§ 3.3 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, the Administration of Justice Bill is a title which often conceals esoteric mysteries of great interest to practising lawyers but of not much interest to anyone else, and I will not deny that this Bill has one or two matters in it which appear to be rather mysterious. Those of your Lordships who have glanced at Part II may already have seen somewhat forbidding provisions about executions in the county court and qualifications of Chancery Masters; and if anyone has got as far as the Schedules he may have looked upon some intriguing allusions to tramways not wholly situate in Scotland—a phrase which conjures up the vision of some electric monster clanking over Carter Bar, a vision apparently remote from the administration of justice. I may even, at a later stage, be called upon to explain the operation of the Exchange system or the scope of a writ of justicies—though I hope I shall not.
But the fact is that this Bill is mainly concerned with some very real problems of great importance to many hundreds of persons who are not lawyers; and most of what I have to say to-day will be directed to those problems and the way in which the Bill attempts to solve them. They arise out of the administration by the courts of money held on behalf of litigants—what are normally called "funds in court". But before I refer to these matters in detail, I ought to say a word about the structure of the Bill.
Part I of the Bill is concerned solely with funds in court; that is to say, with the machinery for paying money into court, its investment by the court and the many ancillary matters, such as the making of procedural rules and the preparation of the relevant accounts. Part II contains miscellaneous provisions of varying importance designed to improve the administration of justice. Of these only one is relevant to funds in court, but it deals with a very important social question; namely, the extent of the 507 courts' control of widows' damages; I shall revert Ito this subject at a later stage. Part III deals with an isolated point affecting the qualifications of service members of War Pensions Appeal Tribunals. Part IV makes provision for various matters affecting Northern Ireland, and Part V contains the normal supplemental clauses.
Dealing with Part I, for several hundred years it has been the practice of the courts to administer money belonging to suitors which has, for one reason or another, been paid into court. Your Lordships may remember that in the old days funds in the Court of Chancery were entirely at the disposal of the officers of the court and were, in fact, freely used by them for investment on their own account. Unfortunately, much of the suitors' money was, in the early 18th century, invested in the South Sea Company and was lost when the Bubble burst. One consequence of this was the exercise by the Lord Chancellor and by Parliament of a much stricter control over Chancery funds. As early as 1724, the Lord Chancellor directed each master to keep the funds for which he was responsible in a chest with one lock and two padlocks. The chest was left at the Bank of England, the master held the key of the lock and the keys of the two padlocks were held, one by one of the six Clerks in Chancery and the other by the Governor of the Bank of England. This may have been a safe system, but it was obviously not very convenient.
The system of dealing with funds in court was very much improved during the 19th century; there is no need for me to describe the history of these improvements, because what is important to-day is the current system, its defects and the proposals made in the Bill for remedying them. If I may put it very briefly, there are two systems of investing money in court, operated respectively by the Supreme Court and the county courts. In the Supreme Court, money is invested in specific securities, the permissible range being prescribed by Rules of Court (at present it corresponds generally to the "narrow range" of trustee investments prescribed by the Trustee Investments Act, 1961); in the county courts the money is pooled and transferred to the National Debt Commissioners for investment in Govern- 508 ment securities, the suitors' capital being guaranteed, pound for pound, and a fixed rate of interest being paid to them.
Neither of these systems has proved satisfactory. If I may take the county courts first, although the system of investment in the county courts is proof against a decline in cash values, it has not been proof against inflation. In particular, a fund invested on behalf of a young child which may remain in court for ten or fifteen years is not properly invested if its cash value remains constant until the child is 21 in spite of a continual fall in the value of money such as we have experienced. Nor have the county courts been able to pay a satisfactory rate of interest, as many of the securities in which the funds are invested were bought by the Commissioners in the "cheap" money period and the yield is therefore low.
The Supreme Court system has been proved I think on the whole to be rather worse. This is the system of investing in specific Government securities. This has led to considerable losses and in some cases to real hardship. Most of the money invested consists of either damages recovered by infants, or by widows in Fatal Accidents Acts claims, and the continued decline in gilt-edged values since the war, together with the fall in the value of money, has resulted in funds invested in this way losing a very considerable part of their value. Those funds invested in undated Government stock (and particularly in 3½ per cent. War stock, because of the taxation advantages) have fared even worse because these stocks have declined so seriously. The losses in cash value have been bad enough; in actual value they have been, for some suitors, catastrophic.
