§ 4.4 p.m.
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, I rise to move that this Bill be 25 now read a second time. When I obtained leave to introduce it and read out the long title, a witty Peer from the Liberal Benches rose and asked whether it was intended to substitute this one measure for the entire statute book.
This sally was well received by the House, and rightly so. But I must begin by explaining that this is almost the opposite of what I am seeking to achieve. Law tends to need darning from time to time, like old socks; and, despite its monstrous long title, its nine Parts, and its 69 clauses and its seven schedules, this is essentially a darning exercise, intended to carry out a very large number of relatively small reforms, all, in my judgment overdue, none, I hope, highly contentious, and certainly not from the party political point of view. It is intended to be a measure of good legal housekeeping. But I have set my heart, such as it is, on getting it, and my colleagues have kindly consented to my receiving a slot in their already overcrowded legislative programme but only on condition that I can persuade another place to carry it through on Second Reading procedure.
It has already been shown informally in its present form to their legal representatives, and I am informed that they have generously given a sympathetic response to my humble request and I am grateful to them for it. But this does place limits on the extent to which I can propose or accept amendments, and I hope that noble Lords in this House will be sympathetic and understanding. In particular, I shall not be able to use it as a vehicle for carrying controversial hobbyhorses of any kind. In the battle for parliamentary time, the Lord Chancellor's Department is often the loser. Like the Pope, we have but few divisions, and the acres of print we occasionally require for our measures do not normally excite much political sex appeal. The only effect of trying to insert controversial clauses, even if meritorious, is that maybe we shall lose a valuable measure of law reform.
The Bill naturally falls into two halves. The first contains law reform proper, the second what I might describe as technical but necessary amendments or adjustments to the judicial process. I can succeed in carrying out these improvements by consent alone. So I now turn to the first half. The law reform proposals in the Bill come from a number of different sources. Indeed, their origins are illustrative of the way in which nowadays we go about the business of law reform. It is generally accepted that the work of the two Law Commissions, set up some 16 years ago, very largely on the initiative of the noble and learned Lord, Lord Gardiner, has led to a regular and very beneficial flow of law reform which would not otherwise have seen the light of day. Their contribution is substantial and I am always anxious to do as much as I possibly can to ensure the implementation of their reports wherever these are found acceptable. This is important if the morale of the commissions is to be sustained, and the quality of their membership kept at its present distinguished level.
Proposals emanating from the two commissions form the basis of much of Parts I and II of the Bill and some of Part III. There are times, however, when pressing problems arise in the legal field which are not necessarily suitable for a reference to one of the Law 26 Commissions. In such cases a body drawing on wider membership or experience is required and the Government of the day will then decide on setting up a Royal Commission. The concern which was expressed following the thalidomide tragedy 10 years or so ago, together with other matters, was such an example. It led to the creation of the Royal Commission of which my late noble and learned friend Lord Pearson was the chairman. I was very largely responsible for its appointment, and I should like very much to be midwife to some of its proposals. Its deliberations resulted in a lengthy report, on much of which decisions remain to be taken. But however, Parts I and II of the Bill do effect some important Pearson recommendations and, in relation to England and Wales, subsume some of the earlier work of the Law Commission. I believe the changes will be generally welcome and represent worthwhile improvements.
Finally, your Lordships will find in Part IV of this Bill the results of the work of yet another kind of law reform agency—this time the Law Reform Committee which advises me on more technical matters which are referred to it. The Law Reform Committee has been in existence since 1952 and was the successor to the old, pre-war, Law Revision Committee. It consists of judges, barristers, solicitors and academic lawyers under the chairmanship, at present, of my noble and learned friend Lord Scarman. The recommendations of two of its recent reports on wills are contained in this Bill, thus confirming the wisdom of the decision to leave this committee (and its cousin the Criminal Law Revision Committee) in being when the Law Commissions were created. There is, as your Lordships will appreciate, a place for law reform by a highly qualified full-time professional body like the Law Commission as well as for a substantial part-time contribution in matters of pure lawyers' law.
I now turn to the Bill itself. Parts I and II are concerned with damages for personal injuries and death. Broadly speaking, they contain for England and Wales and Scotland respectively certain recommendations of the Pearson Commission which, in relation to England, endorse the Law Commission's Report on Assessment of Damages, published as long ago as 1973. Your Lordships will recall that I told the House in the debate on the Motion of the noble Lord, Lord Allen of Abbeydale, on 20th January, of the conclusions which the Government had reached on these. I mentioned, in particular, that the Pearson recommendations on periodic payments and the modified multiplier had, after extensive consultation, not proved acceptable. On the other hand, the Government have not yet taken a final view on the recommendation for full offsetting of social security benefits against damages recoverable for personal injuries. This is a proposal which is currently being canvassed in the White Paper on the Industrial Injuries Scheme. But in Part I of this Bill, the Government are accepting a group of Pearson recommendations which will get rid of certain obsolete or unnecessary rights of action, remove important anomalies and introduce changes of particular benefit to plaintiffs. It may be helpful for the House if I were to mention the main changes which will result from Part I, clause by clause.
Clauses 1 and 2 abolish certain claims for damages or rights of action. Clause 1 abolishes damages for 27 loss of expectation of life but provides instead that, in assessing damages in respect of pain and suffering caused by the injuries, the court shall take account of any suffering caused or likely to be caused to the plaintiff by awareness that his expectation of life has been reduced. This will, in effect, abolish what is often called the conventional award for loss of expectation of life—currently about £1,250. This is regarded as being of little financial significance and has often been criticised as derisory in respect of the deaths of husbands, wives and children. I should make it clear that this does not affect any claim by a living plaintiff for damages for loss of income where his life has been shortened.
Clause 2 abolishes a number of archaic actions for loss of services, and thus completes a process begun by the Law Reform (Miscellaneous Provisions) Act 1970. There is no longer any place for an action on behalf of a husband for being deprived of the loss of services or society of a living wife as the result of injuries suffered by her or for the benefit of a parent on the ground of his having been deprived of the services of a living child. In the same way, an employer's right of action in respect of loss of services of a menial servant, of the rape or seduction of a female servant in his employment or of the enticement or harbouring of an employed servant, will be abolished. The House, I hope, will recognise that there is an anachronistic, even proprietary, flavour about these actions, and they ought to go.
Clause 3 introduces three important changes in the Fatal Accidents Act 1976 and, in doing so, replaces the text of the first four sections of that Act. The first change replaces the old Section 1 with a new section and increases the range of dependants who may bring an action in respect of fatal injury. In future, those able to claim will include all ascendants and descendants of the deceased (instead of merely parents, grandparents, children and grandchildren), former spouses and any person treated by the deceased as his child.
The second, and most important, change in the fatal accidents clauses will be found in the proposed new Section IA of the 1976 Act (now part of Clause 3(1) of the present Bill). This will introduce a new claim for damages for bereavement and, on this, I owe the House a rather fuller explanation than on the other provisions of this Part. The proposal in the Bill follows the Law Commission's recommendation of 1973. It will give a fixed sum by way of damages to a spouse for the loss of the other spouse and to parents for the loss of a child. The amount is fixed by the Bill at £3,500 but would he capable of being increased by order.
