had before. That seems a highly speculative element which really makes the whole thing a complete gamble.
  The hon. Member for Bristol, North-West (Mr. McLaren), I think generally accepting the argument, referred to the wording of the Clause, and particularly the effect of remarriage after the death of the former husband. I accept entirely that the wording requires to be looked at very carefully. Indeed, I am sure that it will be looked at very carefully in Committee. I do not think that my hon. Friend would wish to bind himself too closely to the text of the Cripps Committee of Conservative lawyers with which the Solictor-General himself finds difficulty.

  1155
  In my view, a great deal of consideration ought to be given to whether remarriage before damages are awarded should necessarily operate to reduce the damages which are awarded. We ought to look at that question in the light of other factors occurring after the death of the husband which do not get taken into account but may arise, directly or indirectly, as a result of the death. For example, a situation may arise where, simply because a woman has been widowed and may be suffering from hardship as a result, somebody leaves her a fortune in his or her will. That kind of situation is regarded as quite independent of the death and, therefore, not to be taken into account.
  The whole question whether remarriage ought to be taken into account at all, let alone what is here involved—the prospect of remarriage—should be very carefully considered before the House assents to the proposition that that in itself ought to operate to reduce damages.
  The Solicitor-General has indicated that the Law Commission will be considering these matters very broadly. I am certain that it will take note of everything said in this House. I am sure that it will also take note of the fact that not only did the Winn Committee unanimously take the view that the law ought to be changed, but that the burden of every speech but one which we have heard has been in favour of making a change from a situation which all regard as humiliating, embarrassing, illogical and unsatisfactory. Knowing how the Law Commission works, even if my hon. Friend the Member for Aberdare does not have the satisfaction of seeing this part of his proposal become law as part of his Bill, I am sure that he can content himself with the knowledge that a change in the law in this respect will not be long delayed. I congratulate my hon. Friend on bringing in the Bill.
  1.25 p.m.
  Mr. Leo Abse: I am grateful to my hon. Friend the Member for Aberdare (Mr. Probert) for permitting me to co-operate with him in formulating the Bill. The welcome which the House has given to the Bill means that, if it is its wish that this is the last speech, then, as someone winding up
  1156
  the task has become, because of the unanimity of the House, comparatively easy.
  This proposal has come about because, above all else, the Bill is an attempt to bring in out of the cold widows whose late husbands have been the victims of industrial accidents. But it is important that it should be generally understood outside the House that the effects of the Bill are directed also to others suffering disabilities. The Bill seeks to reach out a helping hand to many other faultless victims whose working lives have brought them not the relief of death, but the affliction of continuing and painful disability. Inevitably this includes the category of workers employed in the most hazardous of occupations—mining.
  I am sure that my Welsh colleagues will agree that it is little short of a national scandal that in 1971 the miner who contracts pneumoconiosis through no fault of his own, when the management has, in the most perfunctory manner, observed the extraordinary minimal safety precautions laid down by Statute, has still no right to damages in our courts. Although he has perhaps spent his working life in the pits and personally observed every safety precaution, when his lungs are turned to stone and he is coughing his last gasp, he cannot, as the law stands, claim a single penny by way of damages in our courts.
  I suggest that this is an occasion for reminding many of those who pontificated so much when the miners recently demanded higher wages that certainly those of us who come from South Wales understand that it is not surprising that the overwhelming majority of miners in South Wales voted to strike for higher wages. Who amongst us would be prepared to go down those pits when the statistics reveal that each year in the South Wales coalfield the hazards of pneumoconiosis, far from diminishing, are increasing? There were more certifications in 1970 than in 1969. The whole trend over the last decade shows that although, with a declining working population in the Welsh coalfield, the overall certification has necessarily lessened, nevertheless, the number, if taken on the shifts worked principle, is significantly increasing.
  It would doubtless be too radical a measure for a private Member to attempt,

  1157
  with any success, to overturn the present position and to insist that every man certified as having pneumoconiosis should have a right to claim damages unless the management could show beyond doubt that all precautions against injurious dust had been taken. Then, with the onus of proof thus reversed, we could begin to grant miners the rights which, ironically, are granted even in countries like South Africa. Then perhaps, too, with a less stricken conscience, we could seek to recruit the 8,000 miners now desperately needed to maintain our economy.
  At least this Bill, which my hon. Friend has so usefully introduced, seeks to help to give aid to those miners who, after contracting a lung disease arising from their work, years later may become aware of facts which may give them some slight chance of obtaining damages in court because even the lenient duties imposed on management by the Mining Acts to minimise the effects of dust have not been taken.
  My hon. Friends the Members for Rhondda, East (Mr. G. Elfed Davies) and Pontypridd (Mr. John) have both stressed that in January last year an action was settled out of court when the Coal Board made a payment to a ex-miner named Pickles who, having mistakenly thought that he had suffered from tuberculosis, later discovered that it was silicosis contracted in his earlier working life in the mines and that he may well have been able, had the case been fought by the Coal Board to have obtained damages for negligence of breach of statutory duty.
  It would be cruel if as a result of the debate in this House it were to go out to miners who have contracted pneumoconiosis that they have now automatically a right to damages. That is not the position. The case of Pickles was unusual in its character. Because of that there was naturally much publicity throughout the mining industry in the spring of last year, and particularly in the unions of which many members are miners or ex-miners. It has been suggested that there may well be some 2,000 miners or ex-miners who during the last year possibly could have heard that they may make a claim such as that which I have mentioned.
  1158
  Already some of the unions are considering some hundreds of cases: and since under existing law many of these potential plaintiffs may be taken to have actual or constructive actions on the relevant facts from the time they learn of the Pickles settlement, in view of the serious hazards involved as the law stands if they have not obtained leave to commence their actions and if granted if they have not commenced within 12 months of the time they learned of the Pickles settlement. Yet to make an application for leave as the law now stands it is essential to obtain leave for the applicant and his advisers to collect the information needed to satisfy the vital conditions for leave to be given. That is precisely when and in what circumstances the applicant first acquired the relevant knowledge.
  Moreover, the court requires that a draft statement of his claim is before it and this may mean, in an endeavour to show that there has been negligence or breach of a statutory duty, that far-reaching inquiries often prolonged and difficult, may have to be made. The plaintiff and his advisers will in those cases be compelled to trace witnesses who, if alive, may have long ago left the area. The mine may have closed down and all records and all people who could have helped the plaintiff may be widely dispersed. Justice demands that a plaintiff, faced already with these difficulties, and faced, certainly in the mining industry, with the special difficulties of ever being able to prove negligence in silicosis cases, should not have the additional difficulty of trying to get all his case mounted under the handicap of too onerous a time scale.
  Clause 1 by extending the period from 12 months to three years covers the disabled man's date of knowledge of his possible claim as to when he can seek leave. This would ensure that a ligitimate claim will not crumble for want of time.
  I have cited the present existing difficulties in the mining industry to demonstrate the need for this Bill. It should also be stated that the Bill is not simply a rescue operation giving first-aid to a particular group. It is also a Bill that bears in mind that progress in medicine and discoveries about the relationship

  1159
  between health and environment may well give rise in future to groups of plaintiffs bringing identical actions for personal injuries and diseases which at present are unattributable to a wrongful act or omission. It is important that if such cases arise, those affected should have the opportunity to present well-founded and well-investigated reasons why they should have leave of the court to pursue the action, though their disability arose out of employers' negligence many years previously.
  If under the present law a man who discovers he is afflicted with an insidious disease brought about years previously through the negligence of his employers has too limited a right to ask the court for relief, the widow's position is still worse. If some time after he dies it is discovered by his widow that the husband's death was due to her husband's employer's negligence, unless she brings an action within 12 months from the date of his death she is undone. So if in her 13th month of widowhood she or solicitor discovers the facts of the cause of the death, it is too late. So it comes about that men who remain alive, albeit crippled by disease, can bring an action when they belatedly discover the cause, but the widows of the men who have died cannot. Scores of women whose husbands have died of bladder cancer and pneumoconiosis have in recent years been left out in the cold, while the workmates of their husbands who have managed—not without suffering—to survive the disease have received damages. Clearly, this Bill seeks to remedy those iniquities.
  Although Part I of the Bill providing opportunities to a considerable number of injured people and widows to have a right where none existed before to commence actions is the weightiest part of the Bill, it is not surprising that great attention has been paid to Part II. I will not recapitulate the strong arguments advanced by hon. Ladies on both sides of the House. These were powerful advocates as to the need for change of the type with which the Bill deals. The right hon. and learned Gentleman the Solicitor-General served on the Cripps Committee, and he will know that that Committee advocated a need for a change in the law. Indeed, it must be unusual
  1160
  in the assistance I gave to the hon. Member for Aberdare to find that reforming Labour Members have been able on this unusual occasion slavishly to follow the exact words drafted no doubt by our able Solicitor-General when he served on the Cripps Committee. I would merely point out that the points raised express some concern that perhaps the Clause as drafted does not take into account all the variety of circumstances which may result.
  The matter of the widow's damages seem to be based upon two facts. The first is the degree of dependence. I hope that when, as seems likely, the Law Commission looks at this matter, it will understand and take account of the great changes which have come about since the last century when the courts made awards which included the loss of prospective pecuniary advantages and had a totally different attitude to the position of a widow than that which has now been evolved by case law where inquiries are made upon the basis of weekly contributions made by the late husband to the household. Professor Street has complained of the cynical attitude by judges to working-class life and I would take his words to have great weight. The reasoning behind the present case law is that the wages which a man does not give to his wife he spends on drink and gambling. If that was ever a valid assumption it is certainly not the case at present, otherwise how can one account for example for the vast expansion in national savings?
  I hope that the whole issue of dependence will be looked at by the Law Commission. It cannot be right to put the widows not only in the present humiliating position, but also to insist that regard to any accelerated gain should be taken into account, apart from certain statutory exceptions, when the judge decides what should be awarded to a widow by way of damages.
  I think secondly that hon. Members who has stressed some difficulties about the Clause as drafted take an excessively romantic view. I suspect that even the hon. Ladies are looking at it from the point of view of the widow. When people say that perhaps after a year or two the widow may remarry, and she should not therefore have had the original sum, they are surely disregarding social needs within

  1161
  the community to assist and not to deter a widow to remarry?
  I think that a widow with two children should be given every encouragement, and not have a disincentive, to remarry. I think that it should be possible for the law to encourage a widow to marry by creating a situation in which a man, looking realistically at the situation, will feel that if he marries a widow with two children he will not be taking on excessive burdens, and the widow herself will be able to feel that she is coming to the marriage, not as a drag, but as an equal partner. I believe that we should get away from the existing romanticism surrounding marriage and look at the matter realistically. We should so frame the law that a woman with fatherless children is encouraged to remarry and establish a new family.
  I have only a few words to say about the final part of the Bill, which deals with the question of interest. I hope it is sufficiently appreciated that the motive, above all others, for this part of the Bill is that as matters stand there is, unfortunately, almost a compulsion for solicitors to advise their clients that writs should be issued speedily, and oft times unnecessarily, in view of the unfortunate Court of Appeal decision that interest should become payable only from the time of the issue of the writ.
  This procedure has meant that trade unions are in some cases being called upon to issue writs by the score because they feel that otherwise they and their legal advisers may find themselves open to an action for negligence because interest which would otherwise have accrued may not accrue. The result is that there is a tendency for solicitors to abandon traditional forms of negotiation and to feel themselves compelled unnecessarily to rush into litigation. It is because we want to avoid unnecessary and excessive litigation that, whatever blemishes there may be in this part of the Bill, we hope that the Government will consider that point above all else before we come to the Committee stage.
  My hon. Friend has done a great service in bringing in this Bill, and the sponsors on both sides of the House, who have given my hon. Friend so much help, as he has readily acknowledged, have shown that even when there is so
  1162
  much turbulence in the House, and when we are so divided, it is nevertheless possible for the whole House to be mobilised in its concern for those who, through no fault of their own, have become the victims of industrial accidents or industrial diseases, and wish to extend a helping hand to them.
  I hope that the Bill will be given a Second Reading so that we can move forward to a situation in which there will be fewer burdens placed on those who wish to establish a real and genuine case before the courts of the land.
  Question put and agreed to.
  Bill accordingly read a Second time.
  Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).