Take, for example, a boy of ten who in 1947 was awarded £1,000. If the £1,000 had been invested in ordinary shares, then by the time he was 21 there would, of course, have been a considerable capital appreciation in his £1,000. But if it was invested in gilt-edged stocks, then when he became 21 in 1958, the £1,000 which the State had been looking after for him would only be £720. The State would have lost £280 out of his £1,000 and, of course, the £720 which alone he got back would be worth very much less than a similar number of pounds would have been worth in 1947.
509 It was in consideration of these matters that my predecessor, the noble and learned Earl, Lori Kilmuir, appointed a Committee under the chairmanship of Mr. Justice Pearson, as he then was, to examine the investment of funds in court. That Committee reported in July, 1959, and it is on their Report that Part I of the Bill is based. I should like to take this opportunity of expressing my gratitude—and I am sure I can in this matter speak for the noble Earl, and for the noble Lord, Lord Dilhorne—to Mr. Justice Pearson and his colleagues for a most valuable Report.
My Lords, I do not need to examine at length the Pearson Committee's report. It is sufficient for me to say that the Committee considered both the Supreme Court and the county court systems of investment open to grave criticism on the lines I have already indicated; and they therefore recommended the setting up of a Central Corporation to which money could be transferred from both the Supreme Court and the county courts for investment, very much on the lines of the ordinary unit trust, in equities, gilt-edged or any other securities. The Pearson Committee appreciated that some suitors (for example, young infants) might be more concerned with capital growth than income, whereas others, whose money would normally be withdrawn in a fairly short time, would be more concerned to receive a large income while preserving the capital intact. They therefore recommended that the Central Corporation should set up two unit trusts", one a short-term and one a long-term, the underlying investments being selected with these different needs in view. The courts could then order investment in one or other, as might be appropriate to the circumstances of the particular suitor.
In substance, the Bill implements the Committee's recommendations, though the machinery looks rather different. This difference sterns from the decision to retain the county court system in the place of the "short-term" trust, and to make it available to the Supreme Court as well as to the county courts. The Pearson Committee would itself have favoured this solution if the interest payable by the National Debt Commissioners could be raised to a rate comparable to that obtain- 510 able in the market. We can in fact do this, by making available (as this Bill does) for the purpose of paying this interest all earnings on investments held by the Commissioners on behalf of the courts. I will not trouble the House with the technical details, but at present the Commissioners cannot use all such investments for this purpose; in future they will be able to do so.
That leaves us only with the longterm trust for the Central Corporation to manage. The Pearson Committee did not, deliberately, suggest how the Corporation might be constituted, but did recommend that it should be independent of Government control and should have experienced staff of the right calibre. Fortunately, there already exists an institution which fulfils these conditions, namely, the Public Trustee. Moreover, he is confident that he can assume this additional duty without any appreciable increase in his staff and without requiring any new accommodation. The result of making him responsible for the "longterm" funds will be to save both the suitors' and the taxpayers' money, and that is why the Bill places the control and management of these funds in the hands of the Public Trustee.
I hope the House will forgive this necessarily lengthy introduction to Part 1 of the Bill; it has at least had the merit of enabling me to deal very briefly with the clauses themselves. Clause 1 authorises the Lord Chancellor to make schemes for the establishment of these "common investment funds" under the control of the Public Trustee. The important facts to observe are, first, that the Public Trustee will be free to invest in any form of property; secondly, his only client will be the Accountant-General and he will in no way be concerned with an individual suitor's circumstances: it will be for the courts to consider these when deciding how to deal with the suitor's money. Thirdly, as in the case of a commercial unit trust, the value, and thus the buying and selling prices, of a share in one of the Public Trustee's funds will depend on the value of the underlying investments, so that, in a period of inflation, shares will maintain their real, and not only their nominal, value. I should perhaps add that although the Public Trustee's funds will be designed for the investment of money likely to remain 511 undisturbed for five years or more, the courts will be neither obliged to invest such money in these funds nor prohibited from investing in them money which will be withdrawn within a shorter period: to impose any such restrictions would be impracticable, since nobody can say at the outset how long a given sum of money will remain invested.