In deciding that this was the right approach, the Government have rejected the somewhat broader proposals that appeared in the Pearson report, which recommended a right to damages for loss of society, which would have been available also to children for the loss of a parent and which would have been tied to a figure of one-half average industrial earnings. I should add that we are not following the provisions which since 1976 have been the law in Scotland and which allow the courts a discretion to award damages for loss of society, unlimited in amount, to the same 28 class of beneficiaries as the Pearson recommendation.
Personally, I believe that no monetary sum can adequately compensate a person for bereavement and I speak, as the House will remember, not without bitter experience of these things. It is for this reason that I think the award should be of a conventional, fixed kind available only in limited circumstances. My present view is that it should not be available to an unmarried minor child in respect of the loss of a parent because, following the minority report in Pearson, such a child is already likely to receive substantial dependency damages in any event. Bereavement damages can add little or nothing to that and I think there are telling reasons for adopting a simple solution of the kind that appears in the Bill.
The third change in the Fatal Accidents Act would require the courts to disregard all benefits coming from the estate of the deceased in reduction of damages payable to a dependant. This is now a relatively small change. In recent years many benefits, including the matrimonial home, are already disregarded.
Your Lordships will find in Clause 4 the other significant change in the law of damages. In effect, this reverses the decision of your Lordships' House in its judicial capacity in Gammell v. Wilson. In that case, the House felt itself compelled to decide, but with great reluctance, that a claim for the income which would have accrued to the plaintiff during the years of his life that have been lost, survives for the benefit of his estate. This has meant that, in some circumstances, a defendant has had to compensate not only the dependants who may have a claim under the Fatal Accidents Act but also the estate. This element of double compensation is unacceptable and Clause 4 puts that matter right. I should emphasise that it does not affect the right to damages payable to a living plaintiff in respect of the lost years' income.
Clause 5 deals with a very minor matter. It prevents another case of double compensation. Any saving to an injured person attributable to his maintenance wholly or partly at public expense in a hospital or other institution will be set off against any lost income as a result of his injuries already compensated by way of damages.
Clause 6 is of greater moment. It introduces a new procedure for provisional damages on the lines recommended by the Law Commission and endorsed, in general terms, by the Pearson Report. What is proposed is that the courts should be empowered to make a provisional award in cases where the medical prognosis is particularly uncertain and where there is a chance, falling short of probability, that some serious disease or serious deterioration in the plaintiff's condition will accrue at a later date.
One might, for example, have a case where the plaintiff's sight is impaired as a result of an accident at work, but not so badly as to deprive him for the time being of his livelihood. In such a case, however, the medical evidence may point to a possibility of his actually going blind within the next five years. A similar example might be that of a young child whose skull has been fractured in a motor accident. The recovery may appear to be complete by the time the case is heard, but the prognosis may include a slight (if diminishing) possibility of epilepsy. In cases of this kind, under the existing law the only remedy is 29 inadequate. The plaintiff may apply for what is called a "split trial"; that is to say, a trial of the issue of liability first (when recollections are relatively clear) and an assessment of the damages later (when the prognosis can be, but is not always, more definite). But under the existing law, when it is made, the award is an award made once and for all.
Consequently, in the two examples I have given, if at that stage the evidence is that there is, say, a one in 10 chance that the plaintiff may lose his sight completely or become epileptic, the judge must award him one-tenth of the damages that would be awarded if there were not a mere chance but a certainty of the danger coming to pass. This method has the advantage of achieving finality (which is often as important to the plaintiff as to the defendant) but I must describe it as extremely crude. It means that if the chance event never happens, the plaintiff is overcompensated, but if it does happen he is under-compensated, sometimes to a very high degree. In other words, in either event the award is bound to be wrong.
The purpose of Clause 6 is to make it possible for the court to take a different approach, to wait and see; that is, to award nothing in respect of the feared event but to give damages for what is known, and then to allow the plaintiff to apply for damages later if the feared event actually takes place. In all other respects, the award is, of course, perfectly normal. I do not imagine that this procedure will be employed very often. It will not be invoked unless the plaintiff wants it and the court is satisfied that this procedure will not cause serious prejudice to the defendant. It will, therefore, be comparatively rare, but in those cases where it is used it will he manifestly fairer to both parties than the existing rule.
So far, I have been dealing with England and Wales and Northern Ireland. I now timorously venture north of the Tweed, though on the Committee stage I hope that I shall be assisted by my noble and learned friend who occupies the Front Bench as Lord Advocate. The content differs considerably in part, due to the fact that a number of improvements in this area have been secured for Scotland by the Damages (Scotland) Act 1976. Part II therefore covers—with that qualification for Scotland—much the same area of damages as Part I does for the rest of the United Kingdom. The Scottish Act of 1976 carried into effect the Scottish Law Commission's Report No. 31, which was published in 1973. The commission's continued involvement in this field is now evident in the provisions of Part H of the Bill.
In general, the clauses follow recommendations made in the Scottish Commission's Report No. 51, which was published in 1978, in which the recommendations of the Pearson Commission on claims for services and admissible deductions were reviewed. Where the Scottish Commission has suggested any modifications to the approach advocated by the Pearson Report, the Scottish recommendations have been preferred in the clauses which are now before your Lordships. This is the case, for example, with Clauses 8 and 9, which provide for an injured person to recover compensation for necessary services given to him by a relative, or for any loss of ability on his part to render services to members of his family. Clause 10, which lists 30 payments to be received by the injured person which should or should not be taken into account by the court in assessing damages, also reflects the further consideration given to the Pearson recommendations by the Scottish Commission.
Clauses 11 and 12 are prompted directly by Pearson recommendations and have not benefited from any commission consideration separately made. Clause 11 is essentially the same as Clause 5 in Part I, and provides that maintenance at public expense will be taken into account in assessing damages. Clause 12 corresponds to Clause 6 in Part 1, which gives the court power to award provisional damages. Clause 13 provides for the interpretation of the terms employed in Part II. Clause 14 further demonstrates the close interest taken by the Scottish Commission in this field, because the repeal of Section 5 of the Damages (Scotland) Act 1976 was prompted by its Report No. 64, which was published as recently as April 1981. This concluded that the means of avoiding a multiplicity of actions set out in the Act proved rather unwieldy and the problem could be accommodated more satisfactorily by rules of court.
After my excursion into Scotland, I now return to England and Wales. Part III amends the law regarding awards of interest. Clause 15 and Schedule 1 enlarge the powers of the High Court and the county courts to award interest on debts and on damages. The most serious defect in the existing law is that, by paying his debt at any time between the commencement of proceedings and the giving of judgment, a debtor escapes having to pay interest at all. This is because the court has no power to award interest except on a judgment, and then only in respect of the sum for which judgment is given. This situation has been criticised strongly by the Law Commission—see their Report No. 88 on interest—and by the noble and learned Lord, Lord Denning, and others in a case called Tehno-Impex last year. Part III solves the problem by enabling the courts to award interest on any debt outstanding when the writ is issued from the date when it should have been paid down to the date of judgment, or, if paid before judgment, down to the date of payment. This should remedy what I regard as a serious injustice.
