CONGENITAL DISABILITIES (CIVIL LIABILITY) BILL

HC Deb 06 February 1976 vol 904 cc1589-648

Order for Second Reading read.

11.5 a.m.

Mr. Ray Carter (Birmingham, Northfield)

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

The origins of the Bill lie, as all those present will know, in the aftermath of the thalidomide tragedy. Sadly, the horror of that tragedy hit a society which was totally unprepared to cope with it, save in the natural human response of sympathy and the wish that somehow compensation should be made available.

Unfortunately, even in that respect the state of the law was such that liability and fault were difficult to determine, and in any event the rights of as yet unborn children were extremely vague, to say the least. Although I am not a lawyer, I believe that, given the dubious state of the law and the protracted difficulties of the children involved in the thalidomide tragedy, we should take urgent and necessary steps at least to ensure that in future children born with disabilities believed to be due to fault or negligence have a clear and unequivocal right to seek compensation through the courts.

There is no doubt that lying at the heart of the Bill is the wish of all of us—industry, science, legislators, politicians and parents—at all times to protect the future generation. That is an observation that large numbers of people will say is so obvious and consciously acted upon that it is foolish to state it. However, recent research and tragic experience have revealed that so rapid has been the advance of modern science-based society that we fail to take note of the fact that products, processes and practices thought to be not only without harm but positively beneficial can and do have effects on us, both physical and mental.

No one can be blamed for this. In the circle which is closed by the meeting of needs and the means by which they are satisfied we all play a part. This legislation seeks to ensure that those who have no place in that circle—the unborn—are accorded a place in our thinking. That must of necessity limit our activities by controlling our efforts in the scientific and industrial fields.

It could be suggested, of course, that the Bill, because it clearly defines liability, will put a brake on development in, say, the field of drug manufacture. But if that were true it would affect the whole field of usage and there is no evidence to support the contention. However, there is ample evidence already that children are being born with deformities that can be traced to faulty processes and products. Even if the thalidomide tragedy had never occurred, there would be a need for urgent legislation.

In the aftermath of the thalidomide tragedy, at the end of 1972, two important steps were taken. At the end of November, the Law Commission was asked to advise what the nature and extent of civil liability for ante-natal injury should be. Subsequently, a Royal Commission under the chairmanship of Lord Pearson was appointed to consider and make recommendations on the whole topic of compensation in respect of death or personal injury, including ante-natal injury.

The Law Commission was no doubt asked to consider this topic because experience in the thalidomide case had disclosed that liability for ante-natal injury was a dark corner of the law. Some authorities considered that there was no such liability; and, though the Law Commission disagrees with this view, the case law is scanty and inconclusive and no one can be sure what is the nature and extent of liability under the existing law for something which happened before the victim was born. Clearly, there is a strong case for clarifying the rules which should apply in such circumstances within the framework of the present law.

The task of the Royal Commission is so much wider as to be quite different. It has to consider our whole system of compensation and, perhaps, recommend fundamental steps and changes in it. In particular, it might recommend that schemes of no fault compensation should operate generally or in specific areas.

I expect that every hon. Member present shares my wish that we should make provision for every child born disabled to receive compensation without proof of fault, but that is not possible. Not only would it pre-empt the work of the Royal Commission, but it would require financial and administrative arrangements quite beyond the scope of the Bill. Compensation cannot be pulled out of the air. Methods of funding no-fault compensation must be carefully considered, for if they are not properly worked out, they may be disproportionately expensive and difficult to operate. But at this stage we could cast some light into this dark corner of the law and make whatever improvements are possible within the confines of the tort system.

The Royal Commission might recommend a system of compensation which removes the need for fault to be proved in these cases. I hope that that will be possible, but it will be some time before any recommendations by the Royal Commission can take effect. It does not expect to finish its work until the end of this year. If its recommendations call for fundamental changes, they will take some time to implement. It is therefore likely to be some years before they can come fully into effect. In that period, as the statistics show, many children will be born with disabilities.

In a small but appreciable proportion of cases the disability may be ascribed to a pre-natal occurrence. In such cases it is essential that any doubts as to the state of the law should be removed. That is why it is important to introduce the Bill, even though it may prove to be no more than an interim measure.

It has been said that the causes of disability apparent at birth are often hard to trace. This was certainly true in the past, but with the progress of medical research it will become more often possible to trace the cause. The fact that the Bill clarifies the nature of legal duties to parent and child will in itself give an impetus to the drug manufacturers and others to have regard to their duties. In any event, in a number of cases the cause can be traced. I do not believe that we shall be wasting our time if we ensure that in those cases the law is made clear.

I turn now to the effects of the main provisions of the Bill. The first three subsections of Clause 1 contain the central provisions. They set out the circumstances in which liability to the child will arise. The Law Commission pointed out that there are major differences between claims for damages for pre-natal injury and claims for injuries inflicted upon living persons. In particular, the victim in the case of pre-natal injury has no legal existence at the time of the occurrence which causes the injury and no life separate from its mother. The child is born with disabilities because of something which happned to one or both parents. The Law Commission proposals, which are contained in these subsections, reflect this situation. Just as in life injuries to the child may be ascribed to an event involving the parent, so in law liability to the child is derived from liability to the parent.

Clause 1 provides that if the parent is affected by a pre-natal occurrence which causes the child to be born subsequently with disabilities which would not otherwise have been present, any person who is or would have been liable in tort to the parent for the occurrence will be answerable to the child whose injuries are to be regarded as damages resulting from the the occurrence and actionable accordingly. The Law Commission described this form of liability as derivative liability. Liability to the child is derived from liability to the parent.

Liability arising in this way has certain features which call for a particular mention. First, there is liability only to the living child. No legal rights are given to the foetus. The only question is whether the child born alive suffers from disabilities which could be relevant to a wrongful act affecting the parent. It follows that the Bill is neutral about abortion. Its purpose is not to deal with abortion, but to clarify the remedy available to the living child for the disabilities caused by the fault of another.

The question of whether abortions should be permitted does not arise under the Bill. It confers no action for what the Law Commission called "wrongful life". By this is meant that the disabled child will have the right of action only for disabilities caused by a pre-natal occurrence and not for the fact of being brought into the world. In this respect, too, the Bill is neutral. It is not concerned with any question relating to the rights of the foetus, but it is concerned with disabilities suffered by a living child which result from a wrongful act committed before that child's birth.

The potential liability of parents calls for a particular mention. The Bill imposes liabilities to the child only where there is liability in tort to the parent. A person cannot be liable in tort to himself, so there can be no liability in respect of what I might call self-inflicted injury to the parent. Clause 1 expressly provides that it imposes no liability on the mother to her own child in any circumstances. The mother may be liable in cases governed by Clause 2, which I shall explain. The considerations which led the Law Commission to this conclusion are fully set out in its report and I believe that its conclusions are sound.

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.

The remaining subsections of Clause 1 provide certain defences to an action at the suit of a child. Subsection (4) applies where the child's claim arises from a pre-conceptual event. It is clear from its report that the Law Commission shared with a number of those it consulted some hesitation at imposing liability for an event occurring before conception. It came to the conclusion that it was right to do so particularly because it is medically difficult to fix a point at which conception occurs, and also because, thanks to modern scientific and technological development, there are occasions when a child may need a remedy for a pre-conceptual event.

The Law Commission considered, however, that the extent of such liability should be limited. It recommended that no claim should arise in a case where one or both of the parents knew before the child's conception of the risk created by such an occurrence. I am advised that this reflects existing legal principles, described, of course, by a Latin phrase, in which there is no liability for wrongful act if the injuries suffered can be ascribed to some later supervening cause.

Subsection (5) provides a defence for any act done or treatment given in a professional capacity. This provision, I am advised, reflects the existing law. Its purpose is not to give an additional defence to professional men, but merely to confirm that although the nature of the liability to the child—derivative liability—may be novel, the Bill does not affect the extent of a professional man's duty. It serves also to reassure the medical profession that the Bill is not intended to impose new duties and heavier burdens upon them when treating pregnant women.

Subsection (6) provides for the case in which the parent affected by an occurrence has made a contract which affects his right to claim in respect of it. In accordance with the principle that liability to the child is derived from liability to the parent, any agreement by the parent which excludes or limits liability to him will similarly exclude or limit liability to the child.

There is the question whether terms excluding liability for negligence should be permissible. The Government have said that they hope to introduce legislation in due course to implement recommendations made by the Law Commission for the control of exemption clauses of this sort, and it would not be appropriate to include any special provisions in the Bill to deal with this. Liability for pre-natal injuries should follow the general law for for the time being.

Subsection (7) makes provision for the case in which a parent affected by a prenatal occurrence is partly to blame for it. The mother can never be sued either by the child or by the other wrongdoer for her part in the occurrence, the father probably only rarely. Therefore, just as the parent's damages would fall to be reduced on the ground of his or her share of the responsibility for what happened, so the child's damages may be reduced also.

Here, again, it is said that it will add to the parent's distress if one of them is found to be partly to blame for the occurrence. However, this is a situation which may face any parent whose very young living child is injured. Given that the Bill must operate within the frame-work of the existing law, we must accept that in a case of pre-natal injury parents will face the same emotional problems as do the parents of a living child injured by accident.

Clause 2 deals with the special case in which the Law Commission thought that a mother should be liable for negligence causing injuries to her child. In this case alone the Law Commission thought that it would relieve rather than increase the stress naturally imposed on her if her child could recover damages against her. Because she is bound to be insured for liability while driving, there should be no question of inability to pay the sum awarded, and this provision accords with the general policy that the blameless victims of road accidents caused by negligence should recover compensation. For those reasons motor accidents are treated as a special case. From a legal point of view, I understand that there may be said to be some inconsistency between the provisions of Clauses 1 and 2, but I believe that the provisions are based on common sense and reflect the realities of everyday life.

Clause 3 is concerned with the Nuclear Installations Act 1965. In general, the provisions of Clause 1 will cover cases where liability in tort arises from breach of statutory duty. The 1965 Act is a special case. It lays down a self-contained code of compensation. When that Bill was debated in the House, it was accepted that compensation would be payable if a child were born with disabilities resulting from a nuclear incident occurring between conception and birth, but it was not clear that compensation would be payable in respect of an occurrence before conception. As the genetic effects of nuclear incidents are well known to constitute a risk, this doubt should be removed.

Clause 3, therefore, provides that "injury" for which compensation may be payable under the 1965 Act includes prenatal and pre-conceptual injury. Consequential provisions are made, on the pattern of the provisions of Clause 1, for cases in which the parent, by a deliberate or reckless act, was responsible for the incident, and in which one parent was or both parents were aware before the child was conceived of the risk arising from the incident.

I need not take up the time of the House in explaining in detail the remaining provisions of the Bill, but I shall pick out one or two of the more important. In Clause 4 the definition of "born" makes clear that the Bill will apply only in cases where the child is born alive and that liability under the Bill is to be treated as liability for injuries occurring immediately after the child's birth. Further provision is made that damages for loss of expectation of life may be claimed only where the child survives birth for 48 hours. The Bill will take effect in respect of births occurring after it is passed. Liability for a pre-conceptual event is limited to one generation, and the provisions of the Bill replace whatever rules of law exist relating to liability for pre-natal injury.

There are two matters which I wish to mention in conclusion. First, there is no doubt that the implications of a measure of this kind require careful and detailed study. I am told that the consultations carried out by the Law Commission on this topic, although it was dealt with as a matter of urgency, were probably the most extensive it had ever undertaken. The lists of participants in the discussions arranged by the Law Commission bear this out. They include the Lord Chief Justice, the President and former President of the Family Division, leading members of the medical and legal professions, and representatives of the Churches. I know that the House will wish to join me in paying tribute to the work of the Law Commission on this topic.