I need not detain your Lordships over Clause 2 (it makes consequential amendments to the Act of 1906 which set up the Office of the Public Trustee), but I should explain very briefly the remainder of Part I. The substantive changes in the systems of investment introduced by this Bill would in any event involve consequential amendments to Part VI of the Judicature Act, 1925 (which governs funds in the Supreme Court) and those provisions of the County Courts Act, 1959, which govern funds in the county courts. Much of Part VI of the Judicature Act is now obsolete (it was itself a Consolidation Act) and its language is often inconsistent with the more modern language of the County Courts Act, though intended to have the same meaning. Moreover, the Bill provides for a number of matters which will be common to both the Supreme Court and the county courts but for which separate provision is made in the two existing Acts. Part I of the Bill accordingly supersedes nearly all of Part VI of the Judicature Act and re-enacts in modern language those provisions which are still required, modified so as to allow for the new system of investment. It also makes the necessary modification to the County Courts Act and provides for those matters, such as accounts and the ultimate liability of the Consolidated Fund, which are common to both.
I do not think your Lordships will wish me to go through these clauses one by one. I ought, however, to mention in passing Clause 6, which, for the first time, sets out in a comprehensive and positive form the methods in which funds in the Supreme Court may be invested. The House will see from Clause 6(1) that, for the High Court, these methods are, first, placing to a deposit account; secondly, placing to a short-term investment account (which is the expression used to describe the current county court system, now applied to the Supreme 512 Court); thirdly, placing to a long-term investment account, which means investing with the Public Trustee; and, fourthly, investing in specified securities, which is the present system. Under Clause 6(2) mental patients' funds may, in addition, be invested in any securities which the Mental Health Authority may specify.
May I now turn to Part II? This part of the Bill deals, as I have said, with a number of unrelated topics, varying from the control of widows' damages to the commutation of annual payments made to the incumbents of benefices whose predecessors' incomes were prejudiced by the compulsory acquisition of the land on which the present Law Courts were built. I may say that this in itself is a fascinating story, but I do not think time permits of telling it here. There are only two matters dealt with by Part II to which I need draw the attention of the House. The first is Clause 19 and the second Clauses 20 and 21.
Clause 19 makes provision for the control in certain cases of damages awarded to a widow in a Fatal Accidents Acts claim. As your Lordships are probably aware, under the current law such damages are not paid direct to the widow but are paid into court and are dealt with as the court may direct. The court may order some or all of the money to be paid to the widow, or it may retain the money in court and order it to be invested on her behalf. Whether or not this control should be retained, modified or abandoned was one of the questions which the Pearson Committee was asked to consider. There are powerful arguments on either side. It may be said that to single out widows as a class unfit to be entrusted with large sums of money is inconsistent with the modern conception of equality of the sexes, and that if such a rule is justifiable at all it ought to apply to all widows' property. It may also be said that the Scots manage perfectly well without such a rule and that the Northern Irish have also managed without it since 1952 (though I believe there is a body of opinion in Northern Ireland in favour of its reintroduction).
Against this, those with much practical experience of the "county court widow"—and their number includes the Law Society, the T.U.C., Masters of the Supreme Court and Registrars of the County Court—think that it would be 513 wrong to allow a widow with no experience of handling large sums to have unfettered control of an award of damages which is meant to take the place, over the years, of the family wage packet. I think there is general agreement that, at any rate where there are infant children, some provision should exist whereby their interest in the fund may be safeguarded.
The Pearson Committee's Report canvasses the arguments on either side; the Committee itself comes down in favour of retaining the existing degree of control, while recognising that there might be a compromise solution whereby control was to be exercised only in the case of a widow with infant children. In such a case, the damages constitute, in essence, a "family fund", and, if the mother's own damages were paid out to her and were dissipated, the children's shares would be called on to pay for their maintenance to a greater degree than would otherwise have been the case. Indeed, of course, it has always been the practice of the court to give the widow by far the largest sum, on the footing that she would, after all, be using it for the benefit of the children. If one takes a widow with three children and there is a total award of £6,000, it would be common, I suppose, to find the widow being given £5,000 and the children a few hundred each on that basis.