  NULLITY OF MARRIAGE BILL
  Order for Second Reading read.
  1.45 p.m.
  Mr. Alexander W. Lyon: I beg to move, That the Bill be now read a Second time.
  The Bill arises out of the Law Commission's Report—No. 32—on Nullity of Marriage, which was the culmination of the Law Commissioners' review of family law. The Bill is, I hope, wholly uncontroversial. It is an attempt simply to tidy up one or two loose ends in the existing law of nullity, but on the whole to re-enact most of the existing law. Its purpose really is to enable the Government, in due course, to bring in a consolidating Measure which will take account of all the changes that have been enacted as a result of the Law Commission's Report.
  The Divorce Reform Acts, the property and maintenance legislation and this piece of legislation if it is passed will, together, form a new corpus of matrimonial law which could be the subject of a consolidating Measure, and therefore the House is again deeply indebted to the Law Commission for pursuing this line of inquiry; otherwise it would presumably have very little chance of reaching the Statute Book. The House is indebted to the Law Commissioners for the depth of research and

  1163
  the balance of views expressed in their Report.
  Compared with divorce law, the law of nullity is singularly uncontroversial. That is because the practical effects of the divorce law are so much greater. There are about 40,000 divorce decrees a year, and about 800 nullity decrees. The main grounds on which nullity decrees are granted are either wilful refusal to consumate a marriage, or incapacity to consumate a marriage. Most of the other grounds, to which I shall refer when explaining the provisions of the Bill, are, in practical terms, of very little significance.
  In theory the law of nullity is very much more important than the law of divorce. After all, what the law of divorce seeks to do is to regulate the breakdown of personal relations between two spouses and to take some kind of sympathetic but practical view of the new facts that have emerged. What the law of nullity does is to define the area of marriage as we understand it in our society. It is for that reason that the law of nullity has long been regarded by the Church as an acceptable way of disposing of a marriage—and I use the word "disposing" in a neutral sense. Even in Italy, where there is so much controversy about the reform of the divorce law, where previously there had been no possibility of obtaining a divorce, the Vatican has for long allowed an extended jurisdiction in nullity, because the Church has taken the view that the law of nullity is simply the acceptance of the restrictions upon marriage which it will accept. Therefore, if one looks at the law of nullity, one can see the bounds of our concept of marriage.
  Mr. T. G. D. Galbraith: I am interested in what the hon. Member is saying, especially about his reference to the views of the Papacy. I understood—perhaps the hon. Member will correct me if I am wrong—that it was sometimes possible for consummation to have taken place and for a marriage still to be regarded as a nullity, in the Roman view. If that is so, does it not make the situation difficult for a layman to understand?
  Mr. Lyon: Having regard to recent events, my mind is not as clear on the technical issues as it should be. I do not wish to comment in any detail upon
  1164
  the Papal position, but even under our law there can be consummation of a marriage and still grounds for declaring the marriage null and void.
  I was indicating that the law of nullity sets the limits to our concept of the law of the status of marriage. I should like to give an example to explain what I mean. It is a ground of nullity, which makes a marriage void, that one of the parties is already married. That takes account, first, of the law and, secondly, the religious doctrine relating to bigamy. Our society does not recognise a polygamous marriage—at least, a polygamous marriage carried out within the jurisdiction. That is one limit that we set to the concept of marriage. Marriage must be monogamous in English society; if it is not, the marriage can be declared null and void. That occurs whether or not the marriage has been consummated. Therefore, one can come to a view about the present limits of marriage by considering the provisions concerning nullity.
  This is of considerable importance, in view of the current discussion as to what should be the marriage state. There are those at the extreme who say that marriage now no longer has any purpose in our society—that if two people want to live together there might need to be some kind of obligation in respect of property or the care and control of children, but there should not be any declaration either that the person is in a legal estate or that, having passed through certain events, the estate should be broken off. One can therefore say that there should not be any kind of doctrine of marriage. That is such a minority view that I do not need to pursue the argument further.
  But there is another possibility which was not aired by the Law Commission, either in its working paper or its report, namely that the law of nullity is really unnecessary to our concept of matrimonial law. It would be possible to say that all the grounds of nullity were grounds for divorce and deal with the question on that basis. In recent years the practical effects of a decree of nullity have become fairly indistinguishable from the practical effects of a decree of divorce. At one time a decree of nullity meant that all the children were illegitimate, because the marriage was declared to be void and it took effect as if the

  1165
  marriage had never been. Therefore, not only was a child branded as illegitimate; it was incapable of claiming under the estate of the parents, for instance, in probate.
  This led to many difficulties—but all those difficulties have gradually been ironed out by amendments to the law, and the practical effect in respect both of divorce and nullity is now much the same. One can now have a decree of nullity which allows one of the spouses to receive maintenance, to have custody, and to have all the other rights and obligations that flow from the law of divorce. It is arguable that the practical effects of the law of nullity have now so diminished that it can be absorbed into the law of divorce without difficulty.
  There is one practical objection, which is of relevance to a point that I shall make later. In relation to a decree of nullity an objection can be filed immediately after the marriage, but in relation to a decree of divorce it can be filed only three years after the marriage. There is a time lag in one case that does not exist in the other.
  For the reasons that I have indicated I do not think that it would be right to say that the law of nullity should be subsumed to the law of divorce, precisely because the law of nullity is the legal statement of a marriage within our society. This is of real importance in defining the status of the union and therefore setting the limits for public concern. It follows that there would be profound objections from some religious groups—particularly the Christian Churches—if we were to take that line of thought. That is of some importance when we are considering the question of wilful refusal.
  In order to help hon. Members with what is admittedly a difficult subject I have included in the Explanatory Memorandum all the notes contained in the Appendix to the Law Commission's Report, which were the observations on the draft Bill that the Law Commission tabled. Members who have read the Report will know that the Appendix is set out so that on the left hand page there is a Clause of the Bill and on the right hand page, in a convenient form for reading and commenting, the notes of the Law Commission on that Clause.
  1166
  I tried to have the Bill published in that way, so that for ease of reference there would be on one side a Clause of the Bill and on the other an explanation of that Clause, but I found that because of the innate conservatism of the establishment it was quite impossible to persuade the Public Bill Office that such an idea was helpful and that it could take place without some Resolution of the House. We move in slow and devious ways. I can only hope that the Committee on Procedure will consider the matter.
  I remember, some years ago, being a member of the Statute Law Revision Committee and making recommendations about the drafting of legislation to the effect that any change could be incorporated by sliding a new page into a loose-leaf folder. Any amendment of the law would merely require taking one leaf out of the loose-leaf folder and putting in another. But the others on that Committee voiced the objection that the House of Commons would never agree to that kind of revolution in the drafting of legislation and amendments. We would have to have textual amendments instead of the kind we have now.
  If that is so I regret it, but I do not believe that it is so; I believe that the House is far too rigorously governed by its officials—to whom I pay tribute for their diligence. There is an in-built conservatism about the official who says, "We must not do anything that might cause a row in case the dispute extends to the Floor of the House. Therefore, we will abide by what we did last week." Surely it would be helpful to experiment in this way.
  The first Clause is a statement of the grounds on which a marriage may be declared void. The essential difference between a void and a voidable marriage is that a void marriage has never been a marriage. It does not require a decree of the court to say that the marriage did not exist. The purpose of going to the court is simply to regularise the position, so that the parties know where they are, particularly if there is a dispute about the facts. But if the facts are as alleged by the petitioner, he does not need a decree. A voidable marriage is valid up to the time that one of the parties gets it annulled and declared void.

  1167
  This used to have certain practical differences. It now has very limited practical consequences, and the difference is receding, but in essence it means that the void marriages are those where society has an interest in seeing that the legal estate of marriage does not come into existence. In the other case, it is very much at the parties' discretion whether they want to consider that their marriage never took place, and it is not the business of anyone else.
  I should like to go through the various grounds to show this distinction. In relation to a void marriage, Clause 1 says that it shall not be a valid marriage if it is invalid under the provisions of the 1949 Marriage Act, which sets out the procedure to be adopted in relation to marriage in this country. The first ground therein constituted is that the parties are within the prohibited degrees of relationship, which are numerous.
  The second is that either of the parties is under 16. The Latey Commission, when considering the age of majority, considered whether there should be any change in the law relating to limitation of age for marriage, and concluded that, even though it was right to reduce the age of majority, it was not right to reduce the age of 16—although it recognised that both boys and girls mature earlier than they used to do. On the whole, I think that that would be accepted by most people in society—it is certainly accepted by the Law Commission—so no change is proposed there.
  The third ground is that the parties have intermarried in disregard of certain requirements as to the formation of marriage. This relates to the giving of banns and giving of notice and other legal requirements, all of which are being reviewed by a working party of the Law Commission. It may be that, in due course, the Marriage Act will be reviewed but, at the moment, the provisions required by the Act are those which will declare the marriage to be valid. The other ground is that, at the time of the marriage, either party was already lawfully married. I have dealt with that already.
  In effect, then, there are no differences there in relation to the requirements for declaring a marriage void. There is one change from the existing law. Under the
  1168
  existing law, lack of consent applies to the case of a heavy-handed father insisting upon his daughter marrying against her will—a sort of Barretts of Wimpole Street situation, if one could put a gloss on those facts—which curiously enough still gives rise to odd cases even in the middle of the twentieth century. If that kind of duress or fraud or some kind of mistake is present in the bargain made between the two parties, which is the basis of the marriage contract, under our existing law it can be declared void.
  However, as the Law Commission points out, one of the grounds, namely, insanity, is so like the ground which was put in by the 1937 Act—that a party was suffering from some kind of mental illness—that it is rather illogical to say that, in the one case, it makes the marriage void and, in the other case, it makes the marriage voidable.
  In addition, although duress may be present at the marriage ceremony, when they have lived together for a little while, the two parties may want to continue to live together, even though either the mistake or the duress existed in the formation of the contract. It is, therefore, a question for them to decide whether they want to have the marriage annulled and not one for anyone else. Society has no interest in whether they, as two people, decide to continue with the union, even if there were this flaw in the original contract. So the Law Commission argues—I think rightly—that that should be a voidable marriage, and this then falls under Clause 2.
  Grounds are set out in Clause 2 for making a marriage voidable. They are that the marriage has not been consummated owing to the incapacity of either party, or that it has not been consummated owing to the wilful refusal of the respondent to consummate it. I must come back later to paragraph (b), because it is one of the two important matters in the Bill which need discussion.
  But, about consummation, which is by far the biggest ground for making a marriage null and void, there cannot now be any argument. No one who has ever been involved in any of these cases in the courts, as I have from time to time, can mistake the misery which exists when two parties who want to make a valid marriage find that, for one reason or another, they cannot consummate it.

  1169
  Those who believe that sexual intercourse is a matter which ought not to be publicly discussed and is not of considerable importance in a marital union have no idea of the kind of misery which can exist when proper sexual relations are not present within the union. It can rot the very fabric of a marriage, even if the two parties are ad idem about everything else.
  It is, therefore, right that one should say—as the Christian statement of marriage says—that consummation is necessary for a valid marriage. Of course, if the parties can manage to make a fruitful partnership without sexual intercourse, it is only right that they should do so, but that is the reason that it is a voidable rather than a void marriage. That is clearly a matter which should be kept as a voidable marriage and no change is proposed from the present law.
  Then there is the question of consent, which I have mentioned. Then there are three grounds which were put into the law in 1937 and are kept. One is that there was no valid consent or some defect from mental disorder. The other is that the respondent was suffering from venereal disease in a communicable form and the third is that the respondent was pregnant by some other person.
  All three could be the subject of controversy, but happily have not been, and the Law Commission simply suggests that the existing law should be re-enacted, with this difference, that the grounds for saying that insanity or some kind of mental illness made the marriage voidable were rather wider under the 1937 Act than are here proposed.
  However, as the Law Commission points out, what one is concerned about in relation to mental illness is whether the parties understood what they were doing in joining in marriage. It may be that they fully understood the nature of the marriage, fully wanted to get married, that one was still mentally ill but that the other party was prepared to accept that and that, therefore, should not be a ground for making a marriage voidable. There is, therefore, some limitation in paragraph (b) on the present position. The other two grounds are as in existing form.
  Clause 3 relates to the bars on relief——
  Mr. Galbraith: There is a matter which disturbs me when the hon. Gentleman talks about the necessity for sexual intercourse and says that, if it is physically impossible for the man to penetrate the woman, this should be a good ground for nullifying, voiding the marriage—a proposition with which I think we all agree. But there is another aspect of that which may have precisely the same effect, is there not, whereby, owing to the frigidity or whatever it may be of the woman, it is impossible for her—it is very difficult to talk about these matters in public—to enjoy the sexual act fully? Should that also constitute a ground for nullity or not? I am interested in the hon. Gentleman's view on this.
  Mr. Lyon: It depends on what the hon. Gentleman means by "frigidity". The incapacity referred to in the Bill and in the existing law covers both physical and psychological incapacity to consummate the marriage; and consummation is full sexual intercourse. It is not necessary to be able to have a child. The Law Commissioners considered whether there should be the additional ground of sterility, but they came to the conclusion that there should not, for reasons which the hon. Gentleman will find set out in their Report and to which I will not refer today.
  If, on the other hand, what the hon. Gentleman means is that frigidity indicates that the wife is capable of having sexual intercourse and submits to having it but cannot get the kind of pleasurable excitement and fulfilment out of sexual intercourse which is normal in a marital relationship, then the answer is that it is not an existing ground for declaring a marriage null and void. Nor is it a ground for divorce.
  However, it is obviously a matter which will enter into the relationship to a marked effect and will probably lead to the kind of conduct which, under the new legislation, would be regarded as intolerable conduct or would lead to the separation of the parties, when, in any case, they can get a divorce. The matter is, therefore, dealt with if, in fact, it leads to that fundamental rotting of the marriage fabric.
  Before the hon. Gentleman interrupted I was about to deal with the bars to relief in Clause 3. This is one of the

  1171
  most important changes which the Bill seeks to make. Under the existing law a voidable marriage—that is, one which can be made void only when the parties go to court and ask the court to make it void—can be met with the defence that one of the parties has recognised the marriage in such a way that it would be unfair to split it up because the other party has acted so as obviously to accept that there was a marriage in being, has so conducted himself or herself for it to be unfair for the marriage to be declared null and void. Although this is a simplified statement of the situation, that is, in effect, the law of approbation. The defences arise entirely out of case law, and there have been varied statements about the formation of the law and what is implied.
  In addition, there have been alternative grounds called "lack of sincerity" and other names. These have tended to make it difficult to understand exactly what would be regarded as a defence. The most practical result of this which causes concern is that lawyers, when faced with parties who may have prima facie grounds for declaring a marriage null and void, are sometimes inhibited from saying, "Let us see whether you can get together and whether there can be some sort of reconciliation." That course cannot be taken in an effort to overcome the difficulties because it might be considered to be a case of approbation of marriage.
  The law of approbation can be said to have three factors: that the person knew the facts, that the person knew the law and that it would be unfair either in relation to the conduct of the petitioner or in relation to public policy to allow the marriage to be declared null and void. The tidying up operation which the Law Commissioners have done is contained in Clause 3(1)(a) and (b), where the test is stated as a statutory test in these terms:
  "3.—(1) The court shall not grant a decree of nullity by virtue of section 2 of this Act on any of the grounds mentioned in that section if the respondent satisfies the court—

  (a) that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and

  (b) that it would be unjust to the respondent to grant the decree."

