§ `An applicant shall not be entitled to relief under section 1 or 2 if he has been convicted of the murder of the person to whose death the application relates.'.—[Mr. Farr.]
§ Brought up, and read the First time.10.42 am
Mr. Deputy Speaker (Mr. Bryant Godman Irvine)
With this it will be convenient to take amendment No. 4, in page 2, line 1, leave out clause 2.
§ Mr. Farr
The new clause relates to clause 1 which deals with the financial position of a person who has wrongfully killed another. Clause 2 deals with a woman who has become a widow by her own unlawful act. The Bill's aim is to help people in such circumstances.
The House's compassion is much admired and its care for the underprivileged is commendable. But we should examine the Bill carefully to see whether our compassion is always deserved. The Bill received a Second Reading without debate, a feat on which I congratulate the hon. Member for Kettering (Mr. Homewood). The event is all too rare. I make no complaint, but the House has not had the benefit of hearing the sponsors argue the case for changing the law. The case was ably made out in Committee, but it is incumbent on them to explain it to the House.
Although there may be hard cases, we must not let them make bad law. At one extreme the disgraceful driving of a husband may cause an accident in which his wife dies. We are likely to agree that he should not be prevented from receiving property due to be his on his wife's death. There is no risk of that happening at present. The other extreme is murder. I see no justification to allow a person to profit from that most serious of crimes. A young man may kill his father under whose will he inherits a fortune. Why should we allow him to make a fortune? A wife may murder her husband. Why should she be allowed the widow's benefits covered by clause 2?
Between the extremes are various cases of manslaughter. All are intentional killing but with redeeming features. The most worrying case is where the killer has pleaded diminished responsibility and the jury has reduced the verdict from murder to manslaughter.
I look forward to hearing the sponsors' comments. I assume that the type of case that they deem as deserving sympathy might loosely be called mercy killing. A devoted husband watching his wife dying in great pain may be unbalanced by her suffering and kill her. His plea of diminished responsibility may be accepted and he will be treated with compassion by the judge. Suppose that the house in which he is living was owned jointly with his wife and that she has left all her property to him. Has he not suffered enough without punishing him further by preventing him from taking anything under her will?
Difficult questions are involved. It may be right to give the courts the widest discretion, but we should not let it 1086 appear that we intend the courts to use the new powers to give benefits to murderers. The House has just debated again the penalty for murder. It must be wrong to take a step that would suggest that we wish to see the punishment lessened.
Amendment No. 4 is to leave out clause 2. The clause is designed to identify the social security issues that may have to be considered under the ex turpi principle and to specify where the responsibility for determining the application of the principle in such cases should lie. The widow who widows herself is an example. The circumstances may range from a partially successful suicide pact through mercy killing and a violent reaction to an intolerable husband to a cold calculated murder with financial gain or sexual liberty in mind.
Widows' benefits are not the only entitlements to consider. Widowers have rights in some cases. For example, ex turpi might be considered where a lone parent's rights have to be taken into account.
The aim should be to enable an ex turpi social security issue that might arise to be covered by the Bill without prejudicing a decision on a particular entitlement. In the case of a benefit based on financial need it might not be appropriate to impose forfeiture.
I recognise, too, that it might not be best to leave ex turpi and social security matters to the ordinary courts or the High Court. It helps to have a decision taken in the full understanding of the implications. That suggests a need for familiarity with social security matters, which is not the easiest of areas for non-specialist laymen or lawyers. Social security adjudications spread over various bodies and large numbers of people. How can we concentrate an ex turpi application in more limited and specialist hands? Could social security commissioners have a role, although their writ does not cover all benefits? I hope that my hon. and learned Friend the Solicitor-General will confirm that only few social security cases arise.
§ Mr. Leo Abse (Pontypool)
The House must be exceedingly grateful to the hon. Member for Harborough (Mr. Farr) for moving the new clause. The promoter of the Bill, my hon. Friend the Member for Kettering (Mr. Homewood), and I are grateful to the hon. Member for Grantham (Mr. Hogg) for the precaution that he has taken to ensure that the Bill is discussed adequately. It cannot be gainsaid that this type of Bill needs to be discussed on the Floor of the House.
Already, as a result of discussions in Committee, where we had the Solicitor-General's guidance and the opportunity to hear my right hon. and learned Friend the Member for Warley, West (Mr. Archer), the objectives originally in the sponsors' minds have been modified. The new clause spells out the objectives and I hope that it will assuage some of the justifiable anxieties that otherwise would arise.
We can now state clearly, not only what the sponsors wish to achieve, but what they certainly do not wish to be a consequence of this attempt to bring relief to a small number of tragic individuals, most of whom are women, whose predicaments may be unnecessarily and harshly exacerbated by the firmness which precedent imposes upon the application of an important and necessary principle of our common law.
Public policy demands that no man, and, in the context of the Bill, more relevantly, no woman, may benefit from his or her wrong action. Having heard what happened in 1087 Committee, and having listened to the anxieties, I underline, as will my hon. Friend the Member for Kettering, that we and the House wish there to be no erosion of that fundamental principle.
A particular application of that wise and well-tested rule of common law, that no one should be allowed to benefit from his or her wrong, is that any person who unlawfully kills another is prevented from succeeding to any property which she or he otherwise would inherit under the victim's will or in accordance with the rules of intestate succession. As the hon. Member for Harborough said, the rule also applies to widows' pensions under the Social Security Act 1975.
The new clause rightly affirms that it would be intolerable for any woman who deliberately murders her husband to gain money from her husband's estate. The law has been tempered by humanity and insight. Not every unlawful killing is now deemed to be murder. It is upon such consequent deaths that the Bill focuses its attention.
If hon. Members who served on the Committee will bear with me, for the understanding of the House and those outside I shall illustrate the type of case that the sponsors have in mind. A testator made a will leaving his house, effects and the cash deposited in his bank to his wife, but he was killed by her. The wife had a tragic mental history and had received treatment in a mental institution. I have no doubt that the husband wanted to ensure that she would be provided for on his death. In what seems to have been an undirected quarrel she struck him with a domestic chamber pot and he died. She pleaded not guilty to murder, but guilty to manslaughter. The judge accepted her plea of diminished responsibility. That case is in the category that the hon. Member for Harborough described.
The woman was not punished, but a detention order was imposed. The order stipulated that she should have hospital treatment under section 60 of the Mental Health Act 1959. The action taken by the court was remedial and not by way of punishment. Nevertheless, she was unable to benefit from her husband's will. The common law rule was found to be so rigid that the courts, however reluctantly, believed that, in the light of precedent, they had no option but to rule that the whole of the estate should go to another relative, despite there being no culpability in the sense of an action that attracted or deserved punishment. That is the type of case to which we are directing attention.
There have been some developments. I shall describe a second case to illustrate the development. Last year a husband died from a stab wound administered by his wife. The circumstances were such that the judge took into account the somewhat turbulent and unhappy history behind the act which precipitated the man's death.
The jury decided that the case was not one of murder, but of manslaughter. Having heard all, the court decided that the woman should be placed on probation for two years, because it was thought that she needed supportive help. The woman applied for the widow's allowance. The national insurance commissioner believed that he was not in a position to award her that allowance. Fortunately, the case proceeded to the High Court. Although the woman did not obtain the allowance, a statement was made by the Lord Chief Justice which put a different gloss upon the law.
As the Solicitor-General said in Committee, in giving that judgment the Lord Chief Justice, for the first time in our legal history, made it clear that in his view the courts 1088 do not need automatically to apply the rule that, following an unlawful killing, public policy demands that the court drives the applicant from the seat of justice.
Lawyers in the House will understand that the humane observation of the Lord Chief Justice, although powerful and persuasive, was made by way of an obiter and may not—I put it no higher—be a binding precedent. I am aware of the anxiety of the hon. Member for Harborough, but if we have any temptation, in the light of the 1981 observation, to feel that we may allow the law to develop so as to contain the hardships that concern the sponsors, that temptation should be resisted, because there is a difficulty, which was succinctly and powerfully spelt out by the Solicitor-General in Committee when he said:The Lord Chief Justice has shown how the law may be developed on whether there should be an absolute bar. I am worried that it should be all or nothing. If the court decide; no bar, all the benefits follow. It it says bar, all the benefits are lost. I do not see how the court itself could deal with that difficulty. The question before the court is whether the bar should operate.I suggest that we should consider whether to give the court discretion to soften the effect of the rule by saying that it must uphold the rule and that it would be wrong to inherit in the normal way, but that there are mitigating circumstances which mean that it is not necessary, in the public interest, to apply the rule rigidly. I must inform the promoter and the hon. Member for Pontypool that I would be interested in a practical way of applying that. There is a gap there which I should like to see filled.The sponsors noted with care the guidance given by the Solicitor-General and the way that he focused on that aspect of the matter.
