§ 3.18 p.m.
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
§ Clauses 1 and 2 agreed to.
§ Lord Mishconmoved Amendment No. 1:
Page 3, line 20, at end insert—
("(g) a reputed spouse of the deceased residing with him at the date of his death.").
§ The noble Lord said: In this Bill we are reminded of the list of dependants under the Fatal Accidents Act; namely, those who, from their dependency upon someone now deceased as a result of a fatal accident, can claim against the person responsible for the accident in negligence for the loss of that dependency. The list has been extended by the Bill, but it does not include a common law spouse. I think that all of us will appreciate that someone in that position may well indeed have been a dependant and had had removed from her a whole prop in her life (if I may use the phrase) as a result of a fatal accident.1282
§ When I ventured to raise this matter on Second Reading, the noble and learned Lord the Lord Chancellor replied with his usual courtesy and breadth of mind. He said that one of the problems—and he did not limit himself to this problem—was that a common law spouse was someone who was unknown by that description in our statutory law. Knowing that the noble and learned Lord is never wrong, I therefore decided that I would waste my time by doing some research. To my astonishment I found that on this occasion my time was not in fact wasted, because indeed the phrase occurs in Section 3(1) of the Pneumoconiosis etc. (Workers' Compensation) Act 1979 in relation to one of the dependants under that Act.
It might very well be that there can be found for a common law spouse a description more suitable than the one which my noble friend and I have inserted in the amendment, but I believe that at the Committee stage of a Bill we are really going for the principle of the matter, not the detail. I say that because on Second Reading my noble friend Lord Elystan-Morgan was most helpful in suggesting that we might borrow from another Act, the Inheritance (Provision for Family and Dependants) Act 1975, in which the definition of a dependant, given right at the end of a long list, is,
any person…who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased".
It would be a very good thing if we could have precisely the same list of dependants in two Acts which have something to do with one another, since in both cases one is dealing with the result of a death and looking at the question of dependency. But there is one difference which I must in all honesty point out. The Inheritance (Provision for Family and Dependants) Act 1975 excludes a spouse who has remarried, whereas this Bill includes a spouse who has remarried. It might be thought objectionable that there is the muddle of thinking that the same description of dependants is contained in two Acts, only to find that there is in fact some difference.
So it was for that reason that I pinned my faith on the words of the amendment and straightforwardly called the person whom we were thinking of,
a reputed spouse of the deceased residing with him at the date of his death".
But I repeat that if the wording is objectionable, I would still ask that at this Committee stage the principle be accepted.
§ I come now to my final observation. Your Lordships' House is proud of the fact that we move with the times. We are often accused of not doing so, especially when your Lordships have before you—you have had a spate of them recently—Bills on sex matters, including pornography. I refuse to believe that your Lordships' House does not move with the times. It is a well-known fact that, for good or ill, the numbers of common law spouses have increased over the past few years. I do not think that we ought to blind ourselves to the fact that this is very often, though not solely, the case among the poorer sections of our community. For one reason or another they find that it is not suitable to obtain a divorce, or it might very well be, especially now that legal aid is not available, that they cannot afford to obtain a divorce.1283
§ So I hope that, consonant with the times and with what is happening in our society, and looking at the misery of someone who has acted as a wife for perhaps very many years and who, as I have said, suddenly finds her prop removed, the Committee will think it appropriate to add the proposed description of person to the list of dependants contained in the Bill. I beg to move.
§ Lord Simon of Glaisdale
I should like to raise a purely terminological point. The noble Lord, Lord Mishcon, might have found a precedent, but the use of the term "common law wife" in the sense in which it is used in the amendment, can only cause confusion because one can still be married validly, admittedly now under unusual circumstances, at common law—for example, I think probably on a merchant ship that is not in territorial waters; and there are various circumstances. I am very doubtful whether the terminology used by the noble Lord in the amendment achieves the purpose, but at any rate it seems to be advantageous, and should always be advantageous, to avoid the term "common law wife".
§ Lord Rawlinson of Ewell
I must confess that whenever I am encouraged to move with the times, as I have been by the noble Lord, Lord Mishcon, I immediately get a kind of frisson. We ought to look very carefully at what we are being asked to do when, in your Lordships' Chamber, we are asked to move with the times. I cannot see the purpose of the phrase:a reputed spouse of the deceased residing with him at the date of his death".What is the real reason for it? Is the noble Lord right when, with great persuasiveness, he says that it is the people of the poorer sections of society who might be placed in these circumstances? I should have thought that if we are moving with the times, it would be in the richest circles that one would find,a reputed spouse of the deceased residing with him at the date of his death".Therefore I wonder whether we really should include this phrase. Why should we include it? What is the point of it? Why should we have to include it? There might be very hard circumstances in certain cases, but I wonder whether we should introduce this particular provision in the Bill.
§ 3.29 p.m.
§ The Lord Chancellor
In view of the fact that I am going to make a number of rather discouraging remarks about the proposed amendment, I should like to point out that on my brief there is marked the word "consider". If anyone does not know what I mean, I am sure that the noble and learned Lord, Lord Elwyn-Jones (whom I am glad to see opposite me) will explain. Therefore I am not being wholly hostile to the amendment, though I am not very attracted either to the terminology of the amendment or necessarily to the principle behind it.
As I tried to explain on Second Reading, this Bill secured a place in the Government programme by the skin of its teeth, and only on condition that it was a good-housekeeping measure which would not give rise to a great deal of confusion or controversy. That 1284 being so, I think this amendment causes problems probably of a greater kind than the noble Lord has really envisaged. Perhaps I may point out that I did not say that "reputed spouse residing with him" was not to be found in our statute law. It was the phrase "common law wife" at which I slightly bridled, in spite of the learning contributed by my noble and learned friend on the Cross-Benches. So far as I know, it is not a conception with which the law is fully familiar, at any rate in the sense in which it is used in the popular press.
The point I stressed at Second Reading was that there really is a greater difficulty in defining this relationship than the noble Lord, Lord Mishcon, has perhaps recognised, because the intimacy and length of the relationship can be almost infinitely truncated or extended. Now it is of course perfectly true that in the pneumoconiosis scheme (which is rather in a different field of territory and which can be administered administratively rather than by litigation between arm's length litigants, usually consisting of a dependant and an insurance company behind a tortfeasor) the particular phrase which he has plucked out occurs. It is also true that in the family inheritance Act the phrase which the noble Lord, Lord Mishcon, attributed to his noble friend Lord Elystan-Morgan also occurs, the two principles involved being entirely different from one another; one depending on reputation and the other upon actual dependency and maintenance. The principles are fundamentally different.
I must remind the Committee that the Pearson Royal Commission considered the possibility of including (I use the words in quotes) "common law wives" in the class of dependants entitled to claim under the Fatal Accidents Act but was reluctant to propose a change in the law of tort which would conflict with the social security position, since it was fundamental to the approach adopted by the Pearson Commission that the two systems should ultimately be co-ordinated. Of course, the Government are constantly and rather movingly being pressed to adopt the Pearson Commission's report. This amendment would really be to put in the way of such adoption an obstacle even greater than the obstacles which already exist and which have so far prevented us from doing so. I must add that in their report of 1973 (which preceded, I think, the Pearson Report) the Law Commission came to exactly the same conclusion on the slightly different grounds of difficulties of definition and social policy—and, of course, social policy was at the bottom of what my noble and learned friend Lord Rawlinson has just referred to—and added that there might be a case for examining the legal position of a common law wife in all its aspects.
I am not sure that I agree with the noble Lord, Lord Mishcon, about moving with the times. I think I am on the side of my noble and learned friend about that. I think one should consider whether things are right in principle without necessarily deciding whether they correspond with the moving tides of popular opinion in one direction or another. I must say that I find it difficult to see how mere reputation and residence should give rise to a claim under the Fatal Accidents Act; I am not sure, either, that I agree with the noble Lord, Lord Mishcon, in saying that this is a feature confined to the poorer sections of the 1285 community. I should have thought it was a characteristic of all classes that occasionally they have people living with them who have a certain reputation of matrimonial status which they have not in fact formally achieved.
But suppose you get a short-lived relationship which happens at the moment of death to coincide with residence, without matrimonial status behind it. I think that under this definition such a woman would probably qualify. Suppose you get a woman who lives with a man for 40 years but retains her name of Miss Brown when his name is Mr. Smith. She would get nothing under this Bill. In other words, you have created an anomaly instead of preventing one. Suppose you get two unmarried persons, both with the name of Smith, sometimes with the lady having changed her name by deed poll, though everyone knows that they are not married and therefore her reputation is not that of a wife, but for reasons of social convenience and tact people do not often refer to the fact. Then, again, she would get nothing. But if in fact she had the reputation of being a wife, then she would be entitled to claim. One really does not want, I think, to add to the cost of litigation, and I can see a very fertile subject of dispute in this proposed provision.
There would, I think, be difficulties in introducing reputed spouses into the Fatal Accidents Act which do not exist in the family inheritance Act, which adopts a different formula from that chosen by the noble Lord, Lord Mishcon, or the Pneumoconiosis Act, which is a very narrow scheme limited to a particular disease and which very largely can be administered not by litigation but by administrative process.
This brings me back to the question (because I think it is a real question, and a real question which we must face) whether matrimony, which is a recognisable legal status, should not be the test of making the claim. Marriage is, after all, a contract leading to a legal status which people understand, and the question is whether something outside it which involves no permanence—and, I must add, in other fields of the law, I think, no obligation to maintain during life—should be the test whereby after death the claim should be made against a third party even though he be a tortfeasor. This, to my mind, really does call in question whether it is right that such a claim should exist outside the confines of marriage or the family ties which are already recognised as carrying with them an obligation to maintain.
Having said that, I recognise that the status of (I have sometimes heard them called "cohabitees", though why they should not be called "cohabitors" I have never quite understood; or common law wives, or whatever you choose to name them) does involve a certain degree of anomaly. I therefore recognise—and now, at last, I come back to my word "consider"—that there is a case to consider and that there may be some moral claim to compensation in certain circumstances. For instance, it must be anomalous that the illegitimate child of a particular union has a claim under the Fatal Accidents Act but the mother of the child has no claim under the Fatal Accidents Act. So, without any kind of commitment, and with a good deal of discouragement rather than encouragement, if the noble Lord will forgive me, I will look further into the 1286 matter, and that, I think, is the utmost I can do at the present stage.
§ Lord Renton
There is a further anomaly which may or may not have occurred to my noble and learned friend the Lord Chancellor; namely, that although Clause 3 of this Bill does not apply to Scotland, people who have been married in Scotland by cohabitation and repute, and who therefore, under Scottish law, are married, may come to England, live in England and find themselves in some doubt under this clause. To that extent I think that there may well be another anomaly which deserves the further consideration of my noble and learned friend.
§ 3.40 p.m.
§ Lord Elwyn-Jones
I think the Committee will be grateful to the noble and learned Lord the Lord Chancellor for his open mind in approaching this difficult problem. We are concerned here with a right of action for a wrongful act which has caused death. The law tries in that situation as best it can to compensate the victims of such wrongful acts causing death. There is no doubt that in this country today there are hundreds and thousands of women living in the relationship of reputed spouses who have lived with a man and provided for him. Those of us who have had "surgeries" in the days when we were in another place will have come across many sad cases of poor old things who have looked after the man they were living with—and to speak of it as a lover and lover relationship was grotesque in many situations—who indeed devoted their lives to looking after him, and then there was the sudden catastrophe of the person upon whom they were dependent being killed by the wrongful act of someone else.
In that situation, I should have thought that a sense of responsibility, to say nothing of compassion, ought to move in favour of making provision, if we can, for the victim, as I might call her, in that situation. It is not easy, but it is not beyond the competence of a court to consider the weight of evidence of the extent of the relationship between the man and the woman in the case, the extent of the dependency—there would be neighbours, members of the family. The law considers far more complex and difficult problems than that in deciding whether, as a matter of fact, the claimant was a reputed spouse of the deceased residing with him at the time of his death.
Accordingly, I hope that the noble and learned Lord will not be discouraged by the fear of the noble and learned Lord, Lord Rawlinson, that we are moving with the times. It is not necessarily a bad thing to move with the times. Indeed, the great quality of the reform of the law in my time has been its willingness to live with the times and make it more acceptable and reputable as the factor determining the lives and relationships between our people in our community. It is significant that in Clause 3(5) of the Bill provision is made for the illegitimate child; so that we have already passed beyond the realm of sheer moral judgment in considering where social responsibility should rest and should be determined. Therefore, I hope that further thought to this matter from the noble and learned Lord, who is very sympathetic to these human situations, will result in his coming down, 1287 perhaps in different wording from that which we have in mind, in favour of the amendment in the fullness of time.