  Mr. S. C. Silkin: Does my hon. Friend construe subsection (1)(a) to mean "intentionally so conducted himself" or not necessarily intentionally?
  Mr. Lyon: I think it is implicit in the wording of this part of the Report that this is a subjective approach. It is, therefore, an intention. It follows, I submit, from the preceding words in relation to having knowledge both of the law and of the facts that it must be intentional conduct and could not relate to something that was unintentional and inadvertent.
  The other bars to relief which are stated in Clause 3 are as they exist in the present law, with the exception of some of the bars to the new grounds for declaring a marriage voidable contained in the 1937 Act. In that Act there were certain statutory bars. One was that the petition had to be presented within a year and that the person had not to know the facts at the time when the marriage was celebrated.
  The Law Commissioners have made a number of alternatives, for reasons which are given in their Report and which I will not go into at this stage. They can be dealt with in Committee. This is a tidying up operation for reasons which, in my submission, are fully justified.
  Clause 4 is simply concerned with foreign marriages. Clause 5 is concerned with the
  "Effect of decree of nullity in case of voidable marriage".
  That relates to the difficulty to which I referred earlier; in relation to the nullity of marriage, the old law was that once a marriage was declared null and void, it was as if the marriage had never been. A number of practical complications that flowed from that view of the law have been ameliorated by changes in the law over the years.
  However, there are still difficulties arising in relation to a voidable marriage. For example, once a marriage has been declared null and void, an ante-nuptial settlement could not be regarded as being valid. The Law Commisisoners point out that although this is of little practical difficulty these days, it may occasionally give rise to difficulty. Thus, to make the position quite certain, they say that there should be no retrospective effects from the decree of nullity in relation to a voidable marriage.

  1173
  Clause 6 abolishes collusion as a bar to a decree of nullity, which brings the position into line with the position now under the Divorce Reform Act in relation to divorce. The other matters are incidental.
  Although I have spoken at some length, I have not dealt with all the points in the Bill. No doubt they can be discussed in Committee. However, there are two other matters to which I draw attention because I would like help on them in Committee. It may be that to promote this discussion—on neither matter have I made up my mind—I will table Amendments to ensure that a full discussion of the two points takes place.
  The first is this. It has been represented to me that it is illogical that one should continue to accept wilful refusal as a ground for declaring a marriage null arid void. The Morton Commission, which reported on the whole matter of matrimonial law some years ago, came to the conclusion that it had been a mistake to legislate for wilful refusal in 1937 and that it was illogical to say that wilful refusal, which relates to matters that have happened after the celebration of the marriage, made a marriage null and void. In every other case all the other grounds relating to nullity refer to something which is already present or may have happened before the marriage came into existence. It is the incidents before the marriage which are relevant, and not what happened afterwards.
  Mr. Galbraith: The hon. Gentleman is suggesting that after the marriage takes place, while there has still been no intercourse, one of the spouses refuses to consumate the marriage. But surely that must arise from a state of mind which existed before the marriage. It is not something which has come about subsequent to an act of consumation, because that would remove the whole grounds.
  Mr. Lyon: If I could develop the argument a little the hon. Gentleman will understand the point. The argument is that if there is a physical or mental difficulty about consummating the marriage, the matter can already be dealt with on the ground of incapacity, which has always been a ground for declaring a marriage null and void anyway. I understand from some of the judges that
  1174
  this would cover the vast majority of cases of non-consummation, and that there are cases where there is no physical or mental incapacity but one of the parties simply refuses to have sexual intercourse. It is not related to any ingrained aversion. It is just that they did not want to have intercourse, or sometimes, most frequently in these cases, that they simply deserted the other spouse at an early stage in the marriage. In those circumstances the argument is that all those matters should be dealt with as a ground for divorce, either as cruelty or the new ground of intolerable conduct, or as desertion. It is illogical to make it part of the law of nullity.
  The Law Commission argued this point out at some length and came to the conclusion that it was right to maintain the ground of wilful refusal. The four arguments which they put forward are on pages 14 and 15 of the Report.
  The first argument is that it may seem unreal to the spouses that the issues should turn upon whether it is wilful refusal, an act of will, or some ground of incapacity, thereby indicating that in one case it would be a decree of nullity and in the other case a decree of divorce, and this may lead to practical difficulties in the pleadings. Already in most cases of allegations of voidable marriage, pleaders put in an alternative of desertion or some other ground for divorce. It is true that when the case comes for trial, the initial hearing relates to the nullity petition and then the matter proceeds on to the divorce petition. But if there is really a doubt, it can easily be dealt with within the same procedure as an allegation on divorce, and it therefore does not seem that the first argument is of considerable weight.
  The second argument is that the parties themselves are interested only in why the marriage did not work, and it did not work because they could not consummate. It is irrelevant to them whether it was because of incapacity or wilful refusal, and the matter ought to be dealt with in one procedure. But logicaly there is a considerable difference between the question of whether one of the spouses could not or would not consummate the marriage. The act of will makes it more akin to cruelty and intolerable conduct, which is really where the matter ought to be dealt with.

  1175
  The third argument was, perhaps, the most academic of the four: that it might lead to difficulties about jurisdiction because, in relation to nullity, jurisdiction is rather wider than in relation to divorce. I have never come across a case where that has been a difficulty, particularly now that we have Section 40 of the Matrimonial Causes Act 1965, where "residence" is so wide that one can usually grant a decree.
  The cogent argument is the fourth one, which the Committee in due course might consider, that in relation to nullity there is no need to wait for three years. In relation to divorce one has to wait for three years before filing a petition. This may, therefore, lead to a long delay which would be unjustifiable. I find that that is a matter of some weight, but it may not be enough to determine the issue as against the other arguments which have been put forward.
  Another point is the question which arose in a comparatively recent case, where a woman was declared by a court to have been a man. These transexual cases are of considerable difficulty and the matter is always one of great delicacy, and sometimes a considerable difficulty arises in definition. That case received public comment at the time. It was argued by one the parties that the husband should have gone to the court to ask for a declaration that his spouse was a man, and that would then have meant that there could have been no marriage. The court rejected that and said that the matter could be dealt with within the confines of the law of nullity, and, excepting for the purposes of the decree, that there had been a ceremony of marriage and that the matter could be considered as a marriage until the decree was made, and having considered the whole matter, if it were found that the parties were really of the same sex, the matter could be declared null and void.
  There are some difficulties about that argument. As I indicated earlier, it is now accepted that the consequences which flow from a decree of nullity are rather similar to the consequences flowing from a decree of divorce. One of the spouses can claim maintenance. It is impossible in these cases that there would be any problem about children. But the maintenance point may be of considerable
  1176
  significance. If one were to say that in relation to a "marriage" between two parties of the same sex that there was a legal status which gave rise to legal liabilities to pay maintenance, one would be getting near to the argument that our society can accept a homosexual relationship as a marriage.
  It is true that Mr. Justice Ormerod, in the case of Corbett, to which I was referring, pointed out that in medical terms there were four factors which govern the definition of whether a person was male or female, and that three of them were physical and one of them was psychological. He said that in future the law ought to take the three physical factors in determining the sex of a person and that it would be going too far simply to say that although a person has all the physical characteristics of a male or female, he or she has a psychological condition which makes him into a male or female, because then the problem of definition would be impossible. So it is arguable that someone who has no physical characteristics that make him or her look like a man or a woman could not pretend that, because he felt like a man or a woman, therefore he was entitled to be considered as such. Therefore, the clearly homosexual relationship could never be accepted as a marriage.
  On the other hand, as the judge pointed out, it is very difficult in some cases to make up one's mind whether a person is a man or a woman. In the final analysis it may be only a matter of opinion. There may be so many factors of one sex in the person and so many factors of the other sex that, in the final analysis, one simply says, "I believe that that person is a man", or, "I believe that that person is a woman". In this situation, the genuine distress caused to that person, who, believing himself to be a man or herself to be a woman, finds the judge declaring to the contrary, may be such that it would be wrong also to take away from that person the incidental rights of marriage.
  But all these are academic arguments which I put before the House so that they can be discussed in Committee. The crucial argument, and the one which moves me, is that if one is to say that, in these trans-sexual cases, we should go to the court for a declaration and not ask for a marriage to be made null and void,

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  it means that in every trans-sexual case there will always be put before the public an open discussion about the sex of a particular person, whereas if it is left as a matter for declaring the marriage to be null and void, most of the cases will come before the court simply as cases of incapacity and there is no need for there to be any discussion on the sex of the person.
  Indeed, it is very likely that many of the cases on the books—many of the authorities of the past, particularly the 19th century—were, in fact, cases of a trans—sexual nature—cases of incapacity—which in the state of medical knowledge at that time would not be aired as such. It is of considerable importance to the feelings of the person concerned that these matters should not be public property and that the matter can be dealt with in a way which causes no public comment at all—namely, whether the marriage has been consummated. This is, in my view, an argument of considerable power.
  In relation to the question of the homosexual union and maintenance, one is bound also to accept that, in a bigamous union, the same problem arises. One is there arguing that there might be the possibility of saying to a polygamous wife—to use that expression—"You can have maintenance in these circumstances, but we leave it to the court's discretion to say that this is not a case in which maintenance ought to be ordered". One can say in relation to this problem of a homosexual marriage that if the relationship were clearly homosexual no judge would be likely to order maintenance in that case, and therefore the problem is academic.
  These two matters have been raised with me at the highest level and I wish to put them before the House because they are the two major difficulties which arise in relation to the Bill. I am sorry that I have taken up considerable time, but this is a technical Bill and it was just as well perhaps at this stage to explain the difficulties in order that, in Committee, they can be dealt with fully.
  2.35 p.m.
  Mr. T. G. D. Galbraith: I do not know to what extent I should be taking part in the debate because I am not certain that I cannot be regarded as a foreigner, since the Bill,
  1178
  I understand, does not apply to Scotland. I apologise to the hon. and learned Member for Dulwich (Mr. S. C. Silkin) for trying to bring his speech to a conclusion on the previous Bill. It was done for reasons which had nothing to do with him or this Bill, which I support. I wonder whether he feels that what he said on the previous Bill is relevant in this case, in relation to what extent there should be harmonisation between the laws of the two countries.
  The hon. Member for York (Mr. Alexander W. Lyon), whose Bill this is, explained this difficult and complicated matter certainly to a layman such as myself in a very clear way, and I do not think that he should apologise at all, because such subjects are difficult to explain. He did not abuse the House in any way.
  I was interested in what he said on the subject of consummation and intercourse. I interrupted him at that point but I am still not certain whether inability to reach a climax—I do not know whether that is the technical jargon or not—may not be allied to the actual physical incapacity with which he was dealing. However, that is a minor point. I thank the hon. Gentleman for having allowed me to interrupt him once or twice and for the courteous way in which he answered my questions. In general, his Bill has my support, as a "foreigner", for what that is worth.
  2.37 p.m.
  The Solicitor-General (Sir Geoffrey Howe): I congratulate the hon. Member for York (Mr. Alexander W. Lyon) on the good fortune he had in securing a place in the Ballot and in securing this piece of legislation. I also, on behalf of the House, thank him for the care and lucidity with which he has outlined the arguments which bear upon the difficut human questions which underlie all these matters relating to nullity of marriage.
  It may seem to those who cannot follow or have not had the advantage of following the difficult legal concepts that we are on classical dry legal territory. But we are not. We are at the heart of the human relationship and of real personal anguish in some cases, and it is therefore important that the law