I wish to make it unequivocally clear that, as a result of the benefits of the dialogue that sometimes goes on in and outside Committees, the sponsors intend to seek to close the gap to which the Solicitor-General has drawn attention. We acknowledge that in our drafting that may be done clumsily, but I wish to reassure the House by reaffirming that our objective is to confirm the residual discretion of the courts and to give them, if they wish, the opportunity, as the Solicitor-General said, to uphold the rule, but to say that there aremitigating circumstances which mean that it is not necessary, in the public interest, to apply the rule rigidly."—[Official Report, Standing Committee C, 17 March 1982; c. 7.]The House and, I am sure, our constituents will understand that there must arise cases where it may be thought by the court that the rule should not be applied without some mitigation. For example, as was hinted at by the hon. Member for Harborough, an aged wife who survives a bungled suicide pact with her husband could find that she would never be permitted to live out her life in their house, the title deeds of which were vested in her husband at the time of his death.
The court, having all the facts before it, may not think it proper that the widow should inherit all the estate of the husband, but may consider that even though she should not inherit all the estate, it would be intolerably harsh that, as a result of her criminal act, she should be driven out of the matrimonial home and into homelessness. At present, courts lack the capacity to take such action.
As an illustration of the type of unlawful killing that the Bill's sponsors have in mind where relief may be appropriate, let us consider the case of a spinster daughter who has nursed her mother for years and misguidedly yields to her own sympathies or to the command of her mother, who may be suffering from a terminal illness, and assists in her mother's death.
1089 The House knows that no one is more rigorously opposed to euthanasia than I, but can we confidently assert that even if the daughter may, as a result of her folly, forfeit some of her mother's estate, she must never, if only for life, inherit the home in which she may always have lived? At present the court would have no power to deprive that daughter of some the estate but to leave her the home. That is a rigidity which could surely be regarded as cruelly offensive to the public.
As the Solicitor-General stressed and as my right hon. and learned Friend the Member for Warley, West underlined, the all-or-nothing rule is the one which, above all, requires remedy. Not only does that rule fail to give the court an opportunity to act with the discretion that should be available to it, but it includes an element of double punishment which I find particularly repugnant. If a woman has been involved in the unlawful killing of her husband and a court lacks the power not to suspend, but to mitigate, the common law rule, the woman will lose all.
Although the husband may have been a Mr. Meany and his miserly provocations may have been among various reasons that caused the judge and jury to conclude that the conviction must be one of manslaughter and not murder, the wife could still lose all. Yet a woman who inexcusably poisoned her husband in order to marry her lover and may have manipulated her husband before the murder so as to have settled upon her much of his wealth can emerge from prison to enjoy her ill-gotten gains. In short, the rule operates sometimes to penalise the woman to whom in his lifetime her husband has given nothing, but does not affect one who has acquired a property from him before the offence was committed.
I am sure that it will not have escaped the attention of the House that the rule sometimes operates to penalise not only the offending wife but children or other dependants. If the all-or-nothing rule did not apply as it does now, those are matters that could be taken into account. It cannot be right that the result of the rule could be that an undeserving distant relative benefited by its operation, with the result that the burden of maintaining the offending wife or the dependants was cast wholly upon the taxpayer.
The sponsors acknowledge willingly, as they did in Committee, that, as drafted, the Bill is rough hewn. No less then as now, we wish to make it clear that to reflect the opinion that emerged from the Committee and as, doubtless, it will be enlarged in this debate, it is our desire to get the Bill right and to have it reflect scrupulously the view of the House.
In Committee the Solicitor-General was generous enough to make it clear that, although there were obvious difficulties in seeking to translate the view emerging from the expressed intention of the sponsors and the firm emphasis of those who contributed to the Committee proceedings, including the sage caveats of the hon. and learned Gentleman himself, nevertheless he would not abandon the sponsors to their fate and that Government assistance would be available to give a further indication of what, in the Government's view, were the defects of the Bill and how they might be cured.
The Solicitor-General has been as good as his word. He has given every possible assistance, and my hon. Friend the Member for Kettering and I thank hit and the officials of the Lord Chancellor's Department and the Department of Health and Social Security. But, in the very limited time 1090 that has been available, the parliamentary draftsmen have not been able to prepare the amendments which the sponsors hoped to put before the House today. I am sure that the Solicitor-General will acknowledge that that is not the fault of the sponsors, who are anxious to meet fully his views, those of the members of the Committee who contributed to the debate and, I anticipate, other views that will be expressed today. Therefore, my hon. Friend the Member for Kettering and I make it clear that when we invite the House to send the Bill to the other place in the form that it takes now, there is no question but that we shall cause amendments now being prepared by the parliamentary draftsmen to be put before the other House.
I stress that hereafter this House will in any event have the final word. In taking the view about the new clause, bearing in mind that we all have manslaughter and not murder cases in our sights—it is difficult for me to conceive of a case calling for relief where murder had been the offence of which the party was convicted—it is a matter upon which I should like to suspend judgment until we have had the benefit of interventions from the Solicitor-General and my right hon. and learned Friend the Member for Warley, West.
§ Mr. Douglas Hogg (Grantham)
I understand that the Bill can be perfected in another place. I understand, too, from what the hon. Gentleman said that parliamentary counsel will be asked to reconsider the Bill and, if necessary, to formulate new clauses. At this juncture I do not see why we should count on the Bill, if it is objectionable now, being put right in another place. Would it not be wise, in effect, to suspend further consideration of the Bill until we have seen the new clauses, and to debate the issue when the clauses are before the House rather than count on the other place being wise?
§ Mr. Abse
I can understand that point of view, and I sought to explain that we hoped that the amendments would be before the House. Although it may be heresy to say it from the Opposition Benches, this is one of those occasions when I am glad that my defence of there being two Chambers remains in existence. Usually the procedure is reversed, with the undergrowth being cut in the other place and this House reaching a conclusion. I am sure that the hon. Member for Grantham will appreciate, since he does not want the Bill to be lost completely, that this House has the final say after a Bill has been amended in the Lords.
I have made it as clear as I can that in the proposed amendments we shall set out to make certain that the Bill falls within the parameters enunciated by the Solicitor-General when he expressed his concern that, as the Bill stood, it was capable of profound misunderstanding outside and undoubtedly could be misunderstood and be thought that we were in some way condoning the crime of murder.
The other substantial amendment proposes the deletion of clause 2, which relates to pensions. I am grateful to the hon. Member for Harborough for the amendment, because it enables the issue to be canvassed. However, at this stage I should be unhappy if the amendment were accepted. There is an obvious need to continue to try to shape the Bill with the assistance of the parliamentary draftsmen following the discussions which the sponsors have had, as a result of the facilities granted by the Solicitor-General, with the Department of Employment.
1091 I have no doubt that the all-or-nothing rule can be tempered in respect of the distribution of an estate, however small, of a deceased person to enable the point made in amendment No. 3, for example, to be taken on board. However, in my view, and I have no doubt in that of the Department, decisions could in practice be reached so that it was possible for discretion to be exercised to give widows half or quarter pensions. Inevitably there would be grievous administrative problems to overcome before that result could be achieved. But the House will understand that, by their nature, these allowances will be comparatively small. Therefore, it is unlikely that a decision could be made in respect of these small amounts which public opinion found offensive.
It has to be appreciated that, in a sense, the object of the sponsors is not to change the law but simply to reaffirm it, if the Lord Chief Justice's obiter is good law. As the Solicitor-General said, in the widow's allowances case the Lord Chief Justice stressed that it is the nature of the crime itself that will dictate whether public policy demands that the court withholds relief. According to the Lord Chief Justice, a discretion is in existence, albeit as yet only upon his obiter, and so far there appears to be no case in which such discretion has ever been used.
What the sponsors have in mind, if the Bill proves to be acceptable here, is to inspire a Lords amendment which will ensure that the withholding or granting of relief is dealt with by a sophisticated body of the kind that I apprehend was in the mind of the hon. Member for Harborough. Such a grave decision should not be decided by caprice or by executive sympathy, without a clear vision of the fundamental common law principle, which has to be firmly secured from erosion.
Soundings have indicated that the sensitive commissioners may well be ready to take direct the determination of the handful of cases which are likely to arise each year. Therefore, such matters would not have to proceed through local tribunals and the usual prolonged appellate proceedings with which hon. Members are familiar because of the cases of their constituents. Such determinations by a body such as the commissioners will, I hope, reassure the House that no decisions will be taken to give relief except where humanity requires it. In no case should it be given by way of sentimental gestures blotting out the imperative need to maintain the integrity of our ancient common law rule that no one shall benefit from his or her own wrongdoing.
I realise that to some degree we are asking the House to take matters upon trust, but the House has the ultimate veto. The intentions of the sponsors are clearly explained. The modifications in approach and view that have emerged are clear. If in any way we did not fulfil those intentions the House could rightly, and very easily, in a Private Members's Bill, change matters when it returned here.
I am sure that the House is extremely grateful to the hon. Member for Harborough for tabling what I hope will prove to be constructive probing suggestions. I assure the House that the sponsors will listen very carefully to the contributions to the debate and take note of the consensus of the House about any amendment which hon. Members may be able to inspire in the other place.
