HC Deb 22 May 1973 vol 857 cc429-36

1.51 a.m.

Mr. Donald Stewart (Western Isles)

I am glad of the opportunity to raise this matter on the Adjournment. All efforts have failed to get justice for my constituent. In addition to the matter being a personal tragedy and a financial loss to her, it has implications for the attitude of the Scottish Office to our police force.

The background of the matter is as follows. My constituent, Mrs. Angusina Brown, is the widow of Police Constable Thomas Brown who was killed at the age of 40 while on duty in a police vehicle on 31st August 1969. Apart from police and State pensions Mrs. Brown was left with no income and a family of two young children. She engaged solicitors, Messrs. Macnair, Clyde and Ralston of Paisley, to act on her behalf in an effort to secure compensation which would normally have been expected to be forthcoming. Despite the long and exhaustive efforts of those solicitors, no liability was accepted either by the police authorities or the Scottish Office.

Police Constable Brown was a passenger in a police patrol car which was being driven by a Police Constable Hamilton along the main Glasgow—Kilmarnock road. It left the road and both constables were killed. According to the opinion of counsel the evidence discloses nothing to account for the accident except negligent driving on the part of Police Constable Hamilton.

In view of the circumstances it was felt that as is normal in cases of negligent driving a claim for compensation would lie, and accordingly a claim was intimated by the solicitors on behalf of Mrs. Brown and family to the Chief Constable of the Renfrew and Bute Constabulary on 8th December 1969. That claim was forwarded by him to the Renfrew and Bute Joint Police Committee, which in turn communicated with its vehicle insurers, the Sun Alliance and London Group. It has been established, first, that there is no passenger liability clause in the vehicle insurance policy and, secondly that the Sun Alliance and London Group did not hold any employer's liability insurance in the name the Renfrew and Bute Joint Police Committee.

The significance of the first point is that the driver was not insured for accidents which were caused through his negligence and which injured his passengers. Accordingly, if the driver were to be held liable in damages he alone, or his estate, would be liable to meet the damages awarded unless some other person could be found to relieve him or his estate of these damages.

That leads me to my next point, that of the Renfrew and Bute Joint Police Committee, which might conceivably be deemed the driver's employers, have been held not to be his employers and therefore do not require to hold an insurance policy covering the negligence of the driver. Further the chief constable is not the employer of the constables in his force. No relationship of master and servant existed between the constables and the chief constable or the joint police committee. Section 39 of the Police (Scotland) Act 1967, which makes a chief constable liable for damages in respect of the negligent actions of police constables, did not come into operation until 1st January 1970 by notice of statutory instrument. I am advised that the order does not operate retrospectively and there is a clear court of session authority to this effect.

Apart from the statute therefore no common law principle renders the chief constable responsible for a police constable's negligence. The net effect of all this is that Mrs. Brown has been left a widow with two young children without compensation which she would have got had the ordinary law of master and servant applied. The remedy against the deceased constable's estate is valueless as the estate is negligible.

Tributes are often paid in this House to the work of our police forces and I give my full assent to those. Is it not therefore grossly unjust that the policeman should have less rights in his ordinary duties than an ordinary member of the public in similar circumstances of accident? I call upon the Minister to take whatever action is necessary to ensure that the widow of a policeman killed on duty receives the compensation which is her due by every standard of justice and fairness.

1.57 a.m.

The Under-Secretary of State for Home Affairs and Agriculture (Mr. Alick Buchanan-Smith)

I wish to congratulate the hon. Member for the Western Isles (Mr. Donald Stewart) for taking the opportunity to raise this matter which is obviously of great concern to his constituents. It is a subject in which he has taken a considerable interest and about which he has expressed deep concern. Through him I obviously wish to express my sympathy to Mrs. Brown and her family because I can certainly appreciate the distress which an accident like this has caused. The hon. Member fairly described what took place and it might be helpful if I explained why the various actions were taken and what was the background to them. The position was as the hon. Member described in relation to the accident, and at the fatal accident inquiry in Paisley on 25th November 1969 the jury unanimously found that the constables died as a result of the injuries they had sustained in the accident, but declined to comment on the allocation of responsibility. That is an important point to note.