  1179
  should be in line with what society feels about these things.
  The Bill implements the Report of the Law Commission. So far from being merely technical, as it may appear to be, it represents the first step towards a larger consolidation of family law, which is one of the matters to which the Law Commission hopes to be moving. It is therefore important that, when the Bill gets into Committee, as the Government hope that it will, the two difficult questions to which the hon. Gentleman referred should be set out as he has laid them out for consideration by hon. Members who serve on the Committee.
  Perhaps I might digress for a moment and say that I was interested by the point which he made about the form of the Statute Book and the form in which the Bill comes before the House. One often wonders about the desirability of loose-leaf legislation. I do not want to say anything about that now, but I have been impressed by the way in which Bills coming before other legislatures are laid before them with the notes on Clauses on facing pages interleaved, as in the original Law Commission Report. I have not been able to discover what it is which makes that not naturally acceptable to the authorities or institutions which generate our Bills. I suspect that, as always, we are wrong if we seek to blame the officials of the House or anywhere else for that. I suspect that there are deep-seated constitutional reasons other than mere conservatism which explains the way in which our Bills come before the House.
  When going into these matters one finds, for example, that the length of Clauses in legislation considered by this House as opposed to that considered by other legislatures is, as we may well realise after last night's experience, in no small part due to the routine of having a separate debate on the Question, That the Clause stand part of the Bill, so that over the years it has become apparently more sensible, in view of occasional outbursts, to have long Clauses rather than short, concise, simple ones which might make it easier for the law to be understood by the layman but more difficult for the Government to get their laws through. I certainly hope that the Procedure Committee will look into
  1180
  the way in which Bills come before the House for consideration, because it seems rather strange that we have to revert to this kind of presentation of a Bill when we start off with a Bill which is laid out in the way that was done by the Law Commission in its Report.
  The hon. Member for York raised two specific points—first, whether wilful refusal to consummate should be a ground for nullity or divorce. As the hon. Member said, the arguments are set out in the Report of the Law Commission. The argument which weighs with the hon. Member, and which seems to be an important one, is that by keeping it as a ground of nullity it avoids the three-year delay rule and that to move it into the category of divorce might involve consequential changes in the law of divorce. Those are factors which lie on one side of the scale, and it is not a matter about which the Government wish to express any view, nor would it be right for them to do so on a matter of this kind. It is plainly a question which needs to be considered in Committee, and the Committee will he assisted by what the hon. Member said about it.
  The hon. Member's second question was whether a marriage, if one may call it that, between people who turn out to be—again, oversimplifying the question—of the same sex should be amenable to procedure by way of decree of nullity or by way of a declaration, as was thought to be the case before the decision in the Corbett case. This, again, is a difficult question which the Standing Committee will want to consider and which will certainly need to be left to the House at the end of the day. Indeed, the Law Commission made a point of saying that it was classically a matter of social policy which it was for Parliament to decide. The arguments both ways have been outlined clearly by the hon. Member for York.
  It would not be right for me at this point to make an expression of opinion on behalf of the Government one way or another on that either, because both these questions are matters which are appropriate for Parliament, with private Members participating in the discussion, to consider and deliberate upon before the law takes its final shape.
  With those two somewhat non-committal comments on the not-very-committal

  1181
  observations of the hon. Member about a modest but important Bill, I warmly commend it to the House. Once again, I congratulate the hon. Member on the way he has presented the Bill to the House.
  I close by thanking the hon. and learned Member for Dulwich (Mr. S. C. Silkin) for the kindness, characteristic of a Friday, with which he welcomed me at the Box in this law reform rôle on this occasion. The Solicitor-General apparently wears many hats, some of which appeal to all parts of the House and some of which appeal to only parts of the House. For my part, they are all hats which I am proud and content to wear. I thank the hon. and learned Gentleman.
  2.44 p.m.
  Mr. S. C. Silkin: I hope to be even briefer than the Solicitor-General, but I cannot let the debate pass without making two points. The first is to echo what has been said about the lucidity, clarity and, indeed, charm with which my hon. Friend the Member for York (Mr. Alexander W. Lyon) characteristically explained these difficult matters to the House and thereby made it much easier for us all to follow them. Secondly, I readily accept the apology proffered with disarming courtesy by the hon. Member for Glasgow, Hillhead (Mr. Galbraith).
  In doing that, I answer the hon. Member's question as to whether I would wish in this matter to assimilate the laws of England and Scotland by saying that it seems to me that to do so is desirable in every field, although, of course, not always at the same pace. It may take longer in relation to certain built-in traditions than in relation to others, but that this process must go on, as is provided for in the Law Commission Report, and, indeed, that it should, and must, extend beyond the reaches of the United Kingdom by assimilation between our laws and the laws of Europe, a process which is also going on, is something which I regard as right and inevitable.
  Mr. Galbraith: I have a good deal of sympathy, in general at least, with what the hon. and learned Member says about that. Does he, however, expect that that will lead to the legal systems being completely merged so that there would be
  1182
  one court for the whole country, as there is at present for England and Wales, and that the ancient Court of Session in Scotland would cease to exist? Does the hon. and learned Member also imagine that there would be one court for the whole of Europe?
  Mr. Silkin: I rather feel that the hon. Member is seeking to take me far beyond the province of the Bill, and I would not wish to look into the crystal ball to that extent or to trespass upon a debate which, no doubt, we may once again have in the future on the subject of Europe generally.
  My hon. Friend the Member for York referred to the question of the status of the remedy for wilful refusal to consummate a marriage which has not been consummated and the provisions of Clause 5, which operate to bring a marriage to an end as annulled, not ab initio, but from the time of the decree. It seems to me that wilful refusal to consummate is, to some extent, a nigger which was introduced into the woodpile by the 1937 Act and thereby created a certain lack of logic.
  Wilful refusal to consummate may well be something which arises after a marriage has taken place. One can visualise circumstances in which, for some reason, a marriage is not immediately consummated, the husband and wife part for a time and events occur in the meantime which cause the respondent to the eventual petition thereafter wilfully to refuse to consummate the marriage. One then has a situation which is very much like a desertion situation.
  In those circumstances, there would be a case for so regarding it. I say that, however, with the qualification that where a marriage has not been consummated, there is, I would have thought, good ground for relaxation of the three-year rule even if this remedy were transferred to the realm of divorce.
  Though I have said that this is an illogical part of this part of the law, clearly it is not wholly illogical, because even in the case of incapacity one is not always looking completely at the situation which existed at the time of the marriage. The Law Commission's Report in paragraph 56 deals, for example, with the case of a person who is incapable not generally but simply in relation to the

  1183
  other spouse, which is a well-known situation, and also the case of a curable defect which, after the marriage, the respondent refuses to have cured. One is in a sort of intermediate realm of that which existed at the time of the marriage and that which comes into being afterwards.
  The difficulty is attempted to be solved by the Law Commission and the provisions of Clause 5, but I am bound to say that they seem to be somewhat illogical, although I gather from the Report that they exist in other countries. I would have thought that a marriage is brought to an end, in which case it is dissolved; or it is annulled, in which case it has never been. But now we are to have a situation by which it is annulled from the date of the decree but it has been in existence up to then, and I find it very difficult, apart from the change of word, to see how it differs from the situation of dissolution.
  These are not very helpful comments for my hon. Friends. They are nothing more than comments on what are very technical and difficult questions. They will, I am certain, be considered further in Committee. I applaud the enterprise of my hon. Friend, and I look forward to reading with very great interest the discussions which subsequently take place in Committee—if I am unfortunate enough not to be included among those selected to serve on it. I am sure they will make fascinating reading.
  Mr. Alexander W. Lyon: By leave of the House, I would just say "Thank you" to the two hon. and learned Gentlemen for the kind things they said about me. On the point made by both of them, arguing from the Report, about wilful refusal, the Report itself rather suggests that the alternative is between leaving wilful refusal as a ground for nullity and leaving it as a ground for divorce. Taking the second alternative would be to ask for an amendment of the recent Divorce Act, and no one would want to have to go back to do that. But it is quite unnecessary. The only real alternative is to leave wilful refusal as it is or to allow that kind of conduct, which has nothing to do with incapacity but is an assertion of will, to be dealt with as intolerable conduct or as desertion or dealt with as separation. There-
  1184
  fore the problem about the three years is a real problem, because one could not distinguish between these cases, in relation to divorce, and other kinds of intolerable conduct.
  Question put and agreed to.
  Bill accordingly read a Second time.
  Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).

  INTEREST ON DAMAGES (SCOTLAND) BILL
  Order for Second Reading read.
  2.54 p.m.
  Mr. Ian MacArthur: I beg to move, That the Bill be now read a Second time.
  The purpose of this Bill is to extend the power of the courts in Scotland to award interest on damages. It is a small Measure, but if it is enacted, as I trust it will be, it will remove what I regard as an anomaly in the law and improve the position of those in Scotland who suffer loss or injury as a result of accident. I trust that it is not a contentious matter. The House will observe that it is supported by my hon. Friend the Member for Edinburgh, South (Mr. Clark Hutchison) and the hon. Members for Lanarkshire, North (Mr. John Smith) and Inverness (Mr. Russell Johnston). I am deeply grateful to them for their support.
  Perhaps I should add, particularly after the events of this week, how deeply grateful I am to the Under-Secretary of State for having stayed behind on this Friday to attend this debate. It is extremely good of him, particularly so since, I suspect, he had other and perhaps more attractive engagements in his constituency of Cathcart. So I am grateful to him for being here.
  I referred a moment ago to my attempt to remove an anomaly in the law. This anomaly arises because of differences between English and Scots law. I tread with some diffidence on the marshy ground whether there should be differences between Scots law and English law or not, in view of the comments made earlier by the hon. and learned Gentleman the Member for Dulwich (Mr. S. C. Silkin). I am sure that he would agree

  1185
  with me, however, that all hon. Members,—from Scotland anyway—would feel that while there may be some merit in bringing English law into line with Scots law there is certainly less merit in bringing Scots law into line with practice in England if the purpose is simply to remove differences. But where there exists an obvious anomaly which can be remedied by removing a difference, then it seems reasonable to me that we should at least consider changing the position so that the state of the law is the same in both countries.
  The anomaly in this case is that the pursuer awarded damages in Scotland is less favourably placed in the matter of payment of interest than a plaintiff who is awarded damages in England, and I submit to the House that it is unreasonable that this disadvantage should continue. The position, as I understand it, is that in England Section 3 of the Law-Reform (Miscellaneous Provisions) Act, 1934, enabled the courts to award interest on any debt or damages from the date when the action arose. In the case of damages, therefore, interest could be awarded from the date of the accident which caused loss or injury. As it happened, however, the provisions of this Section of the 1934 Act were little used in England, and the Act was later amended by Section 22 of the Administration of Justice Act 1969, so that in actions of damages for personal injuries the court was obliged to exercise the 1934 Act by awarding interest from the date of the cause of action.
  Meanwhile, in Scotland, the Interest on Damages (Scotland) Act, 1958, had resulted from the third report of the Law Reform Committee for Scotland, which was published a year previously. This Act extended the power to award interest on damages in Scotland from the date of the decree back to the date of the beginning of the court action, but not so far back as the date of the accident or other event which caused the action in the first place. The effect of these changes in the law in Scotland and in England was to place the pursuer in Scotland in a less advantageous position than the plaintiff in England.
  The disadvantage is twofold. First, because of these differences between Scotland and England, a Scottish pursuer today can claim interest for a shorter
  1186
  period, that is, from the date of the commencement of the court action, and not from the date of the accident. Secondly, there is no presumption that interest should be payable in the personal injuries case. There is a further difficulty, which is that the Scottish courts have interpreted the 1958 Act in a somewhat restrictive manner. The leading case is that of McRae v. Reed and Mallik Ltd., where it was held that the power to award interest under the 1958 Act must be exercised on a selective and discriminating basis; that interest from a date earlier than the date of decree could be allowed only where the loss had been suffered before the date of decree and could be definitely ascertained; and that interest could never run from a date earlier than that of decree on an award of solatium—the compensation awarded for the pain and suffering caused to the pursuer.
  The House will appreciate that these are substantial disadvantages to the pursuer in Scotland. They would be remedied by my Bill, and it is possible that its passage might also have the effect of leading to some actions being completed in less time than at present.
  Mr. Bob Brown: Is it in order for a stranger to cause to be passed to an hon. Member in this House information on a piece of paper?
  Mr. Deputy Speaker (Sir Robert Grant-Ferris): It depends entirely upon one thing. If it is from the official Box of the House it is in order, not otherwise.
  Mr. MacArthur: Perhaps I may now, for the convenience of the House, make some comment on the content of the Bill. Clause 1 operates by amending the Interest on Damages Act, 1958, and substituting new subsections which have the equivalent effect of the English provisions in Section 3 of the 1954 Act and Section 22 of the 1969 Act.
  The substituted section 1(1) is the equivalent of Section 3 of the Law Reform (Miscellaneous Provisions) Act, 1934. It provides that where a court awards damages it may award interest thereon from the date when the right of action arose. The substituted section (1)(1A)—which is Section 22 of the Administration of Justice Act, 1969 in England—makes it mandatory for the court