§ Mr. Ivan Lawrence (Burton)
I am very uneasy about the Bill as it stands. The doctrine of asking the House to take the matter on trust is an extremely dangerous one. It is not that we do not trust the integrity of our colleagues 1092 or the House of Lords. It is that our experience in this place teaches us that, unless we are very careful in watching stage by stage the way in which a matter develops, all too easily the wrong result can occur. That is because of the pressures on time and because sometimes the Members of the other place are otherwise engaged, perfectly properly, in pursuits which deny them the opportunity to be present when something of great importance is being discussed, So it is also in this place.
The main difficulty facing Members of Parliament is how to sort out their priorities and to apply their minds to all the important national and constituency interests that arise, not having available to them more hours of the day than the Almighty has provided. As a result, often we are not available at times when perhaps we should be. That is due to pressure of work and has nothing to do with malice or ill will, and still less with any lack of integrity of Members of Parliament.
Therefore, we have to be extremely careful about the argument put by the hon. Member for Pontypool (Mr. Abse). Often, things are not put right in the other place. Often, we have to concern ourselves later with muddled legislation or which is a misstatement of the intention of Parliament, at great cost in time and taxpayers' money.
§ Mr. Douglas Hogg
Will my hon. and learned Friend accept that, if the other place makes amendments, we may agree with some and disagree with others? It will be extremely difficult to put the Bill into proper shape when it comes back from the other place. It will come back on a Friday, when there will be very few hon. Members present and very little time available, and when we shall have inadequate opportunity to put the Bill into the kind of state in which it should be when it is starting on its passage.
§ Mr. Lawrence
I agree with everything that my hon. Friend has said. If this were a large Bill, with many important points of principle, and the point to which the hon. Member for Pontypool had been addressing himself were but an insignificant part of it, common sense would dictate that it probably could be left to be put right in another place. But I consider that the issue about which we are talking is so important a part of the Bill that we must not just brush the matter off and say that it will be put right in another place. That would be to derogate from the responsibility that the public expect us to accept in this House. There would be no point in our meeting in this Chamber if everything could be done or put right in the other Chamber.
So the remarks of the hon. Member for Pontypool have not diminished my concern about the Bill. However, I welcome the discussion on the matter. I regret that there was not a Second Reading debate. That is confirmation of the fact that, because of the pressure of time, hon. Members cannot always look at every detail of every Bill that is introduced. Had we been a perfect institution, there would have been a proper Second Reading debate, the matter would have been raised at an earlier stage, and the hon. Member for Pontypool would not now be saying that this House must take the matter on trust when it goes to the other place.
I congratulate my hon. Friend the Member for Harborough (Mr. Farr) on tabling the new clause and the amendments and for advancing certain objections to the Bill. I congratulate also the promoter, the hon. Member 1093 for Kettering (Mr. Homewood), and the hon. Member for Pontypool on their reasonable reaction to the amendments. The Bill raises an important question of principle, which we should deal with here and now. The law says that a person shall not benefit from his wrongdoing, especially criminal wrongdoing. The law also says that a person may apply to vary a will in certain very needy circumstances.
The Bill proposes that there should be a special right to go to the court for variation, even where the claimant is a wrongdoer. There may be some degree of merit in the proposal. If the law is harsh, it must be adjusted so that it is more compassionate. I say nothing in criticism of the compassion of the promoter, of the sponsors, or of any hon. Members on either side of the House, but no one can or should be compassionate in regard to murderers. Perhaps we should be compassionate in regard to some degrees of manslaughter, where there is diminished responsibility or where there is mercy killing. Even then, killing must not be encouraged, and we must not be seen to be doing anything here which even suggests that there are circumstances in which we would encourage the taking of life. Certainly there must be no compassion in regard to murder.
I am not sure whether the hon. Member for Pontypool is supporting the new clause and the amendment. However, I make it clear that I am doing so. This is no time to be dismantling any protection against murder. This is no time for the public to see the House dismantling such protection, however, slight it may be.
The hon. Gentleman might argue that nobody would be deterred or that few people would be deterred from murdering someone because of a provision that they could not benefit from it. But the public will believe that the measure gives people a benefit which they do not now have in law pursuant to the commission of a murder. Those of us who think that there should be capital punishment—of course, that view is not shared by everyone here—feel that, since there is not, other alternatives to it must be strengthened, rather than weakened. If 80 per cent. of the public are in favour of capital punishment, and if Parliament has refused to restore it, that 80 per cent. will need to be sure that any alternative to capital punishment deters murder, instead of making it—however slightly—easier and more attractive. Therefore, as a matter of principle and because of the way in which the public may view what we are doing, I have the gravest concern about the measure.
New clause 1 and amendment No. 4 go a long way to alleviate that concern. Those of us who practise day after day in the criminal courts appreciate that even the so-called compassionate killings are not always what they may seem. It is often said that we would not want the death penalty for domestic killings, but some domestic killings are as cold-blooded, as wilful and as thoroughly unacceptable as any gang-land killings.
Sometimes, a spouse can exaggerate the circumstances so that people will feel sorry for him or her. She can wander around in a perpetual daze and continually break into tears. She can let her job go to pot, and she can telephone the Salvation Army night after night, saying that she is thinking of killing herself. When the act of murder 1094 has been committed, psychiatrists may say that her behaviour is such that she must have been suffering from diminished responsibility.
I know of a case in which the husband wound the flex of a telephone twice round his wife's neck and pulled until she was strangled to death. When he was arrested for the murder he put on a great show. It was so convincing that three psychiatrists were called at his trial to say that he was suffering from diminished responsibility. At one of the visits, a prison officer overheard him say something like "I think that I am conning the medical people round to my side." When the jury heard that, it convicted him of murder.
That case demonstrates how easy it might be to set up a situation in which many psychiatrists would say that diminished responsibility was involved. The jury might accept their view, and someone who had committed a wilful murder would not only get away with the consequences, but—under this Bill—could benefit as well.
I turn to the practicality of the process by which murder cases come to be tried. In such a case as I have described it might have been easy for the prosecution to say that, if three psychiatrists had said that the man suffered from diminished responsibility, it should not waste public time and money and should accept the plea. Even under the new clause and the amendment, manslaughter would not be an objection to an application to the court under such circumstances. I do not seek that it should be. I merely point out that the law is so imperfect in its operation that we may frequently let people get away with less than their full punishment and less than the correct verdict. Therefore, we must not be seen to be helping that process.
I do not think that the hon. Member for Pontypool would want us to be moved by the argument that if the Bill were to go through in this form—I think without the new clause—it would be of some relief to the taxpayer. Of course anything that relieves the taxpayer always goes down well with Conservative Members, and probably with Opposition Members. I do not wish to make a party-political point. However, principles are more important than this sort of financial cost and I do not think that the hon. Gentleman was putting that forward as a reason for supporting the Bill.
I have stated my conviction that the Bill should not go on to the statute book unless it is made clear to the public that someone who has committed such a great criminal wrong that he is guilty of murder will not benefit from it. It would not be a reasonable or sensible use of our position to leave it to the other place to work out a satisfactory format for us. Stage by stage, we must do all that we can to ensure that legislation that reaches the statute book is good. It is never right to say about an important principle or part of a Bill that someone else can put it right. Therefore, unless I receive full assurances from those concerned, I shall continue to be extremely unhappy about the matter and will take such steps as are appropriate in the circumstances.
§ The Solicitor-General (Sir Ian Percival)
I hope that it will be for the convenience of the House to give some idea of the Government's thinking. Our position is still that up to a point we are neutral. Within that framework I shall endeavour to give as much guidance as possible. We want to hear the views of the House and the views of the elected representatives of the people, speaking for the people who 1095 elected them. Up to a point, the Government's position has always been that they will assist in the proper implementation of those views. By that I mean that we shall provide the necessary drafting expertise to ensure that whatever decision the House reaches is put into law in a proper form.
I have always stressed that this applies up to a point. I tried in Committee to give some guidance on the Government's thinking on what "up to a point" meant, and I shall enlarge upon that now for the benefit of those who have expressed concern. I accept that they are right to be concerned about what we are doing. I have made that as clear as I can on behalf of the Government. I doubt whether anyone would feel other than concerned, because matters of great public importance are involved. I was glad that the hon. Member for Pontypool (Mr. Abse) said what he did about the basic and important principles with which we are concerned.
The Government attach the greatest importance to the general rule that a person should not benefit from his own wrongdoing and would not willingly be a party to anything that eroded that rule. I think that it is necessary to be rather more specific than that and I hope that it will assist the House if I address myself briefly to the nature of the principle which in practice would be affected by the Bill if it became law.
For a long time the courts have claimed and exercised a right to refuse to enforce a claim when it arises from a claimant's wrongdoing. It is loosely described as a rule that a person shall not benefit from his own wrongdoing, but there is no rule of that character; there is only a general principle. However, one would expect every right-thinking person to have it in his own mind. We are talking about the application of the "rule" by the courts in the enforcement or otherwise of claims. That which we are discussing arises only when someone seeks the assistance of the courts in enforcing a right. It arises only if the right has arisen out of the claimant's wrongdoing.
