HC Deb 30 April 1976 vol 910 cc730-58
Mr. Gow

I beg to move Amendment No. 2, in page 4, line 11, leave out from "child" to end of line 12 and insert is alive at the date on which the writ or summons (as the case may be) is issued". This amendment is directed to subsection (4) and relates to one matter only, namely, the circumstances in which a child should be entitled to damages for loss of expectation of life. Under the Bill as it stands, provided that a child has a life separate from its mother for 48 hours, it is entitled to damages under the head which we know as loss of expectation of life.

The Bill is based upon the recommendations of the Law Commission in its Report No. 60, presented to Parliament in August 1974, and I think it relevant to remind hon. Members of what the Law Commission had to say on this subject in paragraph 98: We think that a cause of action for loss of expectation of life of a child who only survived birth by a few hours or even minutes is a possible eventuality which it is most desirable to avoid. In our report on the assessment of damages in personal injury litigation we have advised the total abolition of any right to damages for loss of expectation of life. I shall return to that important paragraph later, and I pause now to interpose those observations. I should have liked the Bill to spell out the principle, which I believe ought to prevail, that there should be no damages whatever under the head of loss of expectation of life. My amendment would restrict still further the right of a child to damages under that head. It is a claim to damages which in many cases would go to the parents of the child, since the damages would be payable either to the estate of the deceased child or, in those cases—few rather than many—in which a child was still alive but claimed damages for prospective loss of life, to the child itself.

This whole head of damage is coming into increasing legal disrepute, and I consider that the Bill would be improved if we were to restrict still further the right to claim damages under it. I give one example. A child suffers a disability as a result of the wrongful act of its father. Let us suppose that the child survives for 48 hours and one minute. Under the Bill as drafted, that child would have a right of action against its father.

The child having died, that right would have to be sued through the administrator of its estate, and it is most likely that the administrator would be a close relative, who would then sue the father. The father would pay damages to the estate of the child and, as the child would not have made a will, under the laws of intestacy that money could well revert to the father who had been guilty of the act which gave rise to the cause of action. That possibility would be reduced substantially by the amendment, which provides that there would be no claim for damages under this head unless the child was alive on the date when the writ or summons was issued.

12.30 p.m.

The selection of the period of 48 hours as the essential period for survival to give a right of action in a case of this kind is quite arbitrary. To give damages for loss of expectation of life to a child which has survived for only three days introduces a legal concept which goes in precisely the wrong direction under this head of damages.

In Committee the hon. Member for Birmingham, Northfield (Mr. Carter), who was in charge of the Bill, gave an undertaking to look again at this matter, particularly in the light of medical advice. It is in the light of that undertaking that the amendment has been tabled on Report and selected by the Chair.

In the absence, for reasons which we understand, of the hon. Member for Northfield, I hope that the Parliamentary Secretary to the Law Officers' Department will be able to deal with this matter and explain why, when the Law Commission is moving away from the head of damages under loss of expectation of life, it is right to select a survival period of 48 hours as the sole criterion for a claim for damages under this head.

Mr. Abse

I oppose the amendment much more unequivocally than I opposed the previous amendment. I do not like it, and I shall explain why. The hon. Member for Eastbourne (Mr. Gow) rightly said that none of us likes the existing right to claim damages for loss of expectation of life. To the layman our dislike may appear to be confusing, but, if I may say so without appearing to be patronising, the lay Members of the House will appreciate that at present there is a right to claim for loss of expectation of life but it is a solatium, a solace for the bereaved. The amount that is claimed and obtained is an exceedingly small sum, ranging from£100 to a maximum of£500. In no circumstances would the right of dependants of persons who are killed to claim large sums be interfered with.

The Law Commission said that it hoped that the existing claim for loss of expectation of life would be abolished but that it wished to introduce a claim for an action for bereavement. That recommendation is contained within the Law Commission's report on damages, and that view is being considered by Lord Pearson's Commission.

It might be plausible to say that as yet the right of claim for bereavement has not been introduced and that we should anticipate events by accepting the amendment, but the Law Commissioners, having directed their attention to that matter, specifically said that if their recommendation had not been implemented by the time the Bill came before the House this provision should be included in the Bill. They are right in saying that. I do not wish any existing right to be taken away when we do not know what is likely to happen in the future.

The amendment means that in every case there would be a temptation to commence litigation. A protective writ would almost inevitably have to be issued for every disabled child, and it would be necessary for the negotiation of a claim to be started. Medical reports and assessments would have to be made. Even where there was partial or total admission of liability, it would take time. The effect of the amendment would be that no solicitor could stop for a second before issuing a writ because the child might die for a dozen reasons not related to the original cause of the disability. For example, he might be killed in a road accident.

Neither the hon. Member for East bourne nor I are here as solicitors to stir up litigation. We are trying to help children who are disabled as a result of negligence. In every case, as soon as a solicitor who is consulted finds that there is a possibility that a disabled child has a case, he must immediately start litigation and issue a protective writ. That would impose a heavy burden on the solicitor. He has enough burdens as it is, and the amendment would stir up unnecessary litigation.

As there seems to be general agreement amongst the profession that a claim for the loss of expectation of life should be abolished, and as there has been a firm recommendation from the Law Commissioners, which is being considered by the Royal Commission, that that claim should be substituted by a bereavement claim, we should not provoke litigation in the way which I fear would occur in the event of the amendment being accepted.

Mr. Percival

In putting forward the amendment, my hon Friend the Member for Eastbourne (Mr. Gow) acknowledged that there are difficulties. I agree with what he said, and also with much of what the hon. Member for Pontypool (Mr. Abse) said. I still think, however, that Parliament should find an answer to this problem before the Bill becomes law. While the amendment might to some extent have the consequences to which the hon. Member has just referred, and these must be considered, there is no doubt that, if the Bill stays as it is, it may have the consequences to which my hon. Friend the Member for Eastbourne referred.