§ Lord Edmund-Davies
I am in considerable sympathy with the sponsors of this amendment because one finds it not difficult to understand the sort of domestic situation they have it in mind to meet, where people who have been treated as the spouse suffer from a sudden calamity. But the drafting of the amendment is something which calls for the greatest care, otherwise, as the noble and learned Lord the Lord Chancellor has pointed cut, the elasticity of the wording will let in all kinds of situations to which it would be thoroughly undesirable to accord legal recognition. With the utmost diffidence, I apprehend that the sort of situation which the movers of the amendment have in mind is one which is better covered by Clause 3(3)(c):any person who was treated by the deceased as his parentand maybe a situation where a man and woman have been living together in circumstances, it may be, which prevent their marriage although they desire it, and the man has unquestionably treated the woman in every way as though she were his wife.
In those circumstances, it matters not how long they have lived together or how faithfully he has treated her as a wife Nevertheless, everyone knows that they are not husband and wife and she will get no relief at all. In those circumstances, it may be that when one gets to a later stage of amendment some such language as that employed in Clause 3(3)(c) will meet the situation where everybody knows the couple are not a married couple but nevertheless the treatment of the woman has been that of a spouse. With the utmost diffidence, I make that suggestion.
§ Baroness Wootton of Abinger
I should like to point out another anomaly which arises. In present circumstances this affects the poorest people of all, those living on supplementary benefit. If a man and woman are living in the same home and officers of the relevant department are convinced that they live as man and wife then the law operates to the disadvantage of the woman. She is deprived of her rights. She may be drawing supplementary benefit in her own right. She is deprived of that right and becomes a dependant of the man. In that case the law giving her a reputed marriage works against her, but in this case it is proposed that it should work to her advantage. It seems anomalous that we should have the two different attitudes. It makes one feel more sympathy with the new arrangement proposed in the amendment. It would take care of the cases where the woman suffered from, as it were, being left out.
§ Lord Kaldor
I should like to apologise for intervening in a subject outside my field. I wish to make some comment on the discussion over the term "moving with the times". The legislation of a country at any one time necessarily reflects in all its various different aspects the prevailing mores and habits of the society to which the legislation refers. In that sense, it is necessary that Parliament should move with the times and does move with the times. Some 200 years 1288 ago the death penalty was imposed for dozens of different offences. This penalty would now be regarded by society as quite intolerable and, because society would regard it as intolerable, Parliament abolished the death penalty for most of these offences long before it abolished it altogether. I can give many instances in which the law is changed precisely because the moral judgment of society and the habits of society are changing.
Cohabitation which is not sanctified by marriage is looked upon very differently in the last quarter of the 20th century from what it was a hundred years ago in Victorian times. This discussion, I suggest, would not have arisen if this type of legislation had been brought forward a hundred years or more ago.
§ 3.50 p.m.
§ Lord Boyd-Carpenter
My noble and learned friend has said that he would consider this matter, and therefore I do not want to prolong the debate. I should like to add one word from this side of the Committee in favour not of the phraseology which the noble Lord, Lord Mishcon, raised, but of the principle embodied in this amendment. Those of us who, like my noble and learned friend the Lord Chancellor, have sat in another place and have had to perform the duties of a constituency Member of Parliament must have come across in the course of our duties in our constituencies a considerable number of cases of people living very happily together in a settled ménage who reference to the electoral register indicated were not, in law, man and wife. If in these circumstances the man is killed in an accident, the lady with whom he has been living for some time suffers in material terms just as much as if she were his lawful wife.
I appreciate well the difficulty of the precise point at which the line should be drawn. I agree wholly with my noble and learned friend on the subject of the sanctity of marriage. However, in many of these cases there is—even for the strictest moralist—no criticism that can be made of the couple. Some of the cases that I recall were cases in which the man had found it impossible for a variety of reasons to obtain a divorce and had set up a home with another lady, which was a throughly settled establishment, his marriage having broken down.
I very much agree with what the noble and learned Lord, Lord Elwyn-Jones, has said, that whatever phraseology we use, it is not beyond the competence of our courts of law to determine whether this is a case of the kind that I think the Committee as a whole wants to see covered, that of a settled establishment—albeit not one blessed by holy matrimony—or a purely temporary arrangement.
Therefore, knowing as I do my noble and learned friend the Lord Chancellor's enormous attainments and, if he will allow me to say, his fundamental goodwill for people who suffer, I have great confidence that he will find a solution to this and come back at another stage.
§ Baroness Airey of Abingdon
May I, following this speech by my noble friend Lord Boyd-Carpenter, mention that I recently had a letter which is very much the same as he has just mentioned. It is from 1289 a lady who was living with someone who was killed by the IRA. She was in fact his common law wife and had been so for a substantial amount of time. I am sorry that I have not the facts at my fingertips because I have sent them to her representative in another place. But this seems to me enormously relevant to what the noble Lord has just said. She had lived with him for a very considerable time and she is suffering very considerably by his death at the hands of the IRA.
§ Lord Elystan-Morgan
May I, as one of the persons who raised this matter at Second Reading, say how deeply grateful I am to the noble and learned Lord the Lord Chancellor for the care and the humanity with which he has, in accordance with the undertaking given at Second Reading, reflected upon this matter. The noble and learned Lord, Lord Rawlinson, asks the rhetorical question: Why should there be a case for compensation? I think it is clear from the contributions of noble Lords and noble Baronesses who have spoken in support of this proposition that the overwhelming case is because the spouse concerned is at the very centre of the disaster area that has been created in that family unit by the death.
I accept that there will be serious difficulties of definition. I also accept that it will be difficult but—as my noble and learned friend Lord Elwyn-Jones has said—certainly not impossible for a court, in examining the nature of the relationship, to come to a conclusion on what cases fall within the category and what cases fall outside it. The cases that would fall within the category, if I may put it in this way, should be the "Doolittle" families of this world. I am sure many in the Committee will remember the argument put forward by Bernard Shaw in relation to that family in Pygmalion, that that relationship was more secure than many relationships that were based upon the formal contract of marriage.
There are difficulties of definition, and I am sure that a very wise and practical path has been pointed out to the Committee by the noble and learned Lord, Lord Edmund-Davies, when he referred to the wording of Clause 3(3)(c). It may well be, however, that the amendment will need some slight adjustment, for it refers to a person treated as a wife. It is not impossible, of course, for there to be more than one person so treated in succession—possibly, indeed, not even in succession but concurrently, so that there would have to be some marriage of that important principle with the principle that is contained in the amendment as drafted.
If I may be so utterly rash, it may be that they can be put together in wording of this nature:A person who immediately up to the death has been treated by the deceased as a spouse and maintained as such by him".That is only a suggestion, but I am sure that with good will these technical difficulties can be overcome.
§ The Lord Chancellor
I do not need leave to speak, but I do not want to intrude on the Committee unnecessarily. I should like to comment on one or two of the other speeches which have been made since I intervened earlier. I assure the noble Lord, Lord Kaldor, that this is not a question of moral judgments 1290 about living in sin or anything like that. It is a question to my mind of a very real and difficult problem. I am very anxious—much as I want to help—not to introduce too many difficult and possibly insoluble problems into a Bill which is designed to tidy up part of the statute book.
I am quite sure that reputation at the moment of death is not the right criterion. I was very sympathetic to what my noble and learned friend Lord Edmund-Davies said about a permanent relationship, which rather underlay what the noble Lord, Lord Elystan-Morgan, said a moment ago. I do not think that "treated at the moment of death" helps very much. If I spend a weekend with somebody at the Metropole Hotel, Brighton, register under my name and say to the people with whom we had lunch, "Meet my wife" I am not at all sure that I am not treating her as my wife. Indeed, in Scotland I believe that the most disastrous results might follow.
At any rate, it is more difficult than has appeared. I do not know about the wisdom and the competence of our courts to decide all difficult problems. The difficulty that I see about this—and I say this to the noble and learned Lord, Lord Elwyn-Jones—is that it is either all or nothing. This is one of the difficulties. You have to have a test, a fence, on one side of which somebody who might describe herself, or himself for that matter, as a dependant gets everything—that is to say, they are treated as persons entitled to qualify under the Fatal Accidents Act for damages against a tortfeasor—and on the other side they get nothing. That is to say, you are outside the pale, and a virtue I mentioned of the marriage status is that it is something which is ascertainable; one can find out what it means and one can establish in 19 cases out of 20—probably more—whether that degree exists.
However, if one is going to rely on something like a permanent relationship or an indefinite relationship, as in the Doolittle case, one gets a situation in which one must ask the parliamentary draftsman to say that 12 months will do and six months will not or five years will do and four years will not. I find myself in great difficulty in regard to ingenuity. They talk about my ingenuity and humanity; I hope I have both, but I warn the Committee that both will be taxed to the extreme limits before I can necessarily give in to this principle. All I can promise at this stage is to do what I said at the outset, which is to consider. I am not absolutely sure that the right answer would not be to refer to one of the law reform agencies the whole question of the position of—and I am now using the phrase for the first time without inverted commas—the common law wife. Having said that, I think that I have gone as far as I can.
§ Lord Elwyn-Jones
Having initially said he would consider the matter, the noble and learned Lord is moving adverbially in the direction of favourably eon sidering the matter—I detect from his last intervention. There is common ground in the Committee that there is a social need here that ought to be met and that could be met. We would he reluctant to accept the difficulties of drafting as a ground for doing nothing in a field where real social misery and social injustice will result unless we do something. However, in the light of the willingness of the noble and learned Lord 1291 to consider the matter further, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Mishconmoved Amendment No. 2:
§ Page 3, line 41, leave out ("bereavement") and insert ("loss of society").
§ The noble Lord said: With the leave of the Committee, may I speak to Nos. 2 and 3 together, because precisely the same point is involved? Your Lordships will remember that at Second Reading we dealt with a new concept under this Bill in regard to a head of damages which would be awarded as a result of a fatal accident where there was culpability. That head of damages replaced another head which goes under the Bill—that of loss of expectation of life. One is on a question here in these two amendments not only of terminology but, if I may say so, of sensitivity. With regard to the head of damages, the limit under the Bill is £3,500 and is said to be that of bereavement. I ventured to say at Second Reading—I am not the only person who has said it—that it is somewhat insensitive, to say the least, for Parliament to measure what is called a bereavement for a child and a spouse as something which has a limit of £3,500 or £5,000 or £10,000, making that the measure of what Parliament is supposed to award in a case of that kind for the bereavement sustained.
§ The Pearson Report dealt with this matter and borrowed a phrase from the law of Scotland—and no worse for that—which is "loss of society". That is the phrase used by Pearson, in fact advocating a different measure of damage, because according to the law of Scotland there is no limit to that damage. Pearson recommended a measure of damage which was attuned to the income, the earnings, of the deceased person. It may very well be thought that it is a difficult task enough, as again I tried to say at Second Reading, for any legal practitioner trying to protect and comfort somebody who has been put in the position of a wife with no longer a husband or a child with no longer a father. It is always very difficult, if I may speak from personal experience, to talk about the way in which Parliament has dealt with such pecuniary compensation as can be paid, because of course money cannot make up for the loss of a dear one. If I may speak personally again, I used to have so much difficulty in explaining the head of damages of loss of expectation of life, especially if it were a comparatively young person involved, and telling the member of the family concerned in modern times that that, as a result of various decisions, £1,250 was the figure—almost a fixed one—for loss of expectation of life. I could manage that much more easily—that would be a head of damages that will have gone if this Bill is passed—than I could ever try to explain to somebody this head of damages under "bereavement".
§ My last argument in trying to persuade the Committee, I hope with not too much difficulty, that "loss of society" is better phraseology, is strengthened by Amendment No. 10, which is to be moved later by the noble and learned Lord the Lord Chancellor. The noble and learned Lord in that amendment is asking the Committee to agree that the right of a person to claim under this section, which would the bereavement 1292 claim, shall not survive for the benefit of his estate on his death. In other words, if the person who was to be the plaintiff is no longer there because he has passed to a better world, that means that the claim of bereavement will not survive him. Logically, that person suffered the bereavement even if he or she might die very soon afterwards.
§ Indeed, the very bereavement may have been responsible for the death almost immediately afterwards. How illogical therefore, one might think, if the term "bereavement" is used, that it does not survive the death of the otherwise plaintiff. But if it is a loss of society, how logical that it should not survive, because indeed the loss of society has been so short and if that is the head of compensation, however unfortunate or miserable the succeeding death, it is logical to say: "There has been very little loss of society by virtue of the short period that has elapsed between the two fatal incidents."
§ Therefore, I hope the Committee will feel that in regard to this new section of the Bill which is, if I may put it very humbly, a very sensible section, we ought to get our terminology right—not just because it is sensible for Parliament to be exact but because it is right that Parliament should be sensitive and feeling. I beg to move.
§ The Lord Chancellor
This has rather taken me by surprise, and perhaps I had better express my surprise before there is any debate. I was expecting this to extend to a wider range of topics under this head than in fact the noble Lord has chosen, quite within his proper rights, to place together. At first sight the question is simply one of semantics, though it may be one of taste and sensitivity as well. I do not think it really is that, because there is going to be—and perhaps we can deal with it as and when these amendments are moved—a rather more profound debate underlying it, as to which I fancy I take a less sympathetic view than I would take simply on the question of nomenclature.