It is not surprising that the courts have adopted the practice of claiming the right to say to the applicant "As your claim arises out of your own wrongdoing, we shall not allow you to use the courts to enforce these rights." The nature of the practice, though it is based on the general rule that it is contrary to public policy that an offender should be allowed to benefit from his own wrongdoing, is properly described by the Latin tag ex turpi causa non oritur actio.
As the hon. Member for Pontypool has said, we must recognise that the purpose of the Bill is to alter the present practice for the benefit of the claimant in cases where the wrongdoing is unlawful. No one should shrink from that. We must look this straight in the eye to ascertain whether there are changes that are acceptable notwithstanding the fact that that is the aim.
It is not surprising that none of us knows of a case where a court has exercised discretion to allow a person to use the courts to enforce a claim which has arisen out of a wrongdoing. It would be surprising if there were a substantial number of cases where that had happened. However, there is no doubt that the courts have that discretion. It has not been exercised because, not surprisingly, when a claim arises out of an unlawful killing, for example, the natural inclination is to say that only in exceptional circumstances should we depart from 1096 the rule of principle. However, it is clear from the cases leading up to the case of Connor, and other cases, that the courts have a complete discretion to say whether the bar should be operated. It will not be surprising to anyone that in cases of unlawful killing the decision has always been so far that it would be contrary to public policy to allow the offender to benefit.
§ Mr. Douglas Hogg
My hon. and learned Friend !has told the House that the courts have a discretion not to apply the absolute bar. Will he confirm that prima facie the bar applies to cases of death caused by reckless driving?
§ The Solicitor-General
We are not talking about a bar that applies to any one category of case. We are discussing a principle and practice which has been built up. If the claimant is claiming a right which has accrued to him from his own wrongdoing, whether killing or any other kind of wrongdoing, the court then has to consider whether it would be contrary to public policy to allow that person to use the courts to enforce the right. It is a principle that spreads across the spectrum of wrongdoing.
§ Mr. Lawrence
Is my hon. and learned Friend saying that a person who has been found wrongfully to have caused the death of the deceased may apply to the courts for an order under the appropriate section of the Inheritance (Provision for Family and Dependants) Act 1975, and that it is purely a discretionary matter for the court concerned whether to apply any bar?
§ The Solicitor-General
That is right. The bar arises only if a person has a cause of action. If he has no cause of action, the claim will fall for that reason and the court will not have to consider the principle that we are discussing. This principle and practice arise only at the second stage. This is an extremely important matter and I do not accept all that my hon. and learned Friend has said about it. I am seeking to develop a coherent argument to assist the House.
It is clear that the courts have a wide discretion. It is the courts' own practice that we are discussing. The Lord Chief Justice could not have made it more clear that that was his approach in the case of Connor. In every case where the claimant has been an offender who has been guilty of unlawful killing, the practice has been followed with the one consequence. To that extent it has become a rule of law. I pray in aid the case of Connor in particular.
The discretion of the court is to say to the claimant, "You are barred," or "You are not barred." It is conceivable that in certain circumstances a court could say "We think it contrary to public policy to allow this offender to recover in full a right accruing from his own wrongdoing but we do not think that public policy demands that he be deprived of all benefit." It is perhaps conceivable that such a situation might arise. If it did—as I see the law at the moment—the court would not be free to give effect to what it considered public policy required.
§ Mr. Douglas Hogg
It is an important matter, and I should be grateful if the Solicitor-General would clarify it. There appear to be two issues. One is whether, under the 1975 Act, or more generally at common law, a court has jurisdiction to entertain a claim at all. The second, assuming that the court has such a jurisdiction, is whether public policy generally requires the rejection of that claim. I understand the Solicitor-General to say that the court has jurisdiction to entertain a claim under the 1975 Act—the 1097 applicant can get before the court—but public policy in the majority of cases obliges the court to reject the claim, albeit a claim that is properly made.
§ The Solicitor-General
My hon. and learned Friend will forgive me if I answer the question in a slightly different terminology. Somebody who seeks to pursue a claim in the court must first show a cause of action or a statutory right. What we are talking about does not affect that. If a person does not show a cause of action or statutory right, there is no need for the court to consider the matter because the proceedings would fail. That is illustrated by the case of Connor. It concerned the alleged right of a widow to a pension. There was no doubt that the statutory requirements that have to be fulfilled as a condition of claiming a pension were satisfied. The court had to consider whether, because she was the wrongdoer, it should lend its assistance to her in enforcing that right.
§ Mr. Lawrence
I am most grateful to my hon. and learned Friend for giving way. Is it the present position that the court, if it is satisfied in all the circumstances that it would be inequitable—taking into account the wrongdoing—that the applicant should forfeit all benefit, can grant that applicant such relief as it thinks appropriate? If so, what is the need for the Bill?
§ The Solicitor-General
The court has no such discretion. What the court has to decide, unless there is a cause of action or statutory right cadit quaestio, arises only where a person has prima facie a right enforceable by the court and that is a right which has accrued in consequence of his or her wrongdoing. That raises a new consideration for the court.
The question for the court is whether it would be contrary to public policy to allow that wrongdoer to benefit from his wrongdoing. In my view, it is only open to the court to say "Yes" or "No". The court cannot say that the wrongdoer should be deprived of part of the benefit—because it would be contrary to public policy to allow him or her to have it all—even if it thought that it would be commensurate with public policy to allow the wrongdoer to have a part. My view is that, in deciding that question, the court has jurisdiction only to answer "Yes" or "No".
§ Mr. Douglas Hogg
The Solicitor-General is being very helpful, and I must apologise for intervening again. He has said that the court has a jurisdiction to say "Yes" or "No". If a defence of wrongdoing is raised the court has jurisdiction in certain circumstances to permit all the claim. When determining whether to exercise that discretion, does the court pay any regard to the culpability of the applicant? If a person is charged with and convicted of manslaughter, does the court have the power to investigate his degree of culpability, or is the discretion of the court limited to saying, for example, in a case of causing death by reckless driving, "We do not want to apply the bar to that class of case"? Does the discretion go to the culpability of an individual or to the class of offence of which the applicant is guilty?
§ The Solicitor-General
The answer to that question is to be found in the words of the Lord Chief Justice in the case of Connor. He said that it was not the name but the nature of the offence. The degree of culpability is very 1098 much a question for the court. I believe that the courts look at the matter with the element of culpability in mind and try to decide how the public would see it. In the case of Connor, the Lord Chief Justice examined the question of culpability and found that, on the finding of the jury, it was a deliberate killing by the sticking of the knife into the husband. The Lord Chief Justice said that, although it was difficult to draw the line in some cases, that case fell on the side of applying the bar. It is clear that the courts look at the culpability and the nature of what was done in the particular case, but always from the point of view of public policy. I know that public policy is an unruly horse, but I am happy to leave that kind of test to the courts because it gives them a wider discretion to do what they think right in the light of public policy, which varies from time to time.
In some cases it might be beneficial to plug the gap so that the court has an even wider discretion, but if there be a weakness it is that the question for the court is whether, as a matter of public policy, it should allow the claimant to use the court to enforce his claims. The answer must be "Yes" or "No". I can see a case for giving the court a wider discretion because there might be an incident in which, on the facts, the court believes that public policy requires that the claimant should not be allowed to enforce all his rights but that it would not be consonant with public policy to deprive the claimant of all his rights.
I am happy to try to assist hon. Members, but the argument is not advanced by taking hypothetical cases. If no case arises that calls for that remedy, there would be no harm in the courts having it. However, if such a case arises, we must ask ourselves whether we should widen the discretion to that extent and leave it to the judges to use their common sense, experience and judgment in the same way as we leave it to them in the application of principle and practice.
§ 12 noon
§ Mr. Lawrence
Some benefit will accrue from our exchanges and I am most grateful to my hon. and learned Friend. In my previous intervention I put the need for subsection (2) to clause IA. My hon. and learned Friend said that the court may in present circumstances, without this Bill, if it is satisfied that the circumstances would be inequitable, grant relief, but that the problem was that where the court was faced with the question of public policy it had only one answer to make. If one of the circumstances is a public policy matter, and the case is contrary to public policy, it cannot be permitted. There would then be some reason for this part of the Bill.
How does my hon. and learned Friend read the Lord Chief Justice's statement in the case of Connor, which is:In each case it is not the label which the law applies to the crime which has been committed but the nature of the crime itself which in the end will dictate whether public policy demands the court to drive the applicant from the seat of justice. Where that line is to be drawn may be a difficult matter to decide"—that is where the line of public policy should be drawn—but what this court has to determine is whether in the present case what this applicant did was sufficient to disentitle her to her remedy."?Does that not sound suspiciously as though the highest court is saying that it may not be possible to define public policy and that therefore it is in the court's discretion to decide whether, in each case, what the applicant did was sufficient to disentitle her to remedy? Although public policy may be difficult to define and is an unruly horse, 1099 that does not entitle the judge to say "I cannot exercise my discretion." If that is the position in law, what will be added to the law by clause 1A(2)?