If we take my hon. Friend's example and relate it to Clause 2, we could have the very unattractive possibility of a mother being both plaintiff and defendant, or the father being put up as the notional plaintiff on an issue on which the mother was the defendant, both of them seeking to recover money, not to compensate the child—which is the purpose of the Bill—but to provide some sort of solatium for themselves.

Mr. Abse

Does the hon. and learned Member agree that that already applies to a living child who may have suffered injuries as a result of negligence by the father? If the child died, a claim would be made and the money would go to the estate. We are not adding to the existing situation. A small Bill like this one should not be overloaded with what are undoubted major reforms.

Mr. Percival

Of course it is not peculiar to the Bill, but why repeat the difficulty in the Bill—and at the same time create a problem for doctors? The hon. Member has not referred to further consultations, and I do not want to go into that. This is a matter which is particularly suitable for discussion in another place, where considerable medical opinion is available at first hand.

I raise the matter of 48 hours because some very senior doctors asked me what is expected of them. They have said "We can keep almost anybody alive for 48 hours. Are we supposed to use all the means at our disposal to keep a child alive for 48 hours so that a claim will not be excluded by Clause 4, or not?" That is not an easy question and I do not know the answer. It is a moral judgment. If the doctor does not keep a child alive for 48 hours, the possibility of a claim will fall. If, however, the doctor succeeds but the child dies in the next 24 hours, that will create the situation which my hon. Friend has just instanced. This is not an isolated example of such difficulties but why create another situation in which the difficulty arises—coupled with a difficult decision for doctors?

There is a case for the promoters of the Bill taking the bull by the horns. They should accept everything that has been said about damages for loss of expectation of life and, hoping that the House will deal with the matter in other areas very soon, they should say that in this case they will exclude such damages because they are only concerned with looking after children who suffer disabilities. That would be more logical, it would give full effect to what is intended in the Bill and, at the same time, it would avoid putting a burden on doctors. We should thus avoid multiplying a very unattractive situation which could arise between a child and its parents in a claim for loss of expectation of life.

I urge hon. Members and those who will consider the Bill in another place to take this not very big or bold but positive step, which would avoid all the difficulties, without detriment to anyone we are trying to help in the Bill. I hope that the promoters will consider carefully what has been said.

12.45 p.m.

Sir J. Langford-Holt

Not for the first time, the House is very much indebted to my hon. Friend the Member for Eastbourne (Mr. Gow), not only for bringing forward the amendment but for his many contributions in Standing Committee.

The Bill provides that a claim exists for a child if it lives for 48 hours. On the other hand, if a child dies within 47½ hours no claim exists.

Mr. Gow

Only under this heading of loss expectation of life.

Sir J. Langford-Holt

Yes. This brings in the whole question of medical ability to keep a human being alive for 48 hours or slightly longer. I do not like the arbitrary figure of 48 hours, but I have many reservations about my hon. Friend's proposal, namely, that a child must live until a writ or summons has been issued. It immediately transfers, to a certain extent, the likely success or failure of any claim or the presence of any claim on to shoulders other than those where it should belong. Such responsibilities and liabilities are placed upon the shoulders of lawyers at all times, but one does not want to do that unless it is necessary.

The position in this case is not like that in any ordinary situation. It is rather like a knife edge of survival, when death may occure at any time and a writ or summons must be issued before death occurs. Holding writs or summonses may be issued on many occasions, just in case, to preserve the situation.

When life is in the balance, parents are not in any fit mental state to look with much favour at the idea of deciding whether to give instructions about issuing a writ or summons.

Mr. Abse

The question of stress would apply not only to 48 hours but in any other case.

Sir J. Langford-Holt

I made it clear that I do not like 48 hours. I do not know what figure I would have—not the year and a day as in murder cases—but this is a matter of circumstances.

The promoter of the Bill referred to stress on Second Reading when he said: It is said that the Bill will increase the stresses that are bound to arise when a child is born disabled. This may be so to the extent that making a claim at law involves a measure of stress, but the Law Commission was careful to frame its proposals to reduce the risk of stress to a minimum."—[Official Report, 6th February 1976; Vol. 904, c. 1593.] I use those words to emphasise that it was clear in the mind of the promoter and equally clear in my mind, as I am sure it is in the minds of all hon. Members, that such stress exists. This issue raises the whole problem of when life starts. What is life? The Bill states that the life must be separate from the mother. Of course, the Catholic Church would take a very different view.

The Bill states that we cannot compensate what is virtually dead, unless it lives for the requisite 48 hours. Like the hon. Member for Pontypool (Mr. Abse), I am worried about possible holding litigation which might take place. If I were a parent in such a position—which God forbid—I know what I would do in those circumstances.

I am not pinning myself to the 48-hour limit, but I do not like it. For example, although this matter has nothing to do with the driving about which we were talking earlier, I should prefer it to be illegal for anyone to have a drink within one hour of his driving a motor vehicle. That kind of provision would have clarity. For that reason, I do not like the amendment. It lacks clarity and blurs the edges. I should prefer to have not the 48-hour period but a greater degree of clarity which would be understandable and would not place stresses and emergencies on the shoulders of those who at the time would be unfitted for them.

The Parliamentary Secretary to the Law Officers' Department (Mr. Arthur Davidson)

There is nothing like making a dramatic entrance, particularly for one's first intervention in proceedings on a Bill of this kind.

First, I should like to add my congratulations to the sponsor of the Bill, my hon. Friend the Member for Birmingham, Northfield (Mr. Carter). It gives me particular pleasure to congratulate him as he is a very close hon. Friend. While we have all missed his taking part in the proceedings on the Bill today, I am sure that that is more than compensated by seeing him in his rightful place on the Government Front Bench.

The hon. Member for Eastbourne (Mr. Gow) rightly said that in Committee my hon. Friend the Member for Northfield agreed to approach the British Medical Association and the Royal College of Obstetricians and Gynaecologists for an opinion on the 48-hour rule, which is the basis of argument on the amendment.