The compromise to which I have just referred is adopted by the Bill. I should however, like to make it clear that my mind is by no means finally made up about it and I should very much like to hear the views of noble Lords, and of Members of another place, before coming to any final conclusion. Obviously, we cannot debate this issue in detail to-day, but I hope we may have a full discussion at a later stage.
The only other provisions of Part II on which I need detain this House are Clauses 20 and 21. Under the current law, a county court has jurisdiction to make what is called an administration order in respect of a county court judgment debtor: it is a rather less drastic form of bankruptcy and was in the past much used where the debt was insufficient to support a petition in bankruptcy. There is, however, a limitation on the county court's jurisdiction which cannot be exercised if the debtor's 514 indebtedness exceeds £50. This figure has stood since 1869, but it is no longer realistic and in practice it so restricts the scope of this jurisdiction as to make virtually useless. All those with experience of these matters think that the county court could again perform a useful function in this field if the limit were raised, and Clause 20 accordingly raises it to £250.
Raising the limit in this way means that there will in future be an overlap between administration orders and bankruptcy. Clauses 20 and 21 include provisions designed to avoid conflicts and to safeguard the interests of substantial creditors who may prefer the more formidable procedure of bankruptcy. I am not sure even now whether it is wise to specify a figure without making some provision for future alteration by statutory instrument, whether in Affirmative or Negative form, because otherwise we are always in this difficulty, that almost any figure in an Act of Parliament gets out of date, and as it is nobody's business to look to see whether English law is being kept up to date it then goes on and on; and here is a good example of a sum of money which was fixed in 1869 and obviously ought to have been altered a very long time ago.
There is very little that I need say about the remaining provisions of the Bill. I have already referred briefly to them aid the only clause to which I should like to draw particular attention is Clause 28. This clause will make it possible for the Public Trustee's common investment funds to be made available for the investment of funds in the Supreme Court of Northern Ireland. There will not be a separate Northern Irish Fund but, if the necessary Order in Council is made the Accountant-General of the Supreme Court of Northern Ireland will he able, on the Court's direction, to buy shares in the Public Trustee's funds.
I hope I have not detained the House overlong on what are somewhat technical matters. I would add only one thing. If there is any credit for this Bill it should go to the late Government. Some of your Lordships will remember that in June the noble Viscount. Lord Colville of Culross, opened a debate in your Lordships' House on law reform. I ventured at that time to suggest that the main reason why our law is in the mess it is in is that we have 515 no machinery for submitting it to systematic or continual review. The Lord Chancellor cannot do it himself, nor can his small staff. And while his Law Reform Committee may, I hope, having been a member of it for many years, have done some good work; and while judges, barristers and solicitors meeting for an hour and a half after a long day's work may at the end of a year or two produce a useful report on some relatively small point of law, you cannot overhaul the law of England in that way. I ventured to suggest that that was the main trouble, and it was not, as was so frequently said by way of excuse, lack of Parliamentary time.
I remember drawing attention to the fact that a Committee presided over by my noble and learned friend Lord Evershed had pointed out eleven years ago that we have about forty different Acts of Parliament dealing with the law of evidence over about 250 years. They ought to be codified. I remember asking the noble and learned Lord, Lord Dilhorne, how he was getting on; and, while not replying to that question at all, the noble and learned Lord maintained the view that there was no difficulty in preparing plenty of Bills; the whole difficulty was in finding Parliamentary time to get them through. I now find no step had been taken at that time to implement the Report of the Evershed Committee, now eleven years old. And whereas, from what the noble and learned Lord, Lord Dilhorne, said, I expected to find the cupboards of the Lord Chancellor's Department stacked with the Bills all ready for presentation though unable to be presented owing to lack of Parliamentary time, on opening the Law Reform cupboard I found in fact—and here I think in another place metaphors have become somewhat mixed, because I have read of cupboards being opened and candelabra being found under carpets—an empty cupboard except for the one pigeon-hole which had this one Bill in it.
