existing law with what will be the position if the new Clause is accepted. As I say, at present, any benefits have to be taken into account under the common law—with two exceptions. The first exception is any sum paid or payable on the death of the deceased under any contract of assurance or insurance, and the second exception is the benefits in Section 2 (5) of the National Health (Industrial Injuries) Insurance Act, 1948.
The intention of the new Clause is to preserve those two exceptions and also to extend the exclusion from accounting of other benefits that a deceased or his estate may receive as an employee, as a member of a trade union, or as a member of a benevolent association. For this purpose, benefits are defined by subsection (2) of the new Clause as meaning benefits:
… under the National Insurance Acts, 1946 (as amended by any subsequent enactment, whether passed before or after the commencement of this Act), or any corresponding enactment of the Parliament of Northern Ireland and any payment by a friendly society or trade union for the relief or maintenance of a member's dependants.
As I say, the intention of the new Clause is both to preserve the existing law and to extend it in the direction that I have indicated. I hope that the House will agree that that is a satisfactory purpose and that the new Clause is suitable to achieve that end.
Major W. Hicks Beach:
I beg to second the Motion.
I welcome the opportunity of supporting the new Clause, which seems to carry out the logic and intention of the promoters of the Bill. My hon. and learned Friend the Member for Warwick and Leamington (Mr. John Hobson) has very clearly explained how the Clause will operate. I understand that he seeks merely to implement the intention of the Bill by increasing the scope of the benefits that are not to be taken into account when assessing damages. I must confess that I did not have an opportunity of attending the Standing Committee, but I believe that this matter was referred to at. some length. I think that the House would be well advised to accept the new Clause, unless some very valid arguments to the contrary are advanced.
While I am greatly obliged to the hon. and learned Member for Warwick and Leamington (Mr. John Hobson) for the explanation that he has given. I do not think that we should allow the Clause to go through the House without an explanation from the Solicitor-General. While very desirable things are done in this way, this form of legislation is not altogether satisfactory when we consider what has been happening in the House and in Standing Committee concerning Private Bill legislation.
I noticed, for instance, that when the new Clause in its original form was in Standing Committee the Chairman's attention was called to the fact that 12 Members were not present and he thereupon suspended the proceedings. It was not until another hon. Member entered the room that the proceedings could continue. If we are not careful, and if we do not react more responsibly to our duties as private Members, taking advantage of this very useful facility which we have got, we shall bring Parliament into disrepute.
I rise to ask the Solicitor-General to make a statement on this new Clause, because I think that it would be proper for him to do so. He kindly advised the Committee about the original new Clause. It is obvious that it as a consequence of his advice that we have got the new Clause in its present form. I think that the whole House is greatly obliged to the right hon. and learned Gentleman for the advice which he has given, but he ought to reaffirm this advice publicly in the House so that the House may treat its responsibilities seriously.
I invite the Solicitor-General to do what he did in Standing Committee. He referred to private conversations and he then made public those private conversations. I think that the same should happen again. The Government should assure us. I have no reason to doubt the explanation which the hon. and learned Gentleman 'has given in support of this Clause, but I should like to have the support of the Solicitor-General before we agree to it.
With respect, I agree with what my hon. and learned Friend the Member for Warwick and Leamington (Mr. John Hobson) said about his new Clause. As for private conversations being made public, I might add another revelation, which is that since my hon. Friend the Member for Hitchin (Mr. Maddan) produced his Clause in Committee we have, after conversations, been able to provide him with the assistance of Parliamentary draftsmen. Hence this new Clause.
I join in welcoming this new Clause, and in doing so I should like to comment on the fact that it extends very considerably the scope of the Bill. This is a factor to be welcomed, but I think my hon. Friend the Member for Sunderland, North (Mr. Willey) is right to emphasise that these changes which are being made and will have far-reaching consequences have been considered by very few hon. Members both in Committee and, it would seem, here today.
The hon. Member for Hitchin (Mr. Maddan) is undoubtedly to be congratulated. because he is primarily responsible for the fact that this extension is being made in the scope of the Bill. It would be fair to say that he had the courage to rush in where, perhaps, the lawyers feared to tread. He got very little support in Committee. I. was not on the Committee myself—I did not have that pleasure but he got very little support in Committee from the lawyers when he introduced his new Clause, which was finally written into the Bill.
My hon. and learned Friend the Member for West Ham, South (Mt. Elwyn Jones) in the end voted for the new Clause, saying that he did so only because he felt sure that the new Clause was going to be defeated, which was not a very enthusiastic form of support. I believe the hon. and learned Member for Warwick and Leamington (Mr. John Hobson), who has handled this Bill so ably, voted against that form, at least, of the new Clause. I am very glad to see him supporting the principle of it today by moving this new Clause which is intended to take its place.