My hon. Friend wrote to both bodies on 26th February. As far as I am aware the BMA has not yet sent a conclusive reply, but two senior members of the Royal College of Obstretricians and Gynaecologists saw him early in March. After a detailed discussion, they told him that they considered that the provisions for the 48-hour rule were right. They thought that there might be something to be said for extending the period to seven days, which might be more in line with the thinking of the hon. Member for Shrewsbury (Sir J. Langford-Holt), so that it would correspond with the generally accepted period of perinatal death, but they concluded that was not a strong reason for making any change. It is certainly contrary to the suggestion in the amendment.

At the suggestion of the two senior members of the Royal College of Obstetricians and Gynaecologists, my hon. Friend wrote to the Secretary of the British Paediatric Association inviting its view on the matter. As far as I am aware the association has not yet replied. I am sure that the hon. Member for Eastbourne would agree with me that, if the association felt that the 48-hour rule was wrong, that responsible body would have given its views. It has not done so. Therefore, I conclude that it is not dissatisfied with the rule.

Sir J. Langford-Holt

What is the status of the notion of seven days, which as far as I am concerned is a better period, because the enormous emotional stresses to which I referred would certainly be lessened? I should feel much happier if there were a chance of that period being given close consideration perhaps in another place.

Mr. Davidson

I shall explain a little later why 48 hours is not a particularly arbitrary figure, as the hon. Gentleman might think.

My hon. Friend the Member for Pontypool (Mr. Abse), who took part in the Committee stage—I did not—explained fully the reasons for resisting the amendment. I agree entirely with his arguments.

Basically, there are two reasons for the provision of the 48-hour rule. The first arises from legal policy. The Law Commission—this matter has been explained in detail by my hon. Friend, but perhaps I should repeat it briefly—on whose recommendations this provision is based, regards the cause of action for loss of expectation of life as unsatisfactory—it is artificial—particularly in a case where the claim lies for the death of a young child.

In another report—"Assessment of Damages, Law Commission No. 56"—the Law Commission recommends that that cause of action should be abolished and be replaced by a right of action for bereavement at the suit of close relatives. That recommendation is under consideration and is unlikely to be implemented before the Government have received the recommendations of the Royal Commission on Civil Liability and Compensation for Personal Injury, known in short as the Pearson Commission.

In the meantime, the Law Commission recommends that the cause of action for loss of expectation of life should be restricted, at least in cases arising from the deaths of young persons, and proposes that, in a case where an action arises from pre-natal injuries, such a claim should not be made if a child dies within 48 hours of its birth.

The second reason for the 48-hour rule is one of social policy, as has been pointed out. There are many cases in which a hopelessly inadequate foetus comes to term and, although born with indications of life, has no chance of survival. In such a case it is thought better that the parents should, as far as possible, forget what has happened and think only of the children they already have or may still have. It is undesirable to keep alive a memory of a tragic and upsetting event, which is best forgotten, by holding out the prospect of a claim for damages which, in the present state of the law—again, my hon. Friend pointed this out—could lead only to the award of a modest sum.

With those considerations in mind, the question is whether 48 hours is the right period. The fixing of a certain period is bound to impose an arbitrary division. Bearing in mind the social purpose which I have just mentioned, the advice received by my hon Friend suggested that 48 hours was about the right period.

1.0 p.m.

The sponsor of the Bill was concerned, as he Pointed out in Committee, that provision should be included in the Bill to eliminate the wholly artificial cases of children who survived for only a very short period. He pointed out in Committee that there was statistical evidence that of a child born with a major disability died, it was likely to die with in 48 hours. That may go some way to answering the point and clearing the genuine doubts of the hon. Gentleman. I do not think it would serve any useful purpose if I elaborated further. I will understand the point.

The point made by my hon. Friend about the issue of writs and the pressure on the parents is a very real one. In all the circumstances, particularly in view of the zealous further inquiries made by my hon. Friend, I ask the House to resist the very well-intentioned amendment moved by the hon. Member for Eastbourne.

Mr. Gow

It ought not to be taken that the fact that there has been no reply to the letters that the hon. Member for Birmingham, Northfield (Mr. Carter) has sent to these distinguished professional bodies necessarily means that the professional bodies have no comments to offer. More than two months have elapsed since we completed the Committee stage of the Bill, and I hope that the hon. Gentleman will make available to those in another place the replies he receives from these professional bodies. May I offer the thought that it might be advantageous to stir them up and get them to express a view about it?

The debate has shown a very real doubt on both sides about the wisdom of continuing at all with this head of damages. I said in moving the amendment that I wanted to come back later to the conclusion of the Law Commission in paragraph 98 of the report on which the Bill is based. The conclusion to which the Law Commission came is this: We think that, in relation to claims for damages for pre-natal injury, the desirability of implementing this proposal"— that is, the proposal to abolish loss of expectation of life as a head of damage— is even stronger than it is in relation to claims for damages for personal injury". I believe that to be so, and I fear that subsection (4) of Clause 4 will turn out to be a very unsatisfactory provision. However, in view of the views expressed on both sides of the House, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

1.4 p.m.

Mr. Jack Ashley (Stoke on Trent, South)

I beg to move, That the Bill be now read the Third time.

The whole House will be grateful to my hon. Friend the Member for Birmingham, Northfield (Mr. Carter) for introducing the Bill and for the way in which he did it. I know that both sides of the House will also want to congratulate my hon. Friend on his recent promotion which is quite clearly only the first step in what will obviously be a very distinguished career. I offer him the warm congratulations of hon. Members on both sides.

Many people would also like to express their appreciation to the Law Commission for its detailed work which enabled my hon. Friend to introduce the Bill, as well as to thank my hon. and learned Friend the Solicitor-General and my hon. Friend the Parliamentary Secretary to the Attorney-General for the work they have done.