Secondly, I emphasise that I shall be well content if the Bill proves to be no more than an interim measure. If some means can be found by which all disabled children can be given the support they need, regardless of proof or fault, I shall welcome it. For the time being, all we can do is to ensure that the present law operates as it should in cases of prenatal injury. If in the present state of the law only the wrongdoer need pay compensation, at least we must be sure that the wrongdoer will not escape his liability through any doubt as to the state of the law.

I should like to thank all those who have supported me in the presentation of the Bill, all the sponsors, the Ministers involved, those outside who have offered valuable advice and information and, in particular, those who have guided me—a non-lawyer—through a legal minefield.

I commend the Bill to the House.

11.27 a.m.

Mr. John Fan (Harborough)

I am sure that all hon. Members on both sides of the House will join me in congratulating the hon. Member for Birmingham, Northfield (Mr. Carter) on his good luck in obtaining the first position in the Ballot, so much coveted by us all, and on his courage in adopting for his Bill a measure which is badly needed on a subject which is so daunting to the experts. I further congratulate the hon. Gentleman on the manner in which he introduced the Bill. I am fortunate enough to be one of its sponsors and in general I go along 100 per cent. with its implications and purposes.

The Bill hinges on Clause 1 and 2 in which appears the nub of what the House seeks to do. Although I shall support the Bill through any Division Lobby at any time, I hope that in Committee amendments may be secured to the wording and the purport of Clause 2. It seems strange that Clause 2 should single out a woman who is driving a motor vehicle. Why is this specific risk selected?

I feel sure that the Bill would be improved in Committee by the alteration of Clause 1 to include the mother's responsibility for any occurrence or risk. As the Bill is framed, that responsibility is specifically excluded, but in Clause 2 the hon. Member for Northfield seeks to put that right by singling out the mother's responsibility when driving a motor vehicle.

Why not also make the mother responsible when she is using other forms of transport—for example, when she is riding a horse or a bicycle? To seize on this particular form of transport alone is illogical. The terms of reference of the Royal Commission led by Lord Pearson, the appointment of which was announced by the Prime Minister on 19th December 1972, included other kinds of transport.

Mr. Leo Abse (Pontypool)

Is it not clear that unless a mother is comprehensively insured, which she would not necessarily be if she were riding a bicycle or a horse, any action could create severe tension? Is it not a matter of common sense that when a mother can be insured, as she can for driving a motor car, it is then, and then alone, that we should allow a right of action?

Mr. Farr

I am grateful for that helpful intervention, but it is a Committee point. People are not insured only for driving motor cars. Many other activities are covered by third-party insurance.

As the Bill stands, if the mother has led a life of great extravagance during pregnancy, perhaps contracting a disease which she passes on to her unborn child, she cannot be held by the court to be liable.

There is another significant feature of Clause 2. There are numerous examples of women who give birth without having been aware of their condition until the time of the event. We cannot hold a woman responsible for her activities during pregnancy unless it is confirmed that she was aware that she had conceived. Medical literature is littered with case histories of women who have not known until the day before giving birth, or even until the day itself, that they were pregnant.

There is an anomaly in the Bill which I wish to highlight, but I cannot recommend what the House should do about it, if anything. If a child is born deformed due to the carelessness of the mother, perhaps while she was driving a car with the child in her womb, the child can subsequently claim damages. But if the prenatal injuries are so severe that the child succumbs to them, there is no liability on the mother's part.

I again congratulate the hon. Member for Northfield on his magnificent attempt to introduce this controversial measure, which has my full support. I am aware that Lord Pearson announced in January that the Royal Commission was likely to report within a year or two and that in a letter to The Times on 28th January he pointed out that some parts of the Bill might conflict with the Commission's recommendations. Nevertheless, I regard what the hon. Gentleman is trying to do as so important that I hope that he will press on with it. He has my 100 per cent. support.

11.36 a.m.

The Under-Secretary of State for Health and Social Security (Mr. Alfred Morris)

I pay a warm tribute to my hon. Friend the Member for Birmingham, Northfield (Mr. Carter) for presenting the Bill to the House. He has clearly spent a great deal of time and effort in preparing for today, and his speech reflects his sincerity and the depth of his concern for the handicapped child. Like the hon. Member for Harborough (Mr. Farr), I congratulate my hon. Friend.

I am glad to say that the Government support the Bill and that my hon. and learned Friend the Solicitor-General intends later to deal with the more general issues which arise in the debate. I think it would be helpful to the House if I, as Minister responsible for the disabled, briefly set the Bill in the context of what we are trying to do for disabled children as a whole. The Bill is concerned with legal liability and it will serve the important purpose of ensuring that a disabled child whose disability results from the wrongful act of another will not be impeded in claiming damages by any doubt or obscurity in the law.

Mr. Ernest G. Perry (Battersea, South)

Is my hon. Friend intent on conferring third-party insurance status upon the unborn child?

Mr. Morris

As I explained, my hon. and learned Friend the Solicitor-General intends to deal later in the debate with detailed points. That is clearly one point with which he will wish to deal. For my part, I am seeking to set the Bill in the context of what we are trying to do for disabled children as a whole.

The Bill relates only to legal wrongs and legal remedies. The problems of disabled children are imemnsely wide and varied. For the majority the solution to their problems does not lie in legal remedies. The Government are therefore anxious to maintain and improve all available means of support. The Bill provides for no extension of public support of this kind and it could not be expected to do so.

Press reports have been causing me concern, because they are leading some people to believe that the Bill will provide for compensation to be payable to all children who are born handicapped. This is not so, as my hon. Friend the Member for Northfield made clear. I hope that such reports have not raised expectations among parents which go beyond the provisions of the Bill.

In the main, handicapped children will still rely for help on statutory and voluntary agencies. A wide range of help is available and the House will wish to know about it to set the Bill in its full context as part of the overall provision.

Mr. Farr

Whilst I accept what the hon. Gentleman has said as being correct, he should make it clear that the passage of the Bill is subject to the usual Committee stage. It is quite possible, as I indicated in what I said, that at the Committee stage the contents of the Bill may be changed slightly.

Mr. Morris

In whatever form the Bill emerges from the Committee, it will still have to be considered as part of the overall provision we make for disabled people. I accept the hon. Gentleman's point that we cannot at this stage seek to anticipate what the Bill will look like as it emerges from Committee.

In a number of cases, compensation recovered by way of a claim at law will provide the principal means of support for the disabled child. In most cases, however, the child must look elsewhere for the support he needs. To a great extent the disabled child is dependent on his family for financial as well as for emotional support.

I have the profoundest admiration for the parents and families who respond to the birth of a disabled child in the way described in a most moving letter that I saw recently. If I were to give details of the case, it would be seen to be one which must come very near the top of any conceivable scale of severity of handicap—and heartbreak. The letter quite simply says: To all of us, she is not a problem, or a sorrow. She is just Felicity. There is a name and a thought for us to conjure with in this debate.

There is little we can do to lighten the burden of sadness and emotional strain imposed on parents with severely handicapped children. In a sense, they confer a benefit on the rest of us by the inspiration we may draw from their courage and devotion. Yet we can do something to ease their financial burden by way of cash benefits and services.

Concerning cash benefits, we are in the second half of a decade of quite remarkable change, and the second half of the decade is to be the more significant part. There is greatly enhanced provision for the children of longer-term beneficiaries, notably of invalidity pensioners. In addition, there are—or soon will be—attendance allowance and mobility allowance for disabled children, and also child interim benefit, and then child benefit for children in general. We are moving a very long way in recognising the burdens on parents and the child's needs and potential.

Mr. Lewis Carter-Jones (Eccles)

I follow the argument that my hon. Friend is advancing, but would it not be true to say that from the same global sum—if the Bill becomes an Act and money is paid to the parents of these children—the sum of money we vote will go further and will do more good?

Mr. Morris

I agree with the point made by my hon. Friend. It is very difficult for me to quantify in money terms the effect of the point he makes. My hon. Friend, I am sure, will be seeking to catch your eye, Mr. Deputy Speaker, and to make what I know will be an important contribution to the debate.

Concerning services, a family with a disabled child may need more than one form of help. It may need housing or special health provision. Very probably it will need help from the local social services department. The need may be for a home help or for assistance with one or other of the many forms of help listed in Section 2 of the Chronically Sick and Disabled Persons Act. For example, there are aids to daily living or adaptations to the home.

My estimate is that there are about 100,000 severely handicapped children in Britain today. I am fully aware that the Bill has reference to a potentially much greater number of less severely disabled children. It is impossible for me to quantify all that the statutory and voluntary agencies have been able to do for these children. The records are not kept in that way, and clearly we must not let record keeping get in the way of doing.

There has been steady growth in the total provision made. In the two years 1973–75, there was a doubling of the total number of items of assistance to families in which there was a severely handicapped child, under the provisions of the Chronically Sick and Disabled Persons Act. This remarkable increase in provision has taken place against a background of severe financial difficulties, and illustrates how most local authorities within their resource constraints give due weight to extending help to handicapped children and their families.

Another form of help which is directly relevant to any debate on disabled children is that provided by the Family Fund administered for the Government by the Rowntree Trust. Help from the fund is now available not only to congenitally handicapped children but to severely handicapped children as a whole. This is another form of cash help and is unique of its kind. In the three years since it was launched, some 22,000 families have been helped at a cost of well over £6 million. I am glad to be able to say that current economic difficulties have not been allowed to stand in the way of increased Government help for the fund.

Dr. Gerard Vaughan (Reading, South)

The Rowntree Fund has indeed provided a very valuable service. As the Minister may know, I had a part in raising the original Government contribution to it. I ask the Minister to look into the functioning of the fund, because my experience is that the parents of handicapped children find it very difficult to approach the fund. They are not sure of the possibilities of help from the fund, and the whole procedure is far too cumbersome and involved. It is very difficult now for them to receive assistance from it.

Mr. Morris

I accept the hon. Gentleman's important standing in this matter. He has done a great deal for severely handicapped children. I shall gladly take into account the point he has made.

We are continuing to give the fund support, in recognition of the extremely valuable contribution it can continue to make to the welfare of many of the most severely handicapped children. I know that the hon. Gentleman will accept that the fund is still a most important source of help to some of the most hard-pressed families in this country. Nevertheless, we shall take very carefully into account what the hon. Gentleman has said, and I shall be writing to him on the point he raised.

The Government will have added by the end of this month an additional £5 million to the original grant of £3 million given by the previous Administration.

In November 1969, the family of a severely disabled child received family allowance, and that was all. When he or she reached 16, there were no non-means-tested benefits payable, because there was no contribution record on which to base these benefits. By November 1975 "nothing" had become an attendance allowance of up to £10.60 per week, plus a non-contributory invalidity pension of £7.90 per week.

In the matter of services, one example of measurable progress is the new help available to hearing-impaired children. In the past year there have been many clear indications of our resolve to improve the quality of service delivery for this very vulnerable section of the child population. A number of health authorities have set up working parties to review local screening and follow-up arrangements.

Our Advisory Committee on Services for Hearing Impaired People has set up a sub-committee to consider how services for pre-school children and schoolchildren can be improved. Another sub-committee has been looking at social services provision for all age groups. We are in touch with the Department of Education and Science with a view to making available the expertise of our Advisory Committee on Audiological Equipment, to maximise the use of equipment in schools for the deaf and partially hearing.

We are supporting research into the detection of hearing loss in the newly-born child. Yet another project is a study of the relationship between the behavioural problems of profoundly prelingually deaf and disturbed adolescents and their deafness. Hearing aids are now more widely available, especially for adolescents. They can continue to receive commercial hearings aids up to the age of 18, or 21 if they continue in fulltime education. Taken together, these moves reflect our desire to plan a more integrated and comprehensive service. We believe that this can be achieved by better use of existing resources as well as by increasing staff levels.