Lawyers acting for Mrs. Brown intimated a claim to the Chief Constable of Renfrew and Bute on 8th December 1969 and after some exchanges with him and with the Renfrew and Bute Joint Police Committee wrote to the Scottish Home and Health Department on 6th December 1971. The main point which they made—and it was a point with which the hon. Member has been much concerned this evening was that the Secretary of State had failed to bring into effect in due time the provisions now to be found in Section 39 of the Police (Scotland) Act 1967 which make a chief constable liable in respect of any wrongful act or omission on the part of any constable in the performance of his duty.

It may be helpful to the House if I first of all say a word about Section 39 and its origins. The first stage in what is a rather long and complicated story was the recommendation by the Royal Commission on the Police in its report published in 1962 that a police authority should be made liable for the wrongful acts of police officers. The Royal Commission, which heard conflicting evidence from a number of interested parties before coming to this conclusion, was particularly impressed by the argument that where a particular constable complained of could not subsequently be identified a member of the public was unable to pursue a legal remedy, since proceedings could be taken only against an individual constable. The circumstances were slightly different from those that the hon. Gentleman mentioned in this case.

On the basis of this recommendation provisions were made in the Police Act 1964 whereby chief constables were made liable for the wrongful acts of constables and for the police authorities to meet any costs awarded against chief constables. In relation to England and Wales this provision was introduced substantively in Section 48 of the Act. In relation to Scotland provision was made in paragraph 14 of the Seventh Schedule that the new liability should not begin to operate until the Secretary of State made an Order requiring its commencement. The reason for the deferment of the application of the new liability in Scotland was that there was concern in case the new provision would encourage fraudulent claims against chief constables for the mythical actions of unidentified officers. In Scotland we were also satisfied that the administrative arrangements which had been operating since 1933 had worked adequately.

These administrative arrangements are based on a recommendation in a circular of 1933 as to the procedure to be adopted by police authorities where civil or criminal proceedings are brought against police officers. The circular recommended that if the authority were satisfied that the officer concerned had acted in good faith it should undertake to meet the reasonable costs arising from assisting him. The circular gave an assurance that in these circumstances the reasonable cost of assistance so rendered would rank for police grant. The circular included provisions for an authority to refer a question to the Secretary of State if it was not satisfied that assistance should be granted and provided that the police officer concerned might also make representations directly. These provisions were not of course frequently invoked but there seemed good grounds in 1964 for saying that within their limited scope they had worked well.

The Scottish provision was introduced, as I have said, through the medium of paragraph 14 of the Seventh Schedule to the 1964 Act. It included the provision that the new liability should not be effective until the Secretary of State made an order for its commencement. The Seventh Schedule to the 1964 Act was referred for discussion to the Scottish Standing Committee, and though it considered some of its provisions in considerable detail, it did not discuss at all the provision relating to vicarious liability. It is, however, I think, a reasonable conclusion that if Parliament had intended the provision to become immediately effective in Scotland in 1964 it could quite easily have been so provided. Allowing the words to be written into statute, as they were, implied that there were reasons for delay.

In the Police (Scotland) Act 1967, which was a consolidation measure, paragraph 14 of the Seventh Schedule to the 1964 Act became Section 39.

In the event, no evidence came to the notice of the Secretary of State until 1968 which gave any grounds for believing that the administrative arrangements were not working well. The two cases which then arose related to the claims of widows of police officers who were killed while on duty by civilian vehicles, and it seemed possible that the circumstances of these cases might constitute a reason for bringing what was by then Section 39 of the Police (Scotland) Act 1967 into operation. Following consideration of the two 1968 cases the Scottish Home and Health Department had consultations with the Crown Office, the local authority associations and the Chief Constables (Scotland) Association about the desirability of early implementation of Section 39. There was some reluctance to allow the section to be activated at a time when it might have affected the results of the cases then before the courts and steps were taken to consider the effect of activation on any other cases which might be outstanding. In the light of all the circumstances it was eventually decided to bring Section 19 into operation on 1st January 1970 and this was done by the Police (Scotland) Act 1967 (Commencement) Order 1969.