Having been through the various stages of the Bill, and having been involved in the discussions both here and outside, I should like to pay tribute to my remarkable and redoubtable hon. Friend the Member for Pontypool (Mr. Abse) for the support he has given to the Bill. I do not always agree with him, but I should like him to know that his contribution both inside the Chamber and outside has been much appreciated.

The constructive criticism offered by hon. Members on both sides of the House has been very valuable since it has cleared away many misunderstandings about the Bill and, I hope, allayed quite a number of fears. I confess, however, that I have very little time for those who have been working assiduously to cripple the Bill or, if possible, destroy it.

The Bill arises directly from the thalidomide disaster, as my hon. Friend said in his opening remarks. It will confer clear legal rights on children who are injured before birth. This has always been a grey area, befogged by legal doubt and clouded by judicial uncertainty. The Bill clarifies and codifies the rights of these neglected children. It puts them on the same level as all other injured children and gives them the same opportunities of suing for damages. It is a small nugget, but a nugget of gold, which gives fresh hope and new opportunities to a small minority of disabled children.

Those who have sought to destroy the Bill must accept the clear logic of their position, which is that under the existing system children who are damaged before birth should have no right to sue. If that had clearly been the case during the thalidomide campaign, it is probable that the thalidomide children would have received nothing.

Opponents of the Bill accuse Members of this House of assuming that they are passing a major piece of legislation and suggest that Members will be less ready to overhaul the whole system after the Pearson Commission has reported. I do not think they should assume that Members of the House are so foolish. They should have taken the trouble to read the Second Reading debate. In that debate many hon. Members—including my hon. Friend the Member for Northfield, my hon. Friend the Member for Pontypool, the Solicitor-General and myself—stressed the limited scope of the Bill. In fact, the Solicitor-General finished the debate with these words: This is a modest Bill. Although there was a difference of opinion about that, I am with those who call it a modest Bill. It is of limited application and is possibly for a limited period."—[Official Report, 6th February 1976: Vol. 904, c. 1648.] It could not be put more specifically than that. There is absolutely no scope there for self-delusion by hon. Members, and I know that no Members have been deluded by the scope of the Bill. Nevertheless it is one of very great value, and we should not underestimate its value to the children.

Some of the critics advocate a system of no-fault liability, and they seem to assume that all the sponsors of the Bill are opposed to a system of no-fault liability. I cannot speak for the other sponsors. All I can say is that I personally favour no-fault liability, but I am not prepared to wait for the years it may take for the Pearson Commission to report and for the subsequent legislation to be enacted and meanwhile leave some children without legal redress for injuries.

Some people object to the Bill on the ground that litigation by families will cause distress. I do not believe that there could be a more foolish argument. The Bill compels no one to sue. It merely gives the opportunity to those who wish to do so. That is a very important distinction. If we accept the argument that Parliament should not create legal rights because the exercising of them will cause distress, we might as well shut up the shop and go home. It is not for Parliament to deny a deserving group of children legal rights on the wishy-washy, patronising ground that it would cause them distress if they chose to exercise them. It is our responsibility to create such rights, and it is up to the individual to decide thereafter whether to exercise them.

It has also been claimed that the Bill, which will help a small minority of handicapped children, will jeopardise the long-term interests of the minority. I am disturbed by that criticism. It is a nonsensical claim which is quite unfounded and for which no evidence has been adduced. However, it is a charge which has been vigorously peddled. In fact, the reverse is the case. Although we have repeatedly emphasised that only a small number of children will benefit from the Bill directly, the very fact that damages will be awarded to them will draw attention to the severity of the problems of all disabled children.

The thalidomide campaign proved that point. As a direct result of the campaign and the financial benefits that stemmed from it, great pressure was built up throughout the county and throughout the House for a better deal for all disabled children. That pressure is still continuing.

As a direct result of the thalidomide campaign, the Rowntree Trust was set up and £3 million was allocated to help all disabled children throughout Britain. Since then many more millions of pounds have been allocated to the fund, all of which is helping disabled children. Although the thalidomide campaign was directed to only a few hundred children who were disabled by thalidomide, the benefits have been derived from the fund by thousands of people all over Britain, none of whom would have enjoyed them without the campaign.

As we have repeatedly emphasised, the Bill will he of direct help to a small number of children. However, I believe that it will lead to a greater interest in the fight on behalf of other children, even though they already have the right that is outlined in the Bill. Anything that extends the rights of disabled children is to be welcomed. They can rest assured that some of us who are concerned with their plight are determined to go much further and shake up the whole system as soon as the Pearson Committee reports.

1.13 p.m.

Mr. Hannam

I offer my congratulations to the hon. Member for Birmingham, Northfield (Mr. Carter) on his Government appointment. I am sorry that the hon. Gentleman has not been able to pilot this piece of legislation through its final stages on Report and on Third Reading.

I shall speak briefly on the Bill's general objectives. This is the first opportunity I have had to do so as, unfortunately, I was away for Second Reading. Those who have been involved in supporting the Bill will know of my very close interest in any measure which will help disabled and handicapped children to achieve better integration into normal life through financial assistance. Any step forward, however small, is to be welcomed. I believe the Bill to be a tiny step forward. That is now accepted, I think, as the general view of most hon. Members. It is a tiny step forward to a fairer system of compensation for pre-natal injuries. Therefore, I support the Bill.

As a layman in legal matters, I must express some anxiety about the possible results of this legislation. Some of them have been expressed in our debates on Report. Those debates showed that we are all becoming more and more aware of the problems that will emanate from the complexities of some of the clauses.

When I spoke in the debate in 1973 on the possible introduction of a system of no-fault liability, which many of us support and which I certainly support, I pointed out that such a system had been operating successfully in New Zealand. I hope that in the not too distant future the system will be adopted in this country. When I consider the complexity of drafting laws in any other way to deal with pre-natal injuries, I become even more convinced that a no-fault system would be the most effective and fair way of proceeding. That applies to vaccine-damaged children and many other categories of pre-natal injury and negligence.