  1187
  to exercise the power to award interest in actions where the damages consist of or include damages for personal injuries, unless there are special reasons why interest should not be charged.
  The House may observe that there is a proviso which excludes interest on damages of £200 or below. The reason is that £200 is the English limit, and it seems a reasonable figure, in that the interest awarded on that sum of damages would be infinitesimal and hardly worth taking into account. These mandatory provisions are without prejudice to the right of the court to award interest from the date of the right of the action, or any part of the damages which are not in respect of personal injuries, such as the loss of a vehicle in a motor car smash. The subsection does no more than to raise a presumption that interest should be awarded in the relevant cases. It allows the court to limit the award of interest to part of the damages and to refuse to award interest if it is satisfied that there are special reasons why no interest should be given. This is similar to the English legislation.
  Clause 1(2) inserts into the 1958 Act, as amended by the Bill, definitions of "damages" and "personal" injuries, and declares that damages include solatium, so that the damages awarded in a court would cover not only quantifiable claims, such as loss of wages and so on, but the much less quantifiable assessment of pain and suffering suffered by the pursuer. The definition also makes it clear that power is given to award interest on the solatium element from a date before the date of decree.
  Clause 2(1) provides that the 1958 Act and the Bill may be cited together as the Interest on Damages (Scotland) Acts. I believe that is for the general convenience.
  Clause 2(2) provides that the Bill will not apply to any action commenced before it becomes law. The purpose of that is to prevent parties making claims for interest under the Bill in actions in which the evidence may have been heard before the passing of the Bill, so that the issues were not brought out in the evidence. It also prevents a party raising the new issues of interest on damages in an appeal where the case was originally heard before the passing of the Bill. The House will agree that it is right that
  1188
  there should be no retrospective element in the Bill.
  I hope that the House will accept that the reason for the Bill has been sufficiently explained and that its background has been sufficiently set out for the purpose of this debate. I shall be most grateful if the House will allow my Bill to receive its Second Reading.
  3.7 p.m.
  Sir Stephen McAdden: I very rarely intervene in debates, especially Scottish debates. Hon. Members who intervene in Scottish debates lay themselves open to various temptations.
  I asked one of my colleagues on the Opposition benches to provide me with a copy of the Bill. He has been to the Vote Office, but I regret to say that he has brought back the wrong Bill.
  Mr. Galbraith: With a name like his, my hon. Friend need make no apology for intervening in the debate.
  Sir S. McAdden: It is very kind of my hon. Friend to say that, but my "Mc" is not a Scottish but an Irish "Mc". In the spirit of co-operation that exists between the two Front Benches these days, I did beseech one of my hon. Friends opposite to provide me with a copy of the Bill, but he has brought me back a copy of the Shops (Weekday Trading) Bill. [Interruption.] I am very grateful to the hon. Member for Erith and Crayford (Mr. Wellbeloved) for handing me the right Bill. The hon. Gentleman is living up to his name, and doing his best to help me in my task.
  I would not have intervened in a Scottish debate, but, moved by the oratory and earnestness of my hon. Friend the Member for Perth and East Perthshire (Mr. MacArthur), I felt that perhaps a humble English Member might say a word or two in support of his cause. Of course, there should be interest upon damages. I am sure that my hon. Friend the Under-Secretary of State for Health and Education, Scottish Office, will do what he can to see that those who are involved in legal actions are afforded some help in these matters.
  Whilst I worry about the people of Scotland and hope that they may have some comfort in their difficulties, this is

  1189
  not really a matter that excites me very much. As a matter of fact, it does not seem to be a matter which excites the House of Commons very much. When I look around this great assembly, which could contain 630 Members, and I see six Members on this side of the House and six opposite, I wonder what on earth is happening to the state of Scotland. We have six a side. We could play draughts, or chess, or ludo, or whatever it may be, but it does not seem to me that the problems of Scotland are being adequately considered.
  Mr. James Wellbeloved: The hon. Gentleman will see that our side now numbers seven.
  Sir S. McAdden: Yes, I see another hon. Gentleman has joined the Labour benches. I hope that the Interest on Damages (Scotland) Bill will be considered more adequately in another place and that great care will be devoted to this important subject. It must be important since my hon. Friend made out such a good case for it. I must say I did not realise it was so important until I heard him. He has made such a passionate case today that we obviously should devote more attention to this matter and I hope that my hon. Friend on the Front Bench will see that it gets detailed consideration.
  Mr. MacArthur: I am obliged to my hon. Friend for his kind remarks. He will be aware that, if the Bill receives a Second Reading, it will go to a Standing Committee which consists exclusively of Scottish Members of Parliament. The Scottish Standing Committee studies every Bill with great care, in great detail and sometimes at considerable length.
  Sir S. McAdden: In fact, I have been a member of the Scottish Standing Committee. I have never, of course, attended because I thought it was a joke. I think they must have appointed me a member of that Committee because my name started with "Mc." It is a useful and important Committee and I hope that it will devote great time and deliberation to these proceedings.
  I am glad to see my hon. Friend the Member for Glasgow, Hillhead (Mr. Galbraith) in the House devoting his time to consideration of these great and important problems. I hope the House will
  1190
  give grave consideration to this important Bill. It must be important, or it would not have all this time devoted to it on a Friday. It also contains an Explanatory Memorandum which nobody has understood.
  When I look around the House, I see the hon. Member for Woolwich, West (Mr. Hamling) who has never been nearer to Scotland than Scotland Road. I see the hon. Member for Renfrew, West (Mr. Buchan), and he certainly has been there.
  Mr. Speaker: Order. The hon. Gentleman's arguments may meander or wander about, but I do not think he himself should meander physically.
  Sir S. McAdden: I accept your Ruling, Mr. Speaker, and I agree that it is wrong that I should meander about the Chamber. I was only trying to make myself as friendly as possible to the limited number of Members here. After all, many of us were here last night, much against our will—I was certainly here against my will. I have not been to bed since the night before last, but I am still here now.
  All I want to say is that this Bill, which has been sponsored and introduced with such passionate eloquence by my hon. Friend, must be a very worthy Bill. I hope Scotland is looking forward to it with great anticipation, and I welcome it to this House.
  3.14 p.m.
  Mr. Norman Buchan: I shall be brief in my remarks. I want first to congratulate the hon. Member for Perth and East Perthshire (Mr. MacArthur) on bringing forward this Bill, which is important for all sides of the House. Having regard to the remarks of the hon. Member for Southend, East (Sir S. McAdden), I would point out that the reason he was put on the Scottish Committee is not because his name starts with "Mc", but because there are far too few Scottish Tories on that Committee unless they co-opt some English Members.
  Mr. MacArthur: I am sure that the hon. Gentleman is bantering. However, he must not mislead the House. The position now is that, under a benevolent Conservative Government, the Scottish Standing Committee consists exclusively of Scottish Members of Parliament.
  Mr. Buchan: I am not sure that the hon. Member for Southend, East understands the clear distinction between Standing Committees and Grand Committees.
  Mr. Galbraith: Will the hon. Gentleman give way?
  Mr. Buchan: Because the hon. Member for Southend, East referred to the hon. Member for Glasgow, Hillhead (Mr. Galbraith) is no reason for me to give way. I give way not because of that, but because of my natural generosity.
  Mr. Galbraith: I agree that the hon. Gentleman is generous. My hon. Friend the Member for Southend, East was probably thinking of the days before the Scottish Standing Committee when there was only the Scottish Grand Committee which added English Members among whom he was notable and helpful.
  Sir S. McAdden: I am grateful to my hon. Friend——
  Mr. Speaker: Order. We are debating the Interest on Damages (Scotland) Bill. Discussion about the Scottish Grand Committee is not in order.
  Mr. Buchan: I entirely agree, Mr. Speaker. The point has been amply made that the insufficiency of Scottish Tory Members was part of the historical reason for English Members being co-opted to that Committee.
  I welcome both Clauses in the Bill. One problem is always the law's delays. Therefore, we do not want this Bill to be delayed.
  I know that the hon. Member for Glasgow, Hillhead puts property before person—he will no doubt remember the quotation—so he will probably give the Bill his enthusiastic support.
  Co-operation between the parties has been mentioned. When the party opposite, or individual Members of it, bring in worthwhile Measures in the interests of Scotland, they will find ready co-operation on this side of the House. I welcome the Bill.
  3.16 p.m.
  The Under-Secretary of State for Health and Education, Scottish Office (Mr. Edward Taylor): We have heard three valuable contributions in our consideration of the Bill. I was very pleased to
  1192
  hear the welcome given to the Bill by one of our English colleagues, my hon. Friend the Member for Southend, East (Sir S. McAdden), and by the hon. Member for Renfrew, West (Mr. Buchan).
  My hon. Friend the Member for Perth and East Perthshire (Mr. MacArthur) said that if the House approves the Bill, it will go to the Scottish Standing Committee. As the hon. Member for Renfrew, West has welcomed the Bill, he will no doubt accept that it is important to make speedy progress on matters already before the Committee. I am glad to have his assurance of co-operation.
  Mr. Buchan: My point was that, when the Conservative Party brings forward Measures which are in the interests of Scotland, co-operation will be forthcoming. When it brings in the kind of Measure to which the hon. Gentleman was referring, attacking the whole educational structure of Scotland, we shall continue to fight it line by line.
  Mr. Taylor: I assure the hon. Gentleman that so long as we have the present Administration, we shall continue to bring Bills before the Scottish Standing Committee which are in the interests of Scotland. However, as you said, Mr. Speaker, it is important that we should get on and consider this very important and interesting Bill.
  I was interested to hear my hon. Friend the Member for Perth and East Perthshire, who introduced the Bill so well, refer to it as a small Bill. The House, I am sure, will agree that my hon. Friend was being unduly humble in this respect. It is a Bill of significance which, over the years, could be of real benefit to a substantial number of people who find themselves covered by its provisions.
  We are all conscious that my hon. Friend has a fine record in the House for promoting Private Members' Bills, even though it means attending on Fridays and being here for long hours during the week and at the weekend. I particularly recall the occasion when my hon. Friend brilliantly and successfully brought before and pursued through the House the Law Reform (Damages and Solatium) (Scotland) Bill. That was a very valuable Measure. It dealt with anomalies in the law and the problems facing people in their everyday lives. It has been of real benefit and significance. I certainly

  1193
  hope that my hon. Friend will continue along this path of promoting useful private Bills which can be of real benefit to Scotland. I commend my hon. Friend for his efforts. I am also glad to say that the Bill is one which the Government welcome, and we hope that it will proceed speedily through all its stages in the House.
  I think that my hon. Friend was very generous in the welcome that he gave to those who were present at this Sitting of the House after our long deliberations last night. He was particularly generous in his kind remarks about myself. He will be aware that I have to miss my annual Burns supper in Cathcart to be here today, but we appreciate that this is a very important matter.
  Perhaps I may now deal with the Bill, and, in particular, with the question which has been raised about the differences between Scottish and English law in this regard. Perhaps I may briefly recount the position. As regards interest on damages, the general pre-1958 rule in Scotland was that a conclusion for damages included a demand for interest from the
  "date of the decree to follow hereon."
  I take that from Walker on Damages, at page 211.
  It is interesting that the author quotes an 1850 case, in which it was held to be a question for the discretion of the court in each particular case whether interest should be given on an award of damages for reparation, and from what date. Be that as it may, it was not until 1958 that the Interest on Damages (Scotland) Act was passed. This provided, in particular in Section 1, that in a damages action the court might, if the circumstances warranted such a course, include a decree for payment of interest on the sum or any part thereof at a rate to be specified from a date—and this is the important point—not earlier than the commencement of the action. There has never been any provision in Scotland allowing interest from the date of the cause of the action.
  What, on the other hand, was the position in England? In England the first Statutory provision was in terms of Section 3(1) of the Law Reform (Miscellaneous Provisions) Act, 1934, which per-
  1194
  mitted interest from the date of the cause of action, at the discretion of the court; but, by Section 22 of the Administration of Justice Act, 1969, it was provided that where judgment is given for over £200 and represents or includes damages for personal injuries or death the courts shall exercise the power given in the 1934 Act so as to include in that sum interest on those damages, or such part as the court considers appropriate—and here again we have the key sentence—unless the court is satisfied that there are special reasons why no interest should be given in respect of those damages. Thus, the onus of proof in England has been reversed in personal injuries actions, and the defendant must now show special reasons why interest should not be given. The provisions of this section had, of course, also been recommended by the Winn Committee.
  Here we have the difference between the law in Scotland and that in England. It is not the case, as I am sure all Scottish Members who are aware of our special position in Scotland will agree, that whenever we see a difference, there is a need for change. I think that the hon. Member for Aberdeen, North (Mr. Robert Hughes), who takes a special interest in these matters, will accept that sometimes there is a sound case for the difference, and that in respect of some particular matters Scotland has a position which is preferable, or which is related to our own special circumstances.
  This, I think, is a case in which it is appropriate perhaps to make a change, and the purpose of the Bill—and it is a complex matter—is to extend the power of the courts in Scotland to award interest on damages. It amends the Interest on Damages (Scotland) Act, 1958, first, by enabling the court to award interest on damages from the date when the right of action—that is the accident causing the loss or the injury—arose, instead of, as it was in the 1958 Act, from the date when the court action for damages was commenced; and, secondly, by making it mandatory for the court to exercise the power to award such interest in all actions except those in which the award was for £200 or less, where the damages consist of or include damages for personal injuries, unless there are special reasons why interest should not be awarded from the earlier date. Damages