I have given these details about Section 39 because, as the hon. Member said, some importance is attached to it. I agree with what I take to be his basic point that if the section had been operative at the time of the accident in which Constable Brown died, then the police authority would have been required to accept responsibility for any damages or expenses awarded against the chief constable. This might have encouraged Mrs. Brown to proceed with a court action: but of course nothing would have been payable unless the action succeeded—one must emphasise this throughout—or unless a settlement was reached. Mrs. Brown's agents have in fact entered an action against the widow of Constable Hamilton who was driving the car and it is quite clearly inappropriate for me now to speculate on where the responsibility for the accident lay, but we must be clear that the absence of the liability under Section 39 has in no sense been a bar to any action which Mrs. Brown's agents wished to raise: it has merely meant that the resources from which any successful claim must fall to be met are the resources of Mrs. Hamilton alone.

The hon. Member also spoke about the absence of specific insurance cover for police officers. This is a question which has been considered carefully from time to time over the years. The most recent consideration was by a working party of the Police Advisory Board for Scotland which was set up in 1969. The working party concluded, although the representative of the Scottish Police Federation dissented, that there was no case for singling out for special treatment the special hazards that arose from driving any police cars from the hazards to which police officers in many other circumstances were exposed. The working party had it in mind that provision was made for the protection of the interests of all police officers through the workings of the Police Pensions Code and through the provisions of the Police Regulations for maintenance of pay at its normal rate during any temporary incapacity. They also took into account the fact that special cover of the kind which had been proposed was not common in other local authority services even for employees whose work involved a great deal of driving, and having studied the accident evidence for a period of years they felt unable to conclude that driving in a police vehicle was a particularly hazardous occupation.

The hon. Member has also mentioned the delay on the part of the Scottish Home and Health Department in dealing with the correspondence from Mrs. Brown's agents during 1972. We have sought during that correspondence to invite the Joint Police Committee for Renfrew and Bute to consider whether they would be prepared to extend the administrative arrangements which I have mentioned so as to enable them to stand behind Mrs. Hamilton in the event of an action being raised by Mrs. Brown. The Joint Police Committee after due consideration declined to do this. This was, in the event overtaken by the intimation from her agents that they had entered an action against Mrs. Hamilton.

I have a good deal of sympathy for Mrs. Brown, as I have for any widow or members of the family of any police officer in unfortunate circumstances such as these. I have looked at the case with considerable care and listened carefully to what the hon. Member says on behalf of Mrs. Brown. However, as he said himself, it is impossible now for the Secretary of State to make Section 39 operative from a date earlier than the date first chosen, namely 1st January 1970, and in the circumstances there is nothing further that I can do, in relation to that.

I have considerable personal sympathy for this case, but I regret there is nothing further we can do. At the same time, I must point out that of course Mrs. Brown is entitled to, and is receiving, in addition to the normal State pension, the police pension for which her husband was qualified and to which he had paid contributions. In these circumstances, the special hazards are to some extent covered by the special pension provisions for the police.

I am sorry to have to tell the hon. Gentleman that, despite the interest he has shown and the trouble he has taken in presenting this case, there is nothing more I can add to what he and Mrs. Brown's agents have already been told, but I hope that I have explained the precise background, not only to the administrative arrangements, which worked for a considerable time and did not appear to give rise to specific difficulties, but also to why Section 39 was not activated earlier and why it cannot be applied in this case.

I regret that I have not been able to give specific help, but I hope that I have at least clarified the complicated and complex issues involved in the background to this case.

Question put and agreed to.

Adjourned accordingly at eleven minutes past Two o'clock.