§ 11.12 a.m.
§ LORD STOW HILL
My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
§ Moved, That the House do again resolve itself into Committee.—( Lord Stow Hill)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD DOUGLAS OF BARLOCH in the Chair.]
Debate resumed on Amendment No. 1, moved on Thursday last by Lord Dip-lock: namely—
After Clause 3 insert the following new clause—
§ Periodical payments to widows and other dependants
§ (".—(1) In any action for damages brought under the Fatal Accidents Acts, 1846 to 1959, the court shall have power to make an order (in this section called a "periodical payments order") for the payment by the Defendant to any dependant for whose benefit the action is brought of such sums of money at such intervals and during such period as may be specified in the order.
§ (2) A periodical payments order may be made instead of or in addition to any judgment for a lump sum by way of damages for the benefit of a dependant.
§ (3) The payments to be made under a periodical payments order shall be assessed according to the financial loss likely to he sustained by such dependant as a result of the death of the deceased during the period for which the order is made and different sums may be ordered to be paid in respect of different intervals during the period of the order.
§ (4) The Defendant and any dependant entitled to payments under a periodical payments order may at any time apply to the court for a variation of the order as to the amount of any future payments to be made thereunder or as to the intervals at which or the period during which such payments shall be made. No such application shall be made except on the ground that there has been a material change of circumstance which has resulted in the payments ordered to be made ceasing to he a fair assessment of the financial loss likely to be sustained by such dependant after the date of the application.
§ (5) Upon any application under the last preceding subsection the court, if satisfied that there has been such a material change of circumstance, 1526 may make such variation in the order as it think just.
§ (6) Where the court makes a periodical payments order in favour of a dependant who is a widow at the date of the order, the likelihood that she will re-marry during the period of the order shall not be taken into account in assessing the amount of any payments ordered to be made to her thereunder but her re-marriage after the date of the order may be relied upon as a material change of circumstance for the purposes of any application under subsection (4) of this section.
§ (7) Where the court gives judgment for a lump sum by way of damages for the benefit of a dependant who is a widow at the date of the judgment, the likelihood that she will re-marry thereafter shall not be taken into account in assessing such damages unless the full particular delivered pursuant to the provisions of section 4 of the Fatal Accidents Act 1846 contains an express statement that no application is made on her behalf for a periodical payments order and that if the court thinks fit to give judgment for a lump sum by way of damages for her benefit she is willing that the likelihood of her re-marrying after the date of the judgment should be taken into account in assessing such damages.")
§ VISCOUNT DILHORNE
We now resume the discussion on this matter. I sympathise very much indeed with those of your Lordships who are short of sleep. For that and other reasons, I shall try to confine my remarks to the shortest possible compass. However, there is a good deal that I wish to say. I shall say it as shortly as I can.
In the first place I should like to make it quite clear that those who have put down these Amendments have not made any attempts to organise opposition, or to engage in filibustering or anything of that kind. I know that those who support the Bill as it stands have done a good deal to organise support, and a good deal of lobbying. I have no complaint to make about that. I do not think that any of us have, although I think that perhaps the Peers' Guest Room is not the most suitable place for a mass meeting to deal with this particular proposal.
I should like also to say that I do not think there is anything improper in our tabling these Amendments. I know that Law Lords do not normally do so, but I think we can claim some experience in seeing how the law works. Indeed, I believe that some would say that we should be failing in our duty if we did not draw the attention of the House to 1527 a proposal which we did not consider satisfactory, and if we did not endeavour to improve on it. What the Bill proposes has already been severely criticized—by my noble and learned friend the Lord Chancellor on Second Reading, and by the noble and learned Lord, Lord Denning. Whatever some people may think of some of us, rightly or wrongly, I venture to suggest that no-one would describe Lord Denning as reactionary or opposed to reform. He criticised the Bill in its present form severely.
§ BARONESS SUMMERSKILL
May I make one suggestion, if the noble and learned Lord will allow me? Does he recall that Lord Denning's last sentence was that he did not know how he would vote?
§ VISCOUNT DILHORNE
Yes, I well recall that, and well recall the noble Lady's speech in which she misconceived the whole proposal. No doubt I shall be interrupted again by the noble Baroness. Of course, if I am interrupted it must mean that I shall take longer than I otherwise would. I am trying to keep my remarks as brief as possible.
My Lords, the fact that the noble and learned Lord, Lord Denning, did not then know how he would vote did not invalidate his criticism of the Bill as it now stands. The Bill was criticised by my noble and learned friends Lord Pearson, Lord Diplock and Lord Denning. Lord Pearson, Lord Donovan, Lord Diplock and Lord Denning have all had experience, which I have not had and which I do not think that the Lord Chancellor has had, of the actual difficulties of assessing damages in claims under the Fatal Accidents Act. For myself, I pay great regard to their views, which should not be lightly disregarded or cast aside.
From listening to the debates on Second Reading, and in Committee, I think the first question which arises is whether a widow's damages should be reduced in consequence of a remarriage which leaves her better off than she was during her first marriage. When the financial loss she has suffered as a result of her husband's death is assessed, regard must be had to the length of time during 1528 which she might, if he had lived, have continued to enjoy that financial support. If she remarries and is better off, the loss she has suffered by the death comes to an end. I find it difficult to accept the view that she should receive compensation in excess of the loss which she has, in fact, suffered.
It may be that in the old days the court did not go so deeply into the assessment of damages as it does now, when so often very large sums are involved. In principle, surely it must be right that the courts should not award damages in excess of the loss actually suffered. If this principle be accepted —and I know it was not accepted by the noble Baroness, Lady Summerskill, who thought that, despite all that had been said to the contrary, the judges had to assess the value of a housewife's working life, which is not the case—it does not follow that the present system has to be adhered to, and that the judges will have to evaluate the prospects of a widow's remarriage. I fully appreciate the dislike that must be felt by a woman who is being looked at by a judge in his endeavour to assess her prospects of remarriage. For my part, I am strongly in favour of a change in the existing, law. Reference was made to the Report of the Winn Committee; the noble Baroness, Lady Summerskill, referred to the Report. I entirely agree with the Winn Committee. I want to see the law changed. I should like to see the change made soon, but I want the change to be one which will work, and work well. What we criticise is what it is proposed to put in the place of the existing, law.
My noble and learned friend, Lord Stow Hill, must know that if the present law is changed in relation to widows, that will not mean that judges will not, on occasions, have to evaluate the matrimonial prospects of some women plaintiffs. It may be claimed, in damages for personal injuries, by a young woman or a young widow, that the injuries are such as to destroy or impair the prospects of marriage in the one case and remarriage in the other. Damages may be sought on that ground. If they are, the judge will have to decide, partly from looking at the plaintiff, whether that claim is made out. Is that wrong? Is that repulsive, obscene and ugly, an indignity, detestable, comparable to a 1529 cattle market? No-one has as yet said so.
§ VISCOUNT DILHORNE
No attempt has been made in the Bill to alter that. It could have been; it has not. In the case of a young widow claiming for personal injuries, impairment of the prospect of marriage will increase the damages. Is it suggested that that should be left out of account? That would be very unfair to the woman. If she claims under the Fatal Accidents Act, and it is thought she is likely to remarry, that will reduce the damages. I cannot think that that is the reason why the attempt has been made to alter the law in the case of widows making claims under the Fatal Accidents Act, and not in the other cases. Whatever may be said on the basis of indignity, and so on, I do not think that a judge can form any reliable estimate of a woman's matrimonial prospects just by looking at her in the witness box for a short time. That is a powerful reason why I, for one, want to see a change, and that change made quickly. In personal injuries cases, the judge will have medical reports to help him in his assessment, but he will still have to look at the woman plaintiff and make up his own mind.
I turn now to the changes proposed. My noble and learned friend, Lord Pearson, in the Amendment he has given notice of, seeks to prevent evidence being given and cross-examination being made as to the prospects or re-marriage. I agree with that. I myself would not attach much importance to what a widow might say on that; not because I disbelieved her, but because everyone knows that people's intentions change. However, I do not think that my noble and learned friend's Amendment goes far enough, for it still leaves it to the judge to form his opinion of the widow's matrimonial prospects from just looking at her. Just looking at her, in my opinion, does not suffice to justify a reduction of the damages that otherwise would be awarded to her.
I myself would be inclined to take the view that probably a young widow in her twenties would be more likely to re-marry than a widow in her fifties, but I know of no statistics to support that 1530 or to show that it is wrong. If it be right, then we might perhaps provide that a judge should just have regard to a widow's age and, in the case of a young widow, make some reduction on account of the prospects of re-marriage. That would have the advantage that it would at least help to prevent the unfairness of an award to a young widow far exceeding that awarded to an elderly widow with children—an unfairness to which the noble and learned Lord the Lord Chancellor drew attention on Second Reading. Such a change would not involve any assessment of the individual woman's personal charms and attractions. I agree with the reasons given by by my noble and learned friend Lord Gardiner—I hope I may still call him that, though we do disagree on occasions —why it would not do for a judge to take into account the fact of re-marriage, if it has occurred by the time of the trial, but not the prospects; or the prospects only if there is a firm and settled intention to re-marry.
The defect of the Bill as it stands is not only that it may lead to unfairness as between individual widows, but that it requires a judge to shut his eyes to the fact of re-marriage, if it has occurred, and to assess the damages as if it had not, and, as my noble and learned friend Lord Pearson said, to substitute fiction for reality. I repeat, if the widow has re-married and is better off, the loss due to the death of her first husband will have ceased: but under the Bill the judge will he required to assess the damages as if it had not, and to award a sum in compensation for a financial loss greater than that she had suffered.
How far is the fiction to go? This is a serious question. The judge will have to treat her as unmarried; although she is married. Unmarried, she might earn a good salary; married and better off, it may be that she is unlikely to do so. In treating her as unmarried—a fiction—has the judge to proceed on that basis and take into account her potential earnings, though he knows that, as she is married, they are not likely to exist? How far is this fiction to be carried? The Bill is quite silent on this. It gives no guidance where guidance should be given. If guidance is not given, judges will he faced with a problem which they should not be required to tackle. The absence of guidance on this issue is likely 1531 to lead to much unnecessary litigation. I know that this has been mentioned earlier. It was mentioned by the noble and learned Lord the Lord Chancellor, and by the noble and learned Lord. Lord Denning, and so far no satisfactory answer has been given.
I suggest in all seriousness to the Committee that we should not pass the Bill in its present form without an answer, and that we should not pass it without the answer and the guidance being incorporated in the Bill. The noble and learned Lord the Lord Chancellor has a special responsibility to see that that is so. I feel that the right way to get over the difficulty is to provide for periodical payments. The noble Baroness, Lady Summerskill, was in favour, although I did not quite understand why, but she did not think that they should be varied on account of remarriage. My noble friend Lord Stow Hill, in one of his more purple passages, painted a picture of hordes of snoopers pursuing widows to find out whether there has been a change of circumstances. He also referred to snoopers on Second Reading. I am sure that insurance companies do not employ hundreds of snoopers to harry widows with claims under the Fatal Accidents Act. This is one respect in which I feel there has been considerable exaggeration. I do not think that insurance companies will endure the expense of employing hundreds of snoopers if our Amendment is carried.
The noble Lord instanced the case of a wealthy admirer moving a widow from a cottage to a penthouse flat in Park Lane. He said that she would have her periodical payments reduced. He said, "Can anything more repulsive be imagined?" But do not widows in receipt of pensions under the National Insurance Act lose their pensions if they re-marry, or if it is found that they are being kept by someone? Is that wrong? Is that repulsive? I have not heard that argued so far.
§ VISCOUNT DILHORNE
I shall look forward to hearing the argument, but so far I have not heard it advanced. The noble Baroness, Lady Summerskill, will 1532 no doubt speak again in due course, which may prolong proceedings, but if she is going to interrupt me I should prefer that she rose to her feet to do so. To revert to what I was saying, one then has considerable inconsistency, and that is the present position. If the noble Baroness wants to carry on a conversation the whole time I am speaking, I shall have to repeat what I have said. Even though she may not take it in, I have some hopes that other noble Lords and. Baronesses might do so.
§ BARONESS SUMMERSKILL
As the noble and learned Viscount is so upset, may I point out that if he insists upon asking questions he will receive answers.
§ VISCOUNT DILHORNE
I never mind receiving answers, but I object to the noble Baroness talking when I am speaking. I sat listening to her in silence. I interrupted her once, on my feet, but I did not carry on a conversation with my neighbour. However, I am glad to see the noble Baroness in such ebullient form after a very late night. Perhaps I am giving her more credit than is due to her and that she has reserved her energy for this Friday morning.
§ VISCOUNT DILHORNE
May I come back to the point, because it is a serious consideration? Under the Fatal Accidents Act, are widows to be treated similarly to widows who receive pensions under National Insurance, or not? There will be an anomaly in that respect if the Bill is passed in its present form.
I should like to state three main reasons why I support the Amendment of the noble and learned Lord, Lord Diplock. First, it does not require a judge to shut his eyes to the facts; secondly, it reduces the area of speculation-he will make his award on the facts as they exist at that time; thirdly, the award can be varied not on account of any speculation as to what may or may not happen in the future, but in the light of changes of circumstances that have occurred. Under those proposals, there would be no assessment of the prospects of marriage; that is, in relation to the assessment of a periodical payment. If she has re-married and is better 1533 off, I fail to see any reason why the periodical payment should not be varied on that account.
The last subsection of our Amendment was bitterly attacked by the noble Baroness. Lady Summerskill. She completely overlooked the fact that that subsection can come into operation only at the instance of the widow: if the widow wants it. No one can compel her to have recourse to the rights she has under that subsection. It is only if she wishes that her future prospects of matrimony will be taken into account at all. I should not mind if that last subsection were left out. But it seemed right to make provision for a case where a widow was willing for that to be done and wanted a lump sum. I repeat, and emphasise, that that likelihood cannot be taken into account unless she asked for it.