The other provision in Part III is Clause 16. This is not concerned with debts or damages, but with orders for lump sum maintenance and interest thereon. It often happens, particularly when the court is trying to bring about what is now called a "clean break" on the dissolution of marriage, that an order is made for one party to pay the other a lump sum by way of maintenance. If the capital is already available, there is no problem, of course, but often it cannot be paid immediately but only by instalments or by payments out of the proceeds of sale of the home, or both. In this kind of case, it would assist the court if an order could be made for the lump sum to carry interest at a rate fixed by the court from the date of making the order down to the date of payment, and Clause 16 so provides.
I turn now to Part IV. This brings into effect two reports of the Law Reform Committee—on the making and revocation of wills and on the interpretation of wills. It introduces one new proposal not emanating from the committee and it provides the legislative 31 changes necessary to enable the United Kingdom to ratify the Council of Europe Convention on the Registration of Wills and the Unidroit Convention on the International Form of Will.
I refer first to Clauses 17 to 19. Your Lordships will see that they are all amendments to the Wills Act 1837. After 150 years, many of the provisions of that Act have been much interpreted by the courts and sometimes, I regret to say, the result has been to complicate rather than simplify the result. Sometimes anomalies have appeared or difficulties have resulted from changing social circumstances. The Law Reform Committee looked afresh at the way in which wills should be made and the circumstances in which they should be revoked. Clause 17 follows their recommendation in restating and simplifying the formal requirements for signing and attestation. Clause 18 deals with the effect on a will of marriage and divorce, which of course did not happen very often in 1837. The approach which is adopted restates, with some modifications appropriate to present day conditions, the well-established rule that a subsequent marriage revokes a will not made in contemplation of that marriage. The clause also introduces a new rule. Where the testator was divorced after making his will the appointment of his or her former spouse as an executor or any gift to him or her lapses. At present, divorce has no effect at all on a will and, thus, there can be unintended results where a testator who does not remarry fails to make a new will.
Clause 19, which does not stem from the Law Reform Committee's report, will deal with another, and much criticised, provision of the Wills Act, which is intended to save, for the benefit of a testator's grandchild, a gift in his will to his son or daughter who has, in the event, predeceased him. The original section of the Wills Act 1837 does not always work satisfactorily. In some circumstances, the gift may not go to the grandchildren but instead may be taken up in payment of creditors or go into the residual estate.
Clauses 20 to 22 bring into effect the Law Reform Committee's report on the interpretation of wills. This is a very technical field, and I shall not detain your Lordships in it for long. It is perhaps sufficient to say that Clause 20 extends the remedy of rectification to wills which will enable, in some limited circumstances, errors to be corrected so that the testator's real intententions can be carried out. Clause 21 replaces a good deal of complex case law on the interpretation of wills by a restatement of the principles and by allowing the introduction of extrinsic evidence to assist in the interpretation of a will. Clause 22 is designed to be of assistance where a home-made will may fail to give effect to the testator's intentions because a life interest is unintentionally created. Instead of this, a gift to a spouse will be presumed to be absolute.
I should now briefly mention the clauses which will enable the United Kingdon to ratify the Convention on Registration of Wills and the International Form of Will. Clauses 23 to 26 provide for facilities for the deposit and registration of wills in England and Wales, Scotland and Northern Ireland and the designation of the Principal Registry of the Family Division in London as the national body through which wills may be registered in other contracting states and which will answer requests for information from those 32 countries about wills registered in the United Kingdom. Thus it will be possible for testators to take advantage of a system for the safe deposit of wills, while inquiries as to the position of any will deposited in any of the other contracting states will be facilitated. This will make life easier for executors, beneficiaries and others involved in the administration of estates. Clauses 27 and 28 establish a procedure whereby wills which comply with certain requirements of the convention on the form of international will will be recognised as being formally valid in any of the contracting states. The form of the international will is set out in Schedule 2 and any will made in accoradnce with that form will, in any event, be valid under our domestic law.
So much, my Lords, for the law reform proper. Now for the minor adjustments. Part V of the Bill contains a number of miscellaneous amendments affecting county courts. Some are "useful but technical". One or two are intended to modernise features of county court life which, in the light of changing circumstances, now look a little odd. One example is Clause 30, which does away with the present requirement that a registrar must live within the district of his court. The clause to which I ought to draw attention, however, is Clause 35. This provides that certain county court judgments may be transferred to the High Court and enforced in the same way as High Court judgments. Your Lordships will no doubt know that county court judgments are enforced by county court bailiffs, who are members of the public service and answerable to the Lord Chancellor, while udgments in the High Court have always been enforced nominally by the sheriff of each county and in practice by the under-sheriff whom he appoints and the sheriff's officers. Many observers, especially members of the legal profession, have suggested that under-sheriffs are more effective in this respect than bailiffs. I say nothing about the effectiveness of under-sheriffs, but I must say that I myself have not seen evidence which really supports the case made by critics of the county court system. However, I have reached the conclusion, in deference to professional and public opinion, that under-sheriffs should be permitted to enforce a limited category of county court judgments. Last autumn, your Lordships will remember, the limit of county court jurisdiction was raised from £2,000 to £5,000. Although it will not appear expressly on the face of the legislation, I propose, if the clause finds favour generally, that the minimum qualifying limit for a judgment to be transferable to the High Court for enforcement should be £2,000. This as regards execution will allow the judgment creditor the option of invoking the sheriff's officer or the bailiff, according to which he prefers.
My Lords, Part VI of the Bill restates more concisely and in modern terms the main statute law controlling the management and investment of funds in court. It replaces the separate statutory provisions for funds in the High Court and the county courts now contained in Part I of the Administration of Justice Act 1965 and Part X of the County Courts Act 1959 with a single statutory framework for dealing with money held or paid into these courts. It also clears away the present detailed and restrictive legislation which the Accountant General has found in recent years to be too inflexible in conducting the investment of funds in court in modern 33 economic conditions.
The two most significant changes made in this Part of the Bill are, first, that, while the essential framework of the legislation relating to the management of funds in court is retained, it is restated in the broadest terms and the administrative detail previously dealt with on the face of the statute will be contained in rules. Secondly, Clause 42 will enable the Lord Chancellor to authorise persons other than the Accountant General to hold shares in the common investment schemes which are currently managed by the Public Trustee. In particular, it will permit the Public Trustee to hold shares in these funds, and thereby to make use of the benefits of these unitised investments on behalf of the trusts of which he is the trustee. Your Lordships may remember that I answered a Question about this—I think last week.
Your Lordships will see that Part VII introduces some miscellaneous matters. There are a number of clauses headed "Family Law". All I need say at this stage, I think, is that they are purely of a minor "administration of justice" character; they do not have anything to do with the recent Law Commission recommendation on financial provision after divorce—nor could they, because that subject is outside the scope of this Bill. I shall, however, refer briefly to Clauses 53 and 54, which resolve some difficulties which have arisen in the working of the Attachment of Earnings Act 1971. Clause 53 fills a gap in the court's power to obtain information from the debtor about his employment and financial circumstances. Clause 54 is intended to eliminate the complications which may arise where a debtor is paid in advance—for example, because he is about to go on holiday—by ensuring an even flow of payments over the period in question. Clause 56 brings into effect a minor recommendation of the Oliver Committee, removing from the statute book the requirement for an annual audit of a judicial trustee's trusts and leaving it to rules to determine how this shall be done. Of the clauses on land registration, Clauses 59 and 60, one enables the process of computerisation at the Land Registry to be carried a step further and the other, with Schedule 4, simply clarifies the powers of county courts under the land registration legislation; it makes no changes of substance.