It is only right it should be made plain that it is to the late Government that any credit is due for the preparation of this Bill, and it is because of that that I have thought it right to leave in the Bill the recommendation that the present power of the court to control the damages awarded to a widow who has no children 516 should be revoked. But it is, if I may say so, eminently a matter for your Lordships' consideration and for those in another place.
If I may just shortly tell your Lordships the best arguments for letting the widow have the whole of her money at once, they are those put forward by the Bar Council to the Pearson Committee, which are these. One is that the imposition of a restraint by the State upon the right of an individual of full age and of sound mind to deal as she will with her own absolute property is fundamentally wrong; the second is, alternatively, that if the system of control i3 regarded as being in the nature of a social service, it is wrong to impose such a service upon some small section of the population against its wishes—the exercise of compulsory paternalism by the State in this type of case to the exclusion of all others cannot be justified; and thirdly, that there were at one time a number of restraints upon the rights of women of certain categories to deal with their own property, and, except for the control of damages awarded to widows under the Fatal Accidents Acts, all have now been removed.
They say that it is highly anomalous that a woman who has been awarded £5,000 damages in a personal injury accident can at once receive the whole of it, although she may have no experience at all in managing such sums, whereas in a fatal accident case the court has a power—it does not always exercise it, of course—to order the money to be paid into court; and then they say that damages awarded to compensate for actual pecuniary loss belong solely to the persons to whom they are awarded, whatever their status, and they should be free to spend them, if not under legal disability. A widow is under no such legal disability.
I appreciate fully the force of those arguments. At the same time I must say that personally I am troubled by the fact that, of course, there are others who know the litigants a good deal better than the barristers, and I am impressed by the fact that the Law Society, speaking for all solicitors, the Trades Union Congress, the experienced county court registrars who deal with widows, and Masters of the Supreme Court are all of the opinion that it would 517 be desirable to retain the present powers in the interests of widows themselves.
Of course, if a judge has a woman before him who has been in business and appears capable of managing her own affairs there is nothing to stop him from giving the damages to her at once, but it is said in these cases that there are too many men around who want to sell bankrupt businesses to widows who receive sums of this kind and relations who are only too anxious to borrow money from a woman who has suddenly received a very large sum. It is a very real protection to 1 he widow to be able to say: "Well, I am afraid I cannot, because the money is not under my control." Of course, if she needs the money for any special purpose, such as school fees, clothing, holidays and so on, she can, and does, apply to the local court for it. For these reasons I venture to hope that we shall have the experienced knowledge of your Lordships' House upon what I think is a difficult question and one which is really entirely a matter of opinion. I beg 10 move that this Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 3.35 p.m.
§ LORD DILHORNE
My Lords, I had hoped this afternoon to be able to strike an entirely uncontroversial note, but in the light of some of the observations that the noble and learned Lord, the Lord Chancellor, has made, I am afraid that will not be entirely possible. But I am very glad that the first Bill which has come before your Lordships' House for consideration in this new Parliament should be one to which I can give unqualified, or almost unqualified, support. I doubt whether there will be many other occasions on which I shall be able to do this, although, as I indicated in an earlier stage, I hope there will be at least one.
As the noble and learned Lord, the Lord Chancellor, has said, the Government have inherited this Bill from the last Government, and I sincerely congratulate the noble and learned Lord on bringing it before the House now. We should certainly have done so if we had won the Election. I was grateful to him for acknowledging so firmly that it was a Bill he had inherited, but, of course, 518 he had to add to that some observations of a controversial character. The noble and learned Lord reverted to his observations in the debate we had some time ago about law reform, and he asserted yet once again that the law of England is in a mess. It does not matter how long or how often the noble and learned Lord repeats that general observation, it will not command general acceptance. I entirely agree—I have never dissented from the proposition—that there are fields of the law which are capable of improve- ment, but I certainly said nothing in the course of the debate to which the noble and learned Lord thought fit to refer this afternoon to suggest that there was a stack of law reform Bills awaiting introduction. My argument was to the effect that the machine for law reform was satisfactory and could indeed be expanded, but, of course, the governing factor, as I am sure the noble and learned Lord will find in due course, is the limitation upon Parliamentary time.