I believe that a very strong case can be made for enabling courts to order periodical payments for damage, and not only for this reason. Recently a case came before this House of a man who was very seriously injured in an accident. He will have to be in plaster for the rest of his life. It was doubtful whether his wife would be able to manage, even if she wanted to. The man was sent home but, because of that doubt, the expense of maintaining him in a nursing home was taken into account in the assessment of damages. Soon after the trial there was a complete mental collapse. It was quite impossible for him to stay at home. A special nursing home had to be found for him and the expense of that was far greater than that of an ordinary nursing home. He had the misfortune to have this collapse: he had the good fortune to have it before the period within which he might appeal had expired, with the result that the case came before this House.
If his collapse had occurred after the time for appeal had expired, there would have been no power under our law as it stands to review the assessment of damages which, in the event, proceeded upon a wrong basis. Provision for a periodical payment where the future was uncertain would have made that right. It would have overcome the difficulty. I know that there are strong and powerful arguments for a once-for-all assessment. But there are strong and humane arguments 1534 for saying, when the future is uncertain—and not only in relation to women—that the area of speculation, which events may show to be so far wrong, should be reduced by the court having power to make an award which can be reviewed.
This, I feel, is a proper subject for the Law Commission, and so is the question which we are considering to-day. This debate has shown that it is not an easy matter. I want to see the law changed, I want to see the right solution, and I think we should have the benefit of the views and the advice of the Law Commission. I suggest that the solution proposed is open to grave objections. I should like to see this clause withdrawn from the Bill, on the undertaking of the noble and learned Lord the Lord Chancellor to refer the matter to the Law Commission, with the request that they should give it immediate attention and report at the earliest possible moment. In the light of their reply, which I hope would not be too long delayed, we might find a satisfactory solution which we could all support.
The noble and learned Lord the Lord Chancellor said that he was benevolently neutral on this issue. I venture to suggest that that is, perhaps, an unusual role for him and one that he should not adopt on this occasion, for he has a special responsibility for the law. He pointed out that the Bill would work unfairly as between widows. Surely he should do what he can to see that it does not. He said that the Bill did not make absolute sense and he expressed sympathy with the judges. He said that he thought it was his duty to sympathise with them as long as he occupied his present position. I venture to suggest that his duty goes far beyond that; far beyond expressing cynicism. He has a special responsibility for law reform and to see that impossible burdens are not put on judges, and that if the law is changed proper guidance is given as to the manner in which the new law is to apply.
§ THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE)
I am sorry to interrupt my noble and learned friend, but what exactly does he suggest I should do if the House does not agree with the arguments that he is presenting 1535 and, by a majority, decides in favour of the present clause? Is he suggesting that I should try to apply the Government Whips? If he is, what does he think would happen if I did?
§ VISCOUNT DILHORNE
The noble and learned Lord is now asking me to enter into an area of speculation. So far as he is concerned we are having a debate in Committee. He has said that his attitude to this proposal is benevolently neutral. We should have the benefit of his guidance. He cannot merely sit on the fence. He has a duty to tell the Committee one way or the other. He cannot abstain from that duty in his present position. What the consequences would be of the advice he gave, I do not know. So far he has criticised the Bill very severely. I consider that inconsistent with an attitude of benevolent neutrality. If it goes to the extent of wanting to see a change made, then I entirely agree with him.
But, as I see it, it is his duty, far outweighing all Party political considerations, to tell your Lordships whether he agrees with the fears that we have expressed in relation to this proposal, and whether he agrees that the Bill lacks the guidance that it ought to contain. If the Committee, having heard him, then rejects his advice, the responsibility lies with the Committee. I am commenting on the special responsibility which I believe the noble and learned Lord the Lord Chancellor has in a situation such as this. I hope we shall hear no more of this benevolent neutrality, because it will not do.
That concludes all I have to say, and I hope I shall not be provoked into saying anything more in the course of the debate. I hope that I have made my position clear with regard to this proposal, and that as a result of this discussion we may, in the end, reach a better solution than is now contained in the Bill.
§ 11.38 a.m.
§ LORD PLATT
Before the noble and learned Viscount sits down, may I ask for clarification on what he said about snoopers? The noble and learned Viscount said that he did not know of any insurance company which employed, or 1536 was likely to employ, hordes of snoopers for this purpose. As I understand it, therefore, he is saying that we need not worry about the snooper situation. Does it not then follow that we need not worry whether or not a widow marries, because nobody will find out?
§ VISCOUNT DILHORNE
The noble Lord is building more on my remarks than he is entitled to. I said the case had been exaggerated by the many references to snoopers; I think it has. I am sure it is not the case that insurance companies go to the expense of employing hordes of snoopers pursuing widows. I do not doubt that there are occasions when they employ them. Then, again, I suspect that some investigations are made in relation to widows' pensions and matters of that sort. Of course they are. Remarriage is not usually done in complete privacy; there will be some record of it. The real question at issue is whether, in the event of a woman becoming better off by remarriage, the amount of her damages should not be affected.
§ BARONESS GAITSKELL
The noble Lord says that there are no snoopers. Maybe I accept that. If he gives the court the right to revise those payments, surely he will have to employ snoopers.
§ VISCOUNT DILHORNE
The noble Baroness misheard me. It must have been my fault, but I have been on my feet longer than I like to be. I did not say that there were no snoopers. I said there would not be hordes of snoopers, as in the picture presented by the noble Lord, Lord Stow Hill. There may well be cases where insurance companies and the Ministries make investigations. That is not a valid ground for changing the principles.
§ 11.41 a.m.
§ BARONESS EMMET OF AMBERLEY
My Lords, it must seem rather presumptuous for a layman to enter a discussion where noble and learned Lords, of whom we see a formidable array, are not themselves entirely in agreement. I am not sure whether the widows outweigh the Law Lords in the Chamber at the moment, or whether it is the other way around. I have one advantage over the noble Lords. I am a widow. It must be extraordinarily difficult for noble and learned Lords to put themselves into the widows' shoes at the time when these 1537 decisions are taken. In many cases the shoes would not fit.
During the Second Reading debate on this Bill the noble and learned Lord, Lord Gardiner, quoted something that I had said nearly five years earlier. What I said in 1966, and what the noble and learned Lord was kind enough to quote, was:It is very derogatory to a woman who is having damages assessed for the judge to assess what he thinks is her marriage value. It dates hack to the old slave market attitude, and I am sure that that is something that should be abolished."—[OFFICIAL REPORT, 16/ 11 / 66; col. 1323.]My attitude is still the same. I was very glad to hear that the noble and learned Lord, Lord Dilhorne thinks that a change is necessary.
Listening to the noble and learned Lord, Lord Diplock, on Thursday last, I suddenly realised that, widowed at the age of thirty-five, and left with four children, the eldest just ten years old, I was his "typical widow". Listening to the noble Lord, I was torn between feelings of injured pride that he would not consider me remarriageable, and hope that he would give me the maximum damages. After half an hour or more I began to feel more sorry for the judge, having to dispose of this extraordinarily repugnant task, than for the widow. A conscientious judge must find it very difficult, and I cannot understand why the noble and learned Lords would not be glad to be rid of this imponderable and difficult decision.
On the Amendment of the noble Lord, Lord Pearson, I asked myself: what constitutes evidence? The noble Lord, Lord Stow Hill, quite rightly said that the appearance of a widow, inevitably, must be strong evidence one way or the other on remarriage. Is the judge not to "look upon her", in the quaint words of the Old Testament, at all, or would it be better if the widow was veiled?—when there would be no evidence.
§ LORD PEARSON
I ought to intervene on this. The Amendment standing in my name is meant to effect that there should be no evidence called, nor any cross-examination of the widow, unless she herself chooses to adduce evidence on the subject. That does not mean merely going into the witness box. It obviously means that she chooses to give evidence, 1538 in the ordinary sense of the word, on the subject. I say that to explain what is meant by my Amendment. If I have not found the right words, that can easily be put right, but that is clearly what I intended.
§ THE LORD CHANCELLOR
I am sorry to interrupt. Double interruptions on an interruption are rather disorderly. The noble Baroness has the car of the House. She gave way to the noble and learned Lord, Lord Pearson, who has now resumed his seat. It would be a mistake to try to pretend that he was speaking. He was not. He had intervened in Baroness Emmet's speech.
§ BARONESS EMMET OF AMBERLEY
I appreciate the point made by the noble and learned Lord. Nevertheless, he cannot get away from the fact that if the widow is there her appearance will create evidence of some sort. There is a charming legend, of the time of Mohammed, of a village so disturbed by a very beautiful girl who had grown up there that the villagers went to the Prophet to ask what should be done, because this had disrupted the whole of village life. His answer was quick and short: he dealt with the sex problem quite easily by saying that all the women should be veiled. Perhaps this could be applied in the law courts.
One slip of the tongue by an anxious and nervous woman in the witness box might give the defence the opportunity it needed to put probing questions—then the fat could be in the fire. I am unable to support the Amendment. I am no lawyer, but as I understand it, the Fatal Accidents Act 1846 made no mention of remarriage. It is a judge-made and fairly recent law, or legal custom, for this to be taken into consideration. Insurances are paid up fully, and on the spot, if the husband has had the foresight to insure. I cannot understand why damages resulting from the death of the husband should not also be paid on the spot.
The noble and learned Viscount, Lord Dilhorne, talked about fiction, remarriage and so forth. There is no fiction in the death of a husband, or the damages at the time. If the noble and learned Lords would stick to that point they would not 1539 need further guidance. There are the facts; there are the damages; there is the death of the husband, and no fiction whatsoever is connected with it. What happens to her after the husband's death is the woman's own business, and no one else's. However attractive, and however much sought after, marriage may be wholly repugnant to a widow. It may be something to which she is driven for economic reasons connected with her children, or for reasons of companionship. For whatever reasons these decisions are taken, they are personal.
I cannot understand why a judge, however wise and conscientious, should take an intimate interest in the matter. The only relevant fact to be taken into account is the damage inflicted on a wife by her husband's death through somebody's negligence. That is the point: through somebody's negligence the whole of a woman's life has been changed. Because of a widow's attractive personality, or because of some other good fortune which may have befallen her, we are asked to allow the negligent person, through the insurance company, to benefit by being relieved of a certain amount of the damages. This is hardly fair. It should not be so, and the women's societies agree that it should not be so.
Annuity payments, in place of a lump sum, have been discussed. We must have it clearly in mind—Lord Stow Hill has said so, and I agree with him—that annuity payments would keep a woman under leading strings, possibly for the rest of her life. The noble and learned Viscount, Lord Dilhorne, does not like the word "snooping". I cannot think of another to fit the case: the insurance companies would not he doing their duty if they did not snoop; and they may already have a special department for this purpose. But that they would have to watch the widow is, I think, undoubted —and the administrative costs involved could be far greater than paying damages at the time.
With annuity payments there is the question of the fall in the value of money. Admittedly, in the case of a lump sum the widow may lose through a fall in value. This is a risk we all take. On the other hand, with annuities there would be this constant adjustment to take into account such a fall. With 1540 regard to the argument of the noble Baroness, Lady Summerskill, about housewives being used to weekly payments, I agree that in a sense they are; but I think women are eminently adaptable. It is one of the great qualities of their sex. I am sure that this is not really an obstacle. I do not quite know how the noble Baroness would expect these weekly payments to be made. Would the widow have to go to an office once a week? What is the suggestion? Would there have to be a valuation every time there was a rise in the cost of living? All this would add to administrative costs.
§ BARONESS SUMMERSKILL
The noble Baroness did mention that the amount of money that the widow finally receives would be smaller, because of the change in the cost of living. She has just put the point with which I agree. It would be better for her to hive periodical payments which would be adjusted to the cost of living. She would not lose.
§ BARONESS EMMET OF AMBERLEY
She would not lose perhaps, but think of the bother. I would prefer to lose a little and avoid having to go once a week to get my payments. Finally, I want to say a word about the argument of the unfairness between widows of different ages. I think the noble and learned Lords attach far too much importance 40 that side. Justice can be administered only on very broad lines; it cannot always be fair to everybody. should have thought that the insurance companies and the Law Society, if they put their heads together, could get out some actuarial figures now which would help noble and learned Lords in this matter after this Bill has gone through. We do not want to wait for that.
This Bill went through the other place with very few alterations, and with the support of both Parties and all womens' societies in the country. We should be making a very great mistake to throw it out now. What the future holds for the widow, young or old, childless or with a family, Heaven knows! The only thing that stares one in the face, and in my view the only thing to he considered, is the cataclysmic disaster which overtakes a woman on her husband's sudden death, through somebody else's negligence.
1541 The effects of this are never completely wiped out.
§ 11.56 a.m.
My Lords, first of all I should like to emphasise the point that has been made by the noble Baroness, Lady Emmet. Irrespective of the legal points involved the country as a whole is revolted at the situation as it stands at present in respect of assessments of prospects of remarriage. There is no doubt at all in anyone's mind that the law should be changed. The women's organisations have come to that conclusion, as have the noble and learned Lords who have spoken and moved the Amendment with which we are dealing. The law must be changed. The question to decide is how best to alter it. Is it possible to assess in the light of this Amendment, or in any other way, by reference to the possibility of her remarriage, or to the question whether she has already remarried, the damages clue to a widow?
I speak now as a practitioner in the solicitors' profession, I speak as one who has to advise people. A widow comes along to the office and asks, "What shall I do?" The noble and learned Lords themselves are not too sure about the answer; because, if you look at Clause 7 you will find that they think that a woman is capable, at some time or another, of deciding whether she wants a lump sum or whether she wants to put herself in a position where, as has been rightly said, investigations may have to be made into her intimate personal relationships for the rest of her life.