What the Clause does, as I understand it, is to extend considerably the class of benefits which accrue to the claimant—that is to say, the dependant of the deceased person—which are to be excluded from consideration in assessing damages. If we are to be frank, I think we must recognise that there is no great logic to be found anywhere in this matter because the original statutory exception in the 1908 Act, of what I may broadly call insurance moneys, undoubtedly drove something of a wedge into the general principle upon which Fatal Accidents Act damages are based—namely, that they are to compensate the dependant for the pecuniary loss which he or she suffers as a result of the death.
Of course, that loss is assessed by taking into account, firstly, what the person has lost, usually in the way of maintenance, as a result of the death, and then setting off against that such pecuniary benefits by way of legacy or otherwise as accrue to the claimant from the death. Saying that one class of benefits, namely, insurance moneys, is to be excluded undoubtedly drives a somewhat illogical wedge into the whole of the common law approach to this problem.
However, there was much to commend the statutory exception, and it continued to operate without any great difficulty or trouble being felt, and, indeed, was extended by the 1948 Act to include National Insurance benefits under the National Insurance Act as a further class of benefits to be excluded. The real trouble arose as a result of a decision of the courts in a case known as Bowskill v. Dawson, where it was held that the benefits which accrued to a widow under a group life pension scheme were benefits within the 1908 Act which had to be excluded from consideration.
It happened that this group life pension scheme of the deceased's employer, like many such schemes, was connected with and based upon a group life insurance policy. It was because of that that it came within the 1908 Act. Then immediately that gave rise to a feeling that this produced a most anomalous situation, namely, that where a widow received benefits under a scheme of this kind those benefits were to be left out of account, whereas there were plenty of other pension schemes and superannuation schemes of one kind and another under which benefits were payable on death which were not taken into account.
For example, in the case of Smith v. B.E.A. there was set up in the industry a statutory scheme under which payments were payable to the widow very similar indeed to a private employer's group life pension scheme. It was held there that because there was no insurance policy involved, the benefit which the widow received was to be taken into account. It is because these anomalies arose that the hon. Member for Hitchin had such a very strong argument to put before the Committee in extending the scope of these privilege benefits. What was said in Committee, and with some force, was that whatever explanations are made further anomalies will arise, and I think that is undoubtedly the case. Perhaps when we come to discuss some of the Amendments to this proposed new Clause, if it is given a Second Reading, we shall run up against those difficulties and see what they are.
For my part, I strongly welcome this new Clause. It is very desirable that if we are going to exclude from consideration benefits under insurance policies there are substantial classes of kindred benefits which ought also to be excluded.
I am glad to hear from the Solicitor-General that the mover of this new Clause has had the assistance of the Parliamentary draftsmen. Certainly, the wording of it would seem to be a very great simplification and a general improvement upon the wording both of the new Clause which it replaces and also of some of the provisions in the earlier Acts. I think that we can consider the detailed wording better when considering the Amendments. I make these remarks only because I think it right not to allow this important development in this branch of the law to come about without some comment being made to show that the House appreciates the full significance of what it is doing.
This Clause, which stands in the name of my hon. and learned Friend the Member for Warwick and Leamington (Mr. John Hobson) and myself, does, of course, put into more effective legal language what I attempted to do in Standing Committee C. We had a close run in Standing Committee, and I suppose that any layman who puts his head into the lawyer's mouth must expect that.
It is very gratifying to me today to have learned hon. Members of the House approving the Clause as it now stands. It is certainly important that the House accepts this Clause because, otherwise, the widows of people who happen to get killed and who worked in companies or nationalised undertakings which run their own pension schemes instead of contracting out that function to an insurance company, as most small companies do, are penalised.
As I said in Standing Committee, although, of course, in any matter where we try to draw a hard and fast line we always find an anomalous situation just either side of the line, it seems to me important that the disadvantage of an anomaly should not fall on the widow whose breadwinner had been. killed. Should there be an anomaly operating to someone's disadvantage, it should not lead to the disadvantage of the widow. I therefore hope that the House will accept the Clause.
The hon. and learned Member for Warwick and Leamington (Mr. John Hobson) may be assured that the House will accept his new Clause, but before it does so I should like to press the Solicitor-General on the point put to him by my hon. Friend the Member for Sunderland, North (Mr. Willey).
The Solicitor-General will recall that in Standing Committee C he gave a
promise that if the hon. Member for Hitchin (Mr. Maddan) would withdraw his proposed new Clause, he, to use his own words,
… could give an undertaking, a personal one only, that I would invite the attention of the Lord Chancellor to this discussion and to the problems raised by all the proposed new Clauses of my hon. Friend."—[OFFicIAL REPORT, 18th February, 1959, Standing Committee C, c. 26.]