  1195
  may be for delict, negligence or breach of contract.
  It is interesting to note that at common law interest could be awarded by a court only on a sum of money which had been liquidated—which was of a certain and ascertained amount. This meant that although the interest could be awarded on a specific debt from the date when the debt became due, no interest could be awarded on damages before the date of the decree of the court which made the damages liquid by determining their amount. That was the position in Scotland until the 1958 Act.
  In England, by Section 3 of the Law Reform (Miscellaneous Provisions) Act, 1934, courts were enabled to award interest on any debt or damages from the date when the cause of action arose—for example, in the case of damages, from the date of the accident which caused the loss of injury. The provisions of Section 3 of the 1934 Act were, however, little used in England and, as a result of the recommendation of the Winn Committee on Personal Injuries Litigation, Section 22 of the Administration of Justice Act,1969, was enacted, amending the 1934 Act to provide that in the case of an action for damages for personal injuries the court was obliged to exercise the 1934 Act power by awarding interest from the date of the cause of the action or, at least, on part of the damages for part of the period, unless there were special reasons why no interest should be given.
  Meanwhile, as a result of the Third Report of the Law Reform Committee for Scotland, the Interest on Damages (Scotland) Act, 1958, had extended the power to award interest on damages in Scotland from the date of the decree at common law, back to the date of the commencement of the court action but not so far back as the date of the accident or other event constituting the cause or right of action.
  I am sorry to have to go into this matter in such detail, but it is so important that we must get the position clear. The position in Scotland prior to the Bill was, therefore that the pursuer was in a less advantageous position than the English plaintiff, in that he could claim interest only for a shorter period. That is the very point on which my hon. Friend requires action to be taken.
  1196
  There was no presumption that interest should be payable in the personal injuries case. Moreover, the Scottish courts have interpreted the 1958 Act in a somewhat restrictive manner, especially in the case referred to by my hon. Friend—McRae v. Reed and Mallik, Ltd.—by holding that the power to award interest under the 1958 Acts must be exercised on a selective and discriminating basis, that interest from a date earlier than the date of the decree could be allowed only when the loss had been suffered before the date of decree and could be definitely ascertained, and that interest could never run from a date earlier than that of the decree on the award of solatium——
  Mr. Buchan Mr. Buchan rose——
  Mr. Taylor: I am sorry to take so long, but when we are dealing with a Bill which is concerned with a very important point it is necessary——
  Mr. Buchan: I am merely pointing out the enormous length of time that is being taken up on an agreed Measure when the position is known to hon. Members of both sides of the House. This leads one to have certain suspicions about the time being taken in explanation in view of forthcoming Private Members' Bills. I have never known a Minister to adopt such a course where Private Members' Bills were involved. We accept the definition that has been given, and there is no necessity for the Minister to continue with his explanation.
  Mr. Taylor: This is an important Measure——
  Mr. Galbraith: I appreciate that my hon. Friend does not want to take up time, but this is an important matter. It may be that the hon. Member for Renfrew, West (Mr. Buchan), who has just left the Scottish Office, knows all about this. But it is many years since I was in that fortunate position and my brain has, perhaps, got a little rusty in the meantime. I find what my hon. Friend is saying very vulnerable. The hon. Gentleman's interruption did his own cause harm by making aspersions against my hon. Friend. I wish that he would not do that. These things rebound, and he is no position to make that sort of accusation when one thinks of what is happening in the Scottish Standing Committee at the moment.
  Mr. Taylor: I would not wish to respond in the same spirit as that in which my hon. Friend made his comment. I have spoken very briefly. It is right, when a private Member brings in a Bill, that the Government's view should be given. I will make only the point, perhaps in the spirit in which the hon. Member for Renfrew, West (Mr. Buchan) intervened, that although we have been sitting—I know that he has been in the same position, as a very conscientious Member—virtually since 10.30 yesterday morning, when the Scottish Standing Committee began, if a Scottish Bill had been presented today and there had been no one on the Front Bench, he would have been the first to protest that it was scandalous.
  He cannot have it both ways. We have been having an amicable discussion on a valuable Measure, but if the hon. Gentleman is being sincere—as I hope he is—I ask him to think what his comments would have been if my hon. Friend, with his long experience and record of introducing Private Members' Bills, had introduced this Bill with the skill he has shown, the hon. Gentleman himself had risen to speak for the Opposition, and this bench had not had a Scottish Minister on it. I resent that kind of interruption. When we are here, he says that we talk too long, and if we are not here, he says that it is a scandal. I hope that, when the time comes, we can look back on a few years of this Administration with a clearer political conscience than could the previous Government.
  Unfortunately, the hon. Gentleman has diverted me from what I had hoped would be an entirely non-controversial speech welcoming the Bill and, more important, my hon. Friend's initiative in introducing it.
  This is certainly an interesting Bill. It will not only interest legal opinion in Scotland but will be of real value. I hope that, with co-operation and understanding on both sides, the Bill will make speedy progress through all its stages. I commend my hon. Friend's initiative arid the Bill. It has been a real pleasure to be here on a Friday to hear my hon. Friend and to take part in the debate.
  3.33 p.m.
  Mr. T. G. D. Galbraith: I deprecate the interruption and
  1198
  the whole tone of the speeches made by the hon. Member for Renfrew, West (Mr. Buchan). It is clear that he has been overdoing things, and we do not entirely hold that against him. He said that I talk with passion only about property. I talk about everything with passion, and when I find myself and my hon. Friend unjustly attacked by the hon. Gentleman I speak with great passion.
  He said that what was wanted was a golden mean. Would he describe a golden mean? It is what he likes, and anything that anyone else stands for is excess or passion. I will not waste any more of the time of the House on the hon. Gentleman, because it is clear that what he wants to do is go back home to bed. He may as well do so now, instead of interrupting our amicable discussions.
  I congratulate my hon. Friend the Member for Perth and East Perthshire (Mr. MacArthur) on his good fortune and on introducing this Bill. My hon. Friend is an extremely hardworking and perspicacious person with special knowledge of the Home Office, the affairs of which he shadowed with great skill and assiduity in the last Parliament. He has chosen well in introducing this Measure and I congratulate him on his good fortune in the Ballot.
  As my hon. Friend said, the purpose of the Bill is to extend the power of the courts in Scotland to award interest on damages. In doing so, it proposes to amend the Interest on Damage (Scotland) Act, 1958. As a layman, this seems to make good sense and it is only right that interest on damages should run from the date when the right of action—that is, the time of the accident or injury—occurred instead of from the date when the court action began.
  There is frequently a long delay between the time of an accident and the time of the action concerning that accident coming before the court. This is inevitable in many cases. For example, it happens when a bridge collapses, which is happening all over the world these days. We have had the incident at Milford Haven and that in Melbourne. I trust that the bridge which the Department is constructing over the Clyde will not suffer the same fate. When cases of this kind come before the courts enormous sums are involved and it is only right that interest should run from the date when the

  1199
  incident occurred and not from the date of the beginning of the court action.
  I have an example of this, a humdrum incident, in my area. A constituent of mine was driving along the road from Lanark to Glasgow recently—the Under-Secretary may be aware of this case; I have sent his Department the details—and, owing to some pot-holes in the road, his car came to grief. Naturally he did not want to take the matter to law immediately, especially because of the great expenditure involved in doing so. He therefore began negotiating with the Scottish Office. He did this on his own and received what can only be politely described as the brush-off. My constituent then approached me, and so far I have been receiving the brush-off. I hope that this state of affairs will not continue for ever.
  If my constituent does not get satisfaction, he will no doubt eventually take the matter to court. If successful, he will get interest on the damages, but fortunately, if this Measure is passed, they will be awarded not from the date of the start of the action, which he has endeavoured to avoid starting by doing everything possible to reach agreement with the Scottish Office, hence these protracted proceedings, but from the date of the incident.
  I am glad that this welcome reform has the support of the Government. It is a complicated matter and I congratulate my hon. Friend on the clarity with which he explained it. His remarks were indeed helpful.
  I do not understand why my hon. Friend feels that there should be this limit of £200. Surely if it is right to have interest on any figure above £200, why not below £200? We all know that the English are richer than the Scots. The interest on £200 may mean nothing to an Englishman but it could mean quite a lot to a Scotsman.
  Mr. MacArthur: The figure of £200 is not entirely arbitrary. I accept that it is a figure which could be reviewed. I hope that my hon. Friend will raise the matter in Committee. I am grateful to him for calling attention to it.
  Mr. Galbraith: If I have the good fortune to be on the Committee, which is almost inevitable as I am speaking on
  1200
  the Bill, that is certainly an Amendment on which I shall endeavour to obtain the Committee's agreement. I am glad to have my hon. Friend's benevolent interest in it.
  It has been said that the court has to have the power mandatorily to do this unless there are special reasons why interest should not be awarded. I may have missed the point, but I do not think that either of my hon. Friends dealt with it. I cannot see what reasons there could be fog courts withholding the award of interest. One of the reasons behind the Bill is not only common sense but also that it brings the law of Scotland into line with that of England. Curiously enough, this is a theme which has been running through every Bill which we have debated today, the tendency to harmonise the law of the two countries. Up till now it has always been the Scottish law being harmonised with the English law. That is agreeable to the English. From past history we know what empire-builders they are.
  But if this principle is to be accepted, have the English ever considered what will happen to them when this nation enters the Common Market? The law there is not an English-Teutonic law but a Roman-Dutch law, very much akin to the Scottish law. This aspect of the matter should, perhaps, receive greater attention than it has received up till now.
  My hon. Friend explained the Bill extremely well. We were grateful for the short intervention of my hon. Friend the Under-Secretary of State. The Bill has my support. I shall endeavour to try to improve it with one or two Amendments if I am fortunate enough to be selected for the Scottish Committee.
  Mr. Iain Sprout: I am glad to rise to support my hon. Friend in a somewhat calmer and, perhaps, less controversial atmosphere than we have had recently. It is a comfort to me, or perhaps I should say in the context of this Bill, a solatium to see my former pair also present, the hon. Member for Aberdeen, North (Mr. Robert Hughes), in that, he having sent me trooping through the Lobbies last night, he is present after having suffered the same fate.
  I rise to support the Bill. I do not regard it as the modest proposal that my hon. Friend the Member for Perth and East Perthshire (Mr. MacArthur)

  1201
  said it was. I agree with my hon. Friend the Under-Secretary of State that it is a most important matter for Scotland. I am glad that so many Scottish Members are here in support. I support the Bill not as a lawyer but as a layman. Perhaps that is just as well for me, because at the moment in this House it almost seems as though "lawyer" is a term of abuse, certainly from the Opposition. I have felt glad to have been saved from that term on the Industrial Relations Bill, even if from no other epithet from hon. Members opposite.
  This Bill seems to me to be a Measure of common sense and of fairly elementary justice to remedy a basic unfairness in the law in so far as it discriminates between what can happen in England and what can happen in Scotland. I certainly agree with my hon. Friend the Member for Glasgow, Hillhead (Mr. Galbraith) that we should not bring the law into line between England and Scotland merely in order to bring it into line, and I know that that is far from the view of the hon. Member for Aberdeen, North in introducing his Divorce (Scotland) Bill. I know that he did not introduce that Measure merely to bring the two laws into line. He had more cogent reasons than that. My hon. Friend the Member for Perth and East Perthshire also has more cogent reasons The Bill would bring the law into line, but in certain circumstances certain beneficial effects result from doing just that, as we all accept.
  We have had an excellent and succinct discussion of what the Bill proposes and there is really no controversy about it on either side, although perhaps a wee bit of acrimony was introduced by the hon. Member for Renfrew, West (Mr. Buchan)—perhaps an overlap from the rather heated discussions we have had recently on the Education (Scotland) Bill in Committee. I hope that the House will accept the Bill without a Division because I believe that it is non-controversial.
  Although my hon. Friend the Under-Secretary of State and my hon. Friend the Member for Perth and East Perthshire have given in general terms what the Bill sets out to do, I think that a number of hon. Members, and many people outside, are not as clear as they might be about what the Bill might mean
  1202
  in practice, and it is important to bring home to our constituents what it will mean in practice. I shall give an example of how it will affect the lives of ordinary people.
  I represent part of the great City of Aberdeen. My example has a certain aptness because the citizens of Aberdeen are known throughout the world for certain qualities—their shrewdness and good humour. Perhaps there is one other quality which makes the Aberdonian possibly the quintessence, the apotheosis, of what the world thinks of Scotsmen—the quality of thriftiness. It is that quality which I want to deal with as it is affected by the Bill.
  Let us take the example of a driver, a rather careless driver, in the constituency of my hon. Friend the Member for Southend, East (Sir S. McAdden), who has been following our debates closely—[HON. MEMBERS: "Wake him up."] Incidentally, Mr. Speaker, I am glad that you allowed an English Member to intervene in this debate. If I remember rightly, it was the practice of Mr. Speaker King not to encourage English Members to intervene in Scottish debates. I think it is a good thing to have as wide a contribution to Scottish legislation as possible and I am glad that my hon. Friend the Member for Southend, East intervened.
  My example concerns transport—and although perhaps it has an oblique, it has not totally illusory, aptness for to my hon. Friend, as he has concerned himself with transport in thepast and is respected in the House for his knowledge of it. Let us imagine that one of the constituents of my hon. Friend the Member for Southend, East is driving down the main street of that constituency—in the town of Southend, I imagine, although, I hesitate to say, I do not know it—and he has a car accident. Suppose that the person involved in the accident sues—[HON. MEMBERS: "Do not wake him."] I thought that perhaps the attention of my hon. Friend the Member for Southend, East was to be drawn rather more acutely to what I was saying than it has been for the last few minutes.
  An accident occurs in Southend, the case goes to court and, let us say, the person involved in the accident is