May I say, with the greatest respect to the noble and learned Lords, that you cannot assess this thing? Let me give a simple illustration in a different situation, of what happens. It is a case which I know from personal knowledge, where stopping a pension has prevented someone from remarrying. A lady lost her husband when she was just over 40 years of age. She was given a generous pension from his firm—but a pension that stops immediately on remarriage, irrespective of what may be the result of the marriage. Each time someone wanted to marry this lady—this is maybe considered mundane, but it is a factual position—she has had to consder what were the chances of the breakdown of 1542 the marriage. The noble and learned Lord the Lord Chancellor may smile, but this is a matter of extreme importance to a person who is getting a substantial pension. This is no laughing matter. It is a serious question for the individual. It may be a mundane way of looking at her problems but she has to consider what is going to happen to her.
§ THE LORD CHANCELLOR
The only thing which led me to smile was that if I had been giving either professional or private advice to anybody, male or female, who, on the point of remarriage, had to consider the chances of breakdown, I should have said, "Do not do so at any price".
That is precisely the point. The noble and learned Lord has said to every woman who has to take this matter into consideration, "Do not marry again".
I am sorry, but the inference from that is to say to a person, "Look, if you really think that there is a possibility of breakdown…" and we know, unhappily, that there are very many possibilities of breakdown, so do not let us overlook that—
§ THE LORD CHANCELLOR
I am sorry to interrupt again, but the noble Lord has entirely misapprehended my reason. When a woman wants to remarry, my question usually is, "Do you love the person? Are you prepared to commit your life to him?" If she then says, "Well, I wonder how long it will last", I know what to say from that. But it has nothing whatever to do with money.
Very well, that being the case, it should have nothing to do with the question of damages; and in assessing these remarriage should not be taken into consideration. That is the conclusion one would form. If a person is in love and does not want to assess what the possibilities are of the future, then she is placed in the position that whatever marriage she enters into may he uncertain. No, my Lords, in the particular case I am quoting the lady has to consider very carefully, because she was, and is, in possession of a substantial 1543 income which will disappear when and if she remarries. In those circumstances, unless she falls desperately in love with somebody in which case she might overlook the fact that her income would go, it would be unfortunate that a condition should be placed upon the receipt of a pension.
The question here is whether at any time a person who has suffered the loss of her husband should be placed in the indignity of deciding. And who will advise her about deciding? I wonder whether noble and learned Lords themselves, in their practices before they reached the Bench, would have been prepared to say that they were content and entirely satisfied with the advice given to a widow's solicitor who came to them for that purpose. I doubt it very much. If a solicitor sees in his office a lady whom he does not consider likely to be remarriageable, is he to tell her a lie? Because she does not appear to him to be the kind of lady who would remarry, is he to say to her, "You are too ugly", or "You do not please me"? I wonder which members of the barristers' profession are happy about advising in these matters?
Then there is the question of who will advise the widow as to whether she should take a lump sum or should subject herself, possibly for the whole of her life, to further investigation and cross-examination. I do not say that the proposal in the Bill is ideal, or that it is entirely logical, but of all the proposals put forward it is the least objectionable, and I think it should be allowed to remain to see how it works out. It is all very well saying that we should go back to the Law Commission and ask them to think it over, and offer suggestions. By so doing widows will have to be subjected to inquiry as to whether they are likely to remarry, and that will be the position until such time as a decision is reached by the Commissioners.
I ask noble and learned Lords to reconsider and to say that there is no question at all, whether a widow would agree to do so or not, she should not be allowed to go into the box on the question whether she is likely to remarry. I think that would be quite out of the question. I think everyone realises that that should not be the practice at any 1544 time. I said "everyone", but there may be some who think differently. I think that the vast majority of the people in this country think as I do. So I think that the idea of a continuous examination, with a person having to decide whether to make another application to the court for an increase or a decrease on which she still have to be advised, will not be the solution to the problem. A widow should be properly advised, and her damages should be awarded after consideration on an actuarial basis, irrespective of the possibility of remarriage. Women are just as capable of making a decision of that sort as men.
Incidentally, something like 80 per cent. of claims are settled before they come to the courts; they are settled by lawyers advising the clients what to take or what not to take. In my view, the element which causes more difficulty and embarrassment to advisers than any other, is that of having to decide whether a widow is likely to get married, and to get married as quickly as possible. So if we try the wrong methods, we shall not be doing proper justice to the women who are, unhappily, faced with this decision. Incidentally, an admision has already been made that the numbers of cases that come eventually to the courts for a decision on this point are very few, because the others have been settled, and we should not be doing an injustice if, in those few cases, we did not take the question of remarriage into consideration.
§ 12.7 p.m.
§ LORD DERWENT
As I have put my name to this Amendment, I should like to explain, since I am not a lawyer and not a woman, why I have put my name down. It might not be a bad idea if a layman, who is opposed to the Bill as it stands, expressed his view and gave his reasons. I have three reasons for supporting the Amendment. The first is that for a long time I have thought it quite intolerable that a widow should appear in court, and that a wretched judge should be expected to assess her chances of remarriage. I had always understood that courts tried to assess damages on the facts presented to them. As regards whether a woman is likely to remarry, there are virtually no facts to go on. There is the fact of her age, and that can be taken into account in 1545 assessing damages, but not in assessing damages on the question of her possible future marriage. Then there is her appearance. In the judge's eyes she may have a beautiful face; but beauty is in the eye of the beholder. Judges are asked to perform a quite impossible task in assessing damages on that sort of basis.
It appears to me that some of those who are totally in favour of the Bill have not read the Amendment put down by the noble and learned Lord, Lord Diplock. His Amendment does away with this rather objectionable practice, except in one case of which the noble Lord opposite has made rather heavy weather. What is that case likely to be? The widow's legal adviser will say to her, "In your case I think you should bring up the question of whether you are likely to get married". The case is likely to be one in which the woman herself has either become very ill or, perhaps in the same accident, has been physically damaged, although this is not actually apparent. She may then be advised to produce medical evidence that future marriage is most unlikely, or virtually impossible. That evidence can only be brought under the Amendment if the woman and her legal advisers suggest it. In any case other than that, I cannot see any legal adviser advising the woman to bring it forward. That is very narrow ground, but I think it ought to be left in. That ground is actually in the Amendment. We are all virtually agreed that assessing the possibility of future marriage—except in that special case—must be done away with. The Amendment looks after that.
Then comes the question of actual remarriage In assessing damages in a case, the judge is guessing and, on the whole, judges make good guesses except about the possibility of future marriage. That is fantasy and not even a guess. An actual remarriage is a fact not to be disputed, and it is one of the facts that ought to be brought to the attention of the court before damages can be assessed. How often will this matter be derogatory to the woman? In the normal way, the fact of the marriage will be known, probably to the insurance company; it will appear in the papers or the local inspector of the insurance company—not a snooper—will know, because he will probably 1546 be dealing with her. So that really presents no difficulty. If she has remarried, it seems to be assumed that her damages will be reduced. That does not follow in the very least. If her present husband is not in a much better position in the world than her first husband, the damages will not be reduced. That happens only where, as a result of remarriage, her circumstances are very much improved.
I want to come to the third reason why I put my name to the Amendment. I declare an interest. For over 40 years I have been connected with the insurance industry. The picture painted by the noble Lord, Lord Stow Hill, on Second Reading—though he did something to correct it in Committee—was absolutely absurd. It does not happen like that. If it is suspected that false evidence is being given, the information usually comes from a woman neighbour who tells the insurance company that the woman concerned is already married or was not living with her husband. Obviously, the insurance company has to take that into account, but the number of cases in which this arises is infinitesimal.
§ THE LORD CHANCELLOR
I do not want to interfere too much in this debate, but I must point out to my noble friend, and to noble Lords, that the question of actual remarriage does not entail employing a snooper; all you need to do is to walk into Somerset House.
§ LORD DERWENT
Yes, but I see the point about the snooper. As I understand the argument of those who support the Bill as it is, it is that you cannot spend all your life in Somerset House with thousands of widows on your books. You must find out in some other way.
§ LORD DERWENT
May I finsh this sentence? There are thousands of widows on the books of insurance companies. No insurance company can afford to have snoopers outside the house of each one, enquiring of the neighbours. The picture is completely farcical.
§ BARONESS SUMMERSKILL
The noble Lord said that an insurance company would probably learn from a neighbour down the road. How do they learn 1547 from a neighbour down the road, unless someone asks that neighbour?
§ LORD DERWENT
Because a woman who is jealous or a gossip will say something of that nature to the local insurance inspector going around carrying on ordinary insurance. That is how the information comes out. It is not done by an army of snoopers outside. That is a farcical picture. The noble Baroness said something most extraordinary. We are dealing with a monetary value put on a death. It is a monetary matter. There is no question of feelings here. The court is assessing a monetary loss. My noble friend said that a remarriage is nothing to do with anyone else; that there is no second party, or words to that effect. That is not true. There is a second party. There are many second parties. There is an insurance company. I was discussing this question the other day with a noble Lord who was very much in favour of the Bill as it stands. He said that even if the damages were going to be higher because remarriage could not be taken into account, the insurance companies could well afford it. Let us get down to earth. The insurance companies will not lose a penny if the damages are very high, when previously they were not. The other policy holders will have their premiums put up. They are the people who will pay, although they had nothing to do with the accident. There is a second party in this matter, the policy holders. I think noble Lords will be well advised to remember that. There has been a good deal of "sob stuff" on this matter; rather too much to get down to practical matters.
§ LORD DAVIES OF LEEK
I am sorry to trouble the noble Lord, but I find the illogicality of this argument painful. Why cannot I, as a husband with a very beautiful wife, go to the insurance company and say, "My wife is so beautiful that when I am killed she will receive very low compensation, because her chances of remarriage are very high"? On the other hand, if I am a poor fellow and my wife has been keeping me for 20 years because I am sick, what kind of pension would an insurance company give me in the kind of unisex world in which we live?
§ THE LORD CHANCELLOR
I do not want to interfere too much, but I suggest-and I do not know whether the Committee will back me up in this-that some of us have had rather a long night, and if we could have speeches without too many interventions it might not be a bad thing. It is entirely for the Committee to take its own line.
§ LORD DERWENT
That was an intervention. The noble Lord, Lord Davies of Leek, intervened and asked me a question. I do not blame him for not having listened to what I said. The question of whether or not a woman is likely to remarry, does not arise.
§ 12.18 p.m.
§ LORD DONOVAN
I shall be the shortest speaker on record in this debate. This House laid it down as law in 1942, that in assessing damages under the Fatal Accidents Act all circumstances which might mitigate a loss must be taken into account and the House specifically instanced the remarriage of the widow. If, however, widows generally regard it as distasteful and offensive that a judicial estimate should be made of their remarriage prospects, I would not wish to retain that feature. The picture of a judge inspecting a woman, visibly and coldly calculating her matrimonial allure, is a picture which I do not recognise. I should prefer that the law, if changed, should be changed on the ground that the estimate is beset by so many uncertainties as to be of very little value.
What I find repugnant about the existing Clause 4 of the Bill, is that under it a person who is left a widow by accident can come to court, admit that by her remarriage she is in a better financial position than before, and yet requires to be compensated for a loss which no longer continues. It is said in defence of this anomaly that it exists already in other forms, for any insurance monies or pensions and so on are already by Statute directed to be left out of account, even though they come to the dependant by reason of the death. I have long held the view that, Statute or no Statute, that ought to he the position, for usually those monies have come to the widow as the fruit of the dead man's own thrift or prudence. I can see no reason why the person who caused the death should take, the benefit. This House recently upheld that view in a case of personal 1549 injury caused by the negligence of a defendant. The injury was not fatal, but it accelerated payment of the plaintiff's pension.
The second point which is made about the anomaly is that, unless an existing marriage is ignored, there will be a differentiation between the widow who remarries the day before the judgment, and the one who remarries the day after. The former would have her damages reduced by the benefits which remarriage had brought her; the latter would suffer no diminution at all. That, of course, would be an anomaly. It is one which the Bill itself creates. It is not a very satisfactory solution of one anomaly to create another and, in my view, worse one.
The noble Baroness, Lady Summerskill, pointed out one way of avoiding it. She quite rightly said that the widow had been a working partner; that by her work for the family she had worked for the nation, and through that work had earned the compensation which had been awarded. On that view, all questions of remarriage would be irrelevant and we could all happily unite in leaving out Clause 4. But if it were ever pronounced by law that damages should be regarded as recompense for work, then we should walk straight into Schedule E, and tax liability would arise on the lump sum where it does not arise at present. So that would really be the worst solution of all.
There is yet another strange result if Clause 4 is left as it stands. There are plenty of wives to-day who have to go out to work to supplement the household budget. If one of them is killed through someone else's negligence the husband can claim under the Fatal Accidents Act for the loss of his late wife's contribution towards the domestic expenses. But if he remarries before the case is heard, his remarriage must be taken into account and any contribution which the new wife is making is deducted from his loss. As Clause 4 stands at present, the benefit of remarriage being ignored is confined to widows.
For those reasons, and for others which I intended to elaborate but which for reasons of time I shall not, I believe that the first Amendment is a better solution of the problem. The best one 1550 would be a reference to the Law Commission, but my experience of that is of a long delay before they report. I do not object at all to reforms coming piecemeal. I agree with what was said last time; that that is how most reforms come. I do object to a reform which tells a court to give compensation for a specific loss which has in fact ceased.
Finally, if annual payments are ever substituted, we shall have to be very careful to consider the question of income tax. Without special exemption, those annual payments would be subject to it. That would be unfair, since in the calculation of the dependency tax would already have been deducted.
§ 12.25 p.m.
§ BARONESS WOOTTON OF ABINGER
I cannot say that I am very much impressed with the arguments which we have so far heard in favour of the Amendment. It has been said that annual payments protect the widow from the predatory male who is after her money. My noble friend Lady Summer-skill has also said that they protect the widow who is accustomed to weekly payments, and who cannot adjust herself to receiving a large sum of money. We know that sometimes women do silly things—come to that, sometimes men do silly things—but that is hardly a reason for treating women as though they were minors, which is in effect what the proposal to substitute annual payments does.