Almost all of the provisions in Part VIII affecting Northern Ireland are intended to keep Northern Ireland in step with changes in the law in England and Wales. In particular, the changes in Schedule 5 ensure that changes in the law regarding personal injury litigation proceed at an even pace in the two law districts, and almost all the changes in Schedule 6 reflect provisions in the law of England and Wales which are to be found either in Part VI or Part VII of the Bill or in the Supreme Court Act which was passed last year. Likewise Clause 63, regarding expert evidence, and Clause 64, about allowances for justices of the peace, are modelled on provsions in the law of England and Wales. I attach some importance to a uniformity of approach in matters concerning the administration of justice and I am gratified to find how readily reforms proposed for England and Wales are accepted in Northern Ireland.
Part IX deals with general and supplementary matters, transitionals, repeals and savings, which need not concern the House until the Committee stage. My 34 Lords, I have to apologise for detaining the House for so long on a Bill which contains so much detail that is useful and, I hope, little, if not nothing, that is controversial. The Bill advances the cause of law reform and will allow the machinery of the administration of justice to operate more smoothly. I commend it to your Lordships and beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
§ 4.42 p.m.
§ Lord Mishcon
My Lords, the House would have been entranced by even the metaphorical picture of the noble and learned Lord the Lord Chancellor darning old socks in presenting us with certain legislation. May I be permitted to congratulate him on the neat, colourful and even artistic tenor of his presentation—of his sewing ability? May I also commiserate with him on having to deal not only with old socks but also with odd socks, in this conglomerate Bill?
If I may say so, it is a pleasure to see in his seat the noble Lord, Lord Allen of Abbeydale, especially when one has heard such frequent references to the report of the Pearson Commission of which he was such an able and useful member. Your Lordships will remember with pleasure the numerous occasions on which he has endeavoured to bring the recommendations of that commission before this House. I believe that all of us have sympathy with the noble and learned Lord's position in endeavouring to get some reforms through, having regard to a heavy legislative programme. I wish to make it quite clear, with the permission of my noble and learned friend Lord Elwyn-Jones, that we on these Benches will do all we can to assist in the happy progress of the Bill.
Having said that, and having heard what the noble and learned Lord has said about amendments, I hope he will think it useful if, in this Second Reading speech, I endeavour to bring to the attention of the House and, if I may say so with respect, to the attention of the noble and learned Lord the Lord Chancellor, certain points which he himself may wish to take on board and deal with before the Bill proceeds much further.
There is no doubt that in regard to Clause 2 of this Bill a most helpful exercise has taken place in ridding our law of some archaic and indeed anachronistic rights of action. When one comes to deal with Clauses 1 and 3 of the Bill, and in Part I as well as in Part II we are dealing with rights to damages resulting from personal injuries, perhaps your Lordships will permit me in all humility to explain what the existing rights are in relation to personal injuries, subject to correction (and I speak as though I was an advocate addressing a jury at this moment) by the noble and learned Lord the Lord Chancellor, if I get my law wrong—but I hope that I will not.
There are three types of personal injuries which are relevant to consideration of the issue of damages. The first is an ordinary case where personal injury is sustained. There, as your Lordships will appreciate, the damages awarded are for pain and suffering, or for the loss of a limb, as well as compensation for loss of earnings and any special damage which might have been sustained; the special damage being actual monetary loss—items such a clothing and so on. The 35 second type of injury where damages are an important consideration is where, unfortunately, the person injured, apart from suffering physical injuries, has his life shortened. In that case, in addition to the damages to which I have just referred, the injured paintiff would be entitled, under the ruling in the case of Pickett v. British Rail Engineering which was decided in 1978, to what the noble and learned Lord referred to as "the lost years". That would be some compensation to him for the fact that he will be deprived, one estimates, of certain years of his life during which he would have earned. From that point of view, he is awarded compensation as well as for the mental suffering that obviously anybody must undergo if he knows that his life has been shortened as the result of an accident.
Nothing in this Bill affects either of those two cases, but it is relevant that your Lordships should have those rights under consideration when you look at the third case, which is the case of a fatal accident. It has been said that it is cheaper to kill than it is to maim in an accident case. Your Lordships will appreciate the truth of that, while appreciating too that the object of the law here is to compensate and not to punish, when I remind your Lordships that in that case the award of damages would be based on the following considerations at the present time. First, there would be an award under the Law Reform Act for loss of expectation of life. Your Lordships may think that that amounts to a very high sum; but let me say that, as a result of judicial decisions, the amount which is normally awarded now in that category is the sum of £1,250. That is a head of damage under the Law Reform Act for loss of expectation of life. In addition, as the noble and learned Lord said, this House when sitting in its judicial capacity came to a reluctant conclusion in 1980 that there should be also inherited by the estate the damages for "the lost years" to which I have referred, namely, the loss of the ability to earn during the years of which the deceased was deprived. Under this Bill, both those heads of damage will go.
The third right which exists at this moment is under the Fatal Accidents Act 1976, and there a dependant, as described in that Act—the father, the mother, the son and so on; a very limited description of dependants—would be entitled to claim for what he or she has lost as a result of the fact that the person upon whom he or she depended for a certain part of his or her livelihood, or indeed all of it, has been killed. That is a head of damages that remains under this Bill. But there have been added to it, and very properly added to it, if I may say so, both ascendants and descendants of the deceased, and also a former spouse, who can now claim as a dependant. My Lords, you will hear me say something about that, because the noble and learned Lord the Lord Chancellor said that he did not propose in this Bill, as he is at present minded, to include as a dependant the minor unmarried child of somebody who has been killed in an accident.
To those heads of damages this Bill seeks to add, possibly in substitution for the first two that I talked about, and certainly that of the loss of expectation of life, a heading under the title of bereavement. In respect of that bereavement, the persons who under this Bill will be able to inherit this claim, as it were, will 36 be persons such as the father and the mother who have lost a child, the husband or the wife who has lost a spouse, but not the child of the deceased. Here I realise that in one respect I misled your Lordships and I ask for leave to correct myself. I think I referred to this under the Fatal Accidents Act, when, of course, I should have referred to it under the head of bereavement, because of course a child is entitled to claim under the Fatal Accidents Act both before and after this Bill is passed. I apologise to your Lordships for that, but otherwise I believe I have given a correct statement.
There are the following points that I would wish to raise on this Bill. The first is that I believe it to be wrong, if I may say so, that in the bereavement situation a child should not be allowed to benefit. Secondly if I may say so, I object to the fact that there is a price put upon a bereavement claim with a ceiling of £3,500. Thirdly, I dislike the terminology of the bereavement claim. May I mention in regard to this that the Bill now before the House in fact follows the report recommendations of the Law Commission, both in respect of the title "bereavement", and, secondly, in regard to the limitation of an amount?—the Law Commission had a different amount, a smaller amount; it was a few years ago, of course, that they reported. Thirdly, the Commission in its recommendations excluded a child of the deceased from being able to benefit under this bereavement claim.