A further important initiative affecting disabled children about which the House will already know is the committee of inquiry under the chairmanship of Professor Mary Warnock which is examining the educational needs of handicapped children with full regard to the medical and social aspects of their disabilities. The committee's deliberations are now well advanced. It has appointed a subcommittee to look in depth at problems affecting the under-fives, and this includes in its membership medical, educational, nursing and social services representatives as well as parents of handicapped children. I believe that the committee's work, when it is complete, will be a significant and valuable contribution to thinking on the needs of handicapped children and will point the way to future progress.

I turn now to the crucial importance, wherever possible, of prevention. This is the ultimate goal for which we must continually strive. Here again, my Department has recently been concentrating its search for further improvements within the limits of current medical knowledge and skills. Opportunities for preventive action arise at several stages both prior to and immediately following the birth of a child. For example, there is the importance of vaccinating girls between 11 and 14 years and women in the child-bearing age groups against rubella because of the relationship between this disease in pregnancy and congenital malformation in the foetus. Doctors have been encouraged to ensure the maximum coverage of rubella vaccination programmes.

Good genetic counselling is important for those at risk of giving birth to babies with inherited congenital defects. This is currently provided by general practitioners and paediatricians. Specialist advice is available as necessary from the regional genetic advisory centres. Much useful research has taken place in recent years into genetic disorders, and my Department is concerned that this is translated as early as possible into widely available preventive services for those who might be affected. For some, this will take the form of ensuring that good genetic counselling is provided before they start a family. This is an area in which significant growth is anticipated in the coming years and from which an important contribution to the prevention of handicap is expected.

Regular monitoring of foetal growth and development during pregnancy is also necessary, and this is already offered routinely at ante-natal clinics. My Department is anxious that health authorities should ensure that all pregnant women are given every opportunity to take advantage of ante-natal services. Birth itself should take place in the safest possible environment where all the benefits of modern obstetrics are available. To this end, my Department continues to encourage the move from home to hospital confinement, where some 94 per cent. of births now take place, and also the improvement of the hospital facilities available. Following birth there is need for early paediatric assessment and the use of special care facilities where appropriate. My Department has expressed its concern that such facilities should be made available as necessary. As the child grows, his development is monitored through the child health service to ensure that any problems are spotted at an early age and that any necessary treatment is started as soon as possible.

These are but some indications of our concern to ensure that handicap is prevented wherever possible and of our anxiety to improve services to this end.

A further area in which we are active at present is research into the problems of handicapped children generally. The House will recall an undertaking given in my right hon. Friend's House of Commons Paper on social security provision for chronically sick and disabled people in September 1974 that the Government would be sponsoring research to help answer some of the hitherto unanswered questions about disabled children and their needs.

Since that undertaking was given, we have made plans to finance a programme of research and have had the benefit of the work which has already been done by the research workers employed by the Rowntree Trust in connection with the Family Fund. The research unit forms part of the Social Administration Department of York University and has been employed by the Trust to monitor and evaluate the Family Fund research programme. It has already carried out a great deal of useful work on child handicap. Our initiative has developed out of this, and I am proposing to use the unit to operate a programme of research into social policies connected with child handicap. Initially, it will be concerned with two main issues—the income and expenditure pattern of families and disabled children and their needs and services.

This Bill deals with children who are born disabled. The number of such children is still large, but we must all hope that, with improvements in medical diagnosis and techniques over the years, the number will decrease. In the meantime, advances in the ante-natal care which is available for all mother-to-be help to keep avoidable handicaps among children to a minimum. I take this opportunity to urge all expectant mothers to make full use of these facilities.

Before I return to the narrower issues raised by the Bill, may I explain to the House that later today and tomorrow I am chairing a seminar on disablement at the Civil Service College at Sunningdale. The seminar is an important and unique occasion. Certainly it is the first occasion of its kind ever held in this country and, I suspect, in any country. It will be attended not only by several Ministers and by hon. Members from both sides of the House but also by disabled people and their organisations. There will also be many experts on child disablement at the seminar. The House will appreciate, therefore, why I cannot be here for the whole of this debate.

I want now to make a few observations about the misgivings expressed by Lord Pearson, for whom I have the highest respect, in his letter to The Times of 28th January. The hon. Member for Harborough also referred to the letter. My right hon. and learned Friend the Solicitor-General will be seeking later to deal with the detailed matters raised by Lord Pearson in his letter to The Times.

My concern here is with Lord Pearson's suggestion that implementation of the Law Commission's Report should not prejudice the much wider issues of social policy with which the report of the Royal Commission on Civil Liability will be concerned. The Government are anxious further to improve the support for disabled children which I outlined earlier in my remarks. This can be done only gradually, as resources allow. Clearly the recommendations of the Royal Commission will be of great importance. But we must remember that they are concerned with what may loosely be called injuries resulting from accidents rather than with sickness. Many of the cases of deep concern to me cannot be ascribed to a traumatic event like an accident.

Just as the Royal Commission's terms of reference were wider than those of the Law Commission, so my concern extends to all disabled children and not merely to those whose injuries fall within the ambit of the Royal Commission. Undoubtedly in dealing with an important aspect of this problem, the Royal Commission's recommendations may come to have a large part to play in future provisions. I am sure the House will agree that nothing we do in relation to the present Bill should be taken by the Royal Commission, or anyone else, as in indication of the view that the only recourse open to a disabled child should be an action for tort.

The Government support the Bill. We take the view that the work of the Royal Commission does not remove the need to clarify and improve this branch of the law, albeit on an interim basis. We know that the provisions of the Bill cannot deal with many distressing cases, and we are deeply mindful of the need to continue seeking improvements that will benefit disabled children as a whole. I know that that aim and purpose is shared by right hon. and hon. Members on both sides of the House. There is much more for all of us to do before we arrive at anything approaching full and satisfactory provisions for disabled children. There can be no complacency in the present situation.

All of us are aware of the severe strain that the birth of a disabled child can impose upon the family. Caring for such a child is sadly very often a difficult and exhausting task. I have sought to show that we are doing much, and I hope to do more, to ease this burden. In the area of law the Bill offers a further step forward. Its provisions, although limited, are in the right direction. Its purpose is sound and its underlying intention is good. As such I commend it to the House and I congratulate my hon. Friend the Member for Northfield.

12.2 p.m.

Mr. Robert Boscawen (Wells)

I rise to make a short intervention because, like the Minister, I recognise that the underlying intention of the Bill is good. I know the history of the Bill and the care with which its sponsors have prepared it. Therefore, what I have to say is perhaps rather difficult. However, I should like to add my congratulations to the sponsors of the Bill—especially to the hon. Member for Birmingham, Northfield (Mr. Carter)—on the great care they have taken over this important and sensitive matter. The main intention of the Bill is to try to alleviate in the future any recurrence of the prolonged and tragic trauma which took place during the thalidomide cases where the law was far from clear.

The House should shoulder its responsibilities and examine every aspect of this matter. It should show a great deal of care when introducing legislation which, in the words of the hon. Member for Northfield, will remove doubts about the law as an interim measure only in those cases where the cause can be traced.

My fears arise in connection with all those cases where parents feel that a cause might be traced but they are unable to prove it. I am also concerned about those cases where a cause cannot he traced at all. This is an area of great human distress. My task has been made much easier because during the course of the Minister's speech he sought to set the whole context of disabled children much more widely than the Bill.

I believe there will in practice be more parents of severely congenitally disabled children who will be unable to establish a claim than those who will be successful and that will cause considerable distress among certain families. I have been associated for a long time with a family who I know would have been unable to establish a claim. The family has suffered great stresses within itself amongst the remaining children. Those stresses would be greatly increased if the family and their relatives took the view that the parents should have sought an action in order to try to prove a claim.

I should like to give a word of caution to those who will examine the Bill in Committee. The Bill must not be framed in such a way as to give false hopes to many people who think that they might have a claim for tort. I am sure that the sponsors of the Bill will accept my point of view. There is so much distress in this field, and I should hate to feel that anything this House did might increase it.

I support completely the view that we should push ahead as fast as possible to try to improve the measures we have already set in motion for children who are born severely subnormal or handicapped. I am referring especially to the Rowntree Trust Fund. This is only the beginning of the scheme. Much more can be done. The parents of these children are finding it extremely difficult to get what they had expected to get out of the fund. Moreover, having received something, they cannot get any more. Their appetite is whetted. They feel that there is some compensation somewhere to be had but they do not know how to get hold of it.

I know that we have limited resources. However, we have raised a certain amount of false hope in families who already have severely handicapped children. We must tread carefully. Before we announce any further measures until we are sure that we have the resources available to implement them. It is easy to raise hopes amongst these people who cling to any faint chance of getting more compensation or help.

One of the great gaps in our social provisions concerns the education and training facilities for severely handicapped children. The amount of educational time we are able to give to assist these children to overcome their severe handicaps is pitiful. When I see what can be achieved, admittedly at enormous expense, in private institutions—there is a large one in my constituency—it is worrying to know how little we are able to achieve for those who have to rely entirely on State services.

With those words of caution I accept that the Bill is a stepping stone along the way to clarifying this dark corner of the law. Clarification is badly needed, but I should certainly echo the Minister's words and the warning given in Lord Pearson's letter, that this must not prejudice anything which the Royal Commission may do. The Royal Commission on Civil Liabilities is extremely important and I believe that it may be a milestone in this country's social provisions. However, the Minister was absolutely right to underline that it must not be thought that the only recourse to help available to the families of those unfortunate children lies in bringing an action for tort. That must not be put into the minds of these people. I know that the sponsors of the Bill will have this matter very much in mind.

We must not raise false hopes. We must try to clarify the law in this small area but make sure that all the other provisions for disabled children over a much wider field are pushed ahead as fast as possible.

12.11 p.m.

Mr. Lewis Carter-Jones (Eccles)

I congratulate my hon. Friend the Member for Birmingham, Northfield (Mr. Carter) on introducing his Bill, which he claims to be an interim measure, and I am delighted to be a sponsor of it.

Basically I rise to support the Bill because I am getting tired of delay. We are always waiting for some report. It is a strange coincidence that three years ago to the day we debated the Dangerous Drugs and Disabled Children Bill. These children are still not covered.

I want to talk about delay in specific terms. What worries me intensely is that the thalidomide victims gained financial reward after a long struggle, not because of the law but because of the work done by right hon. and hon. Members, particularly my hon. Friends the Members for Stoke-on-Trent, South (Mr. Ashley) and Manchester, Wythenshaw (Mr. Morris), now the Under-Secretary of State with special responsibility for the disabled, and the hon. Member for Reading, South (Dr. Vaughan) and the tremendous campaign carried out by The Sunday Times.

As is well known, I am an unpaid director of the charity Possum Controls. I should like to illustrate the significance of delay. Some 40 or 50 severely handicapped thalidomide children can now produce the written word faster than their able-bodied counterparts of similar ability. That has been achieved by the intelligent application of technology, because the money has been made available through the thalidomide fund.

However, the consequences of delay are tragic. The hon. Member for Reading, South served well as the chairman of the committee looking into the problems of Y children. Who are the Y children? At the time of the controversy, they were those children whose mothers had taken or were suspected of having taken the drug, whether in this country or overseas, and are now in the cloud-cuckoo land of uncertainty about getting equipment. But those children are now 13 years old. There has been a delay of 13 years. Unless we prod the Rowntree Fund, or give it more money, we delay the time when those children can be given help.

Dr. Vaughan

The hon. Gentleman has referred to Y children. There are 98 children on that list who still have not got their problems sorted out.

Mr. Carter-Jones I am delighted to have that intervention, because the hon. Gentlemen a knows this problem extremely well. I am sure he will agree that there are also children not on the Y list who might be covered by this Bill.

We talked about this matter three years ago. The Rowntree Fund was given its initial money because the House felt that there were victims of congenital injury at birth who should be helped but had no claim through the thalidomide fund. At the time, the Secretary of State for Social Services gave £3 million. My hon. Friend the Under-Secretary of State added £3 million and he has now given a further £2 million. This is the only source of hope for some of these children. I assure the House that children in this category could benefit from having the equipment which is denied them because the Rowntree Trust either does not recognise it or has not the funds to provide it.