I would also point out that, so long as it is reduced by the prospect of remarriage, the lump sum encourages exactly what the noble and learned Lords who support the Amendment are anxious to avoid; that is, women marrying or not marrying for irrelevant financial reasons. The lump sum is reduced if the woman looks like marrying within a reasonable length of time. That means that indirect pressure is brought upon her to accept proposals of marriage, because she is receiving less money on the expectation that she will marry. Therefore, the financial element is introduced into the decision to marry or not to marry.
The noble Baroness, Lady Emmet of Amberley, has spoken of the typical widow of whom we heard a good deal on the first day the Bill was before the 1551 Committee. Perhaps I might add another fragment of autobiography, as being not only the typical widow but the typical widow who in fact remarried, and therefore, one with whom the Bill is, or might have been, very closely concerned. Had my husband been killed in circumstances in which compensation or damages were payable, no doubt under the present law the judge would have looked at me and considered the likelihood of my remarrying within perhaps the next ten years. He might have decided that this was likely. He would have been wrong, because I decided to wait 18 years before making a second marriage.
As I look back on that period, I can see that my life would have been very different if I had been conscious that the payments being made to me in respect of my first husband's death were all the time at risk, according to what I might decide to do. In fact, I decided to earn my own living, and over the years I earned a modest remuneration as a university professor. Would it be right that, because I had pulled myself together and earned my own living, the compensation which I had received for the tragedy which had befallen me should be reduced? Would it even have been right if I had earned my own living a great deal more successfully; if I had been in fact an extremely successful film star? I do not think it would.
The Committee ought to take into account that it is by no means certain that I should not have followed a profession or even, were I capable, have become a film star had my first husband survived. I might also have inherited money. I did not inherit any money until after my second marriage, so in my case that point did not arise. But I might have inherited money. As I look back upon those 18 years, I am sure that my life would have been very different, because I should have been continuously conscious that it was somebody's business to watch my men friends, to watch my earnings and my professional activities, to watch everything that I was up to. I do not suppose that the insurance companies will employ hundreds or thousands of snoopers. The number of snoopers—if we are to call them that— 1552 they will employ will depend upon the number of widows receiving periodical payments. Presumably, any widow would not be exposed to very large numbers of snoopers. One would be quite sufficient. But there is no doubt that one will be conscious of this possibility.
The noble and learned Viscount, Lord Dilhorne, said he had heard no complaints about similar investigations made about widows in receipt of national insurance pensions. He cannot always have been listening; because this has been a matter which has caused great concern in a number of quarters and has been frequently the subject of public discussion. If it is worth while for the State to employ people to keep a close watch on widows who are receiving very small sums under national insurance, it will be much more worth while for insurance companies to keep watch on widows who are receiving more substantial sums. The procedure is objectionable in both cases, whether or not the income is increased by marriage to a man, by living with a man, or by her own activities.
Surely the noble Baroness, Lady Emmet, struck the right note when she said that these damages are compensation for a disastrous injury that has been caused to somebody else by a person's negligence, and that that negligence and the damage and injury caused is something which cannot wholly be measured in financial terms. Financial compensation is the only way in which recognition of it can be made, but the injury and the damage are permanent.
§ 12.33 p.m.
§ BARONESS ELLIOT OF HARWOOD
I rise to support the noble Lord, Lord Stow Hill, and the Law Reform (Miscellaneous Provisions) Bill, and to speak against the learned judges who have spoken in this debate. I speak, as does my noble friend Lady Emmet, for thousands of women who support the Government. Some years ago, a report was issued called Fair Share for the Fair Sex, in which one of the recommendations reads as follows:We recommend that in assessing damages under the Fatal Accidents Act the court should be entitled to take into account only those facts which can be shown to have existed at the date of death of the deceased, and that any subsequent evidence of the claimant's remarriage prospects should be disregarded.1553 That is the policy of the Conservative women who support the Bill.
I listened with great interest to the noble and learned Lord, Lord Diplock, though his voice was rather low from where I was sitting and I found some difficulty in hearing all he said. At one moment I thought he said, "Now we come to the difficult widow". In fact, what he said was: "Now we come to the typical widow". But I am not at all sure that the word "difficult" does not apply more than "typical". Many of us here are widows and we are all quite different. So far as I am concerned, I should be very difficult if I were faced with the kind of experiences that people who find themselves in this unfortunate situation appear to have.
I support every word said by the noble Baroness, Lady Wootton of Ahinger. She put her case very strongly, speaking from severe and sad experience herself. It has been said that under the Amendment, particularly under subsection (7), the conditions will be altered. But a widow can still be asked to stand in the witness box, to be assessed on her prospects of remarriage. What is even more objectionable, the widow is now being placed in the impossible position of having to decide what her own chances will be, whether to go for a lump sum and be assessed, or to have periodical payments as suggested in subsection (6). By delaying and procrastinating tactics on the part of the defendant, she can be coerced into having to accept a lump sum assessment; or the reverse. The courts have no guidance as to how this figure is to be arrived at; their task is made even more difficult than before.
With regard to periodic payments, a woman who knows that her remarriage will alter the size of the payments is encouraged either to defer marriage or, as has been suggested, to live in sin. I do not think that this is in the public interest. Further, defendants will employ inquiry agents as hitherto, not only for lump sum awards, but each time an annual payment is due.
The noble Lord, Lord Derwent, seemed to think that the "gossip living down the street", who talks and tells insurance agents or anybody else about conditions under which a widow is living, is not a snooper. I should call her a very 1554 dangerous snooper, since she is not even being paid for it: she does it out of sheer malice. That is perfectly monstrous.
Again, if remarriage is at any stage to be reconsidered, the widow will be left, as she often is now, to the delaying tactics of defendants to come to the courts and leave her to be dependent on the State until her case is heard. This Amendment does not remove the three grounds on which we base our support for Clause 4 of the Law Reform (Miscellaneous Provisions) Bill. First, marriage prospects of widows will still be considered; secondly, she will be subjected to being followed about by inquiry agents; and thirdly, she will be encouraged to live in sin. I consider that the Amendment is both inhuman and against the public interest. I hope that noble Lords will support us in the Lobby, in the view of all the widows who have spoken here, and many other noble Lords, that this is something which we should stop here and now, and take the provisions of Lord Stow Hill's Amendment.
§ BARONESS GAITSKELL
I shall be very brief. I am against all the Amendments, even that providing for periodic payments instead of one lump sum, although on the face of it it looks very reasonable. I am against these because, in the attempt to be fair to both sides—fair to the widow and to the insurance company—the balance is swung against the widow. It seems to me that the Amendments give more protection to the insurance companies. Arguments about predatory gentlemen or tempting widows really do not come into it at all.
I believe that most women who are left as widows are worse off; and some are almost destitute. I remember that when my husband died I often thought how dreadful it was for those women in shock and grief who did not know where their livelihood was coming from. At last, judges see the ludicrous business of assessing prospects of remarriage by just looking at a woman when she comes up in the case, and have now decided that this aspect will not be taken into account when the damages are assessed in the first instance. But they go on, in the Amendment, to do exactly that. We see how ludicrous the whole thing 1555 is if for a moment we take the opposite case.
Let us take the case of a widower up for damages in such a case. How ludicrous it would be if we had to take his vital statistics and assess his possibilities of remarriage! After all, in a man it does not depend upon beauty; it depends upon all kinds of other things. Maybe it depends upon potency. So it seems to me that a widow, having suffered a misfortune by chance of the tragic accident of her husband's death, is to be excluded from any fortunate chances that may arise. As my noble friend Lady Wootton said, she may come into money. She may, as men do, have a "golden handshake" from business. Perhaps it is something far less serious in which she is engaged-perhaps she gambles on horses, Are the periodic payments to be assessed, up or down, according to her wins or her losses? Are they going to be adjusted in this matter?
I agree entirely with the noble Baroness, Lady Emmet. She is not in her place at the moment; but she made a brilliant speech, putting forward every possible argument—particularly when she said that noble Lords should not have to bother their heads about such things as the possibilities of remarriage or the possibilities of adjusting these periodic payments. We cannot adjudicate for every contingency in life, and I believe that good luck is one of them. I am sure that noble and learned Lords are not kept awake at night wondering about the justice of a pop star like Mick Jagger earning far more than any Nobel Prize? winner. I am utterly against these Amendments: I am entirely in favour of the Bill, and I hope that it will go through.
§ 12.42 p.m.
§ LORD MORRIS OF BORTH-Y-GEST
My Lords, I very much share the approach which has been expressed, I think, in all parts of the Committee, that it is an undesirable feature of our law as it is at present that it should be necessary for the judge to have to consider, assess and then pronounce upon the prospects of remarriage of a widow. That exercise, in my view, is one that must be distressing for the party concerned, must be distasteful for a judge, and must, 1556 in every way, jar on every feeling of sensitivity.
But undoubtedly it is at present the law that such prospects must be taken into account. If proper questions, based upon sensible material, are put to a widow as to the prospects of remarriage, I cannot see that a judge would be forced to rule it out. I think he would have to admit the questions and admit any relevant evidence. If there is no positive evidence in words it would be left to the judge, considering age, family and so on, to form some sort of impression of his own. He may draw conclusions which are utterly wrong, but, we must have in mind, as the noble and learned Viscount, Lord Dilhorne, has said, that there can be situations where the judge is asked to consider prospects of every nature.
Take the case of a young and beautiful lady injured in a motor accident; she is grossly disfigured, her countenance all spoiled. The judge is asked to consider every aspect of the matter when deciding on damages. But I think the position is quite different in the case of a claim under Lord Campbell's Act, where there has been a bereavement and the widow who has recently suffered that bereavement is the plaintiff: she may be deeply affronted if there is probing into her personal and private affairs.
Having said so much, I am bound to add that I feel every suggestion so far made, and made with every good will and a desire to help, is fraught with some difficulty. It has been said that a lawyer is a man who finds a difficulty for every solution, but if we are to consider amendment to the law it must be the wish of us all that we should have the new law in a sensible and reasonable form; and also in a form in which a court, administering the law, is not compelled to disregard actual facts and realities. The proposal before us is to amend Lord Campbell's Act, to amend the existing law. I should have wished, as others would have wished, that it might have been possible before reaching this stage to have some wider inquiry as to whether there might be some entirely new thinking on this matter so that claims could be made on a different basis.
It has always been recognised, and I think all your Lordships would agree, that it is the law that the claim is for a 1557 loss of pecuniary and material benefits. My noble and learned friend, Lord Diplock helpfully reminded us of the present position; the claim is not a claim for a sum to reward a widow for good work done in the past towards her husband and her family; it is not an award to her for her past services. The claim is, therefore, that in future she will be deprived of the financial dependency upon her husband. Suppose that there is a very rich wife, who is married to a husband with no resources whatsoever—a most devoted couple who have leaned on each other—and that the husband is, unfortunately, killed. That is a tragedy for the wife, but she would not be entitled, other than possibly for a minimal sum, to a claim under Lord Campbell's Act; she would not have lost. That is not because there is one law for the poor and another law for the rich; it is because of the nature of this claim under Lord Campbell's Act. The claim that is made is, "I was financially dependent; I want compensation for the loss of financial dependency upon my husband." If the widow has already remarried, and is better placed financially, I cannot help thinking that there must be some unreality in coming to court claiming loss of dependency on a husband. In such circumstances there is no loss. There might even be reluctance or embarrassment in making a claim of the nature of a claim under Lord Campbell's Act.
It might well be asked: why should the defendant benefit? He has been negligent why should his loss be in any way curtailed? I think there is very great force in that argument, as there is very great force in the point that remarriage is entirely the affair of the widow herself. It is also said that remarriage does not result. One does not want to determine these matters by any argument on semantics; one wants the law, if we are to amend it, to be, if possible, reasonable, so that the courts will not be asked to adjudicate by ignoring realities.
1558 I come to a consideration of the Amendment. We owe a great debt of gratitude to those noble Lords who have proposed it. As this debate has shown, we are all anxious to try to meet a real difficulty. Approaching the Amendment with every sympathy, I do not find that it meets our difficulties. To begin with, a great deal of machinery would have to be devised before any scheme could possibly be made operative. I would favour periodic payments in some cases of damages awards, particularly cases of the nature mentioned by the noble and learned Lord, Lord Denning, in his speech some clays ago-the kind of case where somebody is terribly injured, may live for many years needing great expense for support, but may die. The court cannot be certain, and in such situations there is a strong case for periodic payments. But in the cases with which are now concerned I feel it undesirable to have periodic payments: finality would be much better. I am worried by the words "material change of circumstance" in subsection (4). What is a "material change of circumstance"? Inflation has been suggested. If we are to make such a fundamental change as that, surely those who have already received payments by way of damages on the basis of the present value of money would be entitled to have their cases reopened. This matter needs a great deal of inquiry before any change is made.
It has been said that if a widow decides to take some work and finds a remunerative position, that should be taken into account. That would be most regrettable. I agree with the speeches that have emphasised this point. Why should any deduction be made because a widow, by her own skill and the use of her own time, decides that she will order her life in a particular way and as a result earn some money? It would seem utterly repellent to have to make an allowance for that reason. Apart from the question that continued supervision of the activities of the widow might be necessary. I think it most undesirable that there should be payments over many years which might have to be stopped because the widow decided to marry again. That would be disagreeable. We should be grateful to the noble Lords who have made these suggestions, but they do not answer the problem.
1559 Ultimately, as the noble Lord, Lord Janner, said, we may, individually have to decide which of all the courses proposed is open to the fewest objections. Each one has its difficulty. I should like some inquiry on a broader sweep, but we may to-day personally and individually have to come to a conclusion as to which proposal is the least objectionable.
§ 12.55 p.m.