I think that if we look at the sequence of amendments which bear the name of the noble and learned Lord and his noble friends opposite, what he is seeking to do is not simply to change the concept of damages for bereavement, which is the selection I have made, into a thing which is the same in character but simply has a different name. I think perhaps we would be wasting the time of the Committee in arguing about semantics in that sense. He is really taking a totally different concept of what he wants to insert instead. He is taking what I might call, without disrespect to my noble and learned friend who is sitting exactly on my right, the Scottish definition of "unlimited damages" for loss of society, and substituting that for the conventional figure which, for reasons that I explained on Second Reading, I had selected instead, and which I have chosen to describe as damages for bereavement. There is a fundamental difference of philosophy, therefore, which will emerge as we go on. It may be that I do not want to spend too much time on this issue—is the noble Lord seeking to intervene?
§ Lord Mishcon
Only, I hope, to help the Committee and, if I may say so respectfully, the noble and learned Lord. I am trying to deal with this matter in two ways: 1293 first, preserving the whole of his concept of bereavement, but merely altering the title to "loss of society". It may very well be that the Committee will decide that it is proper to fix a limit to that, and it may be the £3,500 proposed in the Bill. As a different point, I shall venture later on to move an amendment to say—whether it be bereavement, loss of society or whatever it be called—that there should be no limit, as indeed there is no limit in Scottish law. My last observation—hopefully to assist the noble and learned Lord—is that, recognising the difference in the law of Scotland where the claim is unlimited, and saying that the law of England, against my argument, should have a limit to this claim, I call it the same as in Scottish law, which is loss of society, even though the recommended limit is very similar to that proposed in this Bill. My points are separate.
§ The Lord Chancellor
I am very grateful to the noble Lord. But what I was about to say has a certain relevance to the question of nomenclature, which is all that is technically under discussion, because, in addition to removing the limit and therefore changing the conception from a conventional figure to one of solatium, the noble Lord is also going to add to the classes of those who are entitled to the solatium the unmarried child who is a minor. I think that the dispute which we are now having may depend ultimately on the decision to which we come subsequently on some of his later amendments.
Let us suppose that he were to succeed, against, probably, the advice which I am going to give to the Committee, in getting the unmarried minor child added to the class of those entitled to this type of solatium, and let us suppose that there is a child who is aged six months. The loss of society involved in the loss of a parent is virtually nil. It may be a loss of expectation of future society, but, in fact, there is no loss of society, because a child of six months is unaware, very often, of having a father, although it is usually aware of having a mother.
On the other hand, I can cast back—and it is very difficult for me not to speak about this in personal terms, especially as the noble Lord, Lord Mischon, has appealed to sensitivity—because I lost my mother when I was 17. It was a catastrophic event in my life. I had, of course, had her society throughout my boyhood and, to that extent, I suffered less than a child of six months. Yet if you treat it as loss of society and not damages for bereavement, you are getting yourself into the difficulty that if you succeed in inserting this new class—and this is only an example which I am using by way of illustration into—as a separate issue, you will probably achieve less just results than if you leave it as it is.
After all, bereavement is a very definite fact about human life. Loss of society, the society that one gets from one's nearest and dearest, is very much a matter of degree, kind and arguability. Bereavement is a fact. It is caused by death. You can say what it is and when it happens. You can describe it, therefore, by the name which it has. I believe that the Law Commission was right—on the assumption that you accept the philosophy of what I am going to argue about on subsequent amendments—to keep the name as it is. If I were to be defeated by the persuasions or by the 1294 votes on subsequent amendments I might, of course, revise my opinion. Therefore, I simply say that we had better pass from this and see how the whole sequence goes, and then on Report stage we can decide on our nomenclature. I do not know whether that is commendable to the Committee, but I feel that this is probably the best way forward.
§ Lord Scarman
I hope that the Committee will stick with the word "bereavement". It illustrates exactly what this conventional award, which is now introduced, is intended to deal with. It is compensation for grief. It is not loss of society. It is loss of a person by death. It is very limited. It is very conventional. It amounts only to a recognition by the state that, in such a situation as this, the fact of bereavement should qualify for some sympathetic recognition. I think, therefore, that the word "bereavement"—it is only one word, instead of three or indeed five—should stand as appropriate.
I think that this is necessary. Otherwise, we are going to have a debate as to why the Lord Chancellor, by order, should vary the sum. What criteria is he taking into account? Is he thinking of inflation? Is he thinking of the quantum of society? This is just a small contribution by the state to the recognition of a spouse's, or a parent's, loss and the grief caused by that loss. Let it remain there in a small, but sympathetic, compass.
§ Lord Rawlinson of Ewell
I have always thought that for the law to attempt to assess by monetary award some recompense for grief is absurd. I have always thought that it is something which the law cannot do, and which the law should not seek to do. Certainly, it should seek for the monetary compensation to try to put back people into the position in which they were before a great loss was suffered. But for the law to set out and to put in pounds, shillings and pence, as it was, or in pounds and pence, as it is now, some sum is ridiculous. I have been told that I must move with the times, and move with the times I must, and if the money has to go up to £3,500, then up to £3,500 it had better go. But I agree with my noble and learned friend Lord Scarman that what the law wants here is bereavement. Bereavement is what it is meant to be about, though I can see the point made by the noble Lord, Lord Mishcon, about the loss of society. But it is bad enough trying to measure bereavement. Therefore, like my noble and learened friend Lord Scarman, I prefer to keep the word "bereavement".
§ Baroness Phillips
I should like to support the noble and learned Lord who has just sat down, and I apologise to my noble friend here. This is an example of a debate in which we minor Peers feel very inadequate. We are now listening to a slightly erudite discussion between noble and learned Lords who sit on this Bench and noble and learned Lords who sit on the Bench opposite. But, as a mere magistrate, I would say that the law should be understandable by the common man; or, for that, now read "common woman". The common person understands bereavement. I am not sure that he or she understands the more sophisticated overtones which are now being, introduced.
1295 Perhaps I could make a plea at the beginning of this Committee stage: if your Lordships really want the rest of us to take part in this debate, it should be remembered that, although we have not got the experience and perhaps the training of those of your Lordships who practise law, we are here as the makers of law. This is a very important point. I hope it will be remembered that we must try to speak for the people outside who need to understand the law if they are to get common justice. Therefore I would support the simplest words. I think that "bereavement" is a very simple word and, as a widow, I endorse what has been said. Nobody can possibly assess any loss in hard cash. We all know that. Compensation cannot be assessed in hard money terms, but bereavement is something which we all understand.
§ Lord Mishcon
I think the Committee will have been delighted, on a rather sombre subject, to have had the benefit of so much wisdom, some of it esoteric and some of it extremely pragmatic. In those circumstances, and especially in view of what the noble and learned Lord said about the convenience of discussing this matter after other amendments, I beg leave to withdraw.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 3 not moved.]
§ 4.21 p.m.
§ Lord Mishconmoved Amendment No. 4:
§ Page 3, line 44, after ("husband") insert ("or unmarried minor child").
§ The noble Lord said: In view of what the noble and learned Lord said about damages for bereavement and those who are entitled to claim under that head, I do not propose to bore your Lordships with a long speech. We now know what we are dealing with, whether it be called "loss of society" or "bereavement". In his intervention, the noble and learned Lord, Lord Scarman, spoke in terms of some gesture by society, by Parliament, which recognises grief, and I think that the noble and learned Lord, Lord Rawlinson, said something of the same kind. Realising—as we all do—that we cannot really measure this in pounds, shillings and pence, if I may use an old-fashioned phrase, there ought to be a gesture by society, by Parliament, which recognises grief and bereavement.
§ The extraordinary thing is that excluded at the moment from the Bill as one entitled to receive that gesture from society, from Parliament, is the child of the person who is the victim of a fatal accident. That seems to us to be quite unacceptable, especially if one limits this to the unmarried minor child. May I say at once that the Pearson Report which dealt with an analogous head of damages, included the unmarried minor child? I go on to say that the difficulties which have been put, so far as I know them, in the way of including the unmarried minor child are the following: first, that it necessitates some form of inquiry as to where the children are—the children I have read of in other debates relating to this matter may be spread all over the world, which is a very unlikely happening, the Committee may well think, in regard to an unmarried minor child. Secondly, that the unmarried 1296 minor child is most likely going to be a dependant, anyway, under the Fatal Accidents Act. But the surviving spouse is also a dependant under the Fatal Accidents Act.
§ Your Lordships may well think that there are many cases which all of us—lawyers and laymen alike—can envisage where there would not be a claim as a dependant by an unmarried minor child under the Fatal Accidents Act. What happens if the mother who is not the breadwinner is killed in a fatal accident? In those circumstances, there is no claim by the unmarried minor child. There is no monetary dependency. This is the only way in which we can make a gesture to the unmarried minor child. And what about the case of the father who is suffering from some disability, whether it be blindness or crippling, where the mother has to be the breadwinner: If the father happens to be killed, there is no gesture by Parliament recognising the grief sustained by the unmarried minor child for the loss of the father. He, most likely, was very much more in the company of the child than the mother who in those sad circumstances had to go out to work. There is no gesture at all recognising the grief of which the noble and learned Lord, Lord Scarman, and the noble and learned Lord, Lord Rawlinson, spoke. It seems wrong that the unmarried minor child is excluded and I hope that the Committee will agree with that view. I beg to move.
§ The Lord Chancellor
Again I am not intending the smallest degree of criticism of the way in which the noble Lord, Lord Mishcon, has chosen to put his amendments, to some extent, in the order in which they come, for which there is normally an overwhelming case; but I find myself rather embarrassed in dealing with this amendment because I had hoped that in one way or another we should deal with this sequence of interdependent amendments more or less as a whole. With great respect, I think one has to make up one's mind what is the philosophy you are trying to introduce into the Fatal Accidents Act when you are trying to introduce any change at all of this kind. I entered into this at some length in my Second Reading speech, but, in dealing with what is really the question of the unmarried minor child, I find myself driven to appeal to the question of philosophy before I deal with the particular case.
I disclosed, quite plainly, my own hand on Second Reading. I said beyond doubt that I share the original philosophy of Lord Campbell's Act. The noble and learned Lord's predecessor, and mine, Lord Campbell, first introduced damages for fatal accidents based entirely on financial loss. He did not do so because he was living in the middle of the 19th century, if I may borrow a phrase from the noble Lord, Lord Kaldor. He did not do so because he as an uncompassionate man. He did so because he thought, basically, that it was degrading to human nature to try to capitalise grief. I disclosed my hand perfectly candidly to the House on Second Reading. I take that view myself.
I receive letters from time to time in which people say, "It is an insult to my wife, to my child, that this sum has been mentioned in connection with their death". But my reply to them always is, "What sum 1297 would be enough which would not be an insult?" And the bigger the sum in a sense the bigger the insult, because it means you can turn grief into money. A I do not believe that you can. I personally entirely accept the view put forward rather robustly by my noble and learned friend Lord Rawlinson. I said at Second Reading, and I say again, that when one has lost a wife, one does not think in terms of money to compensate for one's grief. I know that the law of Scotland is different. It believes in unlimited damages for loss of society, as it is called in Scotland.
The Law Commission and the Pearson Commission decided, with a wide measure of agreement (I think quite illogically, but still it is what the Bill says and what I am here to put forward, and there were two important dissensions within the Royal Commission) that one cannot have unlimited damages because there is no yardstick by which they can be measured, and it is an insult, in the sense that it is degrading to human nature, to try to find such a yardstick. However, both commissions said that they would recognise a conventional figure. The Law Commission's decision, which I followed with some upgrading for inflation, was to decide on a fixed sum of money which could be altered by the Lord Chancellor form time to time. The Pearson Commission decided on a sum of money calculated by a formula related to the average earnings of the average income earner at the time of the death. I think that both are illogical, and I have said so again and again, but I do believe these recognise in some way—and the noble and learned Lord, Lord Elystan-Morgan, with whom, frankly, I did not agree none the less put this very well—that society does attach importance to human grief. Therefore, the Pearson Commission decided on a conventional figure.
For this purpose, it does not matter whether one chooses the Law Commission's fixed sum or the Pearson Commission's formula. In my law reform, I like to back the informed opinion of experienced people even when, as in this case, my own instincts are quite contrary to what they have decided; I believe it probably does represent the informed public conscience of mankind, and so I find myself recommending the formula. One of the results of the formula will be that the more people one puts inside it, the more one dilutes the sum of money which they get. A woman with 10 children, to take the unmarried minor children, will get practically nothing, although her grief may be as high or higher than the married widow—the previously married widow—with no children or with only one or two children. It was for that reason that the better view, as I shall put it forward, is that the parents may share a grief for the loss of the child and the spouse—not a word I like, but the husband or wife—can take the sum for the loss of the wife or husband, but the unmarried child is excluded. I personally believe that is right. In my view at any rate, the unmarried child, even after I have made my concession to public opinion, should receive that which Lord Campbell originally designed for him or her—namely, the actual financial loss based on a calculation of dependency and with the more generous disregards which we now allow. But to dilute and complicate the kind of calculations which we now have to consider by thoughts of this kind—by dividing it among a large family and possibly among two families, because there may be unmarried children 1298 of a previous family as well—seems to me impossible to reconcile with the philosophy of the conventional sum, which, rather reluctantly but still without doubt, I have come to put before Parliament. I believe that if we go down this road, we are both complicating and destroying the remaining shreds of logic which the reports of the Pearson Commission and the Law Commission, which for this purpose are to be treated as one, have put before the public.