I agree wholeheartedly with the hon. Member for Wells (Mr. Boscawen) that we should concentrate our efforts as far as possible on giving aid to all who are disabled. My hon. Friend the Under-Secretary was right to point out what had been done over the last eight or nine years since the passage of the Chronically Sick and Disabled Persons Act. There have been constant improvements. However, hon. Members who have spoken in the debate have talked about limited resources. That is correct. The Minister would like to go faster, I am sure.

I am not saying that the Bill, if it becomes an Act, will do a great deal more than has been done, but it will ease some of the financial burden and allow us to reallocate scarce resources. Therefore, it will be of benefit not only to those covered by the Bill but to other disabled children, because more resources will be available.

Mr. Boscawen

Is the hon. Gentleman suggesting that those who win an action for tort and get compensation should not benefit from the State provisions and that we should reallocate the funds in that way?

Mr. Carter-Jones

Not in that sense. Often in such cases the parents are able to equip the home and there are then no great pressures on the local authority to provide facilities. They get the financial help as of right. The children about whom we are concerned need access, communication, mobility and the ability to earn a living. All these things can often be provided in the home by the family. That type of resource could be made more freely available. I am not suggesting that pensions and allowances should be taken from them. I am saying that they can do more for themselves and that therefore the pressures on scarce resources will be reduced.

I ask the Minister to look more carefully at the working of the Rowntree Trust. If, because of limited financial resources, it cannot do as much as it would like to do perhaps he could shift a small amount of his scarce resources into that area.

I want the Government to give a fair wind to the Bill on the ground that the sooner we start helping the young child the better. The delays to which I have referred regarding the provision of equipment has meant double disability—the initial disability at birth and the consequential disability of not being provided with the means by which these children can be educated and subsequently earn a living. It is those two areas that I am attacking.

The Minister has clearly stated the Government's intention. I hope that he can widen it. At the same time, I hope that the House will give full backing to this worthwhile interim measure.

12.19 p.m.

Mr. Leo Abse (Pontypool)

I am sure that my hon. Friend the Member for Birmingham, Northfield (Mr. Carter), who has so courageously introduced the Bill, and all who have the privilege of being its sponsors, will take account of the cautionary note which has been struck emphasising that expectations must not be excessively raised by the passage of the Bill. Indeed, we could hardly do otherwise, aware, as we must be, that each week 1,000 handicapped children are born in Britain. That awful, painful and cruel statistic is not hopelessly intractable, as we have heard from the Minister, but it must continue to be in the forefront of our minds and never permit us to believe that, by the passage of any law, it can be remedied overnight.

It is, however, true, as the Minister emphasised, that as a result of living in an era of rapidly expanding knowledge, we are revealing more and more of the origins of aetiology, of congenital defects; and, to console the brave parents and those in the caring professions who are dedicated and giving their support to the handicapped, there is the heartening knowledge that increased medical knowledge—diagnostic radiology, and so on—is rapidly increasing the capacity to diagnose foetal deformity and take, at best, remedial action and, at worst, preventive action before birth.

This House, even if it is not in a position, alas, by laws to wipe out the terrible tragedy that disabled birth brings, and even though we cannot act, at second best, overnight to create a society, much as one would wish, where the handicapped could know that in financial terms they will never be disadvantaged from the cradle to the grave, can deal with certain matters immediately. What we can do, and what we should do speedily within the framework of this Bill, is to ensure that those who, by their negligence or their recklessness, ignoring the increasing knowledge that is coming into existence spelling out how congenital disability may be avoided, provoke the disasters take the responsibility for them. No longer, as a consequence of this Bill, which is not quite as modest as its sponsor has suggested, will those who, by recklessness or negligence, provoke those disasters be able to shield themselves from the financial consequences of their indifference which they can possess because they feel that our laws remain ambiguous.

It would be a grim irony if, at a time when we are aware that about 1,500 teratogenic drugs are known to be capable of causing damage to the foetus, we as a legislature should be regarded as colluding with the drug manufacturers, greedy for profit, to ensure that the adult may benefit from the benign effects of the drug irrespective of the evil effects on the unborn child. It would be unworthy of us to continue with a framework of law which provides an excess of legal immunity to the innovatory drug manufacturer.

We have no right to buy our selfish search for health and longevity at the expense of the next generation. We need to be confident that our drug manufacturers, so many of them multinational companies making their decisions an ocean removed from those upon whom they push their products, know that a disabled child, because they failed to make exhaustive researches into teratogenic agents, or failed to publicise their findings, or failed to advertise the necessary admonitions, is a child whom they cannot shrug off, that such a child would have a certain remedy in the courts if the drug manufacturers' concern for present palliatives and profits meant that they failed to maintain a high standard of care, taking into account all contemporary medical capacity to identify the dangers not only to living patients but to those yet unborn. One of the main reasons, although not the only one, why thalidomide children are receiving far less compensation than they should get is the ambiguities which, until the Bill is passed, exist within our present law.

But those thalidomide children, upon whom quite naturally the House has dwelt today, are, tragically, only one group of children being denied justice. When a pregnant mother is knocked down by a drunken driver, the mangled child she eventually delivers has today no certain claim to damages. If a woman receives pelvic injuries in a factory where the safety regulations are flouted, the misshapen baby she later conceives may not be able to obtain damages from the errant employers. A sloppy hospital giving a transfusion from the blood of a syphilitic to a woman who subsequently conceives to become the mother of a child cursed with congenital syphilis may well, as the law stands now, have no immunity. And in this nuclear age our courts can provide no confident redress to the handicapped child fathered by a man negligently exposed to radiation.

Indeed, we must all feel some sense of unease that, with the developments in artificial insemination—AID—and at a time when there is so little control over any commercial exploitation of this process, it could happen that a sperm bank negligently controlled could ultimately lead to a disabled child who would have no remedy against those who, for commercial reasons, were in control of such a sperm bank. If a man suffering from venereal disease has intercourse with a woman without telling her that he is infected, surely the afflicted child resulting from the assault should have a definite legal cause of action against him, as the Bill would provide.

If a dangerously negligent doctor recklessly diagnoses a pregnancy as a tumour of the womb and directs X-ray treatment which injures the foetus, surely the resulting feeble-minded and crippled child is entitled to a remedy. Or if a doctor, without reasonable care, in defiance of proper professional standards, unnecessarily gives a drug such as stilboestval to a pregnant woman which later leads, as it can, to vaginal cancer in her adolescent daughter, it cannot be regarded as worthy of our laws that we are not certain that a helping hand can be given by the courts to the unfortunate young woman.

As matters stand, as the thalidomide scandal revealed, the maimed, sightless and mute victims of other people's negligence can too easily be brushed aside by the powerful. I believe that we, as a legislature, have a duty to show that we have the ingenuity so to change the law that it has a much greater capacity to protect injured unborn children who are the most helpless and vulnerable within our society.

There can be arguments about whether the Law Commissioners in this Bill have in all respects chosen the correct pathways to attain that objective. Some may believe that the suggestions made are insufficiently tough on drug manufacturers and that the rules of strict liability which apply in other branches of the law should apply to them. There are others—and I can well understand this—who query the Law Commissioners' recommendations embodied in the Bill that the right of the injured unborn child should not be a separate one but should, for the most part, coincide with the rights of the mother.

All those are points of detail—albeit important ones—which can and should be explored in Committee. I am bound to say that what I find, however, less than tolerable is that there should be any overt attempt—and there appear to me to have been two, one weighty and one slight—to deter the House from passing any Bill at all. One I need not dwell on. It was an article last year by the science correspondent of The Times who unfortunately misled himself on the law and came to some erroneous and extravagant conclusions. But the other one, which has been mentioned, is the intervention of Lord Pearson. His letter to The Times showed a singular lack of political sensitivity. Indeed, if it had not been written by Lord Pearson, one could say that it amounted almost to foolhardiness.

Surely everyone must realise that if another disaster like the thalidomide disaster hit us—it certainly cannot be excluded in this drug era—the electorate would be justifiably enraged to find that legislators and lawyers had again been so tardy that still we had failed to make provision for such a grim contingency. It is in no way to detract from the efforts of my hon. Friend the Member for Northfield or of my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) to point out that Mr. Harold Evans of The Sunday Times can surely claim as much credit as the Law Commissioners for this Bill.

Any of us who has been concerned professionally in any of the thalidomide cases, as I have been in Wales, as solicitor and legislator, has felt some humiliation that the uncertainty of the law gave so much opportunity to the Distillers Company, which to its discredit took full advantage of it, to delay, thwart and frustrate parents who had already suffered almost unendurable burdens. To suggest any further dalliance, therefore, in changing our law, although it may risk bringing both the House and the courts into contempt in spreading further cynicism throughout the public about the quality of our justice, is clumsy advice.

The hint—it is no more—that Lord Pearson has given is that the House waits on the Commission since some panacea is about to emerge to solve all the financial problems of the congenitally disabled. Is there indeed some comprehensive solution able by a stroke to be speedily applied, marvellously innovatory, within the dire economic circumstances of today, and, given the pressure on our Department of Health and Social Security and the impossibility of accepting further tasks to be imposed on overloaded social workers, immediately available? Would it be not only available and comprehensive but avoid giving rise to new tax burdens or excessive bureaucracies or too much relief to drug manufacturers or indifferent employers and also not outrage well-tried principles of insurance or breach too offensively tortious principles which, despite their blemishes, have proved remarkably capable of adapting to our changing technological society and which are prized not only by conservative lawyers but by radical trade union legal departments, whose memories of the iniquities of the Workmen's Compensation Acts and knowledge of and distaste for the present workings of many administrative tribunals makes them fully understand the existing strength of our common law to protect the injured?

I do not put such questions as these out of defeatism or scorn of the efforts that the Royal Commission may be making to present the comprehensive solution of which Lord Pearson appears to be writing. But I say bluntly—I hope not rudely—that the clandestine style in which the Royal Commission is operating activates the doubts of legislators when we receive advice from it to postpone present reform since millenarian solutions will soon be with us.

It is now almost two years since, through the Lord Chancellor, I was in touch with Lord Pearson, asking him to follow the example of the Law Commissioners in providing and issuing working papers as the Royal Commission proceeds. The Law Commissioners have done that in regard to this Bill, as is their usual practice, and as a consequence they have been able to move to their much modified conclusions now before us through the intervention of my hon. Friend the Member for Northfield, with the benefit, as he said, of widespread and creditable consultations, which included colloquia at the Royal Society of Medicine, inter-disciplinary study groups at the Institute of Legal Studies and meetings with representatives of the Royal Colleges, the pharmaceutical industry and the BMA.

But when I put my view to Lord Pearson—hon. and learned Members will know that it was not merely a personal view but one which was being canvassed in the legal journals and in the legal profession—I received a very dusty answer. In his final letter to me he included these comments: We appreciate the advantages of the Law Commission's practice which was also adopted by the Winn Committee, and, of course, we have looked carefully at a number of the Law Commission's working papers. But I think that a Royal Commission, or at any rate this Commission, must work in a different way. Having regard to the broadly-based composition of this Commission, the wide range and complexity of the set of interrelated subjects with which it has to deal, the need for a quasi-judicial approach (receiving and considering the evidence before reaching conclusions) and taking into account economic, social, financial, insurance, medical, etc., as well as legal factors and also the need for statistical research and study of new systems introduced in other countries, I do not see any possibility of producing a working paper at this present stage. I should have thought that the very fact the Royal Commission was dealing with such a wide-ranging and complex set of interrelated subjects was a compelling reason for working papers, for bringing in the informed public, for sounding out and probing professional and public opinion.

The times are changing and the notion that, after years of private meditation, a Royal Commission can come down from Horeb with the tablets of the laws which the nation then reads as hallowed Holy Writ is long since gone. Opinions need to be canvassed as they were canvassed by the Law Commission before this Bill was published. Groups need to be wooed and cajoled if consensus within our plural and opinionated society is to be achieved.