§ THE LORD CHANCELLOR
I wonder whether this might not be a suitable moment for me to intervene. I have no wish to curtail the debate, but I have a point to put to the Committee. My noble and learned friend Lord Dilhorne, in his opening speech, read me a severe lecture on the duties of the Lord Chancellor. He rather over-simplified the case. I absolutely accept the view that, if it wants it, the House, or the Committee, is entitled to dispassionate advice from a Lord Chancellor. The Lord Chancellor is under no obligation to help or rescue a party to a dispute which has painted itself into a corner and cannot get out. I rather suspect that both parties to the dispute have done this very thing.
With the greatest respect to my noble and learned friend, when a Lord Chancellor gives advice to the House or the Committee he must take into account not merely his legal knowledge, of which I hope he has a modest store, but also his political experience, of which he will also have a modest store if he has achieved the precarious perch upon which Lord Chancellors are compelled to sit. I have tried to apply both my political experience and my legal knowledge to this case. The only thing both parties have in common is that they have each underestimated the difficulties of their own side and exaggerated the difficulties of the other.
Left to myself, I would undoubtedly have said, with the noble Lord, Lord Morris of Borth-y-Gest, and as I said to the sponsors of the Bill, that it was lamentable that they should tack on to my useful little law reform measure about limitation a measure of such complexity and difficulty. I remain of that opinion still. I would vastly have preferred this project to be launched after a more dispassionate and objective inquiry 1560 than it has received. I believe, rightly or wrongly, that the idea of absolute amateur law reform should be drawing to a close. The noble and learned Lord, Lord Gardiner, who now sits opposite me, invented the Law Commission. It may be unsuitable for this particular inquiry, but law reform should be processed before it reaches Parliament, and this measure has not been so processed. If I thought there was a chance of an icicle in hell of getting somebody to withdraw one of the proposals, either Clause 4 as it stands or the proposal of the noble and learned Lord on the Cross-Benches, and to refer it to such an inquiry, I would heartily embrace the possibility. However, that will not happen, will it?
§ THE LORD CHANCELLOR
If I asked the noble Lord, Lord Stow Hill, to withdraw his Clause 4 and to let it go to somebody else to decide. I know what he would say. I suspect, if he sticks to his guns, that neither my noble and learned friend Lord Diplock nor my noble and learned friend Lord Dilhorne would accept any similar advances, should I make them, about their proposals.
§ VISCOUNT DILHORNE
I certainly would do so if the noble Lord were to get my noble friend Lord Stow Hill to agree as well. That is what should happen, and what should have happened.
§ THE LORD CHANCELLOR
I have no doubt whatever that the noble and learned Viscount would withdraw his proposal if the noble and learned Lord, Lord Stow Hill, withdrew his, too. The possibility of their both doing it is, let us face it, nil. I must advise the Committee of that. I have to bring a certain amount of common sense, as well as legal knowledge, to the solution of these problems. This is the first piece of advice I give the Committee, and I apologise for saying anything so obvious, but we must arrive at a conclusion by means of a vote. There is no other way. Whatever I say or do, and despite all the curtain lectures from my noble and learned friend, we must reach a solution by way of a vote. There is no other way; I wish there were; but life is not like that.
1561 I should like to say one or two things about the issues in this debate, although I said most of what I wanted to say on Second Reading. It may be that I am not at my most lucid at the moment, bearing in mind my traumatic experiences during the last twenty-four hours. However, I am still sufficiently lucid to say one or two things about the Fatal Accidents Acts. If it were the case that all this were judge-made law, and what ought to be done was simply to say, with the noble Baroness, Lady Wootton of Abinger and my noble friend Baroness Elliot of Harwood, that the Fatal Accidents Acts are to compensate a widow for a catastrophic change in her life, then the problem would be much easier to solve. As the noble and learned Lord, Lord Morris of Borth-y-Gest, pointed out, it is not so. This is not judge-made law; it is Parliament that has created the difficulty. It comes from Parliament, not from the judges. My predecessor Lord Campbell passed an Act through Parliament, and Lord Campbell's Act does not say that the widow is to be compensated for the catastrophe to her life. It tells the judges —and this is the law of the land enacted by Statute-that they must make a cold-blooded calculation. That may be undesirable, but it is the law. What is being done by introducing Clause 4 is to tell them to make a calculation on a fundamentally irrational basis. It may be that this will be the end of Lord Campbell's Act, but do not blame the judges for pointing out that in the existing situation a widow cannot be compensated for the loss she sustained by the death of her husband, or a widower for the loss he sustained by the death of his wife. The law lays down that a cold-blooded calculation of profit and loss has to be made and, if there is a net loss, then a net sum has to be provided by way of damages.
On this point, would it be agreed that the position as it stands at present is irrational? The fact that the marriageability of the widow is taken into consideration is quite irrational.
§ THE LORD CHANCELLOR
I think I must proceed step by step if I am to give a dispassionate account of this matter.
§ BARONESS WOOTTON OF ABINGER
I hope the noble Lord the Lord Chancellor 1562 will forgive me if I interrupt him to say that this would not be the first time that a totally unworkable procedure laid down by Parliament has been made workable by judicial interpretation.
§ THE LORD CHANCELLOR
It may be workable. I have one or two mental reservations about that but, if so, I think the judges would be stretching their consciences a good deal. It may be that that is what Parliament wants. Some consciences are better stretched. At the same time, I feel that they are being asked to compromise with reality to an extent which, in my not inconsiderable experience of this House, has brought them into the field in almost unprecedented numbers. So I do not think the House should underestimate the extent to which they are disturbed by what is proposed. It has never happened before in my experience. What is proposed is what Parliament demands.
The next thing I want to say is that I do not think it tolerable—even under the existing law it is not tolerable—that judges should take a good look at a woman and say that she is sexually attractive and therefore likely to remarry. In the first place, it is a valueless subjective judgment, to which I would attach not the smallest importance; and, in the second place, I think it is a fundamentally disgusting thing to have to do. I myself would never do it. Nevertheless I must say with my noble and learned friend Lord Diplock, although I have never judged a case, as the noble and learned Viscount Lord Dilhorne said, I have advised on many and conducted many. When one advises a widow about the measure of damages she is likely to get one has to put oneself, as far as possible, in the position of the judge; otherwise one gives very bad advice.
I think I can honestly say that I have never taken subjective considerations into effect, and the great majority of judges—I would almost say all the judges—I have known have not done so either. What they have done is to take into account, when dealing with a widow—perhaps not in her first youth and with a large number of children—the fact that she may have to struggle on alone facing widowhood without much help or sympathy from anybody and, however 1563 attractive she may be to one man or another, or however unattractive, she may have to struggle on alone for a number of years. I have always advised, and I have always found that judges adjudicate, a greater sum of damages to a widow in that kind of position, facing that kind of handicap, than if she were young and alone and able to earn or go to work.
I agree with my noble friend Lady Elliot of Harwood, that whether she works or marries is a matter entirely for herself, and it is not wise, and perhaps not decent, to probe. At the same time, if one is not to take into account the facts of life, how is one to compensate the widow who is likely to be handicapped because she has a number of young children to look after, because she is not in her first youth, and, as one noble Lord pointed out, because she may have been seriously injured herself in the accident which brought about the death of her husband, and for which she will have a separate claim for damages? It is very difficult to see how, if the clause is not amended, she is to be compensated. If one is not entitled to take into account the prospect of her remarriage, one cannot take it into account, under the terms of the clause as worded, to increase her damages—which is what I should be inclined to do in such a case—any more than one is entitled to take it into account to reduce her damages, on the grounds that one causes so much resentment. That point has not been made.
Secondly, although this is the aspect which excites my sympathy, a much more serious aspect from the point of view of a potential judge or professional adviser is that if one is told, in a given situation, that one is to withdraw one of the relevant facts in a realistic statement of what one is to do, and one is given no guidance how one is to make a realistic assessment in the absence of that fact, one is faced with a task which is fundamentally irrational and fundamentally impossible. This is the criticism I have, to which no sufficient attention has been made in the deep and manifestly sincere feelings that have been expressed.
My next point—and this is the disagreeable thing about it—is that I then 1564 thought, after Second Reading, that I would try my hand at drafting Amendment myself. I had two ideas, both of which have been taken up in slightly different forms by noble Lords on the Cross-Benches. I will tell the Committee why I abandoned them. My first idea was more or less along the lines of the noble and learned lord, Lord Pearson. There are analogies in the law whereby one can withdraw the right to investigate if contrary evidence is not advanced. In a simplified form this is what the noble and learned lord, Lord Pearson suggests. But, on reflection, I came to the conclusion that that would not do, because it creates of itself a situation intrinsically as artificial as that to which objection is being made. In that situation the judge would have to estimate the chances of remarriage as best he could, but without the advantage of hearing what the widow had to say about it unles she chose to speak. The thing would become a bigger lottery than ever.
Then I thought, "Why not have annual payments?" There is a great deal more for annual payments than has been conceded by the supporters of Clause 4. I was glad to see that the noble Baroness, Lady Summerskill, supported it, because in some ways it would get one out of the difficulties. Assuming that whether to give annual payments or a lump sum was in the discretion of the court, and that either party might ask for it or oppose it. I do not see that it is subject to all the objections that the noble Baronesses, Lady Wootton of Abinger and Lady Elliot of Harwood suggested. The widow could say, "I should prefer a lump sum". On the other hand, it might be to the advantage of the widow to have annual payments. I suspect that it probably would be in the case of the widow for whom I am most concerned; mainly the middle-aged or ageing lady with a number of young children to support.
Though I have not checked it, I have some reason to believe that insurance companies have the same idea as I have and would oppose it, for the very reason that widows would be better and not worse off if annual payments were allowed. I believe that the widows I should particularly like to help would be better off.
§ LORD GOODMAN
Would the Lord Chancellor make the point that this is not a situation which relates exclusively to insurance companies? I believe that is highly relevant to the whole situation.
§ THE LORD CHANCELLOR
That is absolutely valid, although I could not give the Committee a statistic to show what proportion is insured. I should have thought it was a high proportion. In motor accident cases, insurance being compulsory, insurance is virtually universal. The largest other single class of case is accidents as work, where insurance, although not universal, is very widespread indeed; and it is universal, I should have thought, among all large employers. It is perfectly true, as the noble Lord, Lord Goodman, says, that it is not only insurance that we are talking about; it is also the rights of defendants. This must enter into the question of whether annual payments are tolerable in any given case.
I shall not go into the details at great length, but, as by noble and learned friend Lord Morris of Borth-y-Gest pointed out, the actual nuts and bolts of such a solution are much more difficult than this particular Amendment suggests. I certainly could not recommend it this afternoon, without those nuts and bolts. It would have to be referred to a Commission or a Committee to work those out. I do not say that they are insuperable; all I am saying is that the solution would not be tolerable without them.
The form in which my noble and learned friend Lord Diplock has proposed his Amendment is open to serious objection on its own. If you look at subsection (7) of the Amendment you find that it does not meet the widows' case at all. The noble and learned Lord has created a solution which retains the very disadvantages of which the widows complain. If you apply subsection (7), you find that consideration of the widow's remarriage prospects. which is complained of as humiliating, distasteful and unreliable, continues under the new subsection as a relevant factor which the judge will have to take into consideration. It would be relevant, and therefore necessary for the court to investigate, in every case, whether to make a periodical payments order or a lump sum order, and prospects become relevant to 1566 quantum wherever the widow asks only for a lump sum and consents to its being taken into accord.
It may well be that the widow has good reason for wanting a lump sum. There are many reasons why she might. She might want to set herself up in business, to take the simplest of all reasons, in order to maintain her family without having to go out to work. It could easily happen in a working-class family that she wanted to buy a small shop. If she takes that option, then my noble and learned friend has provided that she will have to subject herself to whatever humiliation or distaste there is. I do not want to use all the epithets of the noble Lord, Lord Stow Hill, but if you retain subsection (7) of the proposed Amendment, it does not meet the case which the widow is making.
I feel that in the other place—and I say this with respect, as I served there for a large part of my adult life—they took all these difficulties rather lightly. However, the Solicitor General, in trying to perform, the task that I am now trying to perform, said that in the end the House might have to choose between the two extremes; that is to say, between leaving the law unaltered and accepting Clause 4. Although I do not altogether accept that view, because I still believe there is a future in annual payments, I think that it may be the decision that the Committee will have to make to-day. For the reasons given by my noble and learned friend, Lord Morris, and those which I have added. I do not think that either of the Amendments meet the case. Earlier in the day my noble and learned friend Lord Dilhorne said that I must come off the fence. I shall not come off the fence. I think there must be a vote. I have tried to explain to the Committee what I believe the issues to be, and it is for the Committee to make up its own mind.
§ 1.18 p.m.
§ LORD GARDINER
My Lords, we are always indebted to the noble and learned Lords of Appeal when they help your Lordships on points of law or to improve the terminology of Bills. The position in which we now stand is that we have to choose between three alternatives—and if anyone says that there cannot be more than two, I do not agree. Mr. Gladstone 1567 said that he did not agree. The three alternatives are these. First, to leave the law as it is. This we can achieve by accepting the Amendment to leave out Clause 4. The reason why the other place decided not to leave the law as it is is entirely political. I do not mean by that Party political: it was not Party political. If my arithmetic is right, exactly the same number of Conservative and Labour Members spoke at different stages of the Bill. But it is entirely political on social grounds, mainly that our present law is deeply offensive to women, who constitute more than half of the population.
In this House we are always entitled to reject even a political decision taken in the other place. Noble and learned Lords are as free to vote as anybody else. One should, however, think before doing so, in a case where, as here, not one single Member of the other place voted at any stage against what has come to us from them; and, secondly, because that is the Chamber, which is elected to take political decisions, and it is responsible in the sense that if the public do not like what they do the public can remove them. We are not responsible to anyone. We are here for other reasons, which is a privilege. Those reasons should be taken into account. It is also remarkable that no one who has so far spoken in your Lordships' House is in favour of leaving the law as it is.