It is not that I am unsympathetic to the child who has lost a parent. On the other hand, I believe that we have to make certain choices of philosophy and I am pretty sure that I know which is the right one. I feel bound to reiterate a point that I made in our earlier discussions; that if one starts including unmarried minors, one gets into the problem of how one is to talk in terms of grief with respect to the child who never knew its parent—the youngest child of all—whereas the grief of the eldest child is greater. This tends to be so, at least in my own experience. I had the experience of my own children losing their mother recently, and I had the experience of losing my own mother a long time ago. I think that the grief of the child increases with the age of the child, until a given age when the child leaves the parental home—which I suppose is at about the age of majority. I have said what I have to say. I do not pretend that I am arguing an absolutely logical case; I would much rather be arguing the case of my noble and learned friend below the gangways because that argument corresponds with my own philosophy of life. But I have tried to do the best I can for Parliament and I hope I shall be given credit at least for that.
§ 4.37 p.m.
§ Lord Elwyn-Jones
I see a certain inconsistency between acknowledging the bereavement suffered by a husband or wife and failing to acknowledge and provide for the bereavement of the unmarried minor child; I see a total inconsistency of approach here. I note that the Pearson Commission also rejected acceptance of that inconsistency and, accordingly, I hope that the noble and learned Lord Chancellor may be willing still to accept the necessity for this change once we acknowledge the doctrine of compensation for bereavement.
§ The Lord Chancellor
I do not believe that I can change from what I have said, because I think, to a greater extent than the noble and learned Lord has given me credit for, that this undermines the philosophy of the Bill which I am seeking to pilot through Parliament. On the other hand, what I suggest would be the way forward is that we leave it at Committee stage and come back to this sequence of amendments at Report stage, when we shall have had the opinion of the Committee expressed on the whole sequence of amendments, so that we can make up our minds on the whole package. I believe that the package stands or falls as a whole and, if you want to have this, you must try a different package. I cannot therefore give much prospect of yielding on this, reluctant as I am to force the issue until the whole sequence has been discussed and gone through.
§ 4.38 p.m.
§ Lord Mishcon
I find myself in great difficulty, having heard the noble and learned Lord, the Lord Chancellor. He appears to be saying, and I hope that I am interpreting him correctly, that there is here some package which ought to be argued as a package and cannot be dealt with seriatively. What I have tried to argue, and my noble and learned friend Lord Elwyn-Jones has just said this himself, is that, if one decides to try and give a sum of money for bereavement, one must not and cannot leave out, as the Pearson Commission said, the unmarried minor child. I am abandoning here the point of loss of society and bereavement, which is a completely separate argument, for the purposes of this discussion. I am abandoning also for the purpose of this discussion the question of whether it should be £3,500, a fixed sum, or damages at large.
It is as simple as that in my mind. That is the only point covered by this amendment. It is quite without prejudice to any arguments about damages at large or a sum larger than £3,500. It is that narrow principle. That narrow principle, however, in my respectful submission to the Committee, is a terribly valuable one, and, as I repeat, for society, for Parliament not to make this gesture of acknowledgement to the unmarried minor child under this head of damages would in my judgment be quite wrong. I am sorry that the noble and learned Lord, who has a width of mind that usually enables him to be rather less unyielding than he has been on this occasion, cannot accept it. I have heard what he has said, and, if that is really his view, then I think the view of the Committee ought to be tested now, purely on this one point: should the unmarried minor child of somebody killed in a fatal accident through the carelessness, through the negligence, of another be excluded from this bereavement benefit, whatever the amount may be?
§ The Lord Chancellor
I do not want to intrude on the Committee unduly, but I do not think it is from any lack of width of mind that I fail to impress the noble Lord opposite; nor do I think it is from any lack of sympathy. I think it may be my own stupidity which has failed to get the point across. I do not believe you can reconcile the amendment which the noble Lord has put forward with the Bill as it stands. I believe that in the end it is not a separate point, it is part of the same. If you decide to insert the unmarried minor child, I believe you have killed the conventional sum, and you will then have to go either down the road proposed by the noble and learned Lord, Lord Rawlinson, or down the road of Scotland and have unlimited damages. But I do not think it can be reconciled with the Bill as it stands. Therefore, it is not a separate point, and, if it is passed, you must really make up your mind either that my own instincts are right and it is degrading to human grief to give it money, whether £10 million or £10, which is the view put forward by my noble and learned friend, or alternatively you must go along the road of unlimited damages. I think if you insert this here you are making a nonsense.
This is not my last word at all. Why I suggested the course I did was that I thought that the way things have fallen out, purely because of the order in which 1300 the amendments have been, quite properly, put down, we ought to take a view of the whole package at this stage and consider it before we seek to decide any part of it. Of course, if the noble Lord wants to take the view of the Committee at this stage, he is at liberty to do so, and I am the last person to try to discourage him, although I do not at all want to turn this Bill into a question of votes and Divisions. But I think it is in the interests of a proper discussion of this measure that we go through this part of the Bill with the sequence of amendments about damages for bereavement, as we have agreed to call it at the moment, first, and then on Report decide what we want to do about them, viewed as a whole. I think if you do it piecemeal in this way you are making a nonsense.
Admittedly, what I have suggested in the Bill, what the Law Commission decided in 1973 and what the Pearson Commission decided later is an illogical concept—namely, that you can turn grief into damages but only on condition that you do it in a conventional way. I want to argue that case to the Committee before we vote on this definitively one way or the other. Otherwise we shall get into a nonsense. I want to argue the case about solatium, which is what the total effect of this sequence of amendments put down by the Opposition would be, and to see where we get after having considered the thing in a coherent way and not before. It is not that I want to stop the noble Lord voting, but I think the result of the vote will be almost meaningless in the light of what I have said.
§ Lord Mishcon
I should dearly have loved to have agreed with the noble and learned Lord, and I should have loved to save the Committee from a vote, but I must confess that, in the interests of the principle that I have been trying, with my noble friends, to adumbrate, it is not possible—will he forgive this?—to understand his reasoning. I say that in all humility and with all due respect.
How one can say that there is a different principle involved in regard to compensation for grief in the case of a minor unmarried child for the loss of a parent, that the same principle does not apply where the parent has lost a child or where the wife has lost a husband—
§ The Lord Chancellor
I think the noble Lord meant to say the opposite. What I am saying is that the Bill gives this conventional sum to a spouse and a parent but not to a child, and I think unwittingly the noble Lord put it the other way round.
§ Lord Mishcon
If I did, I apologise to the Committee. My noble friend helpfully tells me that I did not, but, if I did, obviously it has been put right on the record now. I cannot see that there is the slightest difference in the principle involved. I agree with the noble and learned Lord that either you say there is no compensation to be awarded for grief of this nature because you cannot have it—I understand that point—or you say, yes, we ought to make that recognition, in which case how can there be a difference in principle between the spouse who has lost a husband, the spouse who has lost a wife or the parent who has lost a child, on the one hand, and, on the other hand, the child who has lost a parent?
In those circumstances, since I am not in any way allying that principle to an argument of quantum—and 1301 I promise the noble and learned Lord that he will not hear me argue the case of the minor unmarried child on quantum—and I am certainly not arguing this case of the minor unmarried child on the title to be given under that head of damages, whether bereavement or loss of society; and since this principle stands alone, and alone within the noble and learned Lord's Bill as he has drawn it and in accordance with his very lucid explanation of it, because that is an isolated point and the noble and learned Lord does not recognise that, I have no alternative but to test the view of the Committee.
§ 4.48 p.m.
§ On Question, Whether the said amendment (No. 4) shall be agreed to:
§ Their Lordships divided: Contents, 75; Not-Contents, 108.
|DIVISION NO. 1|
|Amulree, L.||Kilmarnock, L.|
|Ardwick, L.||Kinloss, Ly.|
|Avebury, L.||Leatherland, L.|
|Aylestone, L.||Lee of Newton, L.|
|Beswick, L.||Listowel, E.|
|Birk, B.||Llewelyn-Davies of Hastoe, B.|
|Bishopston, L. [Teller]||Mishcon, L.|
|Blease, L.||Molloy, L.|
|Blyton, L.||Monson, L.|
|Briginshaw, L.||Noel-Baker, L.|
|Brockway, L.||Northfield, L.|
|Brooks of Tremorfa, L.||Oram, L.|
|Bruce of Donington, L.||Peart, L.|
|Cledwyn of Penrhos, L.||Phillips, B.|
|Collison, L.||Pitt of Hampstead, L.|
|Cooper of Stockton Heath, L.||Ponsonby of Shulbrede, L.|
|Darling of Hillsborough, L.||Rathcreedan, L.|
|David, B.||Reilly, L.|
|Davies of Leek, L.||Richardson, L.|
|Davies of Penrhys, L.||Ross of Marnock, L.|
|Elwyn-Jones, L.||Segal, L.|
|Elystan-Morgan, L.||Shackleton, L.|
|Ewart-Biggs, B.||Shinwell, L.|
|Fisher of Rednal, B.||Stamp, L.|
|Gaitskell, B.||Stewart of Alvechurch, B.|
|Gifford, L.||Stewart of Fulham, L.|
|Glenamara, L.||Stone, L.|
|Gosford, E.||Taylor of Mansfield, L.|
|Grantchester, L.||Underhill, L.|
|Gregson, L.||Wade, L.|
|Houghton of Sowerby, L.||Wallace of Coslany, L. [Teller]|
|Hunt, L.||Walston, L.|
|Hutchinson of Lullington, L.||Wedderburn of Charlton, L.|
|Jacobson, L.||Wells-Pestell, L.|
|Jeger, B.||White, B.|
|Jenkins of Putney, L.||Wilson of Radcliffe, L.|
|John-Mackie, L.||Wootton of Abinger, B.|
|Abinger, L.||Berkeley, B.|
|Airedale, L.||Bessborough, E.|
|Airey of Abingdon, B.||Birdwood, L.|
|Alexander of Tunis, E.||Bridgeman, V.|
|Allerton, L.||Brookeborough, V.|
|Alport, L.||Cairns, E.|
|Ampthill, L.||Cathcart, E.|
|Auckland, L.||Clinton, L.|
|Avon, E.||Clitheroe, L.|
|Belhaven and Stenton, L.||Cockfield, L.|
|Bellwin, L.||Colville of Culross, V.|
|Beloff, L.||Cork and Orrery, E.|
|Craigavon, V.||Mersey, V.|
|Cranbrook, E.||Milverton, L.|
|Cullen of Ashbourne, L.||Monk Bretton, L.|
|Daventry, V.||Mottistone, L.|
|Denham, L. [Teller]||Murton of Lindisfarne, L.|
|Dundee, E.||Newall, L.|
|Ebbisham, L.||Nugent of Guildford, L.|
|Elliot of Harwood, B.||Onslow, E.|
|Evans of Claughton, L.||Orr-Ewing, L.|
|Faithfull, B.||Pender, L.|
|Ferrers, E.||Portland, D.|
|Foot, L.||Rankeillour, L.|
|Forester, L.||Rawlinson of Ewell, L.|
|Fortescue, E.||Reigate, L.|
|Fraser of Kilmorack, L.||Renton, L.|
|Glasgow, E.||Rochdale, V.|
|Gridley, L.||Rugby, L.|
|Haig, E.||St. Aldwyn, E.|
|Hailsham of Saint||St. Davids, V.|
|Marylebone, L.||St. Just, L.|
|Hampton, L.||Saint Oswald, L.|
|Hankey, L.||Sandford, L.|
|Henley, L.||Sandys, L. [Teller]|
|Hives, L.||Seear, B.|
|Home of the Hirsel, L.||Sharples, B.|
|Hylton-Foster, B.||Skelmersdale, L.|
|Inglewood, L.||Soames, L.|
|Killearn, L.||Stanley of Alderley, L.|
|Kimberley, E.||Stodart of Leaston, L.|
|Kitchener, E.||Strathcona and Mount|
|Lindsey and Abingdon, E.||Royal, L.|
|Lloyd of Kilgerran, L.||Strathspey, L.|
|Long, V.||Swansea, L.|
|Lucas of Chilworth, L.||Swinfen, L.|
|Lyell, L.||Thomas of Swynnerton, L.|
|McAlpine of Moffat, L.||Trenchard, V.|
|McFadzean, L.||Trumpington, B.|
|Mackay of Clashfern, L.||Tweedsmuir, L.|
|Mackie of Benshie, L.||Vaux of Harrowden, L.|
|Mais, L.||Vivian, L.|
|Mancroft, L.||Westbury, L.|
|Margadale, L.||Willoughby de Broke, L.|
|Marley, L.||Wise, L.|
§ Resolved in the negative, to accordingly.
§ 4.56 p.m.
§ Lord Mishconmoved Amendment No. 5:
§ Page 4, leave out lines 7 to 9.