§ The Solicitor-General
I have not directed my mind to clause 1 because I have always made it clear that, as it is now drafted, it cannot possibly stay. That has been accepted by the promoter. I am talking about whether there is an acceptable substitute for it. That may explain the difference between us. I was relying on the words quoted by my hon. and learned Friend from the judgment of the Lord Chief Justice for the propositions that I am advancing. The words do not create any doubt about the proposition. The court must determine whether, in each case, the conduct of the applicant is such as to disentitle him to a remedy. However, what he is talking about there does not affect what he said in the previous sentence, which he described asdriving the applicant from the seat of justice.He is talking about the practice that has grown up of the courts saying "We shall not allow you to use the courts." That is an all-or-nothing decision. The basis of the decision, and the nearest that one can identify what the court must do, is that the judge has not only the jurisdiction but the duty to decide whether it is contrary to public policy to allow the applicant to do what he would otherwise have the perfect right to do—to use the courts to enforce his rights. That permits only a "Yes" or "No" answer.
The matter has not caused many problems. It is for the House to say whether it believes that there should be some wider discretion. I have always made it clear, speaking for myself and the Government, that it would not be right to go any further than that. The question for the House is whether it should go that far.
To be as neutral as I can, I see the argument for saying that the present position may be unduly restrictive on the court. We put a solemn duty on the court, as we do in so many other ways. We might describe what we are doing here as "Should we, while requiring the court to carry out that solemn duty for us, give it a little more discretion?" That would be the effect of alleviating the all-or-nothing rule.
Some might say that it does not go far enough. I suggest that it could be a significant advance. I doubt whether it would apply to many, if any, cases. In every case where someone comes before a court, having unlawfully killed another person, and tries to enforce the rights accruing from that crime, the court would be inclined to say "No". It would require special circumstances and the judge must be entirely satisfied that it would be consonant with public policy to give a part of the rights before he uses the powers about which I am talking, if they are then part of the Bill.
If any hon. Members have further technical questions on that part of the Bill, I shall be glad to answer them. If not, I shall put the Government's view on it. At the moment, the Government are inclined to the view that, if it was the wish of the House to go that far, the Government should assist the sponsors with the technical expertise that is necessary to put the wording into due form. If the House decided that it did not want to go that far, so be it. If the House decided that it wanted to go further, the Government will have to reconsider their views on whether assistance could be given. The promoter was good enough to acknowledge that. He said that he would not seek to go further.
1100 What I shall say on clause 2 is based on the assumption that it is universally agreed that clause 2 cannot stand as it is. The question is whether one can do something useful as regards social security benefit. I say again that if it is decided by the House that something can usefully be done and it is something that the Government feel can properly be done in the administration of a State service, the assistance will be given to get the wording into due form.
It is right that I should set out the Government's thinking in a little more detail than hitherto. I am talking now simply about killings affecting social security entitlement. Fortunately, they are rare. The Government believe that it is entirely right that the opportunity should be taken within the scope of the Bill to ensure the most sensible approach to adjudication on those issues when they arise. That is the aspect of the clause 2 claim to which the Government have addressed their mind, securing the most sensible approach to adjudication rather than seeking to give the court the discretion that I have been talking about in connection with clause 1. It is not feasible to give a court power to say that a proportion of a benefit shall be paid. The administrative problems would be horrendous. However, that does not mean to say that it would not be possible to do something useful. It is felt that something might be done to secure a more sensible approach to adjudication.
I shall now speak word for word from the DHSS brief because this is a matter for my hon. Friend the Minister of State and that Department. Clause 2 as it stands deals with a narrow range of social security entitlements, though in general those in respect of which the ex turpi question is most likely to arise. It does not, however, cover the whole range of entitlement issues in respect of which the question might arise. It is, of course, related in its present form entirely to national insurance widows' benefits, whereas widows' rights also stem from, for example, the industrial injuries scheme. Widowers have certain, though much more limited, rights on the death of the spouse. In addition, retirement pensions can flow from a spouse's contribution record and the person's status following the death of a spouse can affect contribution liability and supplementary benefit, family income supplement and child benefit rights.
At present, the ex turpi issue will be dealt with where it falls, in the sense that the adjudicating authority that is considering entitlement or liability can consider the ex turpi issue incidentally to the question before it. The adjudicating authorities are, therefore, according to the matter in dispute, the Secretary of State, the insurance officer, the supplementary benefit officer, a tribunal or a social security commissioner. Given the rarity of the ex turpi case and the probability that each case will be unique in a number of aspects, it seems right that means should be found of concentrating decisions in the hands of a single authority at a senior level. Most appropriately, that might be the commissioners. I understand that the sponsors of the Bill share the view of my right hon. and hon. Friends and are minded to make an amendment to that effect in another place. The ex turpi issue would go straight to the commissioners.
If any hon. Members want more details, they are available. I have said enough to remind the House that in the area of social welfare benefit a number of different persons or bodies may be called upon to determine this issue when it arises. It seems to the Goverment to make sense to tidy that up and to take a more sensible approach 1101 to adjudication, which is that, whenever this question arises in connection with social security entitlement, it should be decided in the first instance by the commissioner.
§ The Solicitor-General
My hon. and learned Friend has raised another point on which I would rather not be drawn.
I stress that, while the Government see that a useful purpose might be served, the idea at present contained in clause 2 is not acceptable because it is not feasible to divide benefits or have any orders saying that a benefit shall be paid in part only. That is the Government's thinking on the clause under consideration. We shall listen with interest to hon. Members' views and whatever decision the House may arrive at.
§ Mr. Peter Archer (Warley, West)
This has not been an exciting debate, but it has been a careful and good tempered debate, conducted in a spirit of genuinely seeking the best solution to the problem.
I am sure that the House will be grateful to my hon. Friend the Member for Kettering (Mr. Homewood) for raising a matter that has not been widely discussed. I agree with the Solicitor-General that it is not applicable to many situations every year, but there are a few situations from time to time when compassion requires that we should consider the matter. It is right that the House should consider such questions, which do not frequently hit the headlines or affect large numbers of people, but which can make a real difference to the lives of a few individuals.
The House will be grateful, too, to my hon. Friend the Member for Pontypool (Mr. Abse) for the care that he has devoted to the matter, as he always does. If the Bill eventually finds its way on to the statute book, it will be the ninth Bill of which my hon. Friend has been a sponsor and which has eventually changed the law. And it will be the ninth Bill in which he has played a leading part. His approach has been moderate and open-minded. Both my hon. Friends are possibly minded to accept the new clause, although that may depend on the subsequent debate.
The House will also be grateful to the hon. Member for Harborough (Mr. Farr), who, as always, goes to the root of these matters and has compelled us to direct our minds to things which the House should discuss. It is right that the House should consider those issues carefully before they go forward. And the House is grateful to the Solicitor-General for his careful indication of the Government's thinking and his offer of technical expertise if the matter proceeds.
I wholly agree with the intervention of the hon. Member for Grantham (Mr Hogg), who technically is still not an hon. and learned Member, but I believe that that is just a matter of time. It would be much better if there had been a Second Reading on the Floor of the House. That has not been possible, for reasons which we all understand. It is not the only occasion on which a Second Reading debate on the Floor of the House was not possible. There is very proper Government business before the House now for which that will not be possible. It would also have been much better if the House could have seen the Bill as it is hoped it will eventually emerge, but that, too, was not possible for reasons which we all understand.
1102 I take the point of the hon. and learned Member for Burton (Mr. Lawrence). We would not wish to risk legislating when it is possible that what ultimately emerges has not been fully considered. Equally, I believe that the hon. and learned Gentleman would accept that, in the absence of parliamentary time, it would be a tragedy if we failed to legislate for mischiefs which we all agree exist. In an imperfect world, we must do the best we can.
If the Bill continues we shall have the opportunity to consider it further, but if it does not there will be no prospect of redressing the mischief. I therefore hope that in due course the House will allow the Bill to continue its progress.
§ Mr. Douglas Hogg
I wonder whether that is entirely true. If the House does not give the Bill a Third Reading today, I understand that it is put back and will come forward for Third Reading some time in July. Therefore, it would be wrong to say that failure to give it a Second Reading today is necessarily tantamount to killing the Bill.
§ Mr. Archer
I confess that I have not directed my mind to all the procedural niceties. The hon. Gentleman may have in mind some procedure which has escaped me. If a decision is simply not reached, clearly the matter will come back later.
§ Mr. Douglas Hogg
I think that I can assist the hon. and learned Gentleman. I should not expect this to apply to the new clause, but I understand that if the House does not give the Bill a Third Reading today, due to lack of numbers, which is the most likely explanation, it will go back into the list, as it were, and come back to the House in July. If there were a vote against Third Reading with sufficient numbers to establish a quorum, that would of course be the end of the Bill. I apologise if I did not make myself clear.