The noble and learned Lord, the Lord Chancellor, referred to the Evershed Committee. Of course, the report of the Evershed Committee, of which the noble and learned Lord was a member, has been considered again and again, but it does not follow that just because a recommendation of a Committee has not been implemented by legislation, that recommendation was accepted. Having said that—and I am rather sorry that the noble and learned Lord, the Lord Chancellor, introduced this afternoon this note about law reform—I should like to express my thanks to him for the clear and able manner in which he expounded the contents of the Bill.
The problem of the proper investment of funds in court is no new one. My predecessor and I were both concerned about it. My predecessor, as the noble and learned Lord has said, appointed the Funds in Court Committee, presided over by Lord Justice Pearson, and I, too, should like to express my appreciation of the excellent work they have done, for which I am sure everyone who is aware of the complexities of this problem is most grateful. The Bill does not precisely follow the recommendations made by the Funds in Court Committee, but their Report is the basis of Part I, and where the Bill departs from their recommendations it is, I think, to make 519 improvements in the light of further consideration.
The noble and learned Lord, the Lord Chancellor, has drawn attention to what has happened in the past with regard to investments that have been made: how some of them have not been safe against inflation, and in some cases, as he indicated, there has been a substantial loss in capital value—that is to say, the litigant who has succeeded in obtaining an award of damages has found at the end of the day that the sum obtained because of the depreciation of the investment is far less than the sum awarded to her. I think it ought to be made absolutely clear that there can be no doubt but that those who in the past had the responsibility for deciding upon the investment of funds in court did their utmost to invest wisely; but the investments that they could make from funds in court, as the noble and learned Lord has pointed out, in a number of cases proved to be the reverse of beneficial.
It has always been a matter of great difficulty to satisfy those litigants who have suffered such a loss as to the reasons for it, and I hope that as a result of the somewhat complicated machinery which is now being set up that situation will not occur again in the future. While the monies which constitute the funds in court will, of course, have to continue to be invested in the most prudent manner, it will, I hope, under this system be possible to secure for those entitled to the money the advantages which accrue from shrewd investment on expert advice.
The noble and learned Lord, the Lord Chancellor, referred, in a passage I am not sure I quite caught accurately but at which I shall look before Committee stage, to the low rate of interest where the funds were invested, I think he said, by the National Debt Commissioners; and he held out some hope that that would be capable of improvement because the interest, I think he said, from all the funds in court would be available for that purpose. If I have it right, that sounds most satisfactory. We will certainly look at that again, at what the noble and learned Lord has said, before we reach the Committee stage.
The long-term schemes for which provision is made by Clause I are a new 520 development, and I am sure it is right that they should be operated by the Public Trustee. As the noble and learned Lord said, the Bill places no restriction on the Public Trustee's powers of investment. That is an important point to which the noble and learned Lord, if I may say so with due respect, quite rightly drew attention. As some of your Lordships may remember, not long ago I, as Lord Chancellor, had to conduct an exhaustive and, if I may say it, exhausting inquiry into the operations of the Public Trustee; and in the light of that investigation I must say that I am entirely satisfied that the Public Trustee is the best person, and indeed the proper person, to be responsible for the investment of these funds.
I should have thought that the taking on of this additional burden would have meant a not inconsiderable increase of work for the Public Trustee, and I was therefore somewhat surprised by the statement made by the noble and learned Lord on the Woolsack that it was thought that no appreciable increase of staff would be required. Of course a great deal may depend upon what is meant by "appreciable". And it is true to say that the kind of staff the Public Trustee requires in this type of work would need to have considerable expert qualifications, and they are not so easily found.
I would just add that if the Public Trustee has not sufficient staff, there are likely to be delays which might be avoided; and delays in this field may involve loss of capital appreciation. One does not want anyone to have more staff than is necessary, and all I will say before I pass from this topic is that I hope that, if the Public Trustee finds that he does require more staff, in order to carry out this extra work which he is now undertaking, efficiently and speedily, the Treasury will turn a sympathetic ear to any request he may make for help.