The Pearson Report, however, did recommend that a child should be included in a bereavement claim or in a claim under this sort of head. The Pearson Report further said that it should be a claim not for bereavement but for loss of society. Thirdly, because, as your Lordships will remember, Pearson had as its overriding recommendation the issue of absolute liability which was linked to a state fund of compensation, the Pearson Commission recommended that the formula for this head of damage and the amount of it should be related to average annual earnings. I wonder whether your Lordships will permit me in dealing with this matter to make a very short quotation from the Pearson Report in this context. I am reading from page 93, paragraph 405 of Volume 1 of the report:Some of our witnesses felt that the entitlement to claim damages for lost dependency should be further extended".What I wanted to say to your Lordships was this. First of all, is it not pretty obvious content that the child of a deceased person killed in an accident is the one who very possibly has suffered the greatest bereavement of the lot? After all, one may sometime hope, if one has unfortunately lost a husband or wife, to achieve happiness again by obtaining another spouse. The child can never obtain another parent who has been killed; the child can only obtain a stepparent of a foster parent. To exclude the child from this right in respect of a deceased parent seems to me, if I may say so, to be all wrong.
The points that are put against the child having a right to claim under the heading of bereavement are, first, that it would be impracticable because there might be children who were resident abroad and one would have to find out who they were and so on. Secondly, the point is made that the child will in most cases be a dependant anyway under the Fatal Accident Act. 37 I would argue to your Lordships in the following way. Pearson in fact has the same recommendations as the law now is in Scotland and has been since 1976. The Scottish Damages Act in fact provides for unlimited damages—and I will talk about that, if I may, briefly in a moment—recognises the right of a child to a claim, and also deals with it not under the head of bereavement but on the basis of loss of society. I am recommending that Scottish law be followed. It has not in the slighest proved impracticable.
On the question of dependability and, therefore, having to be able to claim under the Fatal Accidents Act, one only has to envisage two cases: first, the child who has lost a mother, where the mother is not the earner in the family but the father is—there would then be no claim under the Fatal Accidents Act at all—and secondly, a child whose father has been killed, disabled, become blind or whatever and, therefore, the mother has to be the earner in the family. In neither of those cases would the child have any right under the Fatal Accidents Act.
If I may say so, it is rather absurd—I hope that I am not using too strong a word—in an area where we are endeavouring so far as possible to have a commonly related law in the EEC, to have a situation where, if an English family or an Irish family or a Welsh family travel over the border to Scotland and there is a fatal accident in Scotland, the English family would be able to claim under Scottish law, the child would be able to claim, and there would be unlimited damages and the situation would therefore be one of greater advantage than if the accident occurred on the other side of the border where, in exactly the same circumstances, a child would not be able to claim at all and there would be a limit to the damages of £3,500.
The final point that I wish to make on this issue is the title of bereavement. I ask your Lordships to consider for one moment the position of somebody occupying the same profession as I have the honour to do, in explaining to a widow that your Lordships and those in another place have, in their wisdom, decided that the amount to be paid to her for her bereavement and in compensation for her bereavement is a maximum sum of £3,500. I think that it is offensive to say the least. One can explain if one likes that, as a result of your Lordships' wisdom and deliberations, it has been decided that a loss of society claim is open to her and that there has to be a maximum for that sum, however difficult it may be to assess in money terms. That may be possible. But I am asking your Lordships, as you appreciate, to follow the law of Scotland and to say that the amount should be at large and unlimited, and that the claim should, indeed, be a loss of society claim.
I hope that I have made my points fairly clear. In endeavouring to speak away from notes I did, in fact, as I have said, erroneously make to your Lordships a point under the Fatal Accidents Act and I made the wrong point. The point that I was trying to make was that a common law wife is not deemed to be a dependent now or under this Bill. What I wanted to say to your Lordships was that as this was looked at by Pearson and recommended by Pearson for consideration, as by the Law Commssion. The position of a common law wife ought obviously to be looked at very carefully in this day and age and one would have 38 thought that she ought to be included in the list of dependants. You Lordships will be relieved to know that I can now pass on quite quickly to Clause 6 of the Bill which, as the noble and learned Lord the Lord Chancellor has said, is a very useful measure and it is one that I assure him is much appreciated—namely, the award of provisional damages where the prognosis is uncertain. I want to thank the noble and learned Lord for the reasoning behind this clause which practical experience shows is very necessary in certain cases.
Before leaving this part of the Bill may I beg the noble and learned Lord to make clear, for the benefit of all legal practitioners, what I know is intended, which is that the commencement date of this part of the Bill is three months from the date when the Bill is passed? I think that it would be of great benefit if, in clear terms, the statement was made that, of course, all causes of action before the commencement date of the Act are preserved. Indeed, that would be the position, however unfortunate it might be, in the case of the decision of Gammell v. Wilson which would still obtain until the commencement date of this Bill.
I turn to the question of wills and I can deal with that very shortly. However, in the midst of an arid speech perhaps your Lordships will permit me to try to bring a smile to your Lordships' faces by saying that there is a strange typographical error on page iii of the Explanatory and Financial Memorandum attached to the Bill. The whole object of the exercise of this Bill is to make it more comfortable, peaceful and simple for a testator to make his will. If we look at the wording of the top of page iii we find that Clause 17 replaces the elaborate provisions of certain past enactments:with a single provision dealing with the signing and attestation of wills and relaxes the law governing the position of the testator's signature and the acknowledgment of signature by an arresting witness".I hardly think that that is likely to bring peace and quiet and simplicity to the testator's mind.
I did have a rather more serious point to bring to the noble and learned Lord's attention and it is as follows. In the simplification process, the Clause 17 that we are now considering does, in fact, go beyond the recommendations, as I understand it, of the Law Reform Committee. In removing the requirements that a will must be signed:at the foot or end thereof",it appears to relax the formal requirements for signature rather further than the committee recommended, because there should surely be an express requirement apparent on the face of the will that the testator intended to give effect to his signature to the writing signed in his will. Otherwise it would seem that the signature may appear at any place on the document, and this may give rise, it is thought, to quite a lot of litigation of an unnecessary kind. But that is a matter of an amendment which can obviously take place if it appeals to the noble and learned Lord and to your Lordships, as I hope it will.
I come now to my very last point. The noble and learned Lord referred to mending old socks. I talked in terms of his having also to deal with odd socks as well as old ones. Of course it is rather extraordinary to find provisions dealing with the Wills Acts in a Bill entitled the "Administration of Justice Bill". But 39 the noble and learned Lord made his position abundantly clear and the reason for this was given by him in very lucid terms. I would only ask that consideration should be given as soon as possible to a consolidation of the Wills Acts so that at least when the practitioner or the humble citizen looks to see as regards wills what are the law and the formalities at the moment, he does not have to look at the Administration of Justice Act, but is able to look at an Act sensibly headed "Wills Act".
Again I make it clear that we on these Benches look with great favour on the small, but very necessary, reforms that have been carried out, and we are grateful to the noble and learned Lord the Lord Chancellor for the way in which he has led us through this Bill on Second Reading.
§ 5.10 p.m.