§ Mr. Archer
I am grateful to the hon. Gentleman for telling me what is in his mind. I had it in mind that the House would take a decision on Third Reading today. In that circumstance, if the Bill were not accorded a Third Reading, that would be the end. There are other possibilities, of course, but I venture to hope that they will not be used, as it would be a great pity if Private Members' business were killed in that way. If the Bill came back in July, of course, we all know that its prospects of reaching the statute book would be virtually nil and that would be a tragedy. I hope that it will be kept alive so that there may be further discussion. If the House is not satisfied with what emerges, it will have the opportunity to ensure that it does not reach the statute book.
The rule of public policy which precludes anyone from taking advantage of his or her own wrong is well established and well founded, for reasons that we well know. No one can sensibly object to it. Certainly the sponsors of the Bill have not done so. As my hon. Friend the Member for Pontypool made clear, it is not part of their wish to permit relief by way of sentimental gesture. We are all very mindful of the reasoning behind the rule. But it is right to keep in mind the purpose of that rule and the mischief at which it is aimed. As I understand it, the purpose is to discourage wrongdoing and no doubt to ensure that, as a matter of justice, it should not be rewarded.
It is therefore necessary to see whether the present scope of the rule is confined to what is necessary for that 1103 purpose and whether the present limits are the proper limits for the purpose of enforcing it. The Solicitor-General said that he thought that the courts already had a wide discretion. I hesitate to venture even a mild disagreement with a Law Officer of the Crown, but I wonder whether that is an accurate way of putting it. I shall draw attention to what has been said judicially about this.
In Committee I quoted the words of the learned Vice-Chancellor in the case in re Giles in 1972, when he said:Now I do not think that I am concerned to analyse the ground on which the courts have established this rule of public policy. It is sufficient to say that the rule has been established and that the deserving of punishment and moral culpability are not necessary ingredients of the type of crime to which this rule applies, that is, culpable homicide, murder or manslaughter.So at present the rule applies whether there has been moral culpability or not. There is no question whether the claimant is deserving of punishment. It does not appear from that that the courts have a discretion to decide whether a degree of culpability should be taken into account.
The Solicitor-General referred, as he has done on previous occasions, to the judgment of the Lord Chief Justice in the case of Connor. As I understand his interpretation, he said that it made it clear that the courts have the discretion and can decide whether to apply the rule of public policy or to overrule it on the facts of a particular case. When we discussed this in Committee I said that it would repay inquiry as to what criterion the courts are now required to apply. We should then decide whether we wish that to be the criterion for which we are legislating. The Solicitor-General agreed with us in Committee that there was no case known to us in which there had been a causal connection between the wrongdoing and the claim and in which the courts were able to say that it was appropriate not to apply the rule.
In the case of Connor, the Lord Chief Justice said:One turns then to see what it was that happened here. On the verdict of the jury, it is plain that the applicant's act was a deliberate, conscious and intentional act. She was holding the knife in her hand and she deliberately thrust it into her husband's chest. That is not the same as discharging two barrels of a shotgun; no two situations will ever be the same. But, speaking for myself, I can see no distinction in principle between the situation in Gray v. Barr, which was sufficient to disentitle the plaintiff to recover, and the situation here, which also to my mind disentitles the applicant to recover.The words which embody the criteria seem to bea deliberate, conscious and intentional act".Those words were taken from a dictum in Gray v Barr by the learned Master of the Rolls. It appears that the courts, in both cases, took the clear view that if the act is deliberate, conscious and intentional, one cannot look any further. If my understanding is correct, there is certainly no such discretion as was clearly in the minds of my hon. Friends when they sponsored the Bill.
§ Mr. Lawrence
Let us suppose that as a result of this deliberate and conscious act a person is subsequently acquitted of murder but convicted of manslaughter by reason of diminished responsibility. What, then, is the situation?
§ Mr. Archer
I am grateful to the hon. and learned Gentleman, who has anticipated what is in my mind and what I proposed to say. It does not appear from the words in those cases that the court's discretion is thought to extend to the kind of case where a conscious and deliberate act culminates in a conviction for manslaughter.
§ Mr. Douglas Hogg
What the right hon. and learned Gentleman is saying—I agree with him—is that there is no very clear authority on this issue and that it is possible: to adopt at least two views. If that is right, and if the right hon. and learned Gentleman agrees with me, does it not fortify the suggestion that before we legislate further it would be wise to put this matter before the Law Commission?
§ Mr. Archer
I am grateful for that suggestion. It was discussed by the Solicitor-General in Committee. I hope that I have shown, over a long period of years, that I am a great believer in using the Law Commission, which has done great service. But where there is a specific, fairly narrow and clearly defined problem on which it is possible to form a view, the House should be able to form a view without the kind of consideration that it is normal for the Law Commission to give.
If there is a doubt, I should have thought that all that follows is that it becomes even more important to resolve the doubt. I should have hoped for that reason that the House would feel able to take a view. If there is a doubt, hon. Members should decide how they want to resolve it. If hon. Members take the view that the present discretion in the courts is not wide enough to achieve the result that they want, they should legislate for that to be done.
I should not venture to complain about those dicta from what are probably the two most distinguished judicial authorities as a statement of law, but they do not necessarily embody the criterion that hon. Members, on consideration, would wish to see embodied. I believe that we can be more compassionate without abandoning the rule and without encouraging wrongdoers.
The difficulty where a rule has been developed judicially is that the courts inevitably cannot apply a surgeon's scalpel. They follow precedent. Judges do not necessarily feel free to draw fine distinctions for which their only authority is their sense of the fitness of things. They do not often leave for themselves a wide discretion in particular cases.
One problem is clearly that to which the Solicitor-General drew attention—the all-or-nothing rule. I should have thought that all hon. Members would agree that this is a rule which we should like to see mitigated. Secondly, it seems to me that we may wish to give the courts a wider discretion to consider the degree of culpability. I do not believe that we can leave either of those remedies to the judiciary. That would be unfair. It is essentially a mater for legislation.
As my hon. Friend the Member for Pontypool said, this is a matter which the legislature has increasingly considered this century without wishing to encourage wrongdoing and without vindicating murder, but simply to say that, in certain cases, the innermost workings of the human mind are much more mysterious than was believed by people in the past. There can be cases, such as mercy killing, in which any of us might find ourselves under strong psychological pressures. Mercy killing, as I understand it, would still be murder. If the new clause were accepted, we might therefore eliminate mercy killing from the consideration of the courts, in this connection.
It is true that the courts may get the facts wrong, as the hon. and learned Member for Burton said. Someone may "con" a psychiatrist. Someone may even "con" the court. Not all miscarriages of justice are in the direction of undue 1105 lenience. Sometimes there are miscarriages of justice where someone is treated more harshly than he should be. No legal system can guarantee that there is never a mistake of fact by the courts. But, in my submission, the fact that guidelines are sometimes misapplied cannot be a reason for not providing guidelines. I hope that we would go a little further than the Solicitor-General has said; that we would wish not only to mitigate the all-or-nothing rule but to give the courts a wider discretion to take into account the moral culpability of the act that they are considering.
I am grateful to the Solicitor-General for his guidance on clause 2. I do not wish to take the discussion further, particularly as others wish to take part in the debate.
There is here a mischief which can occasionally cause great injustice and distress and complete the ruin of lives already in ruins. Of course, the House should have an opportunity to consider the final version of the Bill before it reaches the statute book. But I hope that a way will be found to permit the Bill to proceed rather than to say today that the discussion must not proceed further.
§ Mr. Douglas Hogg
Your predecessor, Mr. Deputy Speaker, was kind enough to allow a wide-ranging debate on new clause 1. It has, in effect, been treated as a Second Reading debate. I should be enormously grateful to you if you would permit me the same indulgence. I originally intended to confine my remarks at this stage to new clause 1 and to make my larger objections and qualifications on Third Reading, but I feel that that would not be for the convenience of the House. Every other hon. Member has embarked on a wide-ranging debate.
§ Mr. Deputy Speaker (Mr. Bernard Weatherill)
If my predecessor has so allowed, so be it. But as a matter of principle it is never a good thing to go beyond the scope of amendments.
§ Mr. Hogg
I appreciate that, Mr. Deputy Speaker.
The Bill's sponsors have done the House a great service. My views have oscillated during the debate. It is an extremely difficult issue. I believe that there is sufficient merit in the Bill not to kill it today. We should let it go forward in the hope and belief that the problems will be rectified in the other place, but I make it clear that I have grave anxiety about its content and that I may take a different view when it comes back from the other place.
The general principle that the courts have long adopted is, as my hon. and learned Friend the Solicitor-General said, to prevent a person gaining from his wrongdoing. That principle is stated in all the text books. My hon. and learned Friend and the right hon. and learned Member for Warley, West (Mr. Archer) referred us to the undoubted discretion that exists. I say "undoubted" but that perhaps begs the question. There are judicial dicta to the effect that the courts have a discretion to disapply the general approach, but they are not consistent with the general statements of the law to be found in the text books.