It is true that Lord Pearson's letter gave me a little ray of hope, because he concluded: The question whether at some later stage we might be able to produce something in the nature of a working paper is being kept open for later consideration. That was in May 1974. Now, in February 1976, all we have is a plaintive letter to The Times in effect accusing us as legislators, and my hon. Friend the Member for Northfield, as sponsor, of being precipitate.

I should think it much more likely that there would have been some resonances in the House about Lord Pearson's letter if working papers were in existence and were being distributed. I hope that, even at this stage, to save any further conflict—there may be continuing impatience over difficulties which exist—the Royal Commission will begin to issue working papers, which are long overdue. In the meantime, with the history of this Royal Commission, the House cannot be expected to place the law in a condition of artificial stasis but needs to take the action which the Bill commends.

Certainly we all accept Lord Pearson's reminder that the Bill falls far short of providing a comprehensive solution. We have no false hopes about a Bill which, by its nature, deals only, but importantly, with children who are born disabled because of a breach of a duty of care on the part of someone else. But small reforms can be cumulative. In the end, as some of us have learned from parliamentary experience, grandiose designs often remain blueprints while less ambitious schemes such as this oft-times reach total fulfilment.

The Bill may be limited and it is certainly illogical, but that does not condemn it. I entirely agree with the Law Commissioners' comment that law is an artefact and that if social justice requires that a remedy should be given for a wrong, logic should not stand in the way. If the Bill is thwarted, only avaricious drug manufacturers and some less scrupulous insurance interests could have a sense of pride. I am deeply grateful to my hon. Friend the Member for Northfield for giving me the opportunity to be a sponsor of a Bill of this kind.

12.40 p.m.

Mr. Ian Percival (Southport)

I, too, should like to congratulate the hon. Member for Birmingham, Northfield (Mr. Carter) on the sentiments that led him to present the Bill. I am sure that our feelings in these matters are the same. I subscribe unequivocally to the view that if it can be demonstrated that someone has suffered injury through the fault of another, the guilty party should make reparation. That is a basic concept of our common law, which so often accords with common sense. When children have been injured, especially when the injuries are extremely bad, we tend to feel even more strongly. There is no difference between us about wanting to help the disabled.

The hon. Member for Northfield referred to the much wider provisions which he would like to see. As I said to him the day before yesterday, I would prefer society to say that those who are less fortunate—and I refer to those with both physical and mental disabilities—should be fully looked after. This could be done by increasing national insurance benefits to a satisfactory level but that would involve increasing the premiums to the level that would support such benefits and at the moment that is not socially acceptable. It could only be a long-term prospect. Meanwhile we must do the best we can.

The Minister gave the House and the country a useful summary of what is being done. I need not elaborate upon it because one of the good things in this field is that no individual and no party would wish to claim the monopoly of good feelings. We all have a desire to help people. If the Minister had had more time I am sure that he would have pointed out that invalidity benefits and attendance allowances were introduced by the previous Conservative Government. That is how Governments work—each one introduces a measure and the next Government builds on that measure.

But there is another general consideration I want to mention. As a lawyer I have come to hate laws which fail to live up to people's expectations, laws which fail because either they do not do what people thought they would or because, in dealing with supposed doubts, they create further doubts and uncertainties which did not exist before.

The Minister said that the purpose of the Bill is to ensure that children who are injured should not be impeded from recovering compensation by any doubts in the law. More than anyone I should like to be able to say that we are achieving that aim but we should not assume, nor can we allow the public to believe, that we have achieved it. By all means let us try hard to achieve it, but we must recognise, as the Law Commission recognised, that when we try to achieve objectives by changing the law—not by applying the law to a particular set of circumstances—to fit circumstances which will arise in the future, the details of which we do not know but which we are trying to cover in advance, we can run into formidable problems. The Law Commission would be the first to admit, as would the draftsman of the Bill, that they are not claiming to have found the answer to all the problems.

Apart from the personal feelings that arise on a Bill such as this, it raises matters of great public concern and interest. I want to comment briefly on four areas.

First, it is vital that the public clearly understand what the Bill does and, in particular, what it does not do. My hon. Friend the Member for Wells (Mr. Boscawen) made a valuable contribution. His brief message was "For goodness sake, do not let us raise hopes which may then be dashed". The hon. Member for Eccles (Mr. Carter-Jones), who I am sorry to see is not now present, instanced how easily that can happen. During an intervention reference was made to the 98 children who are on the "Y list".

The Solicitor-General (Mr. Peter Archer)

My hon. Friend the Member for Eccles (Mr. Carter-Jones) told me that he, too, wished to attend the conference at Sunningdale and did not intend any disrespect to the House by leaving.

Mr. Percival

I did not intend any criticism. I assumed that he had a good reason for leaving. I meant that I was sorry that he was not present so that we could pursue the point with him if necessary. I was not suggesting that he said that a large number of people might be helped who would not be helped but the sort of exchange which took place during his speech could give a listener the impression that the Bill would automatically solve the problems of those 98 children referred to. I do not think it would. The whole situation is more complex than that.

The hon. Member for Pontypool (Mr. Abse), whose strength of feeling on this and other social matters we know well, inadvertently may have led people to believe that the matters to be dealt with under the Bill are much easier than is the case. He referred to the 1,500 drugs which may have teratogenic effects. That figure comes from the Law Commission's Report which in its next sentence said that it is in the area of these drugs that the aetiology is most difficult. The hope that he expressed that there should be a "certain" remedy will be hard to achieve. The public should realise that the greatest protection in regard to drugs must come through the use and application of the provisions of the Medicine Acts and, if necessary, the strengthening of those Acts.

We may hope that licensing has contributed substantially towards avoiding a repetition of the awful calamity of a few years ago. We must direct our attention to anything that will assist in preventing a repetition of that calamity and it would be misleading for the public to believe that if there were any such repetition this Bill would automatically give a right of action to the children involved. That calamity resulted from the use of a drug which was beneficial to mothers but harmful to children. That is a dilemma with which the medical profession will be faced for a very long time.

In any future case, however, the drug in question would have gone through the testing procedure and would have had to comply with the provisions of the Medicine Acts. To suggest that the proof of fault in such a case would be easy is misleading. We really must be cautious about what we lead the public to believe about drugs. Again, public may feel that deformities resulting from trauma are easy to prove. That is not so. The evidence adduced to the Royal Commision is in line with that of the Law Commission, namely that even if there is a direct injury to a pregnant woman which of itself is followed by deformity at birth, the connection would not be easy to prove, though there is a group of cases where trauma induces premature birth, with all the complications of that, where one can trace the connection. It may be that our knowledge in this area is improving, but on the whole that increase in knowledge merely gives us more questions to answer without necessarily providing the answers.

In order to substantiate aetiology it must be accepted that in most cases there are likely to be great difficulties. Even if one is able to deal with the burden of proving that, there is still the question of proving the fault at the beginning end of the line—if that is not too clumsy a phrase. That is again a matter which could very well entail great difficulties.

Although I do not want to do more than refer to the next matter, in this context reference ought to be made to it. One must have regard to the fact that it is very likely that the acts of a mother during the pregnancy may be material when considering whether the fault can be placed elsewhere. After all, it is the mother who has the longest, most consistent and heaviest duty of care towards the child. There are so many things that she may do during that period which may have in adverse effect. If we are to say to a person "If it is proved that you are liable, you will pay", then in justice to that person we must also have to leave it open for him to say "But it was not my fault; it was something that the mother did during pregnancy. Or, even if I was partly to blame, it was only partly."

We must accept—it is no good shutting one's eyes to it—that the question of the conduct of the mother during pregnancy may have to he raised and laid wide open in the course of proceedings, and that that could have very distressing effects. I do not want to enlarge on that, but it is a further consideration which we must recognise.

The next aspect of the matter I want to mention is the position of the Royal Commission. I am bound to say to the hon. Member for Pontypool that I am sorry that he felt obliged to say the things that he said, because what he said was quite contrary to my experience of and dealings with the Commission.

He should remember that it is not only Lord Pearson who comprises the Commission. One difference between the Royal Commission and the Law Commission is that while both have very eminent lawyers on them, the Royal Commission also has doctors, social workers and a great spread of people. They have made it clear that they are not happy about the timing. It is perfectly fair for them to do that. They have equally made clear the reasons why they are not happy about the timing. However, their main concern is that nothing that we do here should prejudge or prejudice the position pending the publication of their Report.

In my view it is a good thing that these questions have been raised by Lord Pearson and his colleagues because it enables us to say here and now, categorically—and I say it on behalf of the Conservative Party, and I understand that the Solicitor-General will say so on behalf of the Labour Party—that we entirely accept that nothing which we do in this Bill will in any way prejudge or prejudice what emerges in the Report of the Royal Commission or the action to be taken after that.

Having said that, I think that we here should pay close regard to the observations made by Lord Pearson in his letter, written on behalf of the Commission, because that is a body which, as I have said, has so much and such wide expertise. The members of the Commission have heard evidence born of another two years knowledge—for the Law Commission reported in 1974. I understand, in general terms, that far from the Law Commission's expectations that rapid progress in tracing the aetiology was to be expected being realised, that has not happened, and indeed, in some respects matters have got even more difficult.

Above all, we must, I think, bear in mind that the remit of the Royal Commission is much wider than was that of the Law Commission, harrowing as this was bound to be. I think that we can assume that those on the Royal Commission will wish to use the width of their remit to make recommendations which would be helpful to those who have been injured. What we must be very careful about is that we do not ourselves do anything which prejudices their task in doing that. I am sure that we would all agree about that.

With respect to the hon. Member for Pontypool, I do not think that we ought to enter into arguments about whether the Royal Commission should or should not issue working papers. In fact, it published circulars saying what were the principal consideration in its minds and on which it invited evidence, but I hope that our attention will not be distracted from the main considerations by a consideration such as that.

I come to the third area on which I want to comment. I understand that the doctors, or some of them, are concerned that what we are proposing would create more difficulties for them, because in making them possibly liable on a new basis, a basis that introduces new characteristics, it must raise doubts in their minds which, I understand, they fear might affect not only the doctor-patient relationship, but indeed, even their judgment in deciding what treatment to give.

I mention that only to say this. Anyone can understand these misgivings. What we all need to do is to find out whether there is substance in them. If there is, we must do our best to see that the misgivings are removed in Committee. Therefore, I hope that if any medical bodies feel such misgivings, they will write to us. I hope that they will write to Opposition Members if they so wish, and we shall certainly give the most careful consideration to what they say. But I hope, too, that they will feel free to write either to the Law Officers' Department or to the Lord Chancellor's Department, whichever is appropriate. I am sure that in that case—and I anticipiate that the Solicitor-General will be giving me this assurance—any worries so raised will he carefully considered. I would hope, too, that if any real worries were raised, the promoter of the Bill would be able to look to the Law Officers' Department for assistance on what is a highly technical matter, because that would be a question of law and drafting.

However, I gather that my thinking on that is very much in line with the Solicitor-General's thinking, anyway. Therefore, my purpose in raising it is mainly so that the medical profession may know that we understand their concern, or understand that they should feel concerned, that we should like to know from them what worries them, and that we shall certainly do our best to try to meet them on it.

If on those three matters the House is generally agreed, then it is obviously a good thing that the Bill should proceed to a Second Reading. No one, least of all the promoter, has disguised the fact that in Committee some very interesting questions may arise. I have a little list of them, but having regard to the time that I have already taken on the other matters, I shall deny myself the time to go into them. However, I hope that they will be looked at very carefully. For instance, Clause 1(4) raises very difficult considerations. In Clause 1(5) one sees one of a number of new phrases—and I refer to the phrase, "then received pro- fessional opinion." I do not know what it means. I am told that it is not a term of art in the medical profession, and to try to give to it its "natural and ordinary meaning" is not very easy either. I shall not enlarge upon that now, but that is the sort of thing one has to look at.