§ Lord Renton
My Lords, I had not put my name down to speak in this debate and I am grateful to the noble Lord, Lord Elystan-Morgan, for saying that I may precede him. I rise mainly in order to make it clear that admiration for this Bill is not the monopoly of the Opposition Front Bench. Indeed, I think that my noble and learned friend the Lord Chancellor is to be warmly congratulated on presenting to us a Bill which is so wide-ranging and in all its terms so acceptable.
No doubt there will be a few points of detail to discuss at the Committee stage, and Second Reading is not really an occasion for adding to the excellent explanation which the noble Lord, Lord Mishcon, has given of various parts of the Bill, especially those relating to damages for bereavement. I think that he was justified in pointing out that even as a result of this Bill the position will, in one important respect, be different in Scotland from what it is in England. That tempts me to observe that in the Act of Union there was nothing about harmonisation between Scottish law and the law of England and Wales. Indeed, on the contrary the parties to the Act of Union virtually pledged each other that for the rest of time the Scots at any rate would be allowed to have their own legal system treated quite separately.
But, of course, both Scotland and England belong to the European Economic Community. Perhaps I may also mention in passing—I hope not without regard to the terms of the Bill, which deals to such a great extent with damanges under the law of both Scotland, and England and Wales—that one of these days our Parliament may be faced with a European convention dealing with damages and may then bring us face to face with the issue, which is an important one, and has been for years, in the Continental system, as to whether or not we should have moral damages against which our courts have, for the most part, leaned successfully.
However, it could be said that when we had loss of expectation of life coming into our law, that was a breach of the rule that we do not award moral damages. In a sense, it comes very close to what moral damages are on the Continent. I think that my noble and learned friend the Lord Chancellor is to be congratulated on having grasped this nettle with regard to damages for loss of expectation of life. It is an irrational concept 40 and until it was laid down by high judicial authority that they should be arbitrarily fixed at the sum of, I think, £1,250, the application of the principle gave rise to a lot of difficulty in practice. I must say that I welcome the step which my noble and learned friend has taken with regard to loss of expectation of life.
I sympathise with him in not going any further than he has done at this stage with the recommendations of the Pearson Commission. Nor has he dealt with the somewhat separate question of product liability, which no doubt will again exercise our minds one of these days. Bur sufficient is it for us to take note that product liability has become a sort of legal football in Strasbourg, Luxembourg and Brussels, and various committees of the EEC have been kicking it round to each other. However, it is a very controversial subject and there is a considerable gulf between the views held on one side and those held on another. Whatever result is likely to be achieved one day, it would probably result in a very wide extension of insurance.
With respect to my noble and learned friend the Lord Chancellor, to my mind this Bill does not look like an old sock. It looks to me like an up-to-date vade mecum for lawyers, and also for that reason I very much welcome it. Although, of course, it deals, in lawyers' terms, with important legal principles, it deals with matters which are important in human terms. The bereaved family of a person who has suffered damage through injury of one kind or another, the people making wills—all kinds of human situations—are covered by this Bill in a way which I hope will commend itself to your Lordships. Indeed, it deals with them in that understanding and sensible way which we would have expected from my noble and learned friend. My final comment, if I may be allowed to say so, is that at first sight the Bill seems to be well drafted.
§ 5.17 p.m.
§ Lord Elystan-Morgan
My Lords, it is always a pleasure to listen to a speech by the noble Lord, Lord Renton, and, indeed, a personal pleasure to be able to allow him to precede me in this debate. It is also a temptation to follow him in some of his remarks relating to the Act of Union of Scotland and England, if it were only for the stimulus that that instrument gives to think about two other Acts of Union, one of which is a topic upon which I have thought a very great deal and in which I am deeply interested. That was an Act of Uniformity. I think that we should leave that matter for the moment.
I wholeheartedly join my noble friend Lord Mishcon in the assurance given to the noble and learned Lord the Lord Chancellor that this Bill in no way raises any deep political issues at all, and that it is a Bill which I am sure the House as a whole will generally welcome and will, indeed, regard as a Bill that has been drafted with a great deal of thought and humanity. In many respects it is a pity that we have not heard lay opinions upon this Bill this afternoon. It may be that those Members of the House not learned in the law have taken all too seriously the stricture of St. Luke, who said:Woe unto you lawyers, for you have taken away the key of knowledge".The Bill has been likened to the darning of old socks. I must say that what came to my mind when I 41 first read it was that tale of the late Sir Winston Churchill who, with magisterial hauteur, on one occasion rejected a blancmange, saying:Take it away, it has no theme whatsoever".Of course, this Bill has no theme, and it is none the worse for that. It is a pot pourri of a number of interesting and necessary reforms. I join my noble friend Lord Mishcon in making the point that, if the opportunity presents itself at an early date to consolidate appropriate parts of the Bill with parent Acts, then that surely is a course that should be taken. It makes it infinitely easier for lawyers and, one suspects, perhaps some day infinitely easier for the soulless computer that will to some extent replace the services of lawyers.
May I deal, quickly I hope, with matters which have already been referred to and one or two matters that have not be alluded to. First, the question which arises in relation to Clause 1. The noble and learned Lord the Lord Chancellor has made it abundantly clear—and I welcome this—that it does not refer to the living plaintiff. I would respectfully, however, point out that there is nothing in the heading to that clause, nor in the side note, nor in the language of the clause itself, that makes it clear. Perhaps I am being unnecessarily careful in this matter, but out of an abundance of caution it may well be that consideration might be given to spelling out that perhaps most obvious point.
So far as the deceased plaintiff is concerned in the context of refusing and abolishing damages for loss of expectation of life, I appreciate that deep philosophical and moral considerations are tied up with this question. There are massive difficulties in so far as any decision upon the proper and appropriate criteria to be applied is concerned. There is the impossibility of applying ordinary methods of calculation, for what is being calculated bears no relationship whatsoever to monetary loss.
I appreciate, however, as I am sure every Member of the House does, that monies paid under such a heading at the moment are in most circumstances paid to parents very often of children, or of young persons, who have been killed in accidents. Such matters, I am sure, are not looked upon by those parents in the cold light of the unremitting logic of jurisprudence. If this provision stood alone, therefore, personally I would have thought that that factor in itself might be regarded as a severe criticism, whatever the intentions of the draftsmen were in this matter. It does not stand alone, however, and in practice, although one is dealing with a totally different situation, it has of course to be considered side by side with Clause 3, which deals with the bereavement award.
I appreciate here again that it is no easier to reduce something of the quality of human grief to pounds and pence. I am sure that everyone here accepts respectfully and with sympathy what was said by the noble and learned Lord the Lord Chancellor in this connection. I am sure that in the case of parents who receive awards upon the death of children that the money itself, as money, gives them no joy whatsoever in the vast majority of cases. I am equally sure, however, that many parents would say, upon the receipt of such a sum of money, that it was not the money as such, not the economic value of the money that counts, but that the money is some expression on the part of society 42 of the gravity with which society regards the loss of a human life. It is on that basis that an award for bereavement as such really and fundamentally rests.