§ The noble Lord said: I beg to move Amendment No. 5 and with the permission of the Committee I should like to speak at the same time to Amendment No. 6 because both amendments relate to the same point—namely, that there should be no limit on the damages in a bereavement claim. The noble and learned Lord, the Lord Chancellor, was right when he inferred that the argument had very largely taken place in a general discussion of this matter. I do not intend to weary the Committee with any repetition of arguments.
§ Let me put my case very simply by saying it is right, in my submission, that there should be no arbitrary sum fixed for this bereavement claim. I am saying that the damages should be at large. I am saying that it was decided that, under the law of Scotland—in accordance with the recommendation of the Scottish Law Commission, as I remember it—there should be no limit to a claim under the heading of "loss of society", which is almost the same claim as the one which we are now discussing; that they have had no difficulty in their courts, so far as I know, in making a proper assessment, after inquiry, under this head; and that I see no reason why we should walk, as I said again on Second Reading, 1303 into the anomalous situation where, if there is an accident just over the border there is no limit to the claim, but if there is an accident this side of the border there is an arbitrary limit to it. Having said that, I think that I have said everything that I can say succinctly in support of the amendment. I beg to move.
§ The Lord Chancellor
I seem to be getting up all the time, but I hope that I may be forgiven. I think that this really is the kernel of the question which we have really got to decide. The Law Commission and the Pearson Commission have both decided that damages for bereavement should consist of an arbitrary sum—not the same arbitrary sum. The noble Lord in invoking the law of Scotland to my mind might just as well have involved the law of Sweden—although I know no more than he does about what it says as regards this—because we all know that the law of Scotland is in some respects vastly superior to our own and in some respects a miserable reflection of the worst features of English law. But to my mind this is the heart of the matter. Let us suppose that a man loses his wife. In my case, thank God! no one was to blame, so I would not get anything under this Bill, and I did not want to get anything under this Bill. But how do you translate that into money which is not degrading to human nature?
Let us suppose that my wife had been killed in a road accident in this country and under the Bill I had sued. £3,500 might mean a little less to me than it would to a coalminer who had lost his wife and who receives only £100 a week, or whatever it is. Would one take that into account to give me more or less? Will wilful poverty count in your unlimited sum? To my mind it is a meaningless question. It is no good people saying, "Oh well, juries do it in America". We all know that juries do it in America, with what appalling results. It is no good saying that they do it in Scotland, because if you ask a judge an idiotic question, you get a foolish answer. Will you go into the quality of the relationship between the husband and wife?—so that if they were very happy and had been married a long time they would get a lot, and if they were not getting on very well and had quarrels, they would get a little. Will you resurrect the hideous and rather ugly arguments we used to have on damages' claims about the widow's prospects of remarriage?—which were laid to their quietus, I think perhaps unfortunately in the form which the quietus took, during my first term of office. I do not think that anyone would want that.
But how much will you pay the husband for the loss of a wife, or the wife for the loss of a husband, or the parent for the loss of a child? I do not think that there is an answer to this. Will you take into account the degree of blameworthiness in this calculation? There was no guidance in the noble Lord's speech or in the noble Lord's amendment. I am thinking now of a case which I saw in a private letter only three days ago. On a very wet night when visibility was bad a girl was knocked down and killed as a result of a very slight degree of negligence. Will that rate for lower damages than if the same girl had been killed as the result of a drunken driver—a hit and run driver—who is very much to blame? What about the 1304 blameworthiness of servants in this situation: How will you divide up the sum of money? Is the widow to get a separate sum and the children, if you had the children, separate sums? Are the husbands and wife to share the total sum, or will they get separate awards of damages?
I ask these questions not because I want answers, because I know very well that there are no answers which would ever make sense. I believe that the right answer is the answer given by my noble and learned friend Lord Rawlinson, and I have never concealed that. But two Law Commissions have said, "Yes, give damages for bereavement; make it a conventional sum, and allow"—says the Law Commission, as distinct from the Pearson Commission—"for inflation by giving a regulatory power".
It is between those three options that you have to choose. One I believe to be totally meaningless and degrading to human nature, when death is treated as a sort of auction between opposing counsel in a fatal accidents case; and there is my own view, that Lord Campbell was right when he passed his Act, that you cannot turn human grief into money; and there is the view of the great, the good and the wise, which I am putting forward as being the consensus of wise, good and noble human opinion in this country, that you do it by a formula and a conventional sum, making no difference between happy or unhappy marriages, no allowance for remarriage, and no difference between rich and poor, but simply say, "We, out of the conscience of society, give a conventional sum to those who have lost their nearest and dearest; we cannot do better than that; it is only human justice; it is not divine justice, and we must stick by that".
Personally, I know where my heart is and I have said so. It is in favour of dependency only, which was Lord Campbell's original conception. But if we are to have damages for bereavement, let us have the Bill as it stands.
We have had one gnomic silence in the course of this debate, and I wish that we could have had it broken. Scotland has managed to apply a law which the noble and learned Lord the Lord Chancellor has now been dismissing in the most fierce terms.
§ Lord Elwyn-Jones
They have lived with it in Scotland since 1976. I hate teasing the noble and learned Lord the Lord Advocate, because he is such a nice man and such an old friend, but it would have been interesting if he could have lifted the veil of silence—
§ Lord Elwyn-Jones
—and let us know what has been going on in Scotland, which has been applying the very kind of doctrine which my noble friend Lord Mishcon has been advocating. The noble and learned Lord the Lord Chancellor conceded that in some respects Scottish law is far better than ours. Of course, it is. One has heard about the inscrutable Scot, but I have never believed it to be a state of 1305 humanity that exists. But here he is, the very embodiment of it. I do not suppose that I shall get him to his feet on this occasion, but perhaps before we part with this Bill we shall return to this matter again.
However, the problems which have been raised by the noble and learned Lord the Lord Chancellor are, of course, serious problems. The conclusion that we have reached is to accept the apparent persistent and, we hope, superior wisdom of two commissions which have recommended the conclusion to which the Bill has come. I suppose that in a world of fallible human judgment, that is as good as anything that we can hope for. But I am not sure that it is a wholly satisfactory conclusion. I am bound to say, however, that I would not go to the stake for any different one. If only I could have heard what the noble and learned Lord the Lord Advocate had said by way of guidance.
§ Lord Foot
I should like to intervene for a moment in order to give my unqualified support to what has been said by the noble and learned Lord the Lord Chancellor on this matter. I do not say that because I shall shortly be moving some amendments myself and hoping to curry favour with him. I only want to say a word or two about the argument that has been used, namely, that they have had this system in Scotland since, I think, 1976 and that there is no reason to suppose that it has not worked perfectly admirably. I should have thought that there is every reason to suppose that it has not worked admirably, because, as the noble and learned Lord has said, today the Scottish courts are being called upon to answer unanswerable questions. Who is to know what indignation there may be in some of these cases where an award of so much is given to one person and an award of half that amount is given to another? This is an argument which is used far too often in this House and elsewhere—that they have done this in other countries in the past and it seems to have worked all right.
I remember that it was used in the discussion on seat belts. We were told that they had had them in Australia and in New Zealand, or somewhere, and they seemed to have worked perfectly well; whereas, of course, Members of this House had no idea how the law had worked in Australia or New Zealand at all and it might have been almost disastrous. So I reject that argument. I certainly hope that on this occasion at any rate, noble Lords sitting on the Opposition Front Bench will not press this amendment to a Division.
§ Lord Rawlinson of Ewell
I have made clear my attitude with regard to damages for bereavement. But let us reflect for a moment what this could lead to if we had damages at large. I do not know what it is like in Scotland; none of us knows what it is like in Scotland. I suppose the cynic would say that, if the wife was killed after the marriage ceremony on the way to the wedding reception, the husband in those circumstances might get vastly more money than someone who has been married for 10 or 15 years, on the calculation that this was going to be a wonderfully happy, exciting marriage.
That has to be contrasted with somebody who has been married for 10 years, and then let us say that 1306 there were lots of difficulties during the course of that marriage, and therefore, so much. The whole thing is so shoddy that we are better to stick with this statutory figure which has been fixed by the Law Commission. Therefore, irrespective of what happens north of the border or anywhere else, I am quite sure that this is the best solution, although if I had my way the whole of this clause would come out of this Bill.
§ Lord Elwyn-Jones
I think I have made it clear that we do not intend to press this amendment. It might shorten time if I indicated that at this stage.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 6 not moved.]
§ The Lord Chancellormoved Amendment No. 7:
Page 5, line 23, at end insert—
("(3) In section 3 of the Carriage by Railway Act 1972 (which provides that a person who has a right of action under that Act in respect of the death of a railway passenger shall not bring an action under the Fatal Accidents Act 1976)—
§ The noble and learned Lord said: I think I can call this a technical amendment because it extends the right to damages for bereavement not only to the Fatal Accidents Act 1976 but to the Carriage by Railway Act 1972. I think this is a logical extension and I think I can call it technical. I beg to move.
§ On Question, amendment agreed to.
§ Clause 3, as amended, agreed to.
§ Clause 4 [Exclusion of Law Reform (Miscellaneous Provisions) Act 1934]:
§ The Lord Chancellormoved Amendment No. 8:
§ Page 5, line 25, leave out ("substituted for the proviso to") and insert ("inserted after").
§ The noble and learned Lord said: This is to correct a mistake; not quite as the noble Lord, Lord Mishcon, said earlier. The object is that we have somehow succeeded by draftsmanship in killing the action for damages under this part of the Bill if the tortfeasor dies as well as if the injured victim dies. This is to correct that mistake. It is hardly technical, hardly drafting, but it is certainly right. I beg to move.
§ On Question, amendment agreed to.
§ The Lord Chancellormoved Amendment No. 9:
§ Page 5, line 27, at end insert ("(actions to survive death)").
§ The noble and learned Lord said: This is consequential on the last amendment. I beg to move.
§ On Question, amendment agreed to.1307
§ The Lord Chancellormoved Amendment No. 10:
Page 5, leave out lines 28 to 31 and insert—
(""(1A) The right of a person to claim under section 1A of the Fatal Accidents Act 1976 (bereavement) shall not survive for the benefit of his estate on his death.".").
§ The noble and learned Lord said: This also is consequential. I beg to move.
§ On Question, amendment agreed to.
§ Clause 4, as amended, agreed to.
§ Clause 5 [Maintenance provided at public expense to be taken into account in the assessment of damages for personal injuries]:
§ Lord Footmoved Amendment No. 11:
Page 5, line 45, at end insert—
("(2) The Lord Chancellor may by order made by statutory instrument fix such sums or formulae as he may think fit for calculating any such saving to be taken into account under subsection (1) above.").
The noble Lord said: It had been my intention originally to move these two amendments at the same time with the leave of the Committee, but on reflection it would be simpler and easier to dispose of the matter and not take up the time of the Committee if I move this amendment on its own. It probably will be self-explanatory and scarcely in need of explanation. Clause 5, as now drawn, provides:
In an action…for damages for personal injuries…any saving to the injured person which is attributable to his maintenance wholly or partly at public expense in a hospital, nursing home or other institution shall be set off against any income lost by him as a result of his injuries".
The sole purpose of this small amendment is to provide a mechanism by which the amount of that maintenance can be more readily ascertained. The proposal is that it should be in the power of the Lord Chancellor to make a statutory instrument fixing such sums or formulae—I am not sure whether "formulae" is a suitable word:
as he may think tit for calculating any such saving to be taken into account under subsection (1) above".
I beg to move.
§ The Lord Chancellor
This is an amendment which I am sorry that I cannot accept. I fully acknowledge the valuable and constructive thought lying behind it. As it is not a subject about which I could speak with any great authority, I hope I may make rather full use of my notes at least on this occasion. The two amendments, this and the following one, seek to introduce a new paragraph into Clause 5 (which provides that any saving made by the injured person by reason of his maintenance by a hospital at public expense shall be taken into account in assessing damages) empowering the Lord Chancellor to fix sums or formulae by which a saving may be calculated. A further section would then be inserted providing that an injured person who has received benefits at public expense from medical treatment, special appliances or certain social security benefits, should be obliged to notify the body concerned if he commences proceedings.
§ The Lord Chancellor
Of course, I mean no discourtesy to the noble Lord. It was really for the reason that I hoped he would allow me to make fairly copious use of my notes. Certainly I shall reply separately to his second amendment when I have heard his arguments on it, but in the opinion of those advising me the two correspond rather with his first inclination than his actual progress. If we have understood it wrongly, it is better that I should deploy the argument as it has appealed to my advisers rather than that I should seek to separate them in my own mind, having been previously advised that they are in effect inseparable.
§ Lord Foot
I wonder whether the noble and learned Lord would permit me then to speak now in support of my second amendment, and then what he has to say, which is already written down, will be relevant. This is an amendment which in my view is of some importance. Part I—the part of the Bill we are now dealing with—is concerned with the amendment of the law on civil liability for personal injuries and the law on damages in such cases.
Although we have had interesting amendments and some considerable discussion up to now, I think it probably is true that the general effect of this part of the Bill first of all is that it is a fairly modest amendment of the prevailing law, and, secondly, I should have thought that generally speaking it is generally acceptable. Any differences that there may be are upon matters of small detail.