That is, the hon. Member for Hitchin. As the assistance of the Law Officers of the drafting department has been given to the hon. Member for Hitchin on this new Clause, may I assume that this was done with the authority of the Lord Chancellor and that his attention was, in fact, drawn to the points raised by the hon. Member for Hitchin? If so, that relieves me of a great deal of the anxiety 1 had, that the right hon. and learned Gentleman has implemented the promise, as I anticipated he would, that he gave in Standing Committee.
I cannot answer the hon. Gentleman the Member for Deptford (Sir L. Plummer) without the leave of the House and I hope that it will give me that leave. To be extremely lawyer-like, my promise was conditional upon my hon. Friend withdrawing his proposed Clause. That condition was never fulfilled, but, being interested in this matter, I had the point brought to the attention of the Lord Chancellor.I understand that he was not in disagreement with the view that this whole topic which the hon. Member for Lewisham, North (Mr. MacDermot) has been talking about was a proper one for the consideration of the Law Reform Committee.
Of course, what priority is given to it is slightly affected by the matter that this Clause is now sought to be put into the Bill. I hope that satisfies the hon. Member that all things proper have been done.
Sir L. Plununer:
When the hon. Member for Hitchin (Mr. Maddan), in Committee, was advancing the arguments for his Bill, he was most clear and specific that the benefits should always be to the advantage of the dependants of the deceased person and should not be counted against them. I want to put to the hon. Gentleman the reason for the Amendment which I have put on the Notice Paper to insert the word "gift" after the word "pension".
Let us suppose a relative or a friend, touched by pity for the plight of the widow of the man who has suffered a fatal accident, is so far moved as to give the widow a house. Is the value of that property—a house given to the widow so that she can live in decency and perhaps away from the circumstances surrounding the death of her husband—to be computed against the damages awarded? A gratuity, insurance money, benefit or pension would not be. I think that we should be absolutely specific on this point.
It seems to me most important that gifts, which are natural to circumstances surrounding a fatal accident of this kind and given for a proper and desirable reason, should not be counted, as it were, against the dependant in the computation of the benefits to be arrived at. This may be a matter of small importance but, nevertheless, it is a matter which needs most careful consideration by the House, and it is for that reason that I move the Amendment.
I beg to second the Amendment.
I respond to the last words of my hon. Friend the Member for Deptford (Sir L. Plummer) and I say once again that this has demonstrated the irresponsibilty of the House. I should have thought that one of the hon. Members who sat in Standing Committee would have been here to raise a point such as this. Neither my hon. Friend nor I were on the Standing Committee. I was not particularly aware of this point until I heard my hon. Friend, who has made a plea which seems, on the face of it, unanswerable. I hope that those responsible for the Bill will accept the Amendment.
The new Clause is quite clear, but I think that its purpose would be better served if we accepted the word "gift" for the reasons which have been given and included under this umbrella, gifts in such circumstances as my hon. Friend has illustrated. I hope, therefore that the hon. and learned Gentleman the Member for Warwick and Leamington (Mr. John Hobson) will be able to accept the Amendment and that the House will be able to improve the Clause in that way.
Major Hicks Beach:
I fully appreciate the point which has been made by the hon. Member for Deptford (Sir L. Plummer) and his hon. Friend the Member for Sunderland, North (Mr. Willey). Frankly, I regard this Amendment as a good one. However, having studied the new Clause, it occurs to me, as a lawyer —I have no doubt that we shall hear from the Solicitor-General on this specific point—that the word "benefit" would include gift. I may be wrong. My own view is that if there is any doubt about the point at all, then, clearly, the word should be inserted.
As at present advised, I should have thought that "benefit" would cover gift. I entirely agree with hon. Members who say that the matter should be clarified. To a large extent, I suppose, one could describe this as a drafting point, but it is certainly extremely important. Plainly, if an unfortunate widow were given a house, in the example which the hon. Member for Deptford gave, by a well-meaning friend, if that were to be taken into account in assessing damages, that would, as I understand it, be quite contrary to the intention of the Bill and quite contrary to any view which I would wish to support. It certainly should not be so.
The Amendment may be described, perhaps, as a probing Amendment to clarify the intention behind the Clause, but it has put doubt in my mind, and I hope that we shall have the matter cleared up, or that the House will accept the Amendment. I can see no objection to the insertion of the word "gift". If there is any doubt at all, for goodness' sake let us have the position clear. As at present advised, I support the Amendment.
It might save time if I submitted a view to the House now. We take the view that the Amendment to the new Clause is unnecessary. Sometimes—I say this without discourtesy —my hon. and gallant Friend the Member for Cheltenham (Major Hicks Beach) puzzles me greatly. As the new Clause expressly defines what is meant by the word "benefit" in terms which exclude gift", I do not quite follow why my hon. and gallant Friend has the impression that "benefit" may include gift.
In assessing damages, the court is concerned with the consequences of