The question arises, of course, whether it should be a fixed sum or whether it should be a sum arrived at by judicial calculation. I was greatly impressed by many of the arguments that were advanced in this connection by my noble friend Lord Mishcon. The difficulty however of judicial calculation of such a sum, as I see it, is that it would entail a very close and detailed examination of the exact relationship between the claimant and the deceased. That not only might be extremely difficult of proof but might, in many circumstances, be highly embarrassing as well.
The question arises, however, if there is to be a figure, whether that figure should be the figure of £3,500, subject of course to being changed by order from time to time, or whether it should be a higher figure. I would suggest that if a fixed figure is to be agreed upon, that figure might be of the order of £5,000. That latter figure, I would suggest, bears probably a better relationship to the sort of fixed figure that was decided upon by this House in Rose v Ford in 1937, bearing in mind the changes in the value of money. That was an award for loss of expectation of life rather than for bereavement, and I am trying to look at it not in a technical way but through the eyes of those who will be receiving such a sum.
I wholeheartedly join with my noble friend Lord Mishcon in what he has said in relation to Clause 3. The House is invited generously to extend the category of claimants, and I am sure that that is something that everyone welcomes. It is, however, particularly unfortunate that no reference has been made to the common law spouse. It is right that Parliament should consider on the one hand respect for the sanctity of marriage; it is right I am sure, however, on the other hand that Parliament should consider the exact situation that exists in hundreds of thousands of households the length and breadth of this land.
In Clause 3(5) provision is properly and generously made for the illegitimate child. Logic demands that the spouse on a common law basis should be treated with no less understanding and generosity. If Parliament be minded to accept an amendment, I would suggest that a suitable form of wording is found in Section 1(1) of the Inheritance (Provision for Family and Dependants) Act 1975, where there is reference toany person… who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;".May I refer quickly to Clause 4. This clause deals with the double recovery anomaly which was exposed in the judgment of this House in Gammell v. Wilson in 1981. A number of difficult alternative possibilities were open. In my submission, this is probably the best that was open to the House. There were two problems in Gammell v. Wilson. One was the question of double recovery, the other was the question of what criteria a judge should apply in coming to a decision in relation to the potential earning capacity of a young person.
Some cases can be very difficult indeed. The matter was touched upon in the speech of the noble and learned Lord, Lord Scarman, and it may well be that at Committee stage thought might be given to whether or not certain guidelines should be laid down in this 43 connection. I quote briefly the words of the noble and learned Lord:The appellant in Gammell's case was disposed to argue, by analogy with damages for loss of expectation of life, that in the absence of cogent evidence of loss, the award should be a modest conventional sum. There is no room for a conventional award in a case of alleged loss of earnings of the lost years; the loss is pecuniary. As such, it must be shown on the facts found to be at least capable of being estimated. If sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach mathematical certainty, the court must make the best estimate it can. In civil litigation, it is the balance of probabilities which matters. In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award, not even a conventional award, should ordinarily be made. Even so, there will be exceptions; a child television star cut short in her prime at the age of five might have a claim. It would depend on the evidence".I am certain that it would be inappropriate to legislate for a fixed sum in such circumstances. The House may come to the conclusion also that it would not be appropriate even to lay down guidelines, and that on the whole it is better to leave the matter to judicial discretion, difficult though the problems facing the judge are in such cases.
I will deal for a moment with what in my submission is a very serious omission from the Bill. I heard, and heard with sympathy, what the noble and learned Lord the Lord Chancellor said with regard to the difficulties of Parliamentary time, and perhaps the even greater difficulties of parliamentary draftsmen being available. Nevertheless, in the long judgment of history, this will be looked on as a Bill that gave Parliament the opportunity to deal with certain vital and fundamental problems. I would refer of course to the most pressing issue on which no final decision has yet been announced by the Government, and that is the question of the recommendations of the Pearson Royal Commission on the matter of no blame damages in the context of road accidents. I was unfortunately unable to attend the splendid debate in your Lordships' House on 20th January this year initiated by the noble Lord, Lord Allen of Abbeydale. I read it with great interest and I could have added nothing to what was advocated by Lord Allen and my noble and learned friend Lord Elwyn-Jones.
It is a situation which in my submission cries out for the compassionate acceptance by Government of a problem of such magnitude that it can be settled only by legislation. The House will remember the figures; over 7,000 a year killed on our roads and some 300,000 injured, 80,000 of them seriously. The majority of those injured very probably do not make any claim at all, even probably the majority of those seriously injured; sometimes because no blame can be pinned on anybody—it is not always that there will be blame on any person—and in many other circumstances because it is impossible to find witnesses or to find witnesses who years after the event have a proper recollection of the event. A vast legion of people are deprived of their just rights in this matter.
Road accidents exist in an area that Parliament has regarded as being a special area for many years. Parliament has ordained that it is compulsory that there should be third party insurance. It is almost 50 years since an agreement was made between the Ministry of Transport and the Motor Insurers Bureau to cover 44 cases of those who had not complied with statute. It is a special area, an area regarded as being special in the codes of many other countries. As the House heard on 20th January from the noble Lord, Lord Allen, it is the code in Sweden, New Zealand, all the provinces of Canada, many of the Australian states and in many of the states of the United States. The cost would not be high; it would be a small fraction of 1 per cent. of total Government taxation in a year.
I understand and accept what the noble and learned Lord the Lord Chancellor says about the difficulties of accepting amendments that might be controversial. I am sure the noble and learned Lord—I do not say this in any way sarcastically—could plead the "vehicular defence" (that this is not a proper vehicle for an amendment of such sweeping dimensions) but all I ask is that at some appropriate stage, on a matter as important as this (important not just to law reform but the community as a whole, dealing, as it does, with the deepest considerations of justice) the Government should at the earliest opportunity spell out their attitude in relation to this most important recommendation of the Pearson Commission.
There is a great deal I should have wished to have said in relation to wills, but the House has listened patiently to me and I am sure they are matters which can properly be mentioned in Committee. This is a Bill which is generally to be welcomed. Its defects, as I say, lie mainly in relation to what it has failed to take heed of. There are problems that will remain with us. A comprehensive and painstaking study has been made by the Law Commission and the Pearson Royal Commission. Anomalies have been exposed in our civil law which a responsible and reasonable society, like other communities in different parts of the world, would wish to remove. Having said that, I am extremely grateful for the patience with which the House has listened to my ramblings and again, on behalf of these Benches, I welcome the Bill and the motives behind it.
§ 5.38 p.m.
§ The Lord Chancellor
My Lords, I should be churlish if I did not acknowledge with gratitude the gracious way in which these lengthy but relatively modest proposals—invaluable proposals, as I believe them to be—have been treated by noble Lords who have taken part in this debate, and I acknowledge with pleased surprise that even the draftsmanship has received the accolade of my noble friend Lord Renton. I also acknowledge with thanks the various constructive suggestions and criticisms which have been made by the few noble Lords who have felt able to participate. I will take them all into account before the Committee stage, although it may be that it would be better to see what amendments are tabled before dealing with them in any detail. I shall try to deal with one or two of them now.