The last subsection of the clause is closely linked to what I have said about looking straight in the eye the fact that the conduct of the mother is often bound to come into it in actions under the Bill. We must say to ourselves "That will happen, and are we prepared for it to happen?".

Clause 2 is in my view both illogical and very unattractive. The attitude is "There is an insurer, so let us make him pay." That is no basis on which to make law. It proceeds on the premise that in such circumstances every mother would be insured. I am not sure that that is so. Even if it is, it is very unattractive to say that, because there is someone else who can pay, we shall make him pay.

If I am right in thinking that it may not necessarily follow that all mothers would be covered by insurance in such cases, I ask the House to think of the extra misery which might arise if one child who was injured received compensation because his mother was insured whereas another child who suffered precisely the same injury received no compensation because his mother was not insured. It is already bad enough for such children and their parents without our doing anything which will exacerbate matters.

We cannot achieve anything in life without risking something, but we must ensure that the advantages that we seek to obtain and will obtain outweigh any such risks. We cannot do that unless we look the reasons in the eye, weigh them, and see to what extent we shall accept them.

My last point I make in a quick effort to demonstrate how what can look very easy can prove to be very difficult. Damages for loss of expectation of life have been mentioned. I greatly hope that the whole concept of damages for loss of expectation of life will not be very long lived, because it is an artificial one. However, so long as the concept remains with us we must live with it and say whether it is to be applied.

The wording of the Bill is to the effect that the child must live for 48 hours for certain rights to accrue. I ask hon. Members to think of the position of the doctor. Nowadays a person can be "kept alive" by being put on a machine. Is the doctor to put a child on a machine so as to keep him alive for 48 hours? I see the hon. Member for Pontypool wagging his head. To him it may not pose a problem, but he is not a doctor.

Mr. Abse

I am certainly not a doctor. However, like the hon. and learned Gentleman, at least I can claim to be a lawyer. Surely right of action would remain with the mother irrespective of whether the extraordinary situation envisaged by the hon. and learned Gentleman occurred. Therefore, whether the child lived or did not live would not affect the quantum of damages. I suggest that the hon. and learned Gentleman made an extraordinary suggestion, bearing in mind that we are expecting to hear from the Solicitor-General that before long action will be taken to get rid of the wretched concept of loss of expectation of life.

Mr. Percival

The hon. Gentleman is not right. I ask him to look again at the Bill. In relation to certain claims, the question whether a child lived for 48 hours would be relevant. Even though this does not seem to be very important to us, we should not overlook the position of doctors. I have been asked seriously by a doctor "What do we do? Does this mean that we should keep a child alive for 48 hours so that all its rights may be preserved?" I do not know the answer. I merely draw the matter to the attention of the House. That is the type of difficulty that we can sometimes make for other people. We should not overlook such difficulties merely because they will be somebody else's diffi-difficulties.

Those are a few of the many points which will arise in Committee. The hon. Member for Northfield made it clear that he accepts that there will be difficult points and will welcome a full discussion—and the fuller the discussion and the better informed it is, the more use the discussion in Committee may be not only to us, but to the Royal Commission in its consideration of the wider problems. I am optimistic that, now that the Royal Commission has the assurance that noth- ing we are doing is intended to prejudge or prejudice its findings, what we do may well assist in the overall picture.

Accordingly, provided that the Solicitor-General can give assurances on what I consider to be the three very important matters which arise on Second Reading I, too, am very happy to support the proposition that the Bill should receive a Second Reading.

1.5 p.m.

Mrs. Millie Miller (Ilford, North)

I am privileged to be a sponsor of this Bill which was so ably introduced by my hon. Friend the Member for Birmingham. Northfield (Mr. Carter). I am privileged, first, because of the general interest we all have in children and the disabled and, secondly, because some years ago, as a member of a small working party of the Women's National Committee, I was able to study the working papers of the Law Commission on this complex subject.

The interesting discussion that takes place today will add to the usefulness of the debates in Committee. I can understand the hesitation on the part of lawyers, in particular, about introducing new laws with the complications which may follow. However, in view of the potential risk from the use of new materials in the pharmaceutical industry, in particular, we cannot allow the inflexibility or impossibility of legal action to prevent us from giving serious consideration to the Bill.

I am delighted that the Government have indicated their general support for the Bill. It is essential to realise that especially in the case of medicines it has been clearly shown that changes in human beings could have been predicted by prior research. I cannot see how drug manufacturers can evade their responsibility for placing on to the world markets new forms of medicines and technologies which will in the end affect the next generation who are as yet unborn.

It is now recognised that it is acceptable for chemical additives to be placed in substances used by the general public. I have in mind the fluoridation of water. Once there is that acceptance, the onus does not stop there. It is society's duty and our duty as legislators to go on monitoring the situation. It is also the duty of those who recommend the use of such substances to ensure that machinery is available to undo any imbalance which arises as a result of miscalculation or false judgment about the effect of the development.

In certain parts of Derbyshire, iodine is added to drinking water to counteract certain goitrous growths. There should be a monitoring of the improvements or changes which take place in the local population. The onus is on society to ensure that we do not neglect to follow through the measures which are introduced in all good faith. It is imperative that the person in control of the remedial operation be responsible for giving the correct dosage to secure restoration to normality should damage or imbalance occur.

We should not think only in terms of the pharmaceutical industry. There are such things as food additives, colouring agents and the contents of domestic aerosols, all of which might present a potential danger to the user. They should come clearly within the confines of the Bill where it can be proved that a child has suffered damage as a result of their use. Of course, the problem of children sucking their toys is well known. We should consider the intake of lead implicit in some forms of treatment of venereal disease, although intake from this source has been greatly reduced. There is a risk of lead poisoning to the child through contact with the mother where she is undergoing this treatment.

The medical profession should be able to look well ahead on this sort of problem. I realise the implications of legislating for coming events, but in a sense every Act we pass is anticipatory. It is not possible in most of our proceedings to legislate for the past. We must therefore consider what might happen and seek to protect unborn children from the consequences of actions being taken today.

Mistakes made in the course of surgical activities are not unknown. We appreciate the problems that face doctors. Perhaps what has been happening in the United States over the insurance of doctors in their wonderful private medical services has worried the British medical profession. I hope that we shall not give it cause for undue alarm. Nevertheless, the situation where hospital staff or doctors make mistakes as a result of lack of care or negligence, and that can be proved should be covered by the Bill.

It is absolutely vital that the greatest care should be taken in radiology. Radiographers and radiologists have shown supreme care in the way in which they have monitored this problem since the possible effects on unborn children were first appreciated. They are to be congratulated on their efforts. It is horrifying to think of the consequences which could arise with less stringent safeguards in the use of this technology. It would take only a very minor change in the protective procedures to give rise to the possibility of a terrible thalidomide-like effect on future generations. We would neglect at our peril these risks, together with the risks from the increasing use of nuclear substances.

The important subject of preventive medicine has been only briefly mentioned. Associated with it is the question of industrial protection. Two of my constituents are at present picketing outside a new generating station on the Isle of Grain. They have been dismissed with 11 others because of their protest at not being provided with protective clothing in the lagging of the station. The men are working with new and untried substances. Some hon. Members must have tried to lag the water tanks or the roof spaces at their homes and found themselves infested with tiny fragments of the insulating material. Without protective clothing, my constituents have been able to take home the residue of their work—the insulating material—and generously to give it to their wives and children. One of my constituents has adolescent children who would easily be affected by contact with this substance. It is important for the Government to ensure that chemical substances of all kinds are kept under close scrutiny because of the dangers to future generations.

We must take great care to avoid building high hopes among people whose children are born with a deformity. We must not give the impression that the Bill will mean free gifts for all. Even if the Bill becomes law it will be hard fought in the courts where it will be necessary to establish the burden of proof.

We should not forget, either, that our actions in Parliament can create problems. The Department of Health and Social Security has set up a working party to consider the possibility of increasing the methods of prescribing oral contraceptives. The oral contraceptive market is an example par excellence of the multinational company in action. Over the years, much well-documented research has been ignored in the introduction of these protections against pregnancy. The proposals which the Department has put out for general discussion include the question whether only doctors should prescribe, whether trained nurses might prescribe or whether the contraceptives should be sold across the counter freely and without restriction.

It has been clearly established that a number of physical and psychological changes can take place in women who regularly take the contraceptive pill. Some pills were hurriedly withdrawn from the market when it was discovered that there were disadvantages in their use. What will happen if an untrained person—a chemist's assistant, for example,—is permitted to sell across the counter drugs which carry a potential danger to future generations? There will be no monitoring of changes in the woman's blood pressure or of changes in her sight. I understand that there are indications that cataracts may result from the taking of these contraceptives.

There are serious dangers in reducing the protection which is implicit in the terms of the working paper. There is a good deal of evidence that women might welcome specially trained nurses being available to prescribe for them, but that would be contingent upon the nurses having the responsibility to report back on any consequences from the use of those drugs. I am particularly concerned in this respect at the increase in hypertension and thrombosis. The general reaction of a young mother to the contraceptive pill is very well known.

That is especially worrying because it is the working-class woman who is less likely to seek advice and—I understand from a document recently distributed by the Patients' Association—may be given on one certificate six months' or a year's supply of contraceptive pills, there being no possibility of monitoring any after-effects she may suffer from those pills.

If the House later accepts legislation providing for the compulsory wearing of seat belts, we must bear Clause 2 in mind. When that legislation was last before the House, I had many letters asking whether a woman in an advanced stage of pregnancy would have to wear the seat belt round her neck. If such a law is passed, we must give a thought to pregnant women and also to their responsibilities under Clause 2 of the Bill we are considering.

I wish to return to the responsibility of the pharmaceutical industry. Of all manufacturing industries, the pharmaceutical industry probably makes the greatest profits. I readily accept that much of the pharmaceutical research which has been done over the years has brought great benefit to humanity, but it has also brought tremendous profit to the industry. I end with a word of warning. During the debate last year on our entry into the EEC reference was made to a Council of Ministers' Directive on the harmonisation of legislation dealing with medicine in individual member States. I quote from that Directive: It is necessary to protect public health but this must not be achieved at the expense of the drug industry. We have a duty which far transcends that of the private drug and chemical industries. What we are talking about is a matter of social justice in which a fault against a child as yet unborn should be attributed to where it rightly belongs.

1.22 p.m.

Mr. Jack Ashley (Stoke-on-Trent, South)

I warmly congratulate my hon. Friend the Member for Birmingham, Northfield (Mr. Carter) on choosing this subject for his Bill—for which he has been attacked outside the House—and also on the way in which he presented the Bill. My hon. Friend made a splendid and impressive presentation. I also enjoyed the speeches made by my hon. Friends the Members for Pontypool (Mr. Abse) and Ilford, North (Mrs. Miller), which were both glowing testimonials to Back Bench Members. I hope that the House will forgive me for striking a personal note, but if lawyers had anything like the reputation of my hon. Friend the Member for Pontypool there would not be so much criticism of the legal profession.

The Bill is straightforward and is based on the apparently simple proposition that: Whenever a plaintiff has suffered pre-natal injury caused by the fault of another he ought to be entitled to recover damages. Anyone who has studied the Law Commission's Report will appreciate that that is a subtle concept which skilfully avoids a number of minefields. It also avoids the danger of becoming bogged down in the quagmire of passionate argument about the rights of the foetus. That is a controversy which must eventually be resolved, but fortunately, not today.

Misgivings have been expressed because the Bill confines itself to pre-natal injury and accepts the existing law that compensation shall be paid only on proof of fault. One of the most outspoken critics outside the House is Lord Pearson, the Chairman of the Royal Commission on Civil Liability. He is critical of the fact that the Bill may come into effect less than a year before the publication of the Royal Commission's Report which may recommend a different system of compensation. I fervently hope that a different system of compensation will be recommended by the Royal Commission. It is no secret that many hon. Members want a system of no-fault liability to be recommended by the Royal Commission. If that recommendation is made, we wish it to be vigorously followed by the Government.