I do not propose to say any more about Part I of the Bill to-day; nor, indeed, do I intend to say so very much about Part II. We may have some points to raise on Part I when we come to the Committee Stage, because of course we shall examine this Bill, although it has been inherited, with a fresh look and we will try to make it as good as it can be made. The noble and learned Lord the Lord Chancellor referred, in particular, 521 to Clause 19. That is the clause which provides that the court shall keep control over the investment of sums awarded under the Fatal Accidents Act to a widow where proceedings were also brought for the benefit of an infant. In all the preliminary work which went on in considering the contents of this Bill there was throughout, as the noble and learned Lord has said, sincere controversy, of a non-political character, on the question of principle—namely, whether or not the courts should, in these modern days, continue to have control over the award of damages under the Fatal Accidents Act to widows. I must say that I find it hard to justify that degree of paternalism on the part of the court in relation to widows when one bears in mind that there is no such control over any sum of damages awarded to any spinster of any age. Why it should be thought that widows are less competent than spinsters to look after their own affairs, I cannot say. Why it is thought that a spinster can look after her affairs until she is married, but that if she married and subsequently became a widow, and there was an award under the Fatal Accidents Act, the court should then take control, I find it difficult to understand.
Of course, it is always said, as an argument in support of the courts' retaining the power they now have, that there are many men crowding around trying to sell the poor widow bankrupt businesses. That was a phrase which the noble and learned Lord the Lord Chancellor used. I have never heard it said that there are too many men crowding round the spinsters who have obtained awards of damages, trying to sell them bankrupt businesses, or indeed to marry them. But in the case of the widow with an infant child, then I do feel that there is a case for continuing the court's powers.
I think the House will agree that where there is an award of damages to an infant, it is right that the court should, in the infant's interest, exercise some control over what happens to that money. I myself take the view—although I entirely agree with the, noble and learned Lord that this is a difficult issue—that the solution propounded in this Bill is right, because, as the noble and learned Lord has said, in making an award to the widow where there are infants the practice has been to award the major sum to the widow, bearing in mind that 522 she will look after the family, and smaller sums to the children. Therefore, where you have that kind of award, I think that the case for continuing the control is overwhelming. But where there is no infant and it is just a case that the court should exercise its power over a widow of any age, then I feel that it is wrong: one cannot in this respect draw a distinction between a widow and a spinster. We shall have an opportunity of debating this question at greater length, no doubt, during the Committee Stage.
On looking at the clause again, I should like to say that I am not entirely happy about the way in which it is drafted. I am a little puzzled in this respect. As your Lordships will see, the Explanatory Memorandum at page 3 says that this control will be exercised where money is recovered under the Fatal Accidents Act by a widow and also by an infant. The Explanatory Memorandum says that the court may control the money recovered by a widow as well as by the infant until the latter attains 21. When we look at Clause 19 we see that the clause applies not only where there is a widow but also where there is, or was, an infant. I am a little mystified, and perhaps the noble and learned Lord will take note of this point—I do not expect him to reply to-day—as to the inclusion of the words "or was an infant". I wonder whether it does not to some extent conflict with the Explanatory Memorandum. I think it is perhaps desirable (perhaps we can explore this) that it should be made clear that this clause need not necessarily apply where the widow is not the mother of the child: where, for instance, there has been a child, who is still an infant, of an earlier marriage and the widow is the widow of a second marriage. It is an important provision. As I have said, I do not intend to take up your Lordships' time in dealing with it any further to-day.
With regard to Clause 20, I would say that this clause, and the subsequent clauses, were all clauses which would have been in a Conservative Government's Bill if it had rested with us to introduce it. I am sure that it is a wise thing to revive this ancient procedure. One of the difficulties will be that there will be no practitioners who have any real experience of operating it. I hope that the noble and learned Lord the Lord Chancellor will do what lies in his power 523 to draw this procedure to the notice of practitioners, because I believe that it will work satisfactorily and may be far better, from everybody's point of view, than the alternative of bankruptcy proceedings.
My Lords, I do not think that I have struck an entirely non-controversial note this afternoon. I certainly had not intended to be as controversial as I have been. I should like to conclude by joining in supporting this measure, and by saying that, so far as we can, we will assist its passage to the Statute Book; although that does not mean that we may not have questions to raise, to which we shall hope to receive satisfactory answers, in the course of the Committee stage.