My second amendment is designed to ventilate an aspect of this subject which is, I hope I am right in thinking, of rather greater importance than anything we have been discussing up to now. If I were to attempt to give the dignity of a title to the few remarks that I have to make, I think I would call it The Law of Liability for Personal Injuries in the Welfare State.
I wanted to say a few words about the state of the law on liability for personal injuries before the establishment of the Welfare State as we now know it. I do this with great hesitation because there are still in the Committee many noble and learned Lords who are very much more capable of competently speaking about this matter than I am. I think I am right in saying, in simple terms, that the general law on liability for personal injuries was tolerably well established in this country before the establishment of the welfare state as we now know it. The general rule of law which then prevailed—again, to put it in very simple terms—was that where a person sustained injuries attributable to the negligence of another or to a breach of statutory duty on the part of another, he should be entitled to claim damages against that other party and that the measure of damages should be, first, compensation for pain and suffering suffered and, secondly, compensation for financial loss (loss of earnings and the rest); indeed, financial compensation for all the injuries which flowed from the original act of negligence.
That was the general rule, qualified of course by the law of contributory negligence. When I first started in practice, the law of contributory negligence was not the 1309 same as it is now, but then we adopted the principles of Admiralty law and introduced the present conception of contributory negligence. The establishment of the welfare state altered the situation fundamentally in a number of ways but, for my present purposes, in two ways in particular. The first was that under the National Health Service, the injured person became entitled to free medical attention and all the other benefits of the NHS; and, secondly, under the system of national insurance, the financial loss that he sustained was substantially mitigated by the provision of industrial injury, disablement, sickness benefit and the like.
What I think is incontestable is that the benefit of those changes accrued to the advantage of the tortfeasor or to the advantage of the employer in breach of statutory duty. To the extent that the state provided for the injured person's medical needs and compensated him for his loss of earnings and the like, the liability of the tort feasor or employer in breach of statutory duty—perhaps I may call him the tortfeasor alone—was substantially reduced. Rather, it would be more accurate to say that often the benefit of the changes which accrued when the welfare state was set up accrued to the advantage of the tortfeasor's insurance. There are two circumstances in which it is compulsory to take out an insurance policy. One is in relation to a motor car (one is obliged by statute to take out a third party policy) and an employer is obliged compulsorily to take out insurance in respect of his workers.
I am aware—I say this in qualification of what I have just said—that the tortfeasor and his insurers do not always benefit to the full extent of the state's contribution to the injured person, and I will give two illustrations of that. In a claim for loss of earnings, the injured person is required to deduct from his claim on the tortfeasor only one-half of the benefits he has received from the state. Secondly, under the Road Traffic Act 1972, insurers are under an obligation in certain circumstances to pay certain strictly limited expenses incurred for medical treatment in a hospital in treating the injured person. However, that provision is set about by all sorts of difficulty, and my information is that in far too many cases it is wholly ineffective and that the DHSS, hospitals and doctors concerned do not ever recover even the limited sums provided for under that legislation.
What cannot be disputed, I suggest, is that very large sums of public money are today being expended by the state, running not into tens of millions but hundreds of millions of pounds per annum—that is not just my assessment—in medical treatment and various benefits which are never recovered from the tortfeasor or his insurers. If that is right, then it is a serious—I will not say "indictment" because that would be too strong a word—state of affairs regarding the arrangements under which we have lived for many years. It means that a heavy burden is being borne by the taxpayer which is properly the responsibility of the tortfeasor and was his responsibility before the welfare state was set up, because in those days the injured person would have been able to claim, for example, the costs of the medical treatment because he had had to pay for it himself.
If it is conceded that there is here a need for some fairly drastic reform, the question arises as to how it might be achieved. I do not intend to canvass the 1310 various ways which have been thought of by which the situation might be improved, but there is one way by which a claimant in an action for personal injuries might be made the agent of the state for the purpose of recovering for the state the maintenance which has been expended on his behalf. One of the main practical difficulties in achieving any useful result is that under any such scheme as that, if the law is to be effective at all there must be some preliminary procedure by which the state—the DHSS, hospital or doctor concerned—is notified of the existence of a claim, and it is towards solving that initial difficulty in making the claimant, the person injured, an agent for the Crown in recovering for the Crown the monies expended for his benefit that my amendment is addressed.
It provides that the state institution which has provided maintenance shall be notified of the commencement of the proceedings in an action brought by the claiment. I am acutely aware that my amendment goes only to that preliminary matter and does not attempt to deal with the way in which the state's claim against the defendant is to be prosecuted. One reason why I have tabled only this amendment, and have not tried to follow it up with a mechanism by which the injured person could become the agent of the state in his own action, is that it is beyond my compass and powers to do it; it is a very difficult matter. Thus, the purpose of the amendment is simply to pave the way to a wider scheme which would transfer back to the state money which it spends on injured people to the benefit of the insurers of the tortfeasor.
Therefore, my amendment is simply intended to ventilate what I believe to be an important question, and, if possible, to ascertain the reactions of the noble and learned Lord to what I have had to say. I am also acutely aware of the fact that the amendment, as I have put it down, might not have given the noble and learned Lord any clear idea of what arguments I was going to advance this afternoon. I apologise for that, and I really ought, if I had had time, to have given the noble and learned Lord some indication of what was the purpose of the amendment. I hope that he will forgive me for that, and of course I undertake that if he is able to express any sympathy at all for the arguments that I have been advancing, I would, before the next stage of the Bill, endeavour to try to put my proposition into a more coherent and adequate form. I beg to move.
§ The Lord Chancellor
I am very grateful to the noble Lord for his speech. He need not at all have apologised for not giving me prior indication, because during the course of his speech he very clearly stated that he was ventilating a point. I am sure that noble Lords who have had the benefit of listening to his speech will thank him for having ventilated it, since it is an interesting and important point.
Of course it is quite true that where there is a welfare state providing a free health service and other benefits, and a person who is injured receives treatment under the scheme and does not have to pay for it, to a greater or lesser extent, according to what arrangements are made, the tortfeasor—that is to say, the defendant in the personal injuries litigation—will be 1311 the gainer and not the victim. On the other hand, as the noble Lord, Lord Foot, quite rightly says, in an ideal world (if there is, or could be, such a thing) the Revenue ought to be the gainer by virtue of some mechanism whereby there could be a clawback from the tortfeasor of money spent on the victim. I have every sympathy with that thought.
But I must now do what the noble Lord has asked me to do; namely, to express what at the moment is the view of my advisers as to the two amendments, which I still think are interlocked, both dealing with the same problem, which is a real problem. I am very grateful to the noble Lord for having raised it, and I am sure that if he ever gets wind of this, my right honourable friend the Chancellor of the Exchequer will be filled with enthusiasm for the noble Lord, Lord Foot.
The object is to achieve some formula by way of a clawback. The first amendment (the one moved) empowers the Lord Chancellor to fix sums or formulae by which a saving can be calculated instead of, or in addition to, the present draft of the Bill, which provides that any saving shall be taken into account in assessing damages against the tortfeasor.
The object of the exercise is to enable the relevant body to claw back its expenses from the tortfeasor probably by means of subrogation. As it at present stands, the amendment is defective for two reasons. First, no system of subrogation or clawback is provided for in the amendment, and none at present exists. Secondly, the clause as it stands, unaltered by the amendment, provides for the saving to be taken into account—the new clause covers the total costs. The formula would not then be appropriate, so I am advised, since it would relate to the wrong amount.
Having said that, I shall now consider the meat behind the amendment. The first amendment—the one that imposes on me an obligation to devise a formula—would remove from the judiciary (that is, the courts) the necessity of inquiring what saving the injured person has actually made by virtue of his being maintained in hospital. Since every case, and every saving, is different, the formulae would have to be very complex in order to cover every case. I am advised—again this is a matter for which I have relied somewhat upon advice rather than one on which I will express my opinion, which is probably not as valuable as that of the noble Lord, Lord Foot, which is much more up-to-date than is mine in regard to accident cases—that it is likely that as much, if not more, judicial time and effort would be spent in argument over, and application of, the right formula as would be spent in argument over the amount of any actual saving without using any formula at all. Just as the amount of a dependency claim in a Fatal Accidents Act case may be calculated without reference to a formula, so may the saving.
The administrative costs, so I am advised—and here again I am moving well outside the field in which I am entitled to step with confidence—of any clawback scheme would be huge and would probably outweigh any repayment that the relevant public authorities would receive. The recent White Paper on the reform of the industrial injuries scheme, issued by the Department of Health and Social Security, proposes, for 1312 consultation purposes, the complete offsetting of social security benefits from tort damages. That was a recommendation of the Pearson Commission. However, at the moment the Government are not pursuing the possibility of recovering the amounts which have been paid out.
Major difficulties, so I am advised, would arise in working out what was and was not part of the costs of medical attention, and I am told that the formula proposed is apt to cover only the saving to the injured person, and not the total cost to the relevant public body. It should be noted that neither Pearson nor the Law Commission commented at any length on a system of subrogation, except to say that the purpose of damages was to compensate the victim and not to punish the tortfeasor, with which view I suppose we would both agree. It is to be noted that the Law Commission did not recommend any change in the analogous rule in Gourley's, case which as the noble Lord, Lord Foot, knows, is about damages being net of income tax.
Obviously this is not a matter upon which I can speak with authority. If the noble Lord, Lord Foot, will withdraw the first of the two amendments and not move the other one, I shall take advice on the matter and write to him, or he can return to it on Report. I will try to be both a little more informative and knowledgeable than I have been so far.
§ Lord Foot
I am very much obliged for that reply. I never intended to press the amendments. There is I think one small point of misunderstanding in that there is no real relationship between the first amendment and the second amendment. The first amendment is designed simply to clarify the existing law, inviting the noble and learned Lord as Lord Chancellor to produce a formula for calculating the maintenance provided to the injured person by the state.
My second proposal is quite different. I entirely understand that the amounts which would become payable under my second amendment are quite different from the amounts which would be assessed under the first amendment. I entirely accept, of course, what the noble and learned Lord says about the difficulty of preparing a formula, and I do not care a bit if the first amendment is never heard of again. As regards the second amendment, I would make only one observation on what the noble and learned Lord has said about the advice he had received about the administrative cost of clawing back the money which is paid out by the state for the benefit of an injured person.
That is, of course, I understand, a formidable problem, and that is why those people advising me came down, among the various alternatives that you might adopt, in favour of the scheme that I was proposing and which I was trying to explain in broad outline; that is that the claimant in any action, or indeed possibly a person putting forward a claim short of an action, should be able to include in his claim on behalf of the state, by a process of subrogation, the amount of money which is due to the state. If that could be done, then I suggest that the administrative costs of this would not be so enormous, because the administrative job of collecting the money would not fall in the first place upon the hospital or the service or whatever it may 1313 be: it would fall upon the claimant in the action and all he would have to do is to notify the hospital concerned that he was bringing the action, invite them to tell him how much they had expended for his benefit (which is a very simple matter, I should have thought) and then proceed with his claim in the court; and the DHSS, the doctor, the hospital or whoever it might be would have to play no further part.
I hope the noble and learned Lord will be able to consider with his advisers whether that system, if it could be established, would in fact not involve the very heavy expenditure which he foresees. With that, may I seek the leave of the Committee to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 5 agreed to.
§ [Amendment No. 12 not moved.]
§ Clause 6 [Award of provisional damages]:
§ The Lord Chancellormoved Amendment No. 13:
§ Page 6, leave out line 40.
§ The noble and learned Lord said: In moving Amendment No. 13 perhaps I may speak also to Amendment No. 79, which is consequential on it. They are drafting amendments. Of the two here the second relates to Northern Ireland, and the reason I am deleting the provisions, which is the purpose of the amendment, is that they are said technically to be unnecessary. I beg to move.
§ On Question, amendment agreed to.
§ Clause 6, as amended, agreed to.
§ 5.44 p.m.
Lord Mishconmoved Amendment No. 14:
After Clause 6, insert the following new clause:
§ (".Motor accidents
§ —(1) Where after the commencement of this section the death of or bodily injury to any person is caused by or arises ouy of the use of a motor vehicle on a road in Great Britain and ant of the circumstances specified in subsection (2) of this section applies, the death or injuury shall be deemed (subject to subsection (3) of this section) to be attributable to negligence on the part of the driver of the vehicle (whether or not he is liable in respect of the death or injury apart from this subsection), but without prejudice to the law relating to contributory negligence and to any remedy by way of contribution or contract or otherwise which is available to the driver in respect of the death or injury.
§ (2) The specified circumstances are where the death or injury arises out of—
- (a) any impairment of the driver's physical or mental condition, whatever the cause; or
- (b) any latent defect in the vehicle not discoverable by the exercise of reasonable care; or
- (c)any natural occurrence amounting in law to an act of God.
§ (3) Where the circumstances specified in subsection (2)(b) of this section apply and the driver of the vehicle is not its owner but is permitted by the owner to drive the vehicle at the material time, subsection (1) of this section shall have effect as if there were substituted for each reference to the driver of the vehicle a reference to its owner.