  1203
  awarded £5,000 damages. As I understand the English law, the court has the right to specify the rate at which interest will be paid on that sum. It might be fixed at 7½ per cent. If my hon. and learned Friend the Solicitor-General had not, unfortunately, had to leave after the conclusion of the last debate, he could have confirmed that I am giving a fair example of the rate of interest.
  I apologise for not being a lawyer and, therefore, I do not use legal terms. Suppose, however, that a decision is given exactly 12 months after the accident. Under English law, interest can be given for that whole period. If my arithmetic is correct, if the damages were £5,000 and interest was at 7½ per cent., the persons to whom damages were awarded would be given an additional £375. I am sure that we all agree that this is right and that we would commend whoever was responsible for the English law which introduced that provision.
  Unfortunately, however, until now, as my hon. Friend the Member for Perth and East Perthshire has shown, the same situation does not prevail in Scotland. To somebody like an Aberdonian, but, perhaps, to all Scotsmen, it is particularly galling that whereas, if an accident occurs in Southend, the person to whom damages are awarded gets an extra—does the hon. Member for Willesden, West (Mr. Pavitt) wish to intervene?
  Mr. Laurie Pavitt: I was merely remarking to one of my hon. Friends that an accident has occurred in Southend.
  Mr. Sprout: I am grateful to the hon. Member for drawing my attention to that.
  If the accident occurred in Southend, an extra £375 could be awarded which would not be awarded in total to one of my constituents or to a constituent of my former pair, the hon. Member for Aberdeen, North, if the accident occurred in his constituency or mine. We both know, coming from a great city like Aberdeen, where everything is extremely well run—in spite, perhaps, of the unfortunate colour of the present local council—that accidents will nevertheless happen in a busy thoroughfare like Union Street. If an accident were to happen there, I am sure that the hon. Member for Aber-
  1204
  deen, North would agree that all our constituents would be extremely displeased if they felt that they were being done out of £375, or whatever, which would have been awarded in exactly similar circumstances had they occurred in the constituency of my hon. Friend the Member for Southend, East.
  Mr. Robert Hughes: Might I mention that, on this occasion, silence on my part indicates assent?
  Mr. Sproat: I am grateful to the hon. Member for that remark. I could wish that some of his hon. Friends on the Front Bench had been rather more silent last night instead of shouting "No" on quite so many occasions throughout the night, although we respect their convictions in those matters. I was happy to troop through the Division Lobby on so excellent a Bill as that put forward by my right hon. Friend the Secretary of State for Employment. I am sorry that I allowed myself to be carried away by that interruption.
  I was making an important point by specifying an example, that the difference in the sum of money which could be awarded to one of my constituents because of an accident exactly similar to one which happened to a constituent of an English Member of Parliament—a difference of £375—is very considerable indeed. Therefore I am very glad that this Bill will remedy what I think is a rather unfair situation.
  In this circumstance I should like to ask a specific question of my hon. Friend the Under-Secretary of State. I preface it by saying that I would have asked the Solicitor-General had he still been here. Is the money which in England is awarded in this sort of situation tax free or not? Because, under the present penal tax rates this makes a very important difference. I should be interested to know. Perhaps my hon. Friend can inform me—it is, perhaps, rather unfair to spring this question on him—whether the sum would be tax free or not if awarded in Scotland if this Bill became an Act.
  Mr. Edward Taylor: It is a rather complex matter, and perhaps I could write to my hon. Friend about it.
  Mr. Sproat: I thank my hon. Friend very much indeed for that helpful reply. I am sorry that it was, perhaps, a rather complicated question, and asked when we are pressed for time. I will pass on now with that assurance he has given me.
  Mr. MacArthur: I think that when my hon. Friend writes that letter he may say in it that interest on damages would be subject to tax. Damages, of course, are not, but interest would rank as income.
  Mr. Sproat: I am only sorry, in this case, that the law of Scotland cannot be different or applied in a different way from that in England, on tax as well as on this whole question of interest on damages.
  I should like to pass on to one last point briefly. It is very important. It is often and repeatedly said in this House, even since I have been a Member, that justice must not only be done but must be seen to be done. Indeed, it is said so often that whenever anybody begins to utter the word "justice" one sees irritable nods and shakes of heads not only from hon. Members opposite but from one's own hon. Friends. However, I would add to it. It is not only important that it should be done and seen to be done, but that it should be done quickly.
  We are all aware that at the moment justice delayed is very often not justice. Of course, in saying this I lay no blame whatsoever on those who administer the law in Scotland, or, indeed, in any part of the United Kingdom, but the fact is that at the moment in far too many cases, due to very heavy pressure of work—alas, increasing in so many areas of the law—the courts cannot get through their business as quickly as they would like. Perhaps some might draw a parallel between that and this House.
  One serious advantage of this Bill is that though it cannot help where the pressure or number of cases slows down justice, it will at least encourage the swifter carrying out of the law. Nobody will want to pay interest over a longer period than necessary. This is an important help in speeding up justice in these cases where delay so often results
  1206
  in mitigating the effect of justice. Therefore, I have great pleasure in supporting my hon. Friend.
  Question put and agreed to.
  Bill accordingly read a Second time.
  Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).

  SHOPS (WEEKDAY TRADING) BILL
  Order read for resuming adjourned Debate on Second Reading [11th December].
  Mr. Speaker: Debate to be resumed what day?
  Mr. Laurie Pavitt: I thought, Mr. Speaker, that you were calling for a debate on the Second Reading of this Bill and I wished to make a very lengthy contribution to the debate, but it seems as though I am going to be prevented from doing so. I wanted to congratulate the hon. Member who introduced it——
  Mr. Evelyn King: The hon. Member has a wonderful opportunity of doing so by just resuming his seat, when the Bill will go through. That is all I ask him. He may prevent that if he prolongs his intervention.
  Mr. Pavitt: I did not give way to the hon. Member. I wish to oppose the Bill, and I want to make that quite plain, but nevertheless I was congratulating the hon. Gentleman on the very useful discussion which we had on 11th December. As a strong supporter of the Consumers
  Council——
  It being Four o'clock, the debate stood adjourned.
  Debate further adjourned till Friday next.

  CRUELTY TO ANIMALS ACT 1876 (AMENDMENT) BILL
  Order for Second Reading read.
  Hon. Members: Object.
  Second Reading deferred till Friday, 19th March.

  CRUELTY TO ANIMALS ACT 1876 (AMENDMENT) BILL

    COPYRIGHT BILL [Lords]
    Considered in Committee; reported, without Amendment.
    Motion made, and Question, That the Bill be now read the Third time put forthwith pursuant to Standing Order No. 55 (Third Reading), and agreed to.
    Bill accordingly read the Third time and passed, without Amendment.

  DIVORCE (SCOTLAND) BILL
  Order read for resuming adjourned debate on Second Reading [22nd January].
  Hon. Members: Object.
  Debate further adjourned till Friday next.

  HARE COURSING (ABOLITION) BILL
  Order for Second Reading read.
  Hon. Members: Object.
  Second Reading deferred till Friday next.

  CHARITABLE CAUSES (MEDICAL RESEARCH AND DISABLED PERSONS) BILL
  Order for Second Reading read.
  Hon. Members: Object.
  Second Reading deferred till Friday next.

  POWERS OF ATTORNEY BILL
  Read a Second time.
  Bill committed to a Committee of the whole House.—[Mr. McLaren.]
  Mr. Speaker: What day?
  Mr. McLaren: Now, Sir.
  Mr. Speaker: Although the hon. Member is entirely within his rights, I must call the attention of the House, as my predecessors have done, to the unusual procedure of taking the Committee stage on the same day as Second Reading.
  Bill immediately considered in Committee; reported, without Amendment.
  Motion made, and Question, That the Bill be now read the Third time put forthwith pursuant to Standing Order No. 55 (Third Reading), and agreed to.
  Bill accordingly read the Third time and passed.

  BRENTFORD HOSPITAL
  Motion made, and Question proposed, That this House do now adjourn.—[Mr. Goodhew.]
  4.5 p.m.
  Mr. Michael Barnes: I am very glad to have the opportunity to raise today the question of the future of Brentford Hospital. It has been known for some time that the North-West Metropolitan Regional Hospital Board wants to close the hospital when the new King Edward Memorial Hospital at Southall is opened, which it is expected should be in 1975. But it was only at the end of last year that the board took a formal decision to recommend to the Secretary of State for Social Services that when the new King Edward Memorial Hospital is opened the needs of the area will be adequately met by that hospital and that, therefore, Brentford Hospital could be closed. That view is hotly disputed in Brentford, and I intend this afternoon to set out the main reasons why I think that Brentford Hospital should continue, if only in a secondary rôle.
  First, I should like to dispose of a red herring which has confused the argument about the hospital unnecessarily. That is the proposal to realign the A315 road, which at present is Brentford High Street, along a route which could involve the destruction of part of the hospital. It is not my purpose today to set out the argument against the new road, but it is my view and that of many of my constituents that the new road is completely unnecessary. I am forced to refer to it because there seem to have been times when it looked as though the Regional Hospital Board on the one hand and the planners on the other were in danger of falling into a sort of circular argument, with the board thinking that closing the hospital did not matter because the planners were going to put a road through it, and the planners saying

  1209
  that putting a road through the hospital did not matter because the board was going to close it.
  In fact, the road need not affect the hospital. If the road goes ahead, it will be in two stages, the first of which is from Kew Bridge to Boston Manor Road. The Council hopes that the route for that part will be clear by 1974. But if, as seems likely, there is a ground level interchange between Boston Manor Road and the new road, the hospital would not be affected at all by the first stage of the road. The second stage of the road is phased for the latter part of the period 1976–81. It involves the destruction of part of the hospital, but the hospital could be resited, mainly on its existing grounds.
  If that is the position, surely it would be perfectly possible, once a firm decision had been taken to keep the hospital, to modify the road plan to spare the hospital altogether?
  In any case, a road plan should never be regarded as a fait accompli. These things always take far longer to complete than people think at the beginning. In many cases, they cost far more money, and sometimes they are even abandoned. There is mounting opposition in Brentford to realigning the road, and various things might happen. The authorities might take the view that they should go ahead only with stage 1 of the road. It might even be possible, though it is unlikely, to persuade them not to go ahead with realigning the road at all.
  The only reason I mention the road is that it has bedevilled the argument about the future of the hospital far too much, and I have sought to show that the road need not affect the future of the hospital at all. The road tended to influence my right hon. Friend the Member for Coventry, East (Mr. Crossman) when he was Secretary of State. When I had a discussion with him about the future of the hospital in July, 1969, he went so far as to say that if there was no road plan he believed the right thing was to retain Brentford Hospital in a secondary rôle. There are strong arguments for Brentford Hospital to be retained in a secondary rôle and it is to this that I should like to turn.
  In the last few years Brentford has had a health centre and the local doctors who
  1210
  run it find that they can do their job very much more effectively with the facilities at the health centre than they were able to do previously when working from their own surgeries. This health centre has become a valued part of the community in Brentford. If Brentford Hospital is allowed to continue, it could be an effective community-based link between the health centre and the local doctors on the one hand and the big hospitals, including the new King Edward Memorial Hospital, on the other.
  In order to support that claim I can do no better than to quote the views of two doctors. One is a local general practitioner, Doctor A. G. Philp, who last year wrote to the Medical Officer of Health at the Hounslow Borough Council a letter from which I should like to quote. He said:
  "I have discussed the proposed closure of the hospital with my colleagues in Brentford, with several others in Chiswick and Hounslow, with patients, and with members of the League of Friends. The unanimous opinion is that closure of the hospital would be a catastrophe. … Over the years I have found that the existence of the Brentford Hospital has proved an invaluable asset to the people of Brentford and the surrounding district, and to myself and my colleagues in general practice. Not every patient admitted to hospital requires intensive investigation and treatment. … On many occasions I have arranged for patients to have an operation in a large hospital, and within a matter of days be transferred to Brentford Hospital for the remainder of their post-operative care. This means that the larger hospital can deal with more patients requiring more intensive care; it means that the general practitioner has some continuity in the case of his patient; for the patient it means that he sees familiar faces in an atmosphere that is less impersonal than the larger unit; for relatives it means shorter journeys and less inconvenience and the expense (and very often an explanation of what is happening and what it is all about in terms they can understand). … Among many instances of the benefits to patient and doctor that accrue from the privilege of having a Cottage Hospital such as Brentford, consider the 'healthy invalid' admitted during the summer to allow a devoted family to have a much deserved holiday, returning refreshed to care for an elderly dependent relative for yet another year. Or the younger terminal patient who can receive all necessary kindness and care near his own home."
  I would also like to quote a passage from a letter written by the surgeon to whom I referred, Mr. E. J. Radley-Smith, who is surgeon to the Royal Free and to Brentford Hospital. He wrote a letter