There is a degree of uncertainty as to what the law is—whether as a matter of general law, public policy requires a person to lose all the benefit that he may have earned from his wrongdoing without there being a discretion to disapply, or whether there is a discretion to disapply. Reasonable minded people can argue either case founded on authority with considerable force. There is grave uncertainty about a matter of significance.
1106 I intervened during the speech of the right hon. and learned Member for Warley, West to suggest that that is a reason why we should place the matter before the Law Commission. I wish that that had occurred. We should then have had its guidance. However, the right hon. and learned Gentleman said with considerable force that if there be reason to admit of a discretion we should say so and not be bound by judicial authority, and therefore that we should put the matter before the Royal Commission. There was tremendous force in that observation. It is one of the factors that caused me to take my present view.
As I understand the general law, subject to a discretion that may exist, and that I think probably does exist, a man may not profit from his wrongdoing. Accordingly, when a person has committed murder that person has no right of inheritance either under the will or on an intestacy of the victim. That is a general proposition, but it has been extended beyond cases of murder, as the Solicitor-General said. It extends to cases of manslaughter and, as a proposition subject to discretion, to cases of death by reckless driving. It goes further. It extends to claims made under insurance policies and, as a general proposition, to claims made by dependants under the Fatal Accidents Acts. One of the manifestations of the general policy is that where a deceased person was supporting his dependants out of the proceeds of crime, the dependants cannot recover under a claim made pursuant to the Fatal Accidents Act 1976 or the Law Reform (Miscellaneous Provisions) Act 1934. The general principle has a wide application and effect.
The Bill probably has a limited effect. If the House is right in supposing that there is a general discretion in the courts to disapply the public policy principle, the only effect of the Bill is to abrogate the all-or-nothing rule. The Bill does nothing more than that. If that is so, we should give the Bill a warmer welcome than I previously was minded to give it.
New clause 1 was moved ably by my hon. Friend the Member for Harborough (Mr. Fan). The new clause may be imperfect in its drafting, but its purpose is clear. Its purpose is to provide that a person who has been convicted of murder has no right to make an application under the 1975 Act. I believe that new clause 1 must be accepted. I shall put it firmer than that. If it is not accepted, I shall do everything that I can to frustrate the Bill's progress.
§ Mr. Abse
I said that I found it difficult to conceive of a case coming before a court in which a discretion would be exercised in the case of murder. All the cases that I described involved manslaughter. I am disturbed that even the case of the spinster who gives in to the wishes of a dying mother—much as I disapprove of the concept of mercy killing—would be excluded if the clause were not accepted. I hope that my right hon. and learned Friend the Member for Warley, West (Mr. Archer) will direct his attention to that. The sponsors of the Bill do not want its provisions to apply to murder as we normally understand it, but should we exclude in principle the possibility of dealing with such cases?
§ Mr. Hogg
A general principle applies to all unlawful acts resulting in death. I accept that there are some cases of manslaughter or causing death by reckless driving where the all-or-nothing rule should be relaxed. Hon. Members have mentioned bungled suicide pacts and death by reckless driving. In such cases it may be inequitable to deprive a person who has caused a death.
1107 12.45 pm
The hon. Member for Pontypool (Mr. Abse) knows as well as I that the offence of manslaughter encompasses many degrees of culpability, because it is no more than homicide resulting from an unlawful act. If the hon. Member lost his temper and struck his hon. Friend the Member for Kettering (Mr. Homewood), who proved to have a defective jaw and consequently suffocated to death, the mental intention of the hon. Member for Pontypool would be irrelevant and he would be convicted of manslaughter, even though the act was in effect no more than common assault.
As the offence of manslaughter contains many degrees of culpability, I do not oppose a relaxation of the existing law in such cases—either by allowing a court to have jurisdiction to admit a claim, or, if it already has that jurisdiction, allowing it to abrogate the all-or-nothing law.
In law, murder is the causing of the death of another when intending either to kill or to do serious harm to the victim. I find it offensive in principle and unacceptable that the law should be relaxed in those cases.
As my hon. and learned friend the Member for Burton (Mr. Lawrence) has stressed, the vast majority of the people of this country believe that the death penalty should be available. On Tuesday the House decided otherwise. I do not criticise that, although I voted for all the new clauses calling for the restoration of the death penalty. However, I do not believe that the country would willingly agree to a relaxation of any legal rule that prevents a person who is guilty of murder from recovering under the will of his victim.
§ Mr. Archer
The question that my hon. Friend the Member for Pontypool (Mr. Abse) addressed to the hon. Gentleman related to mercy killing. Would the hon. Member wish to withdraw discretion from the courts in all cases of mercy killing, however tragic?
§ Mr. Hogg
I intended to answer the question of the hon. Member for Pontypool (Mr. Abse). I always answer questions that are put to me. If a mercy killing constitutes murder in law, and that may vary from case to case according to the facts, public policy should prevail. My answer to the hon. Member for Pontypool is that if a person were guilty of murder I would disapply any right to go to court to acquire a benefit.
§ Mr. Lawrence
Is not the answer to the valid point put by the hon. Member or Pontypool (Mr. Abse) that it is almost inconceivable that a jury would convict a person of murder in a genuine case of mercy killing? The result is likely to be a verdict of either not guilty or guilty of manslaughter. The hon. Member for Pontypool's objection would not apply in a genuine mercy killing case.
§ Mr. Hogg
This is a very difficult question. I am the first to bow to the experience of my hon. and learned Friend the Member for Burton, who knows a great deal more about criminal cases than I do. I have no doubt that a jury presented with a genuine case of mercy killing would do its utmost to avoid returning a verdict of murder. But it can do so in only two ways—either by acquitting or by distorting the law. By its nature, mercy killing is killing as a result of a positive determination to kill. That is not and cannot he manslaughter in law. It admits of only one verdict in law, which is that of murder. I have no doubt 1108 that some juries will balk at that fact and acquit. But if they are doing their duty as jurors, they should return a verdict of murder.
§ Mr. Abse
I agree that the law is as the hon. Member for Grantham (Mr. Hogg) has stated it to be. There must be either a conviction of murder or an acquittal. If it is well known in such a case, however, that the possibility of total forfeiture arises and there is a degree of sympathy from the jury, is not it likely to reach an unsatisfactory and, as the hon. Gentleman put it, a distorted result with the accused person being acquitted?
I assure the hon. Member for Grantham and the hon. and learned Member for Burton (Mr. Lawrence) that do not resist the inclusion of the various categories to which reference has been made, including murder in the sense that we have been discussing it. But I am troubled by the suggestion, and the Solicitor-General has taken a different approach in not wanting categories.
Given that the hon. Member for Grantham wishes, as I do, to persuade public opinion that it is proper to get the Bill on to the statute hook, and that it may be misinterpreted if the concept of murder is not excluded, is he satisfied that in cases such as those to which my right hon. and learned Friend the Member for Warley, West referred it will not lead to a distortion which otherwise would not occur? I am seeking to collect the views of right hon. and hon. Members, because my hon. Friend the member for Kettering (Mr. Homewood) and I wish to respond constructively to them.
§ Mr. Hogg
That is a very fair question. However, the hon. Member for Pontypool is hoist by his own petard. He has stressed to the House, as has my hon. and learned Friend the Solicitor-General, that a discretion exists already but that that discretion probably would not extend to deliberate and intentional acts. I suspect that the present position is that though there may be a discretion to disapply the existing right to deprive a person of a benefit, that could never extend to cases of murder. Reading the judgments of the Lord Chief Justice and the Lords Justices in the case of Connor, it is difficult to find any material to support the argument that a person guilty of murder should have the right to apply.
At present a person guilty of mercy killing who has been found guilty of murder cannot apply for a benefit on an intestacy or under the will, though other people may be able to. If that is the present law, as I suspect it is, that fact has not distorted verdicts in the way that the hon. Member for Pontypool suggests that it may if my reservations prove right. We are dealing with the existing position. I am merely wishing to express in statutory form what I believe to be the present common law position. Therefore, the position of those convicted of mercy killing will be no different, if my view prevails, from what it will be if the hon. Gentleman's view prevails.
If the hon. Gentleman wanted to make special provision in favour of mercy killing, he would do well to produce a different Bill which provided that such an act could constitute manslaughter, because I would then entertain the provision. But I would never agree that the right to go for a benefit should be available to those convicted of murder, and would do everything I could to prevent it. I do not believe that the public would tolerate it. I do not think that this House, if it were full, would tolerate it. I 1109 do not think that the judiciary would like it. I do not think that it would be consistent with the way in which we have established the law for many years.
If the hon. Gentleman is saying that in making provision for mercy killing cases he refuses to accept the new clause, I have to tell him that his Bill will founder. Perhaps he will tell me whether he intends to agree to the new clause.