The members of the all-party Disablement Group will know of the deep anguish that is caused to the parents of damaged children and the expense and difficulty which they face. That is why as a group we favour the granting of general disability allowances to remove the necessity of having to go through the courts to apply for the compensation that we are talking about today.

My first fear is that such compensation will create over-expectation among the thousands of handicapped families. I must challenge the figures that were given by the Solicitor-General on Second Reading as reported at columns 1641 and 1642 of the Official Report. The hon. and learned Gentleman said that some 1,000 children a week, totalling 50,000 a year, were being born with handicaps. He said that it was his contention that even taking a very small proportion of the 50,000 children in this category every year, that would he a very substantial sector of human suffering alleviated."—[Official Report. 6th February 1976; Vol. 904, c. 1642.] To be fair to the hon. and learned Gentleman, and as the hon. Member for Stoke-on-Trent, South (Mr. Ashley) has pointed out, he also warned that it would be wrong to raise false hopes among those for whom a remedy was not being provided. However, he implied, with the quoting of the figures to which I have referred, a greater success story than I and most realistic colleagues would accept.

It is vital in passing this legislation that we ensure that its limitations are made starkly clear, so that without any doubt we do not give any false hopes to the 98 or 99 per cent. who will not have any recourse to this new law for compensation.

Mr. Peter Mitchell, the hard-working research assistant to the all-party Disablement Group, took up the figures with Professor Ronald Illingworth, of the Sheffield Childrens Hospital, who, according to the Medical Defence Union, was the expert largely responsible for the evidence that it has presented to the Law Commission. Professor Illingworth pointed out in his reply to the group that for various detailed reasons—for example, a 25 per cent reduction in the birth rate—a more accurate estimate of deformed and handicapped births would be nearer 300 a week. That brings the figure down to something more realistic in the region of 15,000 a year rather than 50,000.

Professor Illingworth concluded his letter to the all-party group with these words: When I gave evidence to the Law Commission I emphasised that the proportion of cases in which one can precisely ascribe the handicap to an error of management in pregnancy is exceedingly small: no one could put a precise figure an this. In reply to a question I guessed that in not more than 1 per cent. or 2 per cent. could one confidently state that a child's handicap was due to some error of management…it would be most unfair to compensate the extremely small minority in which there was an error, while the vast majority received no compensation because no cause can be found. In reality, we are talking of a tiny handful of people who, in the final event, might be successful in obtaining some benefit which they did not have before—possibly ten or 12 a year. it is important that we should speak in realistic terms and that we should be cruel to be kind.

My hon. and learned Friend the Member for Southport (Mr. Percvival) said on Second Reading that he hated laws that failed to live up to expectations. I agree with that sentiment, especially at this stage of the Session, when 49 pieces of legislation have already been presented and many of them will fail to live up to expectations.

The thalidomide problem of faulty drugs has never been legally resolved, and it probably never will be. The magnificent efforts of the hon. Member for Stoke-on-Trent, South, together with those of the Sunday Times and of other hon. Members. including my hon. Friend the Member for Reading, South (Dr. Vaughan), resulted in an out-of-court financial arrangement, resulting in the provision of assistance through the Rowntree Trust. I take the point made by the hon. Member for Stoke-on-Trent, South that by highlighting one matter one begins to resolve other problems. Since then we have seen a strengthening of the medicine licensing rules, which will considerably reduce the dangers of a recurrence of the dreadful problem of faulty drugs.

I am assured that, if this legislation had been passed before the thalidomide case, it might have removed 5 to 10 per cent. of the doubt. Nevertheless, I accept that that would still have lifted the level of compensation from 40 per cent. to 60 or 70 per cent. That point was made by the hon. Member for Pontypool (Mr. Abse).

But the major problem of proving negligence on the part of the scientific advisers or the doctors, or whoever the defendant might be, still remains. Now, however, the inducement on the art of the defendant to fight in the courts against the charge of negligence will be greater than under normal tort. Mothers could find themselves under surveillance during the whole of their pregnancy. They would be open to scrutiny for a reduction in damages. The defendant would endeavour to prove that a mother had been negligent—that, for example, she had played tennis, ridden a horse or played too energetically with her other children. In California, as a result of similar legislation, doctors' insurance premiums have reached a figure of £10,000 a year, yet the legal and administrative costs are so great that only 17 per cent. of the premiums actually reaches the victims of accidents.

My fears are that a worthy intention may not produce the result which those who are handicapped may be expecting. As Lord Pearson pointed out in his letter to The Times on 28th January this year, The Bill, so far from dealing comprehensively with a widespread and highly distressing social problem, could result in compensation for no more than a minute proportion of the children concerned. Therefore, I am not over-optimistic about the results to be obtained from the Bill.

However, having made those points, I wish to congratulate the sponsors for giving us a chance to draw attention to the urgency for the Royal Commission's report on civil liability. These debates have enabled Parliament to take another close look at the awful financial problems of the handicapped and disabled in our society. I hope that we can avoid creating false hopes and, instead, use the Bill as a stepping-stone towards a fairer and more equitable system of no-fault liability.

1.26 p.m.

Mr. Abse

I wish to congratulate my hon. Friend the Member for Birmingham, Northfield (Mr. Carter), the sponsor of the Bill, on his original initiation of these matters, and also on giving us an opportunity to make a genuine exploration of the problems that beset parents in these tragic cases.

It was right that my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) spoke in blunt terms, and he did so with considerable authority following the campaigns for which he had been responsible. His stern words were directed at those who seem to have found it necessary to underestimate the Bill as a catalyst—or, worse, those who seem to believe that in supporting this Bill we have been under some misunderstanding. It should be made clear that from the beginning we have clearly understood its limitations and objectives.