  1211
  to the Chairman of the League of Friends and said:
  "In these days of divorce between the hospital services and the general practitioner medical services, the type of hospital which Brentford Hospital represents is invaluable because it bridges this gap. The local practitioner may feel that his patient needs inpatient treatment; he therefore admits the case to one of the beds in Brent Hospital and continues, while the patient is an in-patient, to look after that patient in co-operation and consultant with the consultant staff and when ready for discharge from the ward he is in full possession of the facts concerning the investigations, etc., and then is the better able to continue supervision once the patient has returned home and comes under the care of him and as a general practitioner. This renders ideal service to the patients and is also of great benefit to the local doctors. It would be a thousand pities to destroy any such hospital, particularly as many structural improvements have taken place recently."
  In addition to those views, practically every local organisation in Brentford and Chiswick, from the Brentford Chamber of Commerce to the Brentford and Chiswick Public Relations Council, is unanimous in the view that the hospital has a continuing rôle to play in the life of the community.
  I feel bound to say that the attitude of the Regional Hospitial Board leaves something to be desired. On 30th June last year the board issued a rather bald statement setting out its proposals. There was no reference in that statement to the fact that the final decision in this matter is made by the Secretary of State. So it corrected this in a revised statement which it sent out on 3rd July. The board then sent out a further correction to its original statement on 22nd July in which it said:
  "It is regretted that the statements issued by the Board on 30th June and 3rd July, 1970, regarding the future of this hospital stated in error that it is less than one mile from the new King Edward Memorial Hospital at Southall; this should have read 'three miles'."
  It may seem a small point, whether it is one mile or three miles, but it makes a lot of difference in an area where public transport is not all that good. It is an important point, and one wonders how it can have been overlooked.
  The regional hospital board asked for comments on its proposals, and a number of people and organisations, including myself, commented at considerable length last year. All that I have received so far
  1212
  is this very short letter, dated 31st December, which makes no attempt to deal with the arguments which had been set out. It just simply states:
  "Your comments, together with observations from various other interested bodies, were considered by the Board at a recent meeting and they decided to recommend to the Secretary of State for Social Services that the needs of the area would be adequately met by the new hospitial and that Brentford Hospital can be closed when the new King Edward Memorial Hospital is opened."
  This attitude of the board is most unsatisfactory. The board's proposal affects not only Brentford; it has implications for the whole of the Health Service.
  Is it right to have big hospitals, on the one hand, and a great gap between them and local G.P.s on the other hand? Or is it right to try to make the Health Service, wherever possible, more community-based with the G.P.s playing a more important part in it?
  There is no doubt what people in Brentford and Chiswick want. They want to see Brentford Hospital continuing to play the kind of rôle which has been described in the letters which I have quoted. It may have to be secondary rôle after the new King Edward Memorial Hospital is opened, but it will, none the less, be a vital rôle for all that. Indeed, the kind of rôle which Brentford Hospital could play is exactly the one advocated in a very interesting Report published by the Office of Health Economics last year entitled, "Building for Health". I ask the Under-Secretary of State to consider that Report very carefully. I hope that the hon. Gentleman will also consider very carefully all the representations which have been made and the arguments which I have set out.
  I do not know whether the hon. Gentleman would care to visit Brentford Hospital. I am sure that that could be easily arranged. If the Under-Secretary visited the hospital, I believe that he would find it to be, and see that it was, a hospital of great character and charm which successfully meets a vital community need and which the people of Brentford want to see continuing to do its valuable work for many years to come.
  4.19 p.m.
  The Under-Secretary of State for Health and Social Security (Mr. Michael Alison): I am grateful to the hon. Member for

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  Brentford and Chiswick (Mr. Barnes) for the warm way in which he has recognised the role of this important hospital. It is one of which we in the Department are very proud, just as is the hon. Gentleman. I am also grateful to the hon. Gentleman for the way in which he has presented the case for a continuing rôle; for the local cottage hospital type of establishment, because the remarks that he has made are obviously of assistance to us in trying to decide on the difficult question which he has spelled out to some extent of the future rôle for what the Bonham Carter Report described as the peripheral hospital, the hospital on the edge of some great district hospital or large hospital such as the King Edward Memorial Hospital when it is rebuilt.
  It may seem strange that this question of closure should have arisen at all, and it might help if I run through a little of the background to it. The Hospital Plan of 1962, and its revision of 1966, contemplated that the King Edward Memorial Hospital, Ealing, would be redeveloped and extended on a site at Southall, and that this scheme would enable better provision to be made for the work now done at Brentford Hospital, which is a general practitioner hospital with relatively few beds—in fact, 33. The services in the area have been under heavy pressure, and I think the hon. Gentleman will acknowledge that improved facilities are much needed.
  The North-West Metropolitan Regional Hospital. Board, which is the planning authority for the area, is now proceeding to make good this deficiency in its plans and in its capital allocations by providing the new King Edward Memorial Hospital on land adjacent to St. Bernard's Hospital in Southall. The first phase of building started last year, and the board estimates that its full cost will be about £5 million and that the building will be ready for occupation in the latter part of 1975.
  It will provide about 400 beds and supporting services, and its opening will make possible a reorganisation and rationalisation of the hospital services in the area. The board's initial plans, I concede, have envisaged that alternative hospital use could then be made of the facilities at the existing King Edward Memorial Hospital, and that those at
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  Brentford Hospital could be closed as a result.
  I doubt whether there is any need for me to take time to explain the need to reorganise and rationalise the hospital services as they develop. I am glad to say that the Government have been able to provide additional funds for the National Health Service over the next four years, and this will enable the normal development of the service to continue and progress to be speeded up in vulnerable sectors such as the care of the mentally ill, mentally handicapped and the elderly. The increased momentum of the hospital building programme, and the pressure of increasingly expensive services which have to be built into the new building, when related to our limited resources, clearly make it necessary to achieve, as a corollary to the sort of major development that we propose, the timely closure or change of use of hospital buildings which will not, in relevant terms, be very much needed.
  Whether Brentford Hospital will be required after 1975 is a question yet to be answered. It is certainly a question which properly arises in the circumstances; namely, that a new hospital is being built to serve the same area, and there do not appear to be any major problems at all of accessibility to the new hospital for patients, staff or visitors, or of employment for the existing staff.
  The answer to the question could be that the hospital should be closed. Alternatively, it could be that the hospital should be retained, perhaps for a different purpose, the sort of purpose which the hon. Gentleman discussed with his right hon. Friend, as he said, and which he spelled out a little this afternoon. I do not want to give a final and categorical answer on this issue now.
  The hon. Gentleman will know from statements made in the House in reply to Questions that my right hon. Friend the Secretary of State for Social Services is very well aware of the support for the retention of the small general practitioner hospitals. He has undertaken to look at the possible future rôle of these hospitals in his review of policy on district general hospitals and the hospital building programe arising out of the proposals in the Bonham Carter Report and, indeed, following some of the criticisms and comments made on that by the Office of

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  Health Economics publication to which the hon. Gentleman referred. My right hon. Friend expects and hopes to make a statement on general policy in this direction in the quite near future.
  The hon. Gentleman will also know that my right hon. Friend is testing the Oxford Regional Hospital Board's concept of the so-called community hospital, which is a quite narrow, and in many ways fascinating, concept which is being subjected to a pilot scheme in the Oxford region under the supervision of an eminent academic at the university in consultation with the board.
  It embodies precisely the interplay of factors such as early discharge after operation, care in a domiciliary unit, and so on. I mention these matters to reassure the hon. Member that consideration of the future of smaller hospitals generally is very much in our minds, and to help explain why I cannot deal in detail this afternoon with all his points about a rôle for the small hospital with which he is concerned. The whole concept of Brentford is very much in the melting pot in respect of our thoughts about these important units. We have a predisposition to find a positive role for them where they are viable. I have, however, carefully noted for further study a number of points made by the hon. Gentleman—and not only in relation to the general sense of his remarks.
  I turn to the narrower question whether Brentford Hospital should close. That is what he is most concerned about, and that is what Lord Brentford and his League of Friends and others at Brentford are concerned about. It may help to reassure the hon. Member if I say something more about the method of handling hospital closures and our change-of-use proposals. The method has been adopted in the light of experience and is generally designed to lead to the right answer. In the last few years many hospital closures have taken place. Over the past three years approval has been given to proposals to close or change the use of 130 hospitals in England—37 of them in the last year. Handling all these proposals has provided the regional hospital boards and the Department with valuable experience of the difficult problem of working out
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  reasonable proposals and securing understanding and acceptance of them locally.
  The hon. Member's right hon. Friend put in hand an important new procedure of consultation, and very often the adaptation to new forms of procedure for consultation initiated by his right hon. Friend has led to some of the current muddles, shortcomings and contradictions that have emerged in the transition period in the ways the boards have handled the matters. We are trying to develop this procedure in order to get the maximum amount of feeling of participation and general consultation.
  The procedure now followed by regional hospital boards on proposals of this kind is designed to ensure that the public are informed at the earliest practicable stage of the plan to build a new hospital and of the closures and change of use of existing hospitals that go with it. But rationalisation of the hospital service also affects local authorities and general practitioners, and it is essential that they should be consulted early in the planning stage, so that their views on new developments and the consequences of the developments can be taken into account.
  This kind of consultation—both informal and then formal—leading to proposals to the Secretary of State, which he has to decide, is repeated in the latter stages of planning when more specific proposals are available. The procedure envisages that, as consultation continues, agreement should often be reached at an early stage on matters which may prove to be controversial. The final decision whether a hospital will close is, however, referred explicity to my right hon. Friend the Secretary of State and it remains for him and him alone to make it.
  In accordance with this procedure the North-West Metropolitan Regional Hospital Board has carried out extensive consultations on its proposals that Brentford Hospital should close when the new King Edward Memorial Hospital is opened about three miles away. The hon. Member has been given, and has taken, the opportunity of commenting to the board on its proposals. Many bodies in the area have done likewise.
  The board has carefully considered the question in the light of all the representations that have been made to it and

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  has informed the Department, as a consequence of those consultations, that it is satisfied that the needs of the area would be adequately met by the new hospital and that Brentford Hospital can be closed when the new hospital is opened. That is the board's view, in response to the consultations that have taken place, but I assure the hon. Member that I take considerable care in the Department to lock at the record of consultations that have taken place and to examine the representations that have been made. It is by no means a justifiable fear that the hon. Member expresses this afternoon that consultations are a mere formality and the board has pre-determined the issue even before the representations have been considered. We insist on seeing what is being done. The process does not finish with the board's consideration of and responsibility to the representations made to it.
  It is, of course, difficult for the board to make an assessment of the future in circumstances such as those which obtain here, and it would not claim to be able either to foresee with absolute certainty the precise needs to be met five years hence or to state with complete confidence the way in which those needs, whatever they might be, should be met. Obviously, no one can be completely confident at this stage that the proposal is the right one.
  The present position is that the board has made a full report of the representations which it has received and this is now being studied with great care in the Department. It is clear that the view is strongly held locally that there is a place for Brentford Hospital in the future pattern of hospital services for the area. This emerges from the representations recorded in the board's report to us, and in the direct representations by the hon. Gentleman both in my Department and on occasions like this.
  The position is to some extent complicated by plans to realign the local road system, and these will have to be studied
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  further by the Department in conjunction with the Department of the Environment. But let there be no mistake about it. This is, as the hon. Gentleman suggested, to some extent a red herring. The gift in this matter is entirely in the hands of the Department as the hospital authority with responsibility for providing the necessary hospital facilities. Viewed purely as a Health Service problem, this is not a matter on which my right hon. Friend is required to make any immediate and final decision on, for example, road or town planning grounds.
  On this basis, the proposed closure would not take effect before 1975, if it did take effect at all, and if it were decided to pursue the proposal, the board would wish to undertake a further round of consultations in three or four years' time. By then the issues would no doubt be very much clearer and the area of controversy greatly diminished. Meanwhile, I can assure the hon. Gentleman that there is no question of deciding that the hospital should be closed immediately, this year or even next year. There is no case for that. It is plain that Brentford Hospital is still required in its present role and I hope that the hon. Member and all those connected with it, both volunteer and professional staff, patients, friends and so on, will be reassured by what I have said. We know that the hospital serves the area splendidly and we want it to continue in its magnificent present rôle with the maximum possible morale. There is no question of any closure arising in the immediate period to come.
  I hope that this reply will satisfy the hon. Gentleman that we want to advance the area but, if he remains in any doubt, I hope that he will take up my offer to him to come and talk to me in the Department about it at any time he may wish.
  Question put and agreed to.
  Adjourned accordingly at twenty-six minutes to Five o'clock.