Under the present system, no proof often means no justice. Far too many people suffer grave injuries for which they receive no compensation. They lose out because of the bizarre legal lottery of the present system. If that is the case, why do the sponsors of the Bill accept the recommendations of a Commission which is confined to the concepts of the existing law? The reason is that a Bill on the book is worth more than a dozen in the distance.

This limited measure will immediately convey clear and specific rights to a child injured in the womb. It defines statutory rights for this group for the first time ever. It also deprives certain lawyers of a source of long and profitable argument, although it does not end the arguments about proof, and the House must clearly recognise that.

It is interesting that the Law Commission thought that it was "highly probable" that there was common law provision for this group of children. Never- theless, the Law Commission also stated specifically that: In the absence of an English authority there is doubt whether a child has a cause for action at all for personal injuries caused before birth. As every advocate, from the brilliant to the bone-headed, knows, doubt has a devastating effect on judges, juries and people seeking redress in a court of law. Doubt knocks the stuffing out of a prosecution and knocks the value off compensation. It was doubt about the law on pre-natal injuries which influenced the legal advisers of the thalidomide children to recommend an outrageously low settlement in 1968, as the hon. Member for Reading, South (Dr. Vaughan), who played a part in that campaign, will readily recognise. The Bill removes that doubt and ambiguity and spells out the children's rights in law. That is why the House should accept it.

Blandishments about possible proposals by the Royal Commission should not influence hon. Members about the need for the Bill. The recommendations and the time scale of Lord Pearson's Commission are in doubt. The Commission may not report until the end of this year—it may not report for a couple of years. We simply do not know. After that report we shall have to await the Government's consultations, the Government's decisions and legislative proposals before any palliative action is taken. All that can take a long time and in the meantime doubts will persist about the law concerning children who are born disabled after being injured in the womb. That is why we cannot wait for Pearson. I hope that the Royal Commission will speed its deliberations. Meanwhile, we must press on with this vital Bill.

Although there are no estimates of the numbers of children involved, every week a thousand handicapped children are born. That is a staggering figure and it means that every two years enough disabled children are born to fill the Wembley Stadium. Many of such children will never kick a ball or wield a hockey stick. They need all the compensation we can give them. The Bill will help the children who are disabled by the 1,500 terato genetic drugs which are now being used and which can damage the foetus.

The Bill would also help if, heaven forbid, there were another outbreak similar to that caused by thalidomide. It could happen. The dangers of more drug-damaged children is by no means remote, however careful the medical profession may be—and it is being careful. As the Law Commission has now accepted, no drug can be guaranteed safe for the foetus. The prospects of a dramatic improvement are gloomy especially as over three-quarters of women in the United Kingdom take prescribed drugs and well over half take self-medication. The possibilities of damage to unborn children are appalling.

I am not very impressed by Lord Pearson's stricture that the Bill: falls far short of a comprehensive solution. One can always make that kind of easy attack on any measure, that it is too narrow or to wide. If we had listened to the critics, there would have been no thalidomide campaign. The critics said that the campaign was too narrow and that we should campaign for all disabled children instead of only for those disabled by thalidomide.

The critics forgot that the people associated with the thalidomide campaign on both sides of the House were already active on behalf of all disabled children in our parliamentary work. The critics overlooked that without that campaign thalidomide children would have endured poverty as well as disability. They overlooked that to have done nothing would not have helped other disabled children. They overlooked that from the campaign emerged the Rowntree Fund for all disabled children, along with a deeper understanding of the problems of disability.

The Bill also emerged from that campaign, as I think my hon. Friend the Member for Northfield will agree. It was inspired by the suffering of thalidomide children and the determination of their parents. It was conceived in sadness and it will be born, I trust, in hope.

Meanwhile, we must hope that the Bill will not be damaged in the parliamentary womb by well-meaning star-gazers with their eyes fixed on the horizon, writing letters to the newspapers and busy in their various Commissions. If the Bill is crippled, it will not be Parliament that will suffer but disabled children. We can help some of these children by the Bill. It will help the innocent and impose obligations on the guilty. To me that is social and legal justice, and I warmly commend the Bill to the House.

1.36 p.m.

Mr. John Golding (Newcastle-under-Lyme)

I am very pleased to welcome the Bill and to congratulate my hon. Friend the Member for Birmingham, Northfield (Mr. Carter) on introducing it. A similar Bill was introduced by my hon. Friend the Member for Carlisle (Mr. Lewis) in February 1973. It is not my intention to speak at length in order to destroy the Bill and to talk it out, as was my hon. Friend's Bill by the hon. Member for Barkston Ash (Mr. Alison) when he was Under-Secretary of State for Health and Social Security in the Tory Administration.

On this side of the House there is a firm intention that the Bill shall become law. The behaviour of the hon. Member for Barkston Ash was in contrast with the way in which my hon. Friend the present Under-Secretary is giving the Bill support.

Although we all have to be impatient for the disabled—and none is more impatient than my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley)—we must acknowledge that my hon. Friend the Under-Secretary of State, with his special responsibility for the disabled, has filled his office in a way which makes us proud.

In office my hon. Friend the Under-Secretary has honoured the words he uttered before taking office, and that is very difficult.

I remind the House of some of the things the Government have done for the disabled. I do so to put the whole debate in perspective. There have been benefit upratings for disabled people costing about £400 million. The Government have introduced the non-contributory invalidity pension for men and single women, a mobility allowance for children and adults, an invalid care allowance, a non-contributory invalidity pension for married women, and a new contributory retirement pension scheme. They have also raised the therapeutic earnings limit. The activity of the Department, under my hon. Friend's guidance, to help the disabled has been commendable.

I take the same stance on the Bill as my hon. Friend the Member for Stoke-on-Trent, South. I regret that a Bill of this kind has to be introduced. I would rather the principle in law had already been established. My hon. and learned Friend the Solicitor-General will know of the interest I have taken in industrial injuries. I am interested in the great reform introduced by the last Labour Administration in New Zealand, which provided that those crippled by accident received benefit whether or not they could prove liability.

I do not wish to speak at length on this topic—I hope to catch your eye later, Mr. Deputy Speaker—but I hope that the Pearson Commission will recommend a system of compensation for accidents and so remove the very heavy expenditure on lawyers and specialists of all sorts in processing claims through the courts. I hope that the money provided as compensation will go mainly into the pockets of those who ought to be compensated, rather than into the pockets of the professional people who are having to process the cases themselves.

But we have not yet received the report of the Pearson Commission and, however much I want to have that report and the recommendations which I hope will flow from it, even when we have the report it is likely to take a number of years before we can get on to the statute book the change to which we so eagerly look forward.

The recommendations, which I have strongly supported, about industrial injuries will take time to negotiate and enact. In fields in which I am not so knowledgeable I should expect the same to apply. It is certainly possible that the consequences of that legislation would be that the State itself would have to find finance to implement it. If that is the case—and it could well be—that will be one additional hurdle to be overcome by those of us who want to make progress.

The significant part of the Bill of which Lord Pearson ought to take note—unlike my hon. Friend the Member for Stoke-on-Trent, South, I agree with Lord Pearson that it falls far short of what is desirable—is that which says that the Bill has no direct effect on public expenditure. It is a Bill, in other words, which could be processed through its various stages to the statute book.

It is for that reason that I am prepared to support the Bill, knowing that it falls far short of what I expect from the Pearson Commission. I hope that within a relatively few years we shall repeal this legislation, but I support it for what it can do for those who, for no reason of their own, have a life of disability.

I also support the Bill because I do not believe that we should hold up progress constantly while awaiting the result of one inquiry after another. If we see an opportunity to correct a wrong and have an obvious remedy, we should grasp it and adjust to it. Later, when the Commission reports, we shall require to do only one small job of amendment or repeal. I therefore strongly support the Bill.

1.44 p.m.

The Solicitor-General (Mr. Peter Archer)

I begin by adding my congratulations to those already accorded to my hon. Friend the Member for Birmingham, Northfield (Mr. Carter).

I have frequently complained in this Chamber that very often lay colleagues express criticism of the law, the legal system, the legal profession, sometimes in dramatic terms, but when the House actually discusses law reform they leave the debate to the lawyers. I have said on many occasions that if our lay colleagues complain about the law, they should help us to reform it. Technical legal discussions among lawyers are not for the benefit of the lawyers. They are for the benefit of the public, their clients.

My hon. Friend has taken me at my word. He has looked at a somewhat technical subject and noticed that it has very real practical consequences, for people like his constituents and mine, in terms of real human suffering or of human happiness. He has demonstrated that the practical effect of legal technicalities is not beyond the grasp—and, obviously, the very clear grasp—of a lively mind, even if that mind is devoid of a formal legal training. The House and the public, therefore, have very real reasons to be grateful to my hon. Friend.

I was struck, too, by the fact that so much of this debate has been contributed by our lay colleagues in the House. I particularly noticed the contribution of my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley). Although he has been somewhat forthcoming in his criticisms of the legal profession—on occasion he and I have had our differences—at least his criticisms are not purely negative, and he contributes to discussions about how to seek positively to remedy the defects.

If this part of the debate appears to be largely a dialogue between lawyers—substantially between the hon. and learned Member for Southport (Mr. Percival) and myself—that is inevitable in a technical legal Bill, but at least we were both assisted by the debate in keeping in mind the purpose of the Bill and what the technicalities are for.

We have reason to be grateful to the Law Commission. I would not like to be a Law Commissioner—even if I were ever in danger of being invited to become one. They are distinguished men with first-rate minds and dedicated social commitments. They take a little-discussed subject and devote years of their time to affording it consideration and a depth of consultation which Parliament itself could never undertake unaided. They produce reports which are models of clarity, and recommendations which are backed by careful argument. And very often they find that the public scarcely notice them and that the House cannot devote the necessary time to legislate about them. That is not always the case, and they have a very good record of work which has found its way on to the statute book. But all too often, unfortunately, the work which they devote to law reform must be very frustrating.

Whatever one's views on the Report we are discussing today, it really is a model of what a report should be. We have been told, as my hon. Friend said, that the work on this topic was undertaken as a matter of urgency. All I can say is that this is not apparent from the Report. The consultations are as wide as those normally undertaken, and the arguments are as careful as the Law Commission's arguments always are.

As was pointed out by my hon. Friend the Member for Stoke-on-Trent, South, normally legislation is designed to change the law. This legislation is designed rather to fill a vacuum.

The common law does not necessarily deny a right of action in respect of prenatal injuries. The point is that no one knows for certain whether it does or not. As has been pointed, one of the difficulties in the negotiations concerning the thalidomide children was precisely the question-mark which hung over the legal aspects of their discussions.

In that situation there are only two ways in which to resolve the doubt. One can wait until the question arises, and then it will be argued at some length in a succession of courts at substantial public expense—or expense to the parties. Alternatively, it can be resolved by legislation. One advantage of doing it in that way is that it can be resolved not only by asking what the precedents say but by asking what, as a matter of policy, is most conducive to the public interest.

I am sure that the hon. and learned Member for Southport has come across examples, as I have, where the uncertainty of the law, in claims for negligence in particular, operates very harshly against the ordinary person—the man who on other occasions I have called "the little guy." This was pointed out by my hon. Friend the Member for Pontypool (Mr. Abse), who has had extensive experience of these matters.