§ (4) This section shall have no effect in criminal proceedings.").
§ The noble Lord said: I hope to be brief on this amendment. If any of your Lordships happened on some miserable occasion to find yourselves on the pavement and as a result of a motorist having a heart 1314 attack, of lightning striking a car or of there being a latent defect in the car of which, with reasonable care, the driver could not have known, the person I have selected from your Lordships unfortunately being on that pavement was hit by that car, that person would have no right of recovery because nobody would have been negligent. There is no doubt about it; Pearson considered this case of the latent defect or the act of God, and because of the main recommendation of the Pearson Commission that there should be a no-fault liability combined with tort, there was no point in Pearson making a recommendation in regard to this class of case.
§ So if I may get to the heart of the amendment immediately, it is this. We are dealing now in this Bill with matters which relate to accidents and injuries from accidents. This may be the opportunity, which may not recur for a very considerable time, to do something about relieving the class of person injured to whom I have just referred; and your Lordships may think that the best way of dealing with it is by saying that there is an imputation of civil negligence which will enable recovery to take place. No criminal negligence follows from this, no criminal liability follows from this, but there is imputed negligence. Contributory negligence and other matters of contract will not in any way be divorced from this principle, so that they can all of them apply. As I said, this may be an occasion, your Lordships may think, for dealing with an aspect of the law which involves, of course, grave injustice where the recipient of the injury is in the position I have outlined. I beg to move.
§ Lord Renton
I hope my noble and learned friends will go very carefully on this matter because it seems to me that the noble Lord, Lord Mishcon, has suggested that there should be an irrebuttable presumption of negligence in the circumstances described in subsection (2). If we look at those circumstances we find that they are really drawn rather widely. It says:any impairment of the driver's physical or mental condition".Whether permanent or temporary, are we to assume? Then:any latent defect in the vehicle not discoverable by the exercise of reasonable care".This, of course, gives rise to the question of causation. There are some defects which could be alleged to be the cause of an accident, but there might be a dispute about that, also.
I think we need to be very careful indeed before we give rise to anything approaching a fresh irrebuttable presumption in the law of negligence, and more especially so in these particular circumstances. Therefore, with respect, I would not be inclined to support this new clause.
§ Lord Simon of Glaisdale
May I reinforce the plea for caution made by the noble Lord, Lord Renton? The words "arising out of" obviously fall far short of causation; and the wordsany impairment of the driver's physical or mental condition, whatever the cause".mean, as the noble Lord, Lord Mishcon, made quite plain, that this is a step towards compensation without liability. Compensation without liability—the Pearson 1315 proposal—is one thing: this is quite another. This is half-way there. But it still means that the person who has not been negligent, whose negligence has not caused the accident, but who has had some impairment out of which it can be said, in a vague way, the death or injury arose, shall be deemed to be negligent. As a result of his being deemed to be negligent he may lose, without any fault on his part, at least a no-claims bonus, even if his insurance company comes to his rescue, as presumably it will. Therefore, it seems to me that there are two courses, either the Pearson proposal or the present law; but this half-way step is a step which simply is liable to lead to injustice.
§ The Lord Chancellor
It is my opinion—and I have a good deal of sympathy with some of the thinking behind this—rather for the reasons which have been put forward by my noble and learned friend on the Cross-Benches and my noble friend Lord Renton, that this appears to fall firmly between two stools. When I proposed, as I did, the Pearson Commission being set up, I was very much aware that people got injured through no fault of their own but simply from the presence of motor vehicles on the roads; and the same, I thought, could be applied to some injuries at work where there was no negligence or breach of statutory duty on the part of the employer. I understood perfectly the case for saying in such circumstances that the duty of the motor vehicle owner might be turned into an absolute duty of buying an insurance from Lloyds or someone else and compensating the victim. I was aware equally of what I might call the Massachusetts scheme—and I need not enter into the reasons why I call it so—that is to say, the courts will continue to operate compensation or damages and that the liability for the use of the motor-car on the road should be absolute.
I was aware also of the New Zealand scheme, very much favoured by the Chief Justice of New Zealand at that time, and broadly speaking the Pearson Commission came down in favour of the New Zealand scheme. Whether either of them was right or wrong is not for me to say at this time because the Government have found difficulty in imposing a no-fault liability scheme. This is a very odd provision which does not conform either to the Massachusetts formula, although it shares with the Massachusetts formula the idea that in practice the insurer should be made to pay, although it does not say so; and therefore I suppose it would be met by the motorists out of their insurance premiums. It did not conform at all to the New Zealand type scheme which depends largely on public funds for supplying a new social service in place of the system of tort altogether.
What it does is not acceptable for the reasons that I have tried to explain. It imputes negligence when there is none in a certain number of limited circumstances which are specified in the clause and which are limited to accidents on the road. It imputes negligence to the driver of the vehicle where he is not the same person as the owner and he is driving without the consent of the owner, and on the owner of the vehicle but not the driver when the driver, not being the same person, is driving with the owner's consent. It applies only to accidents which are caused on the road by 1316 reason of the driver's physical or mental condition or of any impairment of his physical or mental condition which gives rise to the problems of the kind spoken about by my noble and learned friend on the Cross-Benches; of any latent defect in a vehicle not discoverable by the exercise of due care, which has approximately the same or analogous difficulties; and to any natural occurrence amounting in law to an act of God, such as when a motor-car is struck by lightning.
If I were going down that road, I would not limit the case at all. I would not do it by a deeming provision, deeming negligence without there being negligence. I would go down the Massachusetts road; and that would be a big change from the present tort system. This purely artificial method is not one that I could recommend to the Committee. One would only have to see that anomalies would arise and they would be in conflict with the rest of the tort system. For example, a person injured when the other driver had a heart attack at the wheel of his car would be able to recover but where the accident was not caused by the specified circumstances and the plaintiff could not prove negligence he could not recover anything.
The proposed amendment would help some people in some circumstances, but in practice it would be subjected to devastating criticism by those who found that the same injuries which they had suffered fell outside the scope of the clause. I think it is inevitable, and it may be regrettable, that modifications of the fault system in order to do greater justice to particular classes of victim run into this kind of trouble. It is possible that one can either have a fault-based system or one which involves strict liability; but it would be rash, I submit, to embark on an incursion into the law of negligence on the lines suggested in the amendment without thinking through these difficulties and consulting all those involved as to how such a scheme could operate in practice. I would rather go forward on a Massachusetts-based scheme if I was going to stick to tort or quasi-tort and go down the New Zealand road if people decided to implement the Pearson Commission. But this falls firmly, squarely and irreparably between two stools.
§ 5.56 p.m.
§ Lord Elystan-Morgan
The amendment as drafted by my noble friend Lord Mishcon and my noble and learned friend Lord Elwyn-Jones is far from perfect. That is accepted. The principle, however, is one of considerable significance. Your Lordships have already been told that, after all, in Committee it is possible to give further thought to the technical forms of amendments and to deal with them later at Report. I accept that the amendment is defective in that it does not make it clear that the presumption that it gives rise to is a rebuttable presumption. A presumption which can be rebutted by evidence which at the end of the day establishes on a fair balance of probability or better that the defendant was in no way causative of the accident, would lead to the success of the defendant.
As the Committee heard in the valuable and interesting discussion that occurred on a Motion on 20th January this year, this proposal has distinguished antecedents. It finds its origin in a Bill proposed in 1317 this House as long ago as 1932 by Lord Danesfort. It is a Bill that was supported by the Government of the day and the reason for supporting the Bill in 1932 was that it was considered that the roads at that time were so dangerous that anybody who took out a vehicle on the roads was adding immeasurably but nevertheless in some slight real degree to the potential danger that existed and, therefore, it was right that a responsibility by way of switching the burden of proof should be placed on the shoulders of a person so involved.
If there was justification 50 years ago, as I am certain there was, for such a viewpoint, how much greater justification is there today with the congestion brought about by, I believe, 16 million vehicles on our roads? The noble and learned Lord the Lord Chancellor makes the fair point that it is something that the Committee should consider and ponder upon before placing responsibility in tort upon a person who may be totally blameless. I accept that, but after all, it is a case, very often, of choosing between two persons each of whom is totally blameless.
Indeed, there are plenty of precedents in law where society takes the view that an act is of such public consequence that very heavy responsibility has to be placed on the person who indulges in that act. Even criminal responsibility is sometimes placed upon such a person. The food and drug Acts are probably the very best examples of that principle. Therefore, though on the face of it it seems unjust, if one looks at the situation through the eyes of the totally innocent victim, then I think that there is a very great deal to be said for it.
The ultimate financial responsibility falls not upon individuals but upon insurance companies or upon the MIB. Ultimately it would mean that the higher cost of premiums would be borne by the motoring public as a whole. That, in my submission, is no less than just. Pearson rejected this but in so doing it made it clear that its main reason—it may well be its central reason—was that it would fly in the face of its own philosophy in relation to no-blame compensation.
If the noble and learned Lord the Lord Chancellor with his hand on his heart can say, "Well, the Massachusetts road is still open"; it is still a possible development for Her Majesty's Government to say in relation to Pearson that it will bring forward legislation to create a no-blame scheme and then quite clearly there would be little to be said for this proposal. If, on the other hand, the noble and learned Lord says: "No, it is now four years since Pearson reported. Full and mature thought has been given to this matter and the Government most certainly will not take the Massachusetts road", then, in my submission, this is a just, proper and practical alternative.
§ Lord Simon of Glaisdale
I should like to ask the noble Lord, Lord Elystan-Morgan, what he meant by saying that the real intention of this amendment was to create a rebuttable presumption. Surely, the only presumption is the presumption in subsection (1), the deeming, and if that is rebuttable it surely—does it not?—makes nonsense of that subsection. In subsection (2) there is no presumption, no deeming. It says that the circumstances which give rise to the 1318 deeming of negligence are when the accident arises out of some impairment, et cetera.
§ Lord Mishcon
My noble friend, Lord Elystan-Morgan, is always very generous in his attributions and he was kind enough to attribute to my noble and learned friend Lord Elwyn-Jones and to myself this piece of beautiful English handiwork, the drafting of this amendment. I want to make it perfectly clear—because it would he quite dishonest of me to claim authorship of it, and I know that I speak for my noble and learned friend Lord Elwyn-Jones—that this comes from a very reputable source indeed, and a very learned source, but not as learned as my noble and learned friend and certainly, as I said, I cannot worthily claim authorship of it.
Having said that, I want to say something very briefly. I would love to have been geographically ambitious and gone either to Massachusetts or New Zealand. I tried hard to preserve some of Pearson or to do something in regard to this part of the law which obviously needs some attention paid to it. The noble and learned Lord the Lord Chancellor recognised that. I hope that possibly between now and Report stage something can be done, as I said, about this class of case so that we do at least have one wee little bit of "Pearson thought" to illuminate our thinking on personal accidents and injuries and the liability in this class of case. With that hope in mind—slightly despairing but nevertheless with that hope still within my breast—I think that it is appropriate for me to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.5 p.m.
Lord Stanley of Alderleymoved Amendment No. 15:
After Clause 6, insert the following new clause:
§ ("Duty of occupier of premises to univited entrant.
§ Liability for damages in respect of death
§ or personal injury
§ .—(1) An occupier of premises owes a duty to an univited entrant upon the premises in respect of a danger if, but only if, the danger is one against which, in all the circumstances of the case, the occupier can reasonably be expected to offer him some protection.
§ (2) The duty owed by an occupier in accordance with subsection (1) above is a duty to take such care as is reasonable in all the circumstances of the case to see that the entrant does not suffer personal injury or death by reason of the danger.
§ (3) In the case of any entrant as aforesaid who commits a criminal offence, or purposes to do so, on the premises, the duty owed to such an entrant by the occupier shall be no more than to avoid deliberately imperilling the entrant by any covert device.").
§ The noble Lord said: My new clause, except for the subsection (3) was drafted by the Law Commission and recommended for enactment by the Pearson Royal Commission on Civil Liability and Compensation for Personal Injury. I am therefore happy about its drafting and its pedigree and indeed it being a suitable amendment for this Bill as I believe it fits neatly into the second, third and fourth lines of the Long Title.
§ This amendment refers to the liability of occupiers of land to those who trespass on the land. At the moment, the law is in confusion since the case of British Railways Board v. Herrington in 1972. To remind the Committee—although I am sure I do not have to do so—this case involved a child deliberately 1319 trespassing on a railway line, and then the railway being found to blame. Such of course poses questions as to whether a trespasser, with intent to burgle, who borrows the farmer's ladder which then breaks could sue the occupier? Maybe not, but I am somewhat worried. It would be a strange situation if that were so, and I am sure the Committee could think of similar ones.
Surely the problem of the case of British Railways Board v. Herrington may have prompted the noble and learned Lord the Lord Chancellor in 1972 to ask the Law Commission to examine this problem. The Law Commission did this and they published a draft Bill in 1976. Nothing has germinated, hence my amendment. I hope that the Government will now take some action to redress the balance between the occupier and the trespasser—particularly the trespasser with intent to commit a crime—by accepting this amendment. I beg to move.