The second alternative is to leave the Bill as it is, and reject all the Amendments of the noble and learned Lords. Here I think I owe them a reply, because they have made clear their objections to the Bill as it is. They say, first, that it is contrary to the principle of the Act, contrary to the principle, which, as the noble and learned Lord, Lord Diplock, said in column 542, had been in use for more than a century. Secondly, they say it will in-produce an illogicality in the law; and, thirdly, it will be offensive to the judges to have to do what seems to them unjust. As a lawyer, I do not like illogicalities in the law. I like the law to be all neat and tidy. But I must frankly say that if the Bill remains as it is I shall spend no sleepless nights, and for these reasons. First, I am not alone. As has already been pointed 1568 out, Mr. Cripps, Q.C., was the Chairman of the Committee that has been referred to; Sir Geoffrey Howe, the Solicitor-General was a member, also Mr. Mark Carlisle, Q.C., now an Under-Secretary at the Home Office. The Committee of which Lord Justice Winn was Chairman was also unanimous, and I think there are about 100 lawyers in the other place, not one of whom at any stage voted against this.
This has happened before and I must emphasise this. Whatever the original principle of the Act—and I quite agree with the statement that has been made about it—we must bear in mind that in 1908 Parliament took a political decision on social grounds. Section 1 of the Act said:There shall not be taken into account any sum paid or payable on the death of the deceased, under any contract of assurance or insurance, whether made before or after the passing of this Act.What was the result of that? It was that there are quite a large number of very small dependencies; mostly they are not fought, they are settled. It may be either because the husband was a young man, earning little, or because they are two old age pensioners or approaching retirement age and their future dependency is very small. But if the 'husband saved all the time, and put it all into life insurance, then that ought to be deducted. The effect of Parliament's decision was that in a given case, the widow might be better off, after her husband's death, with the insurance money than she would have been if he had gone on living.
What happened? The judges did not say, "This is a statutory fiction." The judges did not say: "Why should we disregard the facts and have to act on the basis of falsehood rather than truth? They did not say that it was monstrous to require a judge to shut his eyes to the facts. What happened was that the judges lost no sleep at night. They did what Parliament had told them to do. They pretended that she had never had the insurance money and they did not take it into account.
In 1959 Parliament made another political decision on social grounds in the Act of that year:There shall not be taken into account any insurance money, benefit, pension or gratuity which has been or will be or may be paid as 1569 a result of a death; 'insurance money' includes the return of premiums; 'pension' includes the return of contributions and any payment of a lump sum in respect of a person's employment; 'benefit' means benefit under the National Insurance Act and any payment by a friendly society or a trade union for the relief or maintenance of a member's dependents.The judges did not lose any sleep at nights over that. They did not say, as they might have done, that this is contrary to the principle of the Act, which says that she should simply be compensated for her loss of dependence, and if she has received a countervailing benefit that ought to be taken into account. They lost no sleep. They merely did what Parliament had told them to do. They pretended that she had not had any of that.
The third reason why I should lose no sleep at night is because I have no confidence at all in what the judges are now doing. This is in no way their fault. I am quite sure they do their best. Here is a middle-aged woman with several children; you can see her face; the judge thinks—but is too tactful to say so—that he need not deduct anything for prospect of remarriage. In the next case there is an attractive young woman, and he thinks that if he gives her five years to be on the safe side, that is the sort of estimate he ought to make.
As often as not, what happens is that the first woman remarries within three months, and 20 years later the second has not remarried. Gross injustices are done. The judges are in no way to blame. 'They do not know what they are doing. 'They do not decide it on evidence, as judges usually do. There is no statistical material available to the judges on re-marriageability. No judge, as far as I know, keeps any record. I do not think any judge writes to these widows once a year to ask if they have remarried. So they go on doing the same thing, without knowing how far they have been right or wrong in the past. If this is passed in the form of the Bill the judges will simply take no account. The words are exactly what they were told in 1908 and 1959: that this or that was not to be taken into account.
The final reason why I shall lose no sleep at nights is this. There is a dictum of Lord Wright in 1942—I am not sure whether anyone else referred to the subject, or whether it was in issue 1570 —that the remarriage, and certainly the remarriage prospects, of a widow would be taken into account in an action under Lord Campbell's Act. The earliest reported case that I can find, with a trans-script at the Bar Library, is 1954. I looked at the many volumes of the English and Empire Digest, which contains all reported cases. I looked at the volume on negligence and fatal accidents to see all the cases on how you assess damages in a fatal accident case. There was no case on marriage prospects. The year the volume was published? 1954.
I looked at all the editions of Arnold on Damages, Mayne on Damages, the second edition of Charlesworth, Bullen and Leake—which I think goes back to 1860 and Clark and Lindselt. In none of these—which all discuss how you assess damages in a fatal accident case—until 1940 is there the slightest suggestion that either the prospect of marriage or remarriage itself has anything whatever to do with the assessing of damages under the Fatal Accidents Act.
The truth is that insurance companies try things on. At one time they would try it on by saying—where relatives have clubbed together and got up a fund, and the court has said that that is not caused by a husband's death—" It is due to charity. "Or they say she has been left money tinder a will. At some time I think one or two judges said to that" Yes, it ought to be deducted", until they realised that all that had happened was that she would get that money anyhow and the most they could debit her with was that that had been accelerated. The same applies to going out to work.
In a case to which the noble and learned Lord, Lord Diplock, was a party and agreed, the judgment given being that of the noble and learned Lord, Lord Denning,—Moore v. Moore—he said:The fact that she goes out to work cannot reasonably be brought into play so as to reduce the damages to which she is entitled. The sum which she earns is the result of her own labour and not the result of her husband's death.So that did not come off. I certainly cannot prove it, but I suspect that this arose because the earliest decision was a Canadian decision. I suspect that insurers saw that, and, thought they would try that one. I do not think the [...] 1571 will have any difficulty, simply because what they will do will be exactly what they did between 1846 and about 1940; namely, pay no attention at all to the prospects of remarriage, or even actual remarriage. As far as that alternative is concerned, I believe it to be practicable and in favour of the Bill being left as it is.
I will say a word about the third alternative, which is the Amendment we are now discussing. It is quite useless to wait for the Law Commission. I think the Law Commission will be another four or five years on damages, because it is very much in the melting pot. There is a dispute as to damages for loss of expectation of life. There is a violent dispute about itemisation, whether judges should not be made, as I have always thought they should, to say what they are awarding for what. But this is violently resisted, particularly by the older judges.
There is a dispute as to whether we are not much too slapdash in the way we arrive at damages, and as to whether we ought to make much more use of modern actuarial techniques. There is even a dispute as to whether we should go on with fault liability and not have insurance. Annuities is one of the matters to be considered. but I think it will be four or five years before we get a final Report from the Law Commission. I am quite sure that you cannot possibly introduce an annuity scheme in this way. Of course, there are things to he said for annuities; I have often thought so, but it is really a conflict between trying to arrive at what in the end will be the most just decision in the case, and the virtues of finality in litigation. I am sure you cannot do it without a full inquiry. We always have to think of the other side.
At the moment they are usually, though not always, insurance companies. Once they pay the lump sum at which the damages are assessed in the court, they cross the case off their books. To tell them that they have to provide an annuity which may last for fifty years, obviously creates very great problems indeed. There would be a lot of administrative questions, some of which the noble 1572 and learned Lord the Lord Chancellor raised, which would have to be considered: is the money to be paid into court, or is it to be paid to her direct; what happens if the insurance company goes into liquidation after twenty-five years? What about the additional expense? The clerical army which would be necessary for all these ladies would obviously be enormous. Of course, it would also mean a vast increase in the work of the courts.
One of the things which the noble and learned Lord, Lord Donovan, said we should have to consider first is what is to happen about tax, because that might be a serious matter. The increase in work would be enormous, because no lawyer, until he knew how the judges were going to work this system, could possibly advise the client what to take in settlement. The width of discretion under the Amendment is enormous. The judge can order a lump sum or annuities or a partly lump sum, partly annuities. I feel sure that no solicitor, until he had had time to see how the judges were going to work it, could possibly advise on a settlement.
As has also been pointed out, for a time at least, every case would be a fight and remarriage would come in—I do not think this has yet been appreciated—because one knows of certain insurers, and what they would say is, "We want to direct your attention to the widow's prospects of remarriage, not in the least—please, do not misunderstand us —to affect her own assessment of what she is entitled to, but in order to assess the sum to compensate the children. If we can show you that the children are likely to have a new stepfather soon, that will obviously affect the amount which you will think it is right for these children to receive". I think it would probably come in in that way. Of course, if on any change of circumstance one party or the other is always to he going to the courts, I should have thought that any advantage was extremely likely very soon to be swallowed up in the additional costs, apart from the additional work, which would be thrown on to the courts. For all those reasons, I cannot advise the Committee to accept the Amendment, and I venture to hope that the Committee will leave the Bill as it is.
§ 1.35 p.m.
§ LORD SIMON OF GLAISDALE
I venture to intervene in this debate for two main reasons. First, I do not think that I shall be suspected of lack of sympathy with the position of married women under our laws. When I was privileged to be a colleague of the noble Baroness, Lady Summerskill, in another place, I consistently supported her efforts to get a more equitable legal situation for married women, and it was always a matter of great pride to me, when I was lucky enough to achieve office, to be able to have some small part in implementing measures for which she had the real credit.
The second reason is that I have had considerable experience of the working of periodical payments orders and, since 1963, in conjunction with a lump sum payment. Although a number of objections have been made, I do not believe that I should be justfied at this hour in detaining your Lordships by dealing with them in detail; I merely express my opinion that they are grossly exaggerated. We can manage to work this system quite successfully in the sphere of matrimonial law, and I see no reason at all why the system should not be worked in this branch of the law. I respectfully agree with what the noble Baroness, Lady Wootton of Abinger, said, that the judges pride themselves on making a proposition and rule of law workable, and I believe that this can be done.
As for the point made by the noble and learned Lord, Lord Gardiner, looking at the matter from the point of view of insurance companies, again, I believe the difficulties are grossly exaggerated. One would have thought that insurance companies do not at the moment pay periodical payments, but, of course, they do. There are many insurance payments which are made on an annual basis. As for liquidation, there is the precedent of the Motor Insurers' Bureau.
I cannot help feeling that most of the objections were really invalid. I do not propose to state my objections to the existing law because they have been stated far better than I could possibly achieve by speakers on both sides. However, I wish to ascertain, so far as I can, why it is that married women are sensitive, and, I think, understandably sensitive, 1574 on this issue. I have no doubt that it is because the law, reflecting general social attitudes, does not properly recognise that marriage is a real partnership between man and woman in which the respective parties have different roles to play. There is a functional division of labour, and it is only because the wife performs her role as home-keeper that the husband can perform his as breadwinner. If that is so, as it surely is, that means that the wife in equity is entitled to her share of the loaf.
If the law does not properly recognise that fact, as it does not, it means that we have tackled the whole question of reform of the law in this field from the wrong end, that it is the sphere of matrimonial property law which ought properly first to have been tackled. If that had been done, I do not believe for a moment that we should have had what the noble Baroness, Lady Summerskill, stigmatised as an outrage; namely, that we should so reform our law of divorce that a blameless wife could be deprived of her rights on widowhood. The noble Baroness has been quite consistent on this matter, and she is fully entitled to take the attitude that she has taken in this debate. I respectfully suggest that not all the speakers against the Amendment, by reason of this history in this matter, are entitled to take the same attitude. But if the law does not properly recognise marriage as a true partnership and if it treats the husband as if he were conferring a privilege on the wife by marrying her, naturally women regard the present state of the law in the sphere with which your Lordships are concerned as an outrage and an anomaly.
It is only when the law, reflecting public opinion, comes to regard not the husband as the dependant of the wife or the wife as the dependant of the husband, it is only when one takes them together as interdependent, only when the law achieves the recognition of mutual dependency and interdependency that the understandable resentment of married women at the present state of the law can possibly disappear. It is for that reason that we have approached the whole question of reform in the sphere of husband and wife from the wrong end.
This problem appeared in the first programme of the Law Commission. I think it was Item 6. Yet to-day your 1575 Lordships are faced with absolutely no advice, and the dilemma which was pointed so acutely if I may say so, by the noble and learned Lord who sits on the Woolsack and my noble and learned friend Lord Morris of Borth-yGest, is that whatever way we go we shall create some difficulties.
Although I have every sympathy with those who wish to change the law-indeed, I want to change the law myself and will vote for its change—what ultimately sticks in my gizzard is that by removing one anomaly we shall be in danger of creating another. I cannot accept the point that the noble and learned Lord, Lord Gardiner, has made that, because there is an existing anomally or even two, we are justified in creating further anomalies. That way lies chaos in the law. Because one treads on a man's toes in the Underground, it does not mean that one is entitled to cut his throat when he comes out of the station.
Nor can I regard it as a real anomaly that insurance payments are not taken into account. Indeed, I go further than my noble and learned friend Lord Donovan. He said that that is not an anomaly: if the insurance is payable, it is due to the thrift of the husband. I would say it is due every bit as much to the thrift of the wife. It is something she has earned, and she is fully entitled to have it left out of account without bringing the law into disrepute.
So far as periodical payments are concerned, what that avoids is the very real anomaly that the Bill as it stands will create; namely, that one will treat inequitably two widows, elder and younger. I ask your Lordships to put yourselves in the position of those widows. Every day we have carnage on our roads; every day there must be two women, an older woman and a younger woman, who lose their husbands in the same road accident. Every day, unhappily, we have accidents in our mines, which are very dangerous places. In the same village there will be two women losing their husbands, an older woman and a younger woman. The profession of mariner is still a hazardous one, and every week two women living in the same street lose their husbands, an older and a younger one. If one gives the younger widow twice as much damages as the older one, just think 1576 what the older one will feel. She will feel a burning sense of injustice. She will say, "To her that hath has been given, but from me that has not has been taken even that which I have".
It seems to me that the great virtue of the Amendment of my noble and learned friend Lord Diplock is that it avoids that anomaly and that injustice between one widow and another. It is, therefore, because I believe that a system of periodical payments is perfectly workable, because we have worked it in the matrimonial law, because I do not want to see in correcting one injustice a further injustice perpetrated, that I support my noble and learned friend.