I trust that, after the House has given so much attention to this matter, agitations will not be pursued by those who, somewhat elliptically, wish to sabotage the Bill. The other House must understand the will and wish of this House that the Bill reach the statute book and that it should do so with the minimum of interference and with the maximum of speed.

The House cannot legislate against destiny. Destiny might cause each week 500 children to be born disabled. Happily, the numbers appear to be fewer than was believed to be the case by the Solicitor-General, and perhaps by the Law Commission on the evidence before it. This House can do little to mitigate the consequences of the tragic destiny of thousands of disabled children. The medical profession and the support that we give it is much more likely to reduce the numbers of disabled children as the hon. Member for Exeter (Mr. Hannam) made clear.

There has been an over-estimation in the past of the number of children born disabled precisely because of the advances of medical science. But we must be careful, now that we are reaching the end of these proceedings, not to be excessively self-deprecating about what we have done. There is a danger that, the House having spent a great deal of time today discussing legal technicalities, it should be thought that we have not fully appreciated the considerable effort and initiative taken by the sponsors of the Bill, particularly my hon. Friend the Member for Northfield.

We should categorise quite speedily the type of case to which the Bill gives relief. It is important when we pass laws that they should be known outside. Some of the evidence given to the all-party committee on the disabled illustrated that too often people do not know their rights. We should not speak with too much humility in this place and in such a whisper that it is not known outside the House what we are doing and what rights come into existence on the enactment of the Bill.

There are a number of categories of people who, as a result of the passing of the Bill, will receive relief. There is the pregnant mother who is knocked down by a drunken driver and who as a result has a child who is mangled. Under the Bill she will be able to make a claim for damages. Furthermore, a woman factory worker who receives pelvic injuries and who later gives birth to a damaged child will as a result of the Bill's provisions, provided that her original injuries were caused by a breach of safety regulations in the factory, have a definite claim for damages.

A sloppy hospital giving a transfusion from the blood of a syphillitic to a woman who subsequently conceives to become the mother of a child cursed with congenital syphillis will in future have a definite claim for damages. If a dangerously negligent doctor diagnoses a pregnancy as a tumour of the womb and if subsequent X-ray treatment damages the foetus, there will be a definite claim for damages.

If a doctor, without taking reasonable care—he is not expected to go beyond reasonable care or current professional standards—unnecessarily administers the drug stilboesterol to a pregnant woman, which later leads to vaginal cancer in her adolescent daughter, as it can, there will be a claim for damages. Although the opportunities for such claims may appear to be few, practising solicitors know that a wide variety of cases have come to them over the years for which there is a lack of coercive power to begin negotiations.

The Bill is a preventive measure. Because of the efforts made by my hon. Friend the Member for Stoke-on-Trent, South and the hon. Member for Reading, South (Dr. Vaughan) and others who concentrated attention on the thalidomide controversy, the Bill will now ensure that drug manufacturers know that they must be careful to maintain proper standards of care. The Bill diminishes the doubts about rights should there, unhappily, be a tragedy similar to that caused by the drug thalidomide. The Bill will introduce a right for victims to proceed in a way which is not as ambiguous as at present.

The Bill anticipates extraordinary changes. I shall deal with just one which I regard as important. We are all aware of some of the consequences of the fertility drug. We know how desperate and clamorous is the desire of those who are infertile but who want children. We know, from the demand which cannot be satisfied of those who wish to adopt children, that there are a large number of people who are anxious to have the experience of parenthood. Because of that, although in practice there is much discretion—I will not say conspiracy—about the issue, there is an increase in the practice of artificial insemination.

That practice is growing in every country in the world and we all understand the reasons for it. When a husband is infertile or sub-fertile, it is a practice which may produce a family. Many there fore choose that procedure because they believe that it is the natural right of married couples to have children. But when there is a demand for anything, inevitably a market comes into existence.

Those of us who keep in touch with the work of the British Association for the Advancement of Science are aware of its opinion that there should be some control over private sperm storage banks. They exist in many parts of the world and there is no statutory control over them in this country. It is important to ensure that private, commercial sperm storage banks observe proper standards of care. If they fail to do that, a disabled or misshapen child may be born.

Until the Bill is passed, such sperm storage banks may believe that they are immune from the law. The Bill will make certain that a definite right would exist for the parent of a disabled child born because of improper standards being maintained in an artificial insemination sperm storage bank.

We should not be too deprecating about the Bill. It is a useful measure. As the hon. Member for Exeter rightly stressed, it has drawn attention to the large area that is still not covered. I do not declare, as others have, that the solution is a no-fault solution. I await the Royal Commission report but reserve my position: but I believe that the Bill does deal with only a limited area, leaving a large area still unresolved.

I am grateful to my hon. Friend the Member for Northfield for permitting me to be so active in the processing of this Bill, because I believe that it is life enhancing and shows its respect for the unborn child. I have so far refrained entirely from enmeshing the Bill with the abortion controversy, but I cannot refrain from saying clearly at a time when too often there is a casual attitude to life in an increasingly secular society —to which I belong as a secularist—that there is often a lack of regard for the sanctity of life. The House is doing something to correct that unhappy attitude by approving a Bill which clearly shows that we believe that there can be no boundaries to our compassion, and that we extend our compassion, as the Bill does, to the unborn child.

1.40 p.m.

Sir Stephen Mc Adden (Southend, East)

In supporting the Third Reading of the Bill, I should like to take the opportunity to congratulate the hon. Member for Birmingham, Northfield (Mr. Carter) on his success in promoting it and in achieving its Third Reading. If it does not sound too patronising, may I also compliment him on his preferment. I wish him every success in the administrative field.

Fridays are interesting days in the House. Private Members' Bills are introduced and motions are discussed. We owe a great debt to the regular Friday Members who take the trouble to come, to look at legislation and to discuss it.