§ Baroness Sharples
I have put my name to this amendment because I am worried. As a landowner, I accept that I have a responsibility to ensure that there is no reasonable likelihood of injury to a possible trespasser who comes on my land. I also acknowledge that I have a duty of care towards uninvited entrants. Given the present situation, as a direct result of the case of British Railways Board v. Herrington in 1972, I fear that we will err on the side of caution and be inclined to deny access to everyone on our land. I feel that the law is not clear enough as to our liability for accidents, and certainly my insurer feels the same. I seek clarification of my position as a landowner and farmer under the present law. I should be most grateful for assistance on this matter.
§ Lord Monk Bretton
In putting my name to this amendment, I should like to say that the amendment does not seek to return to the status quo before the case of British Railways Board v. Herrington—that is, back to the Occupiers' Liability Act 1957 alone under which there was no protection for trespassers. Neither is it intended to allow occupiers to opt out of their responsibilities. What it is intended to do is to attempt certain clarifications arising after the British Railways Board v. Herrington case and to alter the balance only slightly between the occupier and the trespasser.
No doubt the Committee is aware of the problems that occur in rural areas where, once the factory floor has become the farm with all the space involved, a number of problems arise, particularly the fact that trespass is more common. Advisers to the farming industry have their doubts about the situation and they say it is no longer clear when an occupier is responsible for injuries suffered by trespassers. The occupier could even be responsible in the case of a trespasser with criminal intent. That really sums up the reason for putting down this amendment. If the amendment does not appeal to my noble and learned friend—though I earnestly hope it will—he will nevertheless doubtless be aware of the problems and anxieties of farmers. I hope he will be able to say what progress there has been in refurbishing those proposals made in 1976.
§ The Lord Chancellor
I do not want to turn a deaf ear to my noble friends who have put forward this amendment, which deals with a very real problem; but I must tell them honestly that I could not allow this amendment in this Bill. For reasons which I explained very fully on Second Reading, this is a Bill designed to improve the administration of justice in a number of non-controversial and, to my mind, absolutely essential but relatively minor areas. I got a place for it on the Government programme, on the basis that the Opposition would agree—which they very kindly did—to Second Reading proceeding in another place. I do not believe that I could "deliver the bacon" if I were to go very far along the lines of using this Bill as a vehicle for this particular type of amendment.
What I say now applies to the sequence of amendments now to be put forward. This one is concerned with introducing a limited duty towards uninvited entrants—a polite way of describing what I previously knew as "trespassers"—coupled with a very low duty of care towards entrants who commit or intend to commit criminal offences on the premises. The second and third new clauses limit the application of the Unfair Contract Terms Act 1977 and the Health and Safety at Work Act 1974 with regard to those who go on to land for recreational purposes. I know they have the support of a number of very influential bodies. I believe the Country Landowners' Association support them, together with the National Farmers' Union and the Central Council for Physical Recreation; so there must be a good deal to be said for them. Their common interest is the difficulty, which is a real one, of allowing free and easy access to country land for recreational purposes without increasing the risk of liability borne by the occupiers of such land—
§ Lord Stanley of Alderley
I am sorry to interrupt my noble and learned friend—indeed I am fearful of doing so—but he has now gone on to my next two amendments and I was going to say something about them separately because they involve a slightly different problem from trespass.
§ The Lord Chancellor
I fully agree about that, but I thought it might be for the convenience of my noble friends and of the Committee, since I am told that we are likely to resume the House before the next two amendments are called. If that should be the case, I think I am rendering a service to my noble friend; I am trying to tell him what the attitude is likely to be, though I agree with him that in strict logic I should confine myself to the question of trespassers. But I think that what I have said so far is applicable to the trespassers because I have correctly described the scope of the present amendment. The bodies I have mentioned have been pressing for some time for changes in the law to clarify the liability owed by landowners towards trespassers and to reduce the liability owed by such landowners to visitors who come on to the land for recreational purposes.
I have a certain filial interest in this. One of the things that my father did when he was Lord Chancellor was to preside in a case called Addle v. Dumbreck—and I can see that the noble and learned Lord, Lord Gardiner, recognises that case at once. My father 1321 was under the impression that this was the final word on the liability owed to trespassers by the occupiers of land. Most unfortunately, it failed to achieve that universal approbation which he had confidently expected would follow his efforts. His son is fully aware of the dangers of thinking that he has made a definitive improvement to the law of the land when he presides at the Appellate Committee! At any rate, the common law position is now not as stated in Addle v. Dumbreck, as my father fondly believed it would be, but as in the case of the British Railways Board v. Herrington. The case does not formulate one clear principle with regard to the liability owed by trespassers, and the Law Commission were asked to consider this area of the law in 1972. A report was published in 1976 and between then and 1978 various attempts were made—successive and numerous attempts—to introduce an occupier's liability Bill dealing with trespassers, based on recommendations made by the Law Commission. Unfortunately they all foundered, principally because the country landowners' lobby—I hope they will not mind my referring to them like that—did not favour the Bill which was proposed. It has since become clear that the country lobby does not like Herrington and they would rather see something along the lines of the Law Commission's recommendations, coupled with an exclusion of liability to the criminal trespasser, then leave things as they are.
In addition, there have been suggestions made by the users of the countryside that the Health and Safety at Work Act 1974 and the Unfair Contract Terms Act 1977 prevent free and easy access to the countryside for leisure purposes, because landowners are now unable to restrict their liability for injuries suffered by people who come on to their land; and that is the rationale of the amendments to which we have not yet come.
Although there is considerable pressure for change in this area of the law, I am bound to tell my noble friends that it would be premature to introduce changes into this Bill. Discussions have been continuing for some months on the question of the extent to which the present law on occupier's liability is restricting access to the countryside. As a result of these discussions, a consultation on the main problems and changes which have been suggested has been undertaken and is still in progress with other departments and a large number of other interested outside bodies, including the Bar, the Law Society, consumer associations and various local authority bodies, which are all closely interested in the result. It would not be right to move prematurely into making changes in this Bill before that consultation has been completed.
The implications of the changes which have been suggested have not yet been thoroughly thought out, and it is possible that they might have consequences not only for countryside use but for the use of urban property as well. The new clauses are not restricted in any way to countryside and would quite clearly extend to urban property. The suggestion that liability for personal injuries suffered by users of the countryside might be restricted by the use of exclusion clauses would be a major departure from the principle established in the Unfair Contract Terms Act 1977, and to restrict liability under the Health and Safety at Work 1322 Act 1974 would be a major departure from the principle of that Act.
Although the response to the consultation paper has so far been slow, it is at any rate suspected that the suggestions for change put forward in the second and third of the amendments would be controversial, and the possibility that any changes would apply to all property, urban as well as rural, is one that is likely—indeed almost certain—to be resisted by the consumer organisations. My view, on which I have taken advice, is that it would be wrong to introduce changes into the law before the consultation has been completed and full and thorough consideration has been given to its results. There must be consultation in these matters. One of my noble friends behind—I am sorry I cannot be quite certain which—asked me how far the consultations had gone. I will write to him with an accurate description of the position. They are not complete.
I would ask my noble friend, therefore, to withdraw this amendment. We are not blind to the genuine problems involved and to the importance of the interests which promote them. But we are not in a position to use this Bill as a vehicle for them. I hope that with that explanation, which is not intended to be wholly unfavourable, he will find it possible to withdraw this amendment and—I tell him this, because I know that there is to be an early resumption of the House, and I do not think we are likely to reach the next two amendments this afternoon—I hope he will consider that, to this extent, this is a fairly clear prognosis of the kind of answer he is likely to get on those two as well. But, on this one, which is the best of the three from his point of view, I am not yet ready to accept it into this Bill. However, we recognise the importance of the question which he has raised and look at it not unsympathetically.
§ Lord Stanley of Alderley
I knew that my noble and learned friend would get me in a muddle and, of course, he has. I would start by saying that he trespassed very strongly on my next two amendments, and, if he is going to do that, I do not see why I should not trespass on them, too, which is what I think he wants me to do. We moved on to what I call my Access to the Countryside Bill which he answered, but I do not think he really answered at all satisfactorily.
First, I do not see why I cannot move this amendment, when the Long Title to the Bill states in the second and third lines that it is,to amend the law relating to actions for damages for personal injuries, including injuries resulting in death".This is what we are worried about when people come on to our farms. The point here is that the Government had a conference in June 1981 to decide what should happen and it is now nearly April 1982. I know that the law moves very slowly, and perhaps it is a very good thing that it should. But I should like to draw my noble and learned friend away from his law points, of which I understand not one word, and on to the actual practicalities.
The Government had a conference and a meeting between the parties and they all agreed. If there is one thing that is enormously precious in this life, it is getting two or three people to agree. It is extremely difficult to do that. When you get them to agree, I 1323 suggest that the answer is to move forward very rapidly, but that is what the Government have not done. My noble and learned friend mentioned lots of other organisations, such as the Consumers' Association, and I thought at one moment he was going to mention the PLO. But they are not involved in this discussion.
I should like a firm assurance from my noble and learned friend that we will have a little more progress, because, as I understand it, the law is there to serve me. I am not there to serve the law. Here we are trying to open the countryside to the people, but, in fact, we are baulked, and I do not believe that that is the Government's intention. I believe that it is the Government's intention to help us open our farms to the public. But I think my noble and learned friend accepted that there are worries over the 1977 Act, tied up with the 1957 Act. It was the 1977 Act which messed up the 1957 Act and, therefore, I should have thought that this Bill, which is a tidying up measure, might tidy up the mess which the 1977 Act made of the 1957 Act.
I could go on and read the speech that I was going to make on the other two amendments, but I have covered most of the points. But there are various issues. First, it is surely very important to differentiate between my obligation as an employer to my employees, and my obligation to the public whom I have invited or have let come on to my farm, with no charge. At the moment, as the law is written, the obligation is absolutely the same. I want to make it clear that I do not want to get out of my common law liability to these people. I just do not want—to use an agricultural term, as my noble and learned friend uses legal terms—to be leant on by the law, which is the position at the moment, and I do not believe that my noble and learned friend wants that either. I implore him now to get these consultations going and to try to keep this matter moving forward. I should have liked to hear him say, but I do not think he will, that by the time the Bill reaches another place we might have made some progress.
§ The Lord Chancellor
I can say only what I believe to be true. I am in favour of the consultations going forward with all possible speed. I agree that the law is to serve the public and not the public to serve the law, but not entirely that one must press forward with every change which will, in fact, be controversial. I said on the Second Reading of this Bill that I could not take on board a great number of amendments to put into this Bill. I got it into the Government's programme after consultation with various interests in Parliament, in both Houses, and I must keep faith with them.
The only thing my noble friend will achieve by pressing this amendment is simply to lose the whole Bill. I cannot help that. I explained it from the start and I am bound, therefore, to keep this Bill within a reasonable compass. There are a number of amendments of various kinds coming from very different quarters of the House, with some of which I have very great sympathy. But I cannot add to the Bill, at the moment, amendments wholly altering the nature of occupiers' liability, especially as the amendments are not drawn to be limited to rural areas, but, so far as I can see, apply to urban areas as well.
1324 I do not think I am being unreasonable about this. I am willing to help my noble friend in every way I can, both on this amendment and on the two subsequent amendments. But I cannot necessarily agree that they should be embodied in this Bill, not because they are out of order—of course, they are within the Long Title and the scope of the Bill; it would be very difficult to devise an amendment which was not within the scope of the Bill—and I simply say to my noble friend, in all humility and in words which I hope he will not understand, that I an not leaning on him in the least. I am making a?cri de coeur to allow me to pass rather a harmless measure, although one of monstrous size, and to keep my promises, on the faith of which people have acted to my advantage and which I intend to keep to the best of my ability, cost what it may.
But I am not being unsympathetic to my noble friend. I sympathise with his point. I am anxious for these consultations to go forward. But I am sure that he would not get them through, riding on this particular bicycle. I will try to devise a vehicle for him, if one can be devised. I hope that it will have round wheels and not square wheels, and that it will go forward with acclamation and success. But this, I am afraid, I cannot promise on this occasion and in this context; otherwise, I would.
§ Lord Stanley of Alderley
With those very kind remarks of my noble and learned friend, of course I will withdraw this amendment. I am sure that if he keeps on pushing at the wheel, we shall one day get these minor adjustments to the law through in a satisfactory Bill. I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ Lord Sandys
In view of the considerable length of the debates which are to follow, it might be for the convenience of your Lordships if the House were resumed at this stage. I beg to move that the House do now resume.
§ Moved, That the House do now resume.—(Lord Sandys.)
§ Lord Elwyn-Jones
Before the Question is put, may I, on behalf of noble Lords who have taken part in the proceedings since three o'clock, express our gratitude to the noble and learned Lord the Lord Chancellor, who has batted single-handed on most of these matters for over three-and-a-half hours.
§ The Lord Chancellor
I am very grateful indeed to the noble and learned Lord, who is always more kind to me than I deserve.
§ House resumed.