When we are dealing with cases of pre-natal injury, it is difficult enough in all conscience to establish the facts, to ascribe a cause or to weigh the expert evidence. If we add the uncertainty about the law, the problems of the claimant are formidable. The result in practice is that it is the big battalions, the accomplished litigants, who can impose what are sometimes unequal settlements—not because they are wicked but because they are in the position of being defendants, who can afford to wait because time is on their side. But the claimant, unwilling to face the cost and strain of prolonged proceedings, is often also in fairly urgent need of the money. Very often he is driven to accept a settlement for less than is strictly fair. Where the claimant is an infant, the court will have to approve such a settlement. But, with these difficulties overhanging the negotiations, the court itself cannot offer sufficient protection.

One of the important effects of this Bill will be to enable those responsible for conducting claims on behalf of the people whom we are discussing to know where they stand and to be able to weigh up an offer of settlement for what it is worth. If we urge little guys to apprehend the merits of the rule of law—and many of us spend a great deal of time doing that—there is a heavy responsibility upon us to ensure that there is a method of redressing their grievances within the system. If we urge them to respect the law, we must show that the law respects them.

It has been said more than once in this debate that the provisions of this Bill are limited and that we should not raise false hopes among those who are not helped by it. I agree with that, and I take the point made by the hon. and learned Member for Southport. It was part of the burden of Lord Pearson's much-discussed letter to The Times, and it was emphasised again today by my hon. Friend the Under-Secretary. It is true that it relates only to a limited class of children—those whose disabilities can be shown to result from a prenatal event caused by the fault of another, and that sentence in itself indicates a number of question marks. It will not assist those who disabilities result from inherited characteristics or natural illness or what is sometimes called pure accident—meaning accident which is not anyone's fault. It will not assist those whose disabilities result from causes which cannot convincingly be identified.

I do not know how many it will help. I suspect that possibly the majority of congenitally disabled children will fall outside the provisions of the Bill. I agree that we should make that as clear as we can, because it would be wrong to raise false hopes amongst those for whom we are not providing a remedy.

Having said that, there will be those for whom the Bill's proposals will be very important. I do not presume to predict the numbers involved, but an enlightening statistic was quoted by my hon. Friend the Member for Pontypool. The Law Commission thinks that there are something like 1,000 children a week who are born substantially deformed. I do not suggest any arithmetic, but even taking a very small proportion of the 50,000 children in this category every year, that would be a very substantial sector of human suffering alleviated.

No legislation can cure all the ills of the world. Suffice it to say it may remedy injustice for some people who might otherwise have been without redress. The Bill itself contains nothing which suggests that it attempts to do any more than this.

The hon. Member for Wells (Mr. Boscawen), in a very persuasive speech, pointed out that we should not forget those who remained outside the provisions of the Bill. That was the burden of what was said by my hon. Friend the Under-Secretary. It does not follow that, if the House passes this Bill, we believe that nothing further remains to be done especially in terms of prevention and safety, mentioned with such expertise by my hon. Friend the Member for Ilford, North (Mrs. Miller).

It has been said that those matters are often very difficult to prove. I accept what the hon. and learned Member for Southport said about that. It is a consideration which affects many areas of fault liability, and I have no doubt that it will be very present in the mind of the Pearson Committee. But as my hon. Friend the Member for Ilford, North pointed out, in our legislation perhaps we should take account not only of static facts but of trends, too. The Law Commission did not overlook these difficulties. It set them out in paragraph 28. But it also pointed to the very rapid progress of technology, so that every week the area of doubt is diminishing. It does not necessarily mean that that produces the answers. It may be that it only produces more quesitons. But forensic science is part of the onward march of technology and there is no doubt that it will reduce some of the areas of uncertainty which have lain over the courts in these matters.

No system of law can eliminate the necessity for courts sometimes to make up their minds on evidence which is far from concusive. Our courts many times have had to assume that burden, and they have done it so as to give us a high degree of satisfaction with what they have achieved.

But having said that, I do not seek to minimise the difficulties of evidence, and certainly I do not seek to minimise the difficulties of many solicitors who find themselves acting for clients who are convinced in their own minds about the cause of something, and fail to realise that the cause is not easy to establish on the forthcoming evidence.

There will be many situations left outside the provisions of the Bill. My hon. Friend the Under-Secretary told the House that the Government were mindful of the general problem of finding some means of giving adequate support to all children found at birth to be disabled, and a number of other hon. Members followed him in that. It is clear from Lord Pearson's letter to The Times that the Royal Commission on Civil Liability has this problem very much in mind. We all hope that the Royal Commission may be able to propose some means by which all disabled children can be given the support that they need.

That brings me to what has been perhaps the major question which I have been asked—whether, if this Bill reaches the statute book, it will prejudge or prejudice the considerations of whatever Report emerges in due course from the Pearson Commission.

I should be guilty of the most blatant hypocrisy if I recommended to the House a measure which I believe would impede the proper consideration of questions which form the terms of reference of the Pearson Commission. I am on the record, even before the appointment of the Commission, as saying that these questions should be considered fully. I was very happy when the Commission was appointed, and I was especially happy with the appointment of the distinguished chairman. I look forward very much to that Report. I was pleased to hear the speech of my hon. Friend the Member for Newcastle-under-Lyme (Mr. Golding), because I know how hard he worked, again before the appointment of the Pearson Commission, to ensure that in the trade union movement and elsewhere these questions were fully canvassed. So there is no doubt in my mind, and certainly none in that of my hon. Friend, that we are looking forward to the Report of the Pearson Commission.

But, as my hon. Friend the Member for Newcastle-under-Lyme said, we have to be realistic. We are told that the Pearson Commission hopes to complete its work by the end of this year. Knowing how these matters work in practice, there will have to be proper consideration of its recommendations, consultations inside and outside Government, consideration of the implications for the wider aspect of Government, and, I suspect—without wishing to give any indication of access to any inside knowledge but simply from a general understanding of how these things happen—we should not be over-optimistic, because legislation is years rather than months away.

This is a specific problem within the present law on liability based on tort. My hon. Friend the Member for Stoke-on-Trent, South said that meanwhile there would be no harm in trying to make the present system work as well as it could in the interests of all concerned.

My hon. Friend the Member for Eccles (Mr. Carter-Jones) in a most persuasive speech said that it seems that we are always waiting for something. There will always be a time when various problems are under consideration. If we said that we would never tackle one problem until we had the results of the full consideration of all the other matters, the cause of reform would indeed be lost.

I do not know how many people will be affected, or how many tragic events will occur between now and when we consider the Pearson Commission's Report. In my view it will do nothing but good to rectify this specific grievance now. Whether today's legislation will have to be amended in the light of the Commission's Report obviously depends on what the Commission reports.

My hon. Friend the Member for Newcastle-under-Lyme said that he hoped that this Act would be repealed in the near future. It may not be repealed. We do not know what the Commission will report. There are a wide range of possibilities open to it. It may be—this is pure supposition—that it will report in favour of some form of tort liability surviving in parallel with some other system of no-fault liability. In any event, the Commission's Report may have some substantial financial implications of the kind indicated by my hon. Friend. We may well find that our work today is more enduring than has sometimes been suggested. If not, it is likely to have a useful life, long enough to justify the time we have spent on it.

I turn to the effects on the work of the Pearson Commission. I cannot do better than to emphasise what the Law Commission said in paragraph 6 of its Report: It is our view that any legislation based on our proposals neither can nor should prejudge the much wider issues which the Royal Commission is considering. I am grateful to the hon. and learned Member for Southport for asking me questions in connection with this matter. They enable me to say in the clearest possible terms that so far as this Government are concerned—and I give an unqualified undertaking—anything that we do today and in the course of our deliberations on the Bill will not prejudge or prejudice our consideration of whatever recommendations the Commission may make. This is not an occasion where the best is the enemy of the good. We can have both.

The hon. Member for Harborough (Mr. Farr) asked questions about the responsibility of the mother. As he said, these are probably Committee matters. I shall not delay the House very long on them because they can be discussed in detail in Committee.

Reference has been made to the stresses which are likely to arise within a family if it is suggested that the injuries to a child are to be laid at the door of the mother. That is a matter which obviously weighed with the Law Commission, which sets out the arguments in paragraph 60 of its report. It recommends that normally there should not be a right of action against the mother but that there should be an exception when the mother is driving a motor vehicle. That point is contained in Clause 2 of the Bill. As my hon. Friend the Member for Pontypool pointed out, what was basically behind the Law Commission's thinking was that this was a situation where normally the mother would be covered by insurance because she is required to be so covered. For that reason, it was more likely to relieve family tensions than to exacerbate them. The hon. and learned Member for Southport has said that he has some doubts about that. He thinks that it is an invidious distinction which may be unduly hard on insurance companies and which in any event is illogical. No doubt we shall have to discuss that matter in Committee. I shall not say anything at this stage which might prejudge our discussions in Comtmittee, but I merely comment that my hon. Friend the Member for Ilford, North also had doubts about it, but for different reasons.

Mr. Percival

I did not intend to convey the impression that I thought that it was hard on the insurance companies. It is rather tragic that we should give a remedy because someone else will pay. That was my thinking.

The Solicitor-General

I appreciate the distinction between the two interpretations of the hon. and learned Gentleman's remarks. I am quite content to leave the matter there.

The hon. Member for Harborough also criticised the distinction but said that the mother's responsibility should be extended to other situations. He mentioned the case of the destruction of a child in the womb and asked why we do not give a remedy where the foetus is not only injured but actually destroyed. At this stage I can foresee real practical difficulties in providing the type of remedy which he has in mind. Of course, when we are dealing with compensation for destruction, as with compensation for death the person who has actually suffered the wrong is not the person who is compensated, and there is no way of ensuring that that person can benefit from the compensation. Therefore, the compensation will be to the estate—if we can allow some concept of the estate of a foetus. That would mean that the benefit would go to the next of kin who would probably be the mother. Therefore, one would be compensating the mother for a wrong which is attributable to her. I thought it would assist the hon. Member for Harborough if I made that point at this stage before the Bill goes into Committee, so that he can appreciate the thinking at least behind the Law Commission's recommendations on that matter.

The hon. and learned Member for Southport raised some misgivings which apparently have been current among the medical profession. The profession has not written or communicated with me and there is no reason why it should have done so. So I am not sure what the misgivings are. I agree with the approach suggested by the hon. and learned Gentleman. Let us find out what the misgivings are and whether there is any substance in them. Certainly I shall not say anything today which will in any way prejudge the consideration which is given to the profession's comments. I am sure that it will not overlook the provisions of Clause 1(5).

I cannot predict what view the House will take of any suggestions which the medical profession may make. The conduct of the Bill is in the hands of my hon. Friend the Member for Northfield. I can only undertake that if the profession makes recommendations which commend themselves to my hon. Friend, the Government will give every assistance in trying to ensure that they can be incorporated into the Bill. The Government have no intention of foreclosing the discussion at this stage. Indeed, if it would asist the medical profession or the hon. and learned Member for Southport to use the good offices of the officials in the Lord Chancellor's office, they are at their disposal.

I have been asked to mention one other matter. In the course of the debate there was mention of the Rowntree Trust. I think that one hon. Member said something about jogging it into action. I am now moving on to ground of which I claim no personal expertise. The Rowntree Trust obviously cannot spend more money than is available to it. I understand that it has available about £2.7 million to spend in the next 12 months. It obviously is not unsympathetic to all the considerations which have been put forward today and I have no doubt that it will listen to any representations. However, there is a limit to what it can do.

A number of other matters have been mentioned which will have to be considered in Committee. They are matters which law students learn about, which academic lawyers discuss and which textbook writers ventilate. But the cutting edge of the law is not in lecture halls or libraries, nor even in the courts. It is where people live their lives, where they meet their problems and are confronted by their heart-aches. The Bill is not about lawyers nor Members of Parliament. It is about ordinary families suddenly struck down with tragedy who, up to that moment, have usually not given a thought to these problems, because there was no reason why they should.

If the Bill reaches the statute book, some of those families will have reason to be grateful to my hon. Friend the Member for Northfield.

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. But it is by such pragmatic steps that Parliament and the courts have sought always to ensure that our legal system best serves the needs of the public.

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).