I am particularly grateful to the hon. Member for Pontypool (Mr. Abse) and the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman) for the way in which they explained what legal objections there are to the Bill, which might not have been apparent to the ordinary lay Member.

In considering the Bill, I have recalled crimes that might be attributed to me. It will surprise the House to know that many years ago I used to act as master of ceremonies at dances. I used to engage a band which featured Gladys Mills, now world-famous, and paid her and a three-piece band £10 to play at dances. It would cost a great deal more today. In the MC-ing of one of those dances I inflicted a grave injury on the wife of a former Member of this House.

We had an elimination dance called "O'Grady Says". The competitors were so expert at doing what O'Grady said—at putting their hands up and down and so on—that I had to introduce some more rigorous performances in order to fault them. The wife of the former Member in question neglected to tell me that she was pregnant, and unfortunately she had a miscarriage. I would not have been caught by the Bill, which deals only with children born with physical disabilities, but that shows how innocently, without knowing anything about it, one may find oneself in serious difficulty.

The most telling speech today was that of the hon. Member for Pontypool, who earlier described all the confidential and private matters that would have to be investigated to establish the point dealt with in the first amendment: knows (or ought reasonably to know) herself to be pregnant. I am sure that we do not want a system of society in which the courts are crowded with cases in which they have to investigate the sexual life of those concerned and what kind of preventives they use, if any. Therefore, I hope that when the Bill goes to another place consideration will be given to the words of wisdom spoken by the hon. Gentleman and the hon. and learned Member for Hackney, North and Stoke Newington, and no doubt by other hon. Members when I was absent from the Chamber.

The Bill is undoubtedly well-meaning. It is designed to do something good. I fervently echo the words of the hon. Member for Pontypool, who said what a pleasure it was to join in the discussions on a Bill concerned with human life and not with destroying human life, a Bill which seeks to make life better for the children born into this world suffering from disabilities. It deserves the good wishes expressed by all those who have taken part in the debate, though there are certainly matters which require more serious and earnest consideration than can be given in the House on a Friday afternoon.

I should like to utter one word of caution to hon. Members who are considering these matters. I am surprised that so few of the sponsors of the Bill have bothered to come today. I understand other hon. Members not being here, but the sponsors should have been here to lend their support. I wish the Bill every possible success.

1.45 p.m.

Mr. Gow

I add my congratulations to the hon. Member for Birmingham, North field (Mr. Carter), first, on having piloted the Bill through the House, apart from today's proceedings, and, secondly, on his appointment as a Minister.

As the hon. Gentleman told the House on Second Reading on 6th February. The Bill stemmed from the thalidomide disaster. It was after that disaster that the Law Commission reported, producing its report in August 1974, and it was on the basis of that report that the hon. Gentleman introduced the Bill on 17th December last year. Now, less than five months later, the Bill is having its Third Reading and it will no doubt leave this place today for another place. That is a fairly speedy passage for a Private Member's Bill. It is a tribute to the hon. Gentleman's perseverance that he has carried the Bill through so quickly.

The speech by my hon. Friend the Member for Southend, East (Sir S. McAdden) was very telling. He reminded us that the purpose of the Bill is to help children, to compensate them in so far as money can for what are sometimes terrible disabilities whose cause is an event involving the mother or father before birth and sometimes before conception.

The Bill only gives a right to those children resulting from a wrongful act. It is important that we should make clear as the hon. Member for Stoke-on-Trent, South (Mr. Ashley) did when he moved the Third Reading, that this is not a no-fault Bill. As I think the hon. Gentleman recognises, it will present serious legal difficulties, difficulties of interpretation. But that should not prevent us from seeing that its prime objective is to clarify the law and to make clear that the unborn, innocent child should receive protection from a civilised society.

I agree with my hon. Friend the Member for Southend, East and the hon. Member for Pontypool (Mr. Abse), who made a moving speech, about the refreshing tonic that the Bill provides compared with some of the dreary and uninspiring legislation which comes before the House.

In praising the hon. Member for North field for the Bill, and in acknowledging the desirability of giving innocent children born disabled as a result of a wrongful act a clear right laid down by Act of Parliament to seek money compensation for their disability, one is also right—I regret having to say this—to emphasise the inevitable limitations of an Act in redressing that suffering and human distress. In many cases where a child is born disabled as the result of a wrongful act, the wrong-doer, even where he can be identified, will not have the financial resources to provide compensation. It was to that point that the hon. Member for Stoke-on-Trent, South directed himself when he argued for no fault liability.

That is why it is important that the House should make it clear to parents and to professional advisers—to doctors and lawyers—that, although the Bill will confer a clear right upon children born disabled as a result of a wrongful act, that, sadly, does not mean that in many cases, or even in most cases, compensation will be payable. The fact that there will be many people who will not be benefited by the Bill should not obscure the fact that there will be many children who will be benefited. That is what the Bill is directed to.

The Bill has been carefully considered in Committee and in thoughtful speeches on both sides today. It leaves this House for another place with the best wishes of this side of the House. We are confident that it will be carefully considered there. Above all, the Bill goes from the House with good wishes to the children whose present legal status is the reverse of clear, because the Bill, despite all its failings, all its shortcomings, and all its lack of perfection, makes the legal status and the rights of those children clearer.

My last words are again words of congratulation to the hon. Member for North field. We wish the Bill and the children whom it seeks to serve success. We hope that the result of our deliberations will be the alleviation of suffering.

1.53 p.m.

Sir J. Langford-Holt

The background to the Bill was the terrible tragedy of thalidomide which excited the interest and aroused the sympathy of the whole nation. Great credit is due to the hon. Member for Stoke-on-Trent, South (Mr. Ashley), who played such a great part in bringing the tragedy to our attention and exercising our consciences.

I attended the Second Reading debate and both days of the deliberations in Committee. I had the fortune, or the misfortune—hon. Members take a different view about this—of not being a member of that Committee, because I did not make a speech on Second Reading. However, I certainly do not intend to start complaining about not being included in the membership of any Standing Committee.