First, as regards the rather ambitious proposal which the noble Lord, Lord Elystan-Morgan, has just made, I must tell him that in a Bill with 69 clauses, ranging from wills to family law, and from Scotland to interest on judgments and provisional damages, the main recommendations of Pearson would not permit me to legislate, except in a separate Bill. I could not even contemplate such a course. I recognise 45 the anxiety with which the proposals are expected to receive consideration, but I am not in a position to make an announcement today. It is quite clear that, however sympathetically one regards these matters, the provision of what would really be radically a total revolution in the law of tort and the provision of a new social service, could hardly find a place in this Bill, whether it would be cheap or expensive.
I was very grateful to the noble Lord, Lord Mishcon, for setting out so plainly the provisions of the existing law. When I saw that I had 25 pages of notes to pursue, I trembled before the endeavour myself. I was very grateful to the noble Lord for having informed the House so clearly what is involved, and I was equally grateful to him for pointing out that, contrary to what he had originally said, the right of the dependent child to damages in a fatal accident case is provided for under the existing law and will remain unaltered under the Bill.
The point which has recurred in the speeches of both the noble Lords, Lord Mishcon and Lord Elystan-Morgan, concerns the very difficult question of damages for bereavement—I continue to so call it without prejudice possibly to accepting at a later stage what the noble Lord, Lord Mishcon, said about the terminology. First, I should like to say what is my policy in such matters. My policy is, so far as I can, to give effect to the reports of reputable bodies, or one of them, and to choose between one or the other, where they differ. I have personal feelings of my own, and I shall in fact disclose them at this stage. They differ from my policy, and noble Lords will understand why when I say what my personal feelings are.
Like any other lawyer, and in particular like all Lord Chancellors, from time to time I receive letters from Members of Parliament and members of the public about the loss of a child, or a spouse, or a parent, as the case may be. My correspondents say that they are awarded only the present conventional sum and that it is an insult. I have to explain, as the noble Lord, Lord Mishcon, explained in his speech, that what is being awarded is not damages for the loss of the child at all, but a notional loss to the estate of the spouse or the deceased person, based upon loss of expectation of life to her. It is notional damages to the deceased, and not real damages for bereavement. That, I believe, is a very pertinent point to have to explain to begin with. But, of course, it answers no questions at all.
I hope that the House will forgive me for talking personally about this matter. It is a very sensitive matter, and the only way to talk about it is in a personal way. I lost my mother when I was quite a boy, I lost my father in middle age, and I lost my wife when I was already an old-age pensioner. I am not at all going to differentiate between the degree of loss and the agony of bereavement in any of those three cases. I have always personally taken the view that there was no sum of money, at all that one can nominate which is not an insult to, the bereaved person, whether it is £10 million or £10. I feel that very strongly myself. I know that in saying that I am not expressing the view of the majority, but nothing will alter that opinion so far as I persona, fly am concerned.
Having said that, one has to face a quite real problem of how to express the loss terms of money. Of 46 course it is said, and will be said, by lawyers that the law is always having to turn into money things which cannot be turned into money. For instance, if somebody offered to break two of my legs, I would get something for paid and suffering. But whatever I was offered for pain and suffering in return for the breaking of my legs, I think I would say, "No, thank you very much. I prefer to have two perfectly good legs"—except that they are not perfectly good. The law is constantly having to do that kind of thing.
But I believe that when it comes to the death of a wife, a child, a brother, or a parent, the law which tries to specify a sum in relation to the particular case is entering into the realms of the impossible, and either there must be a determinate sum, or nothing at all. I have opted for a determinate sum not because I believe in it, since I would give nothing at all, but because a wise body of men—one wise body of three different wise bodies of men—came to a particular conclusion, and my policy is to pursue the best, or the least bad, of conclusions of organised bodies which have investigated subjects of law reform.
I do not myself share the admiration for the charm of Scottish law in this respect. It does not in fact compensate, or purport to compensate, for grief. It compensates for loss of society, which is even more difficult to estimate. That, I am afraid, would drive one into asking questions about how well the spouses got on together, how much the children were admired or loved, or how much the parent was admired and loved, and whether the parties sometimes got drunk at nights. It involves the courts and the lawyers in an insoluble problem as a quantum, including the issue from which we shrunk during my first term in office, in a slightly different context, of deciding whether or not a widow was likely to remarry, which personally I find a most repulsive inquiry. But, again, it is a matter which one must approach sensitively, and opinions, I am afraid, are always subjective and seldom mean very much, except to the person who holds them; and we all hold them.
Sometimes the Scottish law yields a dividend (if that is the right word) in the way of solatium rather less than the £3,500 mentioned in the Bill, or the other calculation which the Pearson Commission returned. We must all think about these things. As I say, I shall pursue some policy which will not represent my private opinion, and I want to be perfectly candid about that. I know that on the whole the conscience of mankind would demand something, and I know that it is not my conscience. I shall try to give effect to something. If I can think of anything better than what I have done, or what the Law Commission recommended some years ago, I shall do it. It is not a matter of principle with me, except that my own convictions, I know, are very deeply held and are rather different from the convictions that are equally deeply held by other people.
I think that the common law wife presents a certain number of difficulties, although I note what the noble Lord, Lord Elystan-Morgan, said about the family inheritance Act. It is of course a phrase unknown to statute law as such. There are different degrees of permanence about relationships of this kind which obviously would present the courts with a very considerable difficulty which is not presented by the ordinary 47 matrimonial relationship, or not to the same extent, or the relationship of parent and child. But I will certainly see what I think about that after reflection.
The position of the signature on the will, which was very properly brought to my attention by Lord Mischon, is, I am afraid, something upon which I can offer no useful wisdom at the present stage but I shall hope to arm myself for the Committee stage with something better than that. As to the commencement of Clause 6 I would expect it to be longer than three months because we shall ourselves have to think out what needs to be done and also give the practitioners time to think out the implications. It will not, I think, be retrospective as regards death before commencement. I am afraid the spirit of Gammell v. Wilson will stalk to our discomfort through the courts for some time yet, but retrospective legislation has problems of its own.
As regards consolidation, I am an enthusiast for consolidation but I should like, if I may, to share with the House a spot of bother that I am having about consolidation at the present time, and especially am I quite certain in my mind, without researching the problem, that this would be true about wills in particular. The consolidation committee, which does such useful work and through which the work of the Law Commission and others has to pass, is not allowed to consider for consolidation what are called pre-consolidation amendments. My view, which I did manage to carry through in a particular Bill, is that before you consolidate you ought to have pre-consolidation amendments which ought to be placed before the consolidation committee, and then the resulting whole could be treated in the way that consolidation Bills are treated, the pre-consolidation amendments being embodied either in the consolidating Act or, alternatively, in a separate Act. At the moment this is not possible.
I thought myself it would not cause much trouble if we did it, but it has run into a certain number of snags. If noble Lords on either side of the House can give the thing a fair wind in private conversation with those who deal with these things, I would personally be very much obliged because the state of our statute book is quite undoubtedly scandalous, as it has been for the past 300 years, and consolidation is one of the ways in which it can be reduced to some kind of decent order. But I think the greatest single piece of machinery that we could now invent to advance the cause of consolidation would be to get rid of, in some such way as I have described, the problem of pre-consolidation amendments.
Having said that, I should like to renew my thanks to the House for the gracious way in which this Bill has been received and apologise for the extremely long time I have been introducing it. I think the facts of the matter speak for themselves.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.