§ Mr. Abse
I said that I was waiting to hear the result of the debate. I intimated earlier that I wanted to hear all opinions, and so does my hon. Friend the promoter. It is not the practice on the Floor of the House—even allowing for the robustness with which the hon. Gentleman made his case—to put a gun to the head of the promoter of a Bill. We are surely urbane enough to try to get the sense of the House and to make certain that we are protecting the House from a misunderstanding outside.
At this stage I am prepared—as I am sure the promoter will be—to see whether there is a formula which will ensure that there will be no applications coming to the court in cases of murder, but which will not necessarily exclude the difficulty that arises in mercy killing cases. That is my present mood, and I appreciate that, unless some such provision is made, the Bill will not be acceptable when it comes back to the House. I hope that the hon. Gentleman is taking my point, as I am taking his.
§ Mr. Hogg
I am very grateful to the hon. Gentleman. The House is at the moment discussing new clause 1. If, by the time it reaches Third Reading, the Bill remains in its present form and does not include new clause 1, I shall not wish to speed it on. I hope that that makes the position absolutely plain. In those circumstances, it is for the hon. Gentleman to decide what he wishes to do.
I should like now to leave the narrow question of mercy killing and new clause 1 and to express my more general reservations, which of themselves would not persuade me to stop the passage of the Bill but which must be taken into account elsewhere.
I am very distrustful of a situation in which there is a conviction for manslaughter and the person who is so convicted has the right to apply for a benefit on an intestacy or under a will. There are at least two reasons why it is objectionable.
First, there will be many cases in which people want to reopen the issues which go to the degree of their culpability. I can imagine an enormous number of cases being brought in the civil court where the primary purpose of the applicant is not to derive a benefit under the estate but to question the conviction recorded agaist him.
The second objection is that the provision would be extremely hard on beneficiaries, who would have to suffer anxiety, doubt and expense, when the prime purpose of the application by the convicted person was in some way to diminish his culpability or question the decision of a prior court.
Moreover, my considerable scepticism about the Bill is fortified by the reflection that a court that is trying an application—for example, under the 1975 Act—by a person convicted of manslaughter must reopen the main issues raised before the trial court. The Bill directs the court to which the application is made to consider 1110 questions of conduct. Conduct can be assessed only in the context of the evidence adduced before the trial court, when the criminal charge was resolved. Therefore, I am sceptical about the whole process. I foresee convicted people trying to reopen their cases before the civil courts, beneficiaries being put to great anxiety and a review of evidence, twice over, in different places. I do not like what I see one little bit.
One way of dealing with that problem might be to say that no application should be made under the 1975 Act unless the trial judge, before whom the criminal case was determined, granted a certificate permitting such an action. I appreciate that that would mean changing the law. However, we are in a position to change the existing law in its entirety. My positive suggestion is that, as a matter of law, all trial judges dealing with issues of manslaughter, death by reckless driving and so on should consider whether the case before them is one in which an application could be made. That is not to determine the merits of the application, but merely to express a view as to whether an application could be contemplated. That issue should be determined at the same time as sentence of the court is passed. Therefore, the certificate of the trial judge should be a condition precedent to any right to commence an application under the 1975 Act, or elsewhere.
I have two other reservations. It would be an anomaly if the effect of our legislation today was to apply one rule to claims on the estate of a deceased person—either on an intestacy or under the will—and another rule to insurance claims. That would be nonsense. The present law is that the courts that determine a claim under an insurance policy, brought by a person guilty of a crime, will apply exactly the same legal principles as they would to a claim by a convicted person for a benefit under the estate of his victim. It would be nonsense if we legislated so that the law relating to the two issues was different. We should not create anomalies.
Therefore, if the matter is to be considered in the other place, we should ensure that there is uniformity between claims on an intestacy or under the will and claims on an insurance policy. I have already mentioned the Fatal Accidents Act. Again, it would be a complete anomaly if the law were different. If we legislate in the way that we have in mind—dealing only with the 1975 Act—we should also legislate to ensure that a deceased's dependants are not in a different position. It would be nonsense if claims under the Fatal Accidents Act or under the Law Reform (Miscellaneous Provisions) Act 1934 dealing with the dependants of deceased villains—were treated differently from the claims of villains. There must be uniformity. However, that matter can be dealt with, by way of amendment, in the other place. But that it must be dealt with seems plain.
I express my gratitude to you, Mr. Deputy Speaker, for allowing me to expand beyond the confines of the new clause. Had the practice not been adopted by other hon. Members I should not have done it. This issue should have been put to the Law Commission and accordingly we should not be thinking about it today. However, I accept that there are injustices. I bear in mind that the Bill is limited to abrogating the all-or-nothing rule. Accordingly I feel that we can consider it more favourably than I was originally disposed to do.
If the Bill goes further, it will require substantial alteration. It must take account of the anomalies between 1111 insurance claims, Fatal Accidents Act claims and 1975 Act claims of the sort that I have mentioned. If the Bill is to go any further, it must be altered to provide that its clauses do not apply to murder cases. If that alteration is not made now, I shall do what I can to frustrate its further passage. However, if the sponsors are prepared to amend the Bill so that new clause 1 is, in effect, accepted, although it can be altered elsewhere, and murder cases are excluded from the scope of the Bill, I shall not seek to frustrate its passage.
§ Mr. Neil Thorne (Ilford, South)
I support the new clause because I believe that it helps to clarify the law, and anything that does so is always to be applauded.
I have listened to some interesting arguments by various learned Members on both sides of the House, but I am worried about the Bill because it seems to open yet another door for legal opinion. Therefore, I wish to speak on behalf of the taxpayer. Too often we are inclined to enact measures that may benefit the legal profession, but unless they massively assist the general public I am not sure that we should do so at the taxpayer's expense. If the House sees fit to pass the Bill, I hope that it will not increase considerably the costs that are borne by the taxpayer.
It seems eminently sensible that any legal aid provided may be recovered from the disputed estate. However, I would deplore a dispute over an estate of £5,000 costing the taxpayer perhaps 10 times as much in legal fees. The lucid arguments that we have heard this morning will become not only lucid but expensive when they reach the High Court. That merits some consideration by the Law Officers, who ought to take into account the taxpayer's interest in these affairs.
The hon. Member for Pontypool (Mr. Abse) said that the purpose of the Bill was to extend discretion. It seems that the hearing of a case in the courts, with all the opportunities for appeal, should quite clearly determine whether the decision should be manslaughter or murder. If the court decides in its wisdom, and with the benefit of legal advice, that it was murder, it seems wrong that there should be any avenue open to the person so convicted to apply to benefit from the estate. I should be most interested in what the Solicitor-General has to say on that point. If it might add to legal costs, I hope that the estate would be looked at to provide recompense. I should not expect the case to continue beyond what the benefit was to be.
§ The Solicitor-General
It had not occurred to me that lawyers would make any money out of this or that the State would lose any. I believe that we are dealing with a small number of cases. That does not alter their importance either to the State or to the individuals who may be affected. The general principle is that the costs of actions are borne out of the estate and one presupposes here that there is an estate that has funds; otherwise there would be no application.
It might work the other way, because the consequence of the full application of the principle at the moment is that sometimes relatives, who might be able to support themselves, or who could enforce their rights under the will or upon intestacy, will not be able to do so, and they may have to call upon the State. I should not think that the financial implications are sufficient to influence the House either way. I bear in mind the importance of putting no further burden on public funds. I believe that the financial implications are minor compared with the important questions of principle.
§ Mr. Thorne
I am grateful for my hon. and learned Friend's encouraging remarks, because I believe that taxpayers feel that in such matters expense is no object. It is important to reassure them that they are not likely to be called on for considerable extra funds to promote what they would term a lawyers' charter. The new clause has considerable merit in clarifying the position and if my lion. Friend wishes to press it to a Division he will receive my support.
§ Mr. Deputy Speaker (Mr. Bernard Weatherill)
Order. Hon. Members need the leave of the House to speak a second time.
§ Mr. Abse
I apologise, Mr. Deputy Speaker.
By leave of the House, may I say that my right hon. and learned Friend the Member for Warley, West (Mr. Archer) was kind enough to mention that I have steered eight Private Member's Bills through the House and that I am engaged on the ninth. I can assure him that I have not done that without sometimes not fully achieving my original objectives. One must occasionally adopt the motto reculer pour mieux sauter, which means resiling in order to go forward. The House has expressed a view that cannot be ignored, and I shall be content if the Bill ensures that many women—it is women who are particularly affected—who are in an agonising predicament and have appeared before the courts are not deprived of the homes and money which otherwise would have come to them. I shall be content that some will receive an advantage, although a few who gall into the category of mercy killers may be excluded. That is the will of the House and I accept it. It must be an individual judgment and the decision must be on one's own conscience. If the hon. Member for Harborough (Mr. Farr) intends to continue with the new clause, we shall accept it on the understanding that the principle must be embodied in whatever final clause emerges as a result of amendments in another place.
§ Question put and agreed to.
§ Clause read a Second time, and added to the Bill.