I repeat that the backdrop to the Bill was the thalidomide tragedy. The scope of the Bill is very limited but, as so often with Private Members' Bills, it is a sincere effort to alleviate suffering. However, I do not think that it covers the situation of somebody who, as a result of another thalidomide tragedy, so to speak, has a miscarriage after seven months. Nor does it cover the greatest shock of all, namely, sudden death, even allowing for the 48 hours.

Other matters are not covered. There are the extraordinary things that women do to themselves. Further, we do not yet know whether there will be any effect on the next generation from such things as air fresheners, hairsprays and spray wood polishes. However, the Bill seeks to put some small matter right.

I look somewhat askance at the usual whitewash attempt that is made in the Bill—the way it clears the yardarm, to use a naval expression, of all those who act in a professional capacity of any responsibility. The Bill uses the words "professional capacity". What is a profession? When I was brought up, the only professions were the Church, the Law and the Army, apart from the oldest profession of all. There is lack of clarity in the Bill. Can any of our legal friends in the House explain whether the word "professional" has any legal basis and, if so, what? As a layman I am fascinated by the use of the word here, quite apart from its whitewash implications. I am also puzzled in this context by the use of the word "he" rather than "he or she" although the expression "his or her" is used elsewhere in the Bill.

My hon. Friend the Member for East bourne (Mr. Gow) said that many will benefit from the Bill. Has the Parliamentary Secretary any idea of how many will benefit—I accept that it may be a purely arbitary guess—leaving aside those affected by the thalidomide tragedy?

The Royal Commission will probably report in the middle of next year or at the end of next year. It has been pointed out that this is something of a stopgap Bill and we should not kid our- selves that it will be a solution to all our problems. On Second Reading the hon. Member for Birmingham, Northfield (Mr. Carter) read out part of a letter that he had received from the Chairman of the Royal Commission, Lord Pearson. The hon. Gentleman then seemed a little uneasy about the speed at which the Royal Commission was likely to proceed. After many years in the House I have become a parliamentary sceptic about the motives of Governments. All Governments are bad and some are worse than others, but I take the view that this is the worst Government of the lot. However, that is outside the scope of the Bill.

I do not expect the Parliamentary Secretary to comment on this, but it is a reasonable assumption that the Government would not have acted about the Royal Commission had not this legislation come forward, because we know that the shelves in the offices of Government Departments are littered with dusty reports of Royal Commissions on which no action has been taken. The desire of all Governments to tinker with and to improve legislation might give this Government sufficient impetus and enthusiasm to do something about this problem in far greater scope and to far greater effect than can be done by a Private Member's Bill. However, within its limitations, and while it will have provided that stimulation, this Bill will have done a great job.

2.0 p.m.

Mr. Arthur Davidson

May I again congratulate my hon. Friend the Member for Birmingham, Northfield (Mr. Carter) on getting the Bill to Third Reading? I advise him not to be too complacent, however, because when I had the good fortune of drawing a high place in the Ballot, and my Bill achieved a much-lauded Third Reading, I had every expectation of the measure being put on the statute book. However, the then Prime Minister, without consultation with my self, decided to call a General Election, and not only was I not promoted but, alas, my Bill failed. However, it was fortunately reintroduced later by an hon. Member opposite. Perhaps my hon. Friend will take those salutary words to heart, but I do not think, whatever other fate this Bill befalls, that a General Election will supervene.

I am sure my hon. Friend would join me in thanking my hon. Friend the Member for Pontypool (Mr. Abse) for the help he has given. He always makes the task of those who follow him much easier because of his knowledge of the subjects upon which he speaks, except when he is speaking on the opposite side and he makes life almost intolerable for those who have to speak after him. On this occasion, however, I am grateful for the help he has given.

Hon. Members have leaned over back wards to point out the limited nature of the Bill and the limited number of children or parents who will be helped by its provisions. They are right to do so. I do not think I can say exactly how many children or parents will benefit by the Bill, but it clearly is a limited number. Whether it is the number suggested by the hon. Member for Exeter (Mr. Hannam), who over the years has taken a great interest in the problem of disabled children and disabled people in general and is very knowledgeable on this subject, or whether it is a marginally greater number, I would say that even if only one child receives compensation which he would otherwise not get, or even if only one parent is helped financially by the Bill its passing will be more than justified. Many measures with far more ambitious aims, much heralded and trumpeted and the subject of much debate, have achieved far less.

As has often been pointed out, the Bill does not provide a comprehensive solution to the problem of disablement of children. Indeed, it cannot do so. Even a much more ambitious Bill cannot do that. Moreover, it will be a long time before this House can say the last word on the problem of the severe and tragic injuries and the tragic life which face disabled children.

The Bill has been brought forward after careful thought by the sponsors and in spite of the cautionary words that were spoken on Second Reading, in Committee and on Report, it is now accepted by the House and, I hope the country, as an interim measure of a limited nature pending the report of the Royal Commission on Civil Liability and Compensation for Personal Injury. It is based on the principle, which now underlines all our law of civil compensation and is the very matter which the Royal Commission is now considering, that fault must be proved. That principle is being reexamined by the Royal Commission, and to that extent the Bill will have to be re examined, not only as regards the extent to which it is based upon the necessity of proving fault and misconduct but in many other respects. It should also be said that the Royal Commission itself cannot say the last word in matters affecting disabled children since its terms of reference relate to injury suffered, roughly speaking, at the hands of another. It does not extend to injury which arises from natural causes.

I do not think it would add very much to the debate if I spoke at much greater length. There will be many people whose life will be made a little bit easier as a result of my hon. Friend's measure. That in itself is a justification for his Bill. I am sure that the whole House wishes it well and that, when it is examined in detail in the other place, the essence and principle of the Bill will be preserved.

Question put and agreed to.

Bill accordingly read the Third time and passed.

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