§ 1.49 p.m.
§ LORD GOODMAN
I do not know any legal problem that has presented greater difficulty to me than this rather limited but extremely important matter. Like most of your Lordships, I have thought about it very hard. I think I can say truthfully that, on the whole, I make up my mind quickly. I am very often wrong, but I am rarely in doubt. On this issue, I have found it extraordinarily difficult to decide what is fair and just. It seems to me that either of the courses suggested by both sides must produce injustices.
I do not think the situation has been assisted—and I reproach no-one for it, because feelings run high—by the over-emotionalism with which the matter has been presented. The case for the widow has been charged with emotion, sympathy and passion. I should like to pose an alternative though not a typical case, but one equally charged with emotion, sympathy, pity and passion. I intervene deliberately—I hope not discourteously—to ask the noble and learned Lord the Lord Chancellor to make it clear that we are not debating only the question of insurance companies. We are debating the question of private individuals against whom claims for damages may be made.
Take this instance—an extreme one, but a possible one—of a young man who has recently become an assistant bank manager. He is married to a young wife, he has one child and his wife is expecting another child. He has just bought on a mortgage a small house in Surbiton. He is living at home comfortably. He is maintaining a dependent mother. He is just able to make ends meet. He is a 1577 typical example, on the whole, of what the country holds in multitudes. He engages a window cleaner to clean his windows, and he fails to notice that, in removing the window one day to replace it, he has not adequately secured it. The window cleaner tragically falls from the top of the house and is killed; he is uninsured in these circumstances. His widow is young, pretty as paint, 23 or 24, the belle of the tennis club, the local wit; she will, undoubtedly, marry as soon as the first feelings of sorrow and distress have elapsed.
Is it remotely possible for a legal system to regard it as just that that young man should thereafter maintain that widow for the rest of her days, whatever her matrimonial prospects, and despite the fact that she will be remarried as a matter of near certainty in the briefest of periods? It is, of course, not a sensible possibility. You cannot regard a legal system which makes an award of damages of that kind as being fair or just. I have deliberately chosen an extreme case, but it is right to choose an extreme case because such cases will occur. Hence, we have what appears to me to be a very recalcitrant problem.
I believe, if I may also say this, that the position has been greatly exaggerated in describing the emotions of widows who are subjected to the consideration of whether they are to remarry. One must remember that the plaintiff in many lawsuits must submit himself to embarrassing considerations. If I decide to vindicate my reputation in a libel action, I am exposing myself to considerations far more personal, far more crucial to my future, than the question of whether I have any matrimonial prospects or riot, which I should venture to doubt. But the situation is one where if you go into court, you must expect inquiries, often of an embarrassing and personal nature.
The courts, in relation to personal injuries, have to inquire about whether someone's sexual virility has been impaired; about matters as delicate and difficult as it is possible to imagine. I do not believe that this factor is all that important. I can see that it is a factor that could be distressing, but my reason for considering that it ought not to be taken into consideration is not that it is embarrassing, but that it is hopelessly 1578 conjectural. It is absolutely impossible to determine whether a lady has matrimonial prospects—her looks are no guide, her temperament may be totally opposed to marriage; she may have been desperately unhappy in her first marriage.
We have had pictures painted to us of idyllic marriages. Lawyers' experiences of marriages, unhappily, are not concentrated on the idyllic. The fact remains that no-one is able to say whether her first experience of marriage may have been so forbidding and disagreeable that she had no intention at all of embarking on a second marriage. These are considerations so subjective that it is not reasonable to take them into account.
Periodic payments provide a totally logical solution, but, unhappily, it is a completely unpractical solution. Consider the case of the individual plaintiff. Is he to have an award of damages made in 1971 which is variable at any time? Is he not to know at any point of time the extent of his liability?
§ LORD GOODMAN
I am most obliged. Consider the case of the individual defendant. Is he not to know? This is not really a practical possibility. If I may say so, we have all been a little casual and, perhaps, not terribly sympathetic towards the lot of the insurance company. Few people will shed tears for insurance companies; but it is necessary to remember that the amount of damages they pay, and the prospect of the reopening of these awards over years may seriously affect the premiums that we all have to pay. One cannot write off insurance companies as great organisations bloated with wealth, about whom it is quite unimportant to decide what amount of damages they have to pay.
The noble and learned Lord the Lord Chancellor whose difficulties in this matter I well understood, was quite right in saying that nothing like the amount of the nuts and bolts necessary to deal with this situation had been dealt with in the Amendment. There is no situation for dealing with the security that has to be given. How can you make an award of damages for periodic payments, leaving to the unfortunate plaintiff total uncertainty about whether two 1579 years hence the defendant will still have the money to pay? Even with insurance companies we have seen very unfortunate cases in recent weeks, when the whole situation of an insurance company has changed overnight. You might well find that you have an award one day of the week which is valueless the next day. I do not believe that you can deal with the problem by this means.
I hesitate to say what means you could use, but two ideas come to my mind. I believe there is a lot to be said for the appeal made by the noble and learned Lord the Lord Chancellor—to which I am sure there will be no response—that this matter should be further considered. I do not believe that it has had an adequacy of consideration. But I would venture to make two suggestions. One is that where an individual defendant is concerned, there should be some provision, which is contrary to the usual practice in relation to damages, for taking into account his capacity to pay. It seems to me quite wrong in a case of this sort, that a man should have made against him a judgment of an unlimited extent which deliberately excludes a factor that always should be taken into account, while at the same time taking no regard of whether or not he can pay the damages. I think it right that the defendant's capacity to pay should be one of the factors determining this particular situation. This is one suggestion.
My second suggestion is this. It being wrong in principle that some account should not be taken of the possibility of the lady remarrying, it being wrong that conjecture should enter into this matter, it seems to me not wholly wrong that it should be dealt with in quite an arbitrary sense. I certainly should not object to a suggestion that there should be some actuarial calculation. Figures are available if people will bother to delve for them; inquiries can be made of solicitors; one can find out how many widows who are widowed in circumstances of fatal accidents in fact remarry. It is not beyond the wit of man to discover this information, at least to a sufficient extent to determine what is a fair actuarial deduction.
I should think it far better, if we are going to retain this Bill, that we retain it on the basis that a quite arbitrary 1580 deduction, based on tables prepared by statisticians, should be made in all cases which take nothing into account except the age of the lady. It would be quite wrong to take into account her appearance, her marriageability or other factors that no one but the Almighty can assess.
I say, for my part, that I shall not vote either on the Bill or on the Amendment. I take the view that we have a long way to go in order to determine what is justice in this situation. I think that emotion is a dangerous monster where we are legislating for posterity. I do not think we ought to give way to emotion, however much one must inevitably sympathise with the feelings of the noble Baronesses who expressed a splendid unanimity in their presentation of the case. I know that anyone who has expressed the views I have expressed needs to take his courage in his hands. I have already made arrangements to emigrate! But the fact remains that I think we are proceeding with this in too great haste and that we have not given sufficient consideration to a number of possible alternatives.
§ LORD COLLISON
Before the noble Lord sits down, may I put this point to him? If we are to take account of the defendant's ability to pay, what is going to happen in the case of industrial fatal accidents? The trade union movement has been pressing for years that insurance should be compulsory. What is going to be the position if judges are to take into account the ability of a man to pay? I think this is a very real problem.
§ LORD GOODMAN
May I answer the noble Lord by saying that I confess to having no ideal solution to this matter at all. There are obvious difficulties in the way of introducing what I believe to be quite a new principle in the law of damages, whereby you assess a man's capacity to pay in determining the damages. It seems to me that if you are deliberately legislating against an injustice, this is a case where you should introduce into the system the best corrective you can. That is all I can say.
§ 2.0 p.m.
§ THE LORD CHANCELLOR
Without having any desire to curtail anybody's right of speech, which I do not 1581 have the right to do anyway, I wonder whether it would be for the convenience of the Committee if it came to a conclusion on this Amendment.
§ BARONESS BIRK
May I interrupt the noble and learned Lord? I understood that a vote was going to be taken. I had risen to speak but I sat down because 1 did not wish to cause any further delay.
§ VISCOUNT DILHORNE
I think there may be a little confusion. My noble and learned friend Lord Diplock moved the Amendment. Surely he should be given the opportunity to say whether or not he wishes to press it to a Division. I do not think that he is about to make a second speech, but I think it would be discourteous of him not to make some passing reference to what has been said and then to indicate, in response to what the noble and learned Lord the Lord Chancellor has said, whether or not he is going to press his Amendment to a Division.
§ 2.1 p.m.
§ LORD DIPLOCK
My intention was none other than that, except that I had hoped to have the courtesy to express to those who have spoken in the debate my appreciation of the thoughtfulness of their speeches. It is evident from what has occurred in this Committee that the problem requires a great deal of thought and also. I venture to suggest, requires urgent consideration by the Law Commission.
I recognise that the Amendment in my name lacks the nuts and bolts which would be needed to put it into operation. There was no time to provide those nuts and bolts in the short period between Second Reading and the time that Amendments had to be submitted. But I would add that the time needed to produce the nuts and bolts for a rational and just amendment of the law is far less than five years. I venture to express the hope that if the matter is considered by the Law Commission it should be considered as a matter of urgency, so that we may have the results within six months and put the law right, as it should be put right within the next Session.
1582 I recognise that the Amendment seeks only to state the principles upon which we think the law ought to be reformed. It does not contain the nuts and bolts. In those circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 [Assessment of damages for Widows]:
LORD STOW HILL moved Amendment No. 3:
Page 2, line 36, after ("personal injuries") insert ("(as defined in section 6 of the Law Reform (Limitation of Actions, etc.) Act 1954)").
§ The noble Lord said: I think I can move this Amendment quite shortly by telling the Committee that it is a purely drafting Amendment. Its object is to bring the law of Scotland into line with the law of England. It achieves that object by adapting a definition of damages to the law of Scotland so as to enlarge it in order to include physical deterioration, and so on. I beg to move.
§ On Question, Amendment agreed to.
§ Clause 4, as amended, agreed to.
THE LORD CHANCELLOR moved Amendment No. 4:
After Clause 4, insert the following new Clause:
§ Abolition of control of widows' damages
§ ".—(1) Section 19 of the Administration of Justice Act 1965 (widow's damages in Fatal Accidents Acts claim to be subject to control of court if claim also made on behalf of infant) is hereby repealed.
§ (2) Any money which by virtue of the said section 19 is in court at the commencement of this Act shall, if the person entitled thereto is not under disability and makes an application in that behalf to the court, be paid out to that person.
§ (3) The repeal by this section of the said section 19 shall not affect section 31 of the said Act of 1965 (which enables the Parliament of Northern Ireland to enact provisions corresponding to those of the said section 19)."
§ The noble and learned Lord said: I shall try to move this Amendment very shortly. I hope that it will not prove contentious. If a man loses his wife and receives damages he can do what he likes with the damages. He is not bound 1583 to pay that money into court; he is as free to use it as any other money he possesses. If a widow is left a legacy, her husband having died naturally, she can do with the legacy what she likes. She is not bound to pay it into court; she is under no restriction. A widow successful in obtaining damages under the Fatal Accidents Acts, had, until 1965, to pay the money into court and to live a life, as it were, in leading strings, as somebody mentioned in a previous debate. Since 1965, and where she has no minor children the position has been modified; but where she has minor children she is still in the leading strings of the old law. The object of the Amendment is to put her in exactly the same position as a man, or a widow who is left a legacy. In other words, she will be treated in the same way as everybody else.
§ It has been a matter of controversy in the past, but certainly I think, and the Government think, that this restriction ought to be removed. The theory in the past has been that she might become the victim of the entrancing charms of some male predator or that she might "blow" the money on some unworthy object. But my experience of women, such as it is—and it is not very wide—is that they are far more careful of their money than men and that they are just as capable of looking after it—not always more so, but certainly not less. I think this is an unnecessary discrimination against women. I have therefore taken the opportunity to put down this Amendment as a minor improvement in the law which I hope will be accepted. I beg to move.
§ 2.5 p.m.
§ VISCOUNT DILHORNE
I must say that I was rather surprised to see the Amendment on the Marshalled List, although the noble and learned Lord the Lord Chancellor had made some reference to the proposal in his Second Reading speech. I cannot recollect any previous occasion on which the Government have put down an Amendment to a Bill which from the start has been a Private Member's Bill. I am not sure that it is a very good thing. I am not at all sure whether, when the Government put down an Amendment, it means 1584 that if there were a Division the Government Whips would be on. But it has been put down and we have to consider it.
There is a little more behind this matter than the noble and learned Lord the Lord Chancellor mentioned. Some years ago a committee was appointed, presided over by my noble and learned friend Lord Pearson, which went into this whole question and the investment of funds in court. My recollection is that that committee, which was a powerful body, reported in favour of the retention of the provision that damages awarded to widows, whether or not they had minor children, be kept in court. I am sure that they did not do that without very serious consideration of all the relevant facts which came to their knowledge. Briefly, the reason why they did so was that they thought, as I understand it, that it would be for the protection of widows, of widows with infant children and of the children.
That Report came to me when I was Lord Chancellor. I disagreed with it to the extent that I could see no reason at all—and here I entirely agree with the noble and learned Lord the Lord Chancellor—why a widow who had no infants dependent upon her should be treated any differently in respect of damages from a spinster. It did not fall upon me to implement that view. It fell upon the noble and learned Lord, Lord Gardiner, to do so. He introduced a Bill, he drew attention to these matters, and he said in his speech that with regard to this compromise view, as it might be called, in 1965 he had consulted a great number of people with much practical experience of what he then called, not the typical widow but the county court widow. He said that they included the Law Society, the Council of the Trades Union Congress, masters of the Supreme Court and registrars of I the county court.
§ LORD GARDINER
If the noble and learned Lord will forgive me. I do not think I said that I had consulted. I said that the Pearson Committee had consulted.
§ VISCOUNT DILHORNE
I am so sorry: the Pearson Committee had consulted. I was trying to put it very shortly. They 1585 thought that it would be wrong to allow a widow with no experience of handling large sums of money to have unfettered control of an award of damages which is meant to take the place over the years of the family wage packet. The noble and learned Lord then said:I think that 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.That was in 1965, not so very long ago. Have these bodies again been consulted? Has there been any change of view? There is no question here of freeing from control the damages awarded to a widow who has no infant children. That was done in 1965. I am not quite sure what has happened since then, at a late stage in the Bill, when it has been through another place to make the change now proposed, by the insertion of the new clause. It may be right, but I should like to feel satisfied that this proposition, which is suddenly put before us, reflects very serious and careful consideration.
The noble and learned Lord, Lord Gardiner, said,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".As I understand the Amendment, its effect will be to remove such safeguards of the infant children's interests as now exist. This bothers me. I am not speaking in opposition to what is proposed, but in an endeavour to probe and find out what has happened. I speak on this with some degree of anxiety about the consequences if this change is made.
§ 2.12 p.m.
§ LORD GARDINER
I feel in some difficulty here. I do not want to take up a lot of time; on the other hand, I owe a duty to my noble friends to give them sonic advice. What happens at the moment is that a total sum of dependency of the wife and children having been arrived at, that is apportioned by the court. But it is not usually apportioned realistically. Much the largest sum is always given to the widow. The amounts apportioned to the children are almost nominal, on the footing that if the widow spends the money she has been given most of it will go on the children as well as on herself, which is very sensible. But we must realise that if the Amendment is 1586 passed, widows will in future get less and i children will get more.
I do not say that there is anything wrong about that. Under the present arrangements the money is usually paid into the local county court. The widow sees the county court registrar and is asked what she needs for funeral expenses and so on. They then agree a sum which she can collect monthly. Then he says that if she needs anything extra, for special educational expenses for the children, or for holidays, or to buy a house, she should go to see him. He says: "I do not think you will find there is any difficulty, unless you come and say that your elder brother, who has not had a fortunate business experience, wants you to hand over the whole of the money to him. We should probably not allow that, but that will be a protection for you." That, broadly speaking, is what happens at the moment.
I well remember the Bill that followed from the Pearson Committee Report. It was the one thing I found in the Law Reform cupboards of the Lord Chancellor on taking office. I shared the view of the noble and learned Viscount, Lord Dilhorne, that although that Committee had recommended that the money should always be paid into court, there was no reason why the widow should not have it if there were no children. If there were children, it should continue to be paid into court. I have never had any strong view about that. What influenced me was that from all the inquiries made by the Pearson Committee, and from the evidence they heard, it appeared that the only people in favour of handing over to the widow at once were the Bar Council. Those who deal mostly with the widows direct-the solicitors, managing clerks, the High Court masters, the county court registrars, the T.U.C. and the Joint Negotiating Committee of Working Women's Organisations—were against the widow being given the money; they thought it was for her protection that it should be paid into court.
As I say, I had not then, and I have not now, any strong views one way or the other. I do not understand that these different bodies have been consulted or have changed their minds. I think the noble Lord, the Lord Chancellor, is probably quite right in saying that even in the 1587 last five or six years there has been some change of view on this point. The matter was left last time to an entirely free vote. Some of my noble friends voted one way, some the other. The decision was something like 30 to 10 that it should continue to be paid into court.
I shall not give any advice. I have done my best to explain the position. I want to make it quite clear—and I quote now from the Pearson Report—that:Where there is an apportionment between a widow and children, the practice is to award the greater part of the total to the widow, on the reasonable assumption that she will maintain the children so long as they are dependent, and to award comparatively small sums to the children. Usually, though not always, a younger child is awarded more than an older child, because the period of expected dependency is greater.The Pearson Committee they give examples of £1,500 to the widow, £200 to the younger child and £150 to the older child; £2,375 to the widow, £75 to one child and £100 each to the other three; a widow £5,000, elder son £150, elder daughter £200, two younger children £650 between them.
They said, in paragraph 27:In an action under the Fatal Accidents Acts, a widow with dependent children will normally have awarded to her the major part of the total sum of damages; it is assumed she will use her damages for the maintenance and benefit of the children as well as herself.The assumption is of course, in general, very well founded. The Committee's Report goes on:The court has a duty, in the performance of one of its traditional functions, to Protect the interests of the children. If the widow's fund were to be uncontrolled, the practice of awarding the major portion of the damages to the widow would have to be reconsidered, and some different practice of awarding the major portion to the children and providing periodical contribution from their fund to the household expenses might appear necessary and even then there might be cases in which the widow, having quickly spent all her own fund, would have to be supported by drawing from the children's fund. There would be no balance of advantage in such a change of practice; it is simpler and better to retain the present practice. In their opinion the money ought to continue to be paid into court.I am not opposing this Amendment. It is a Government Amendment. It is unusual for a Government to put down an Amendment to a Private Member's Bill which raises an entirely new topic for the 1588 first time in the Second Chamber. I am anxious to see the Bill go through. I should not, therefore, oppose the Amendment if we could obtain some assurance from the noble and learned Lord that if this part of the Bill runs into trouble in the other place he will consider withdrawing this part of the Bill in order that the rest of the Bill may go through.
§ THE LORD CHANCELLOR
I think I can answer that straight away. I will not risk the Bill anywhere for the sake of this, because it is a relatively small matter. If I may just reply to the points, I have absolutely no doubt that this is the right thing to do. If a man is left with infant children to look after as a result of a motor accident and gets damages, he is allowed to do what he likes with the money. I see absolutely no reason why widows should not be put in the same position. I cannot begin to see what the arguments to the contrary are. It may or may not be the case that, in practice, courts will award more to the children in such a case, but the widow at any rate will be free to use what she gets. It seems to me that in this Year of Grace, 1971, to pretend that widows cannot and widowers can be totally trusted with a sum of money, is absolute rubbish. The Report of the Cripps Committee was as much in favour of this as of the subject matter of the last Amendment we were dealing with. It will not affect the total sum available to the family. It will at least put women, in this respect, on the same footing as men. I cannot believe that there is anything in the world which prevents their being so.
As to the theory that Governments are not allowed to move Amendments to Private Member's Bills, I think I have a longer experience than both the noble and learned Viscount, Lord Dilhorne, and the noble and learned Lord, Lord Gardiner. It is totally novel to me, and I have been in Parliament since 1938.
§ 2.20 p.m.
§ LORD STOW HILL
The noble and learned Lord the Lord Chancellor is strongly in favour of his Amendment. The noble and learned Lords, the two ex-Lord Chancellors, have maintained a comparatively neutral attitude. It may 1589 be thought that I, having some responsibility for introducing the Bill, should offer some advice. In spirit I am in sympathy with some of the arguments put forward by the noble and learned the Lord Chancellor. It would seem to accord with the general view that we have taken throughout this Bill that widows should be treated as adult and able to look after their own affairs. In consonance with that view of them, which I personally hold strongly, money allotted as their share of damages should be paid out to them to make such use of as they think right. I venture to advise the Committee to support the Amendment.
§ LORD DONALDSON OF KINGS-BRIDGE
I would point out that laymen have an equal vote here with lawyers. My opportunities for supporting the noble and learned Lord who sits on the Woolsack are not frequent, and so I leap to my feet to say that, as a layman, I support him wholeheartedly, having heard the arguments between himself and the previous Lord Chancellor, and the summing up of a third Lord Chancellor. Nowadays we believe in equal rights for women. The idea of treating a mother in this position differently from a father is ridiculous. I join my noble and learned friend Lord Stow Hill in advising the Committee to support the Lord Chancellor.
§ BARONESS SUMMERSKILL
I have some reservations. I am, wherever possible, the first to equate men with women, but one cannot equate the widow with a number of dependent children, with the man who has been trained to earn his living in some field. Their financial positions are entirely different. He is completely independent, can pursue his own field, and can acquire more skills. She is probably chained to the household because of her dependent children. I shall give way, of course. I hate to oppose the noble and learned Lord the Lord Chancellor on this. He has been so liberal in his attitude to women during the debate.
I am being consistent. My reason for supporting annual payment, or periodical payment, was that I felt that the woman who is vulnerable should have more protection, and that would give it to her. I did not say that if there were periodic examinations there would be nothing 1590 left. I wanted the sum examined so that it would be related to the increased cost of living, not an examination with regard to men about the house, and so on.
We are dealing with a woman who is particularly vulnerable, and this would leave her with some protection. My noble friend read out a list of people who have decided that she should be so protected, and it includes the working women's organisation of the Labour Party—a body of women who are, in this respect, completely realistic. Their fund of common sense is almost unequalled by any other women's organisation. They said that the position should remain as it is, and that Amendments of this kind should not be accepted. I am in a state of semi-euphoria, because we won on the previous point, and I am prepared to give way to my noble friend.
§ 2.25 p.m.
§ LORD PEARSON
As one who was privileged to sit on the Committee which reported in 1959 I should say a word or two. The Committee was appointed to deal with funds in court, and how they should be invested, and it was part of our function to advise whether or not widows' damages awarded under Lord Campbell's Act should be kept normally in the control of the courts. We had a strong Committee for this purpose, including persons who best know what widows of that kind require. We had a county court judge, a county court registrar, a Master of the Supreme Court, and two women among us, and we unanimously reported in favour of continuing the control. The situation may have changed in the past 12 years, but there were strong reasons given, and we came to our decision on the evidence that was given to us by various bodies who seemed well-qualified to know what they were talking about.
We had strong advice from the Law Society, and solicitors have a great deal of experience in these matters. For the protection of widows who have never in their lives had to handle large sums, or to look forward in their financial arrangements for more than a week ahead, and who have no experience of knowing the difference between income on the one hand and capital which produces the income on the other, the view taken by the Law Society and the Trades 1591 Union Congress was that controls should continue.
It is true that we went further than was ultimately thought right in 1965, when it was thought right to continue the control only in respect of widows who had children—minors—to look after. I do not complain of that. I suggest that, before it is decided that this control should not continue, it would be right to make inquiries from those who know the actual facts and circumstances of widows. Often the widows concerned are working-class women who have been married to weekly wage earners, and they know nothing about sums of money. Possibly, they would be exposed to the onslaught of some utterly unscrupulous and unreliable people. Ultimately, this is a matter for widows, and those who look alter their interests, to decide.
I have no strong view to put forward on the subject. I only think it right to point out that the question was considered at considerable length in 1959, and on the evidence received the Committee thought—and it was a unanimous opinion—that it would be for the widows' benefit that this control be continued. I urge the noble lords to consider the evidence with some care before deciding to accept the mendment.
§ BARONESS WOOTTON OF ABINGER
Whether we are working-class, middle-class, or if they still exist, upper-class widows, we would think it very nice if we might be protected when we wish to be protected, and not when other people think so.
§ THE LORD CHANCELLOR
To those who have expressed doubts, may I say in amplification that what the noble Baroness, Lady Wootton, has said is that if a widow wants to put her money on trust, she can do so. She is bound to do so under the present restriction. A man is not. As to working-class widows, I cannot claim to be a member of that group, either a widow, or working-class, but my experience of them is not inconsiderable. They very often have the keeping of the family finances when the husbands are alive, and they are very much less likely to spend money on horses and drink. I would rather my wife looked after my money than that I should. She is far more careful than 1592 I am. The same is probably true throughout society.
I have had the humiliating experience, and I say this to my noble and learned friend Lord Pearson, not only with widows, but with other people who have had to put their money in court for some reason, that they have put it in court, it has been invested for them by the Lord Chancellor, and they have lost part of it owing to inflation. The less I am saddled with that kind of responsibility, and the more the widows can invest it prudently on their own behalf, the happier I shall be.
§ LORD AIREDALE
I do not know whether it is absolutely vital that this question should be decided to-day. It is a rather small Committee. Before the next stage of the Bill, the inquiries suggested as desirable by the noble and learned Lord, Lord Pearson, could perhaps be made. It would be a courtesy if those inquiries were made, and if the body referred to by the noble Baroness, Lady Summerskill, were consulted during that time. We might then come to a decision on this matter at the next stage of the Bill, when the House might not be so "thin". I put that forward as a suggestion.
§ BARONESS EMMET OF AMBERLEY
We have waited a long time to see the Bill through. The noble and learned Lord, Lord Pearson, has said that his Report is 12 years old, which is a long time these days, bearing in mind the way things move. I feel that many of us here would like to get this matter settled to-day.
§ VISCOUNT DILHORNE
It obviously will be settled. I understood the noble Lord, Lord Airedale, to say he was not opposing the inclusion of the Amendment in the Bill and added as a new clause, but that he hoped that some inquiries would be made to enable further information to be given to the House by the next stage. The noble and learned Lord the Lord Chancellor has not told us of any such inquiries being made. He referred to some body which had recommended this. I do not oppose this proposal to-day, but I feel some slight anxiety—for once joining the noble Baroness, Lady Summerskill—about what the consequences may be in some quarters.
§ BARONESS PLUMMER
Many other Bills have been passed in a thin House. I do not see why this should be pinpointed and excepted.
§ On Question, Amendment agreed to.
§ 2.33 p.m.
THE LORD CHANCELLOR: moved Amendment No. 5:
Page 2, line 44, leave out ("Part II of") and insert ("Except for section (Abolition of control of widows' damages) (3)").
§ The noble and learned Lord said: This Amendment is consequential on new clause No. 2. It extends to Northern Ireland subsection (3) of that clause which preserves the existing powers of the Parliament of Northern Ireland. I beg to move.
§ On Question, Amendment agreed to.
§ Clause 5, as amended, agreed to.
§ Schedules agreed to.
§ The noble and learned Lord said: This Amendment is consequential on the new clause abolishing control of widows' damages. I beg to move.
§ On Question, Amendment agreed to.
§ Title agreed to.
§ House resumed; Bill reported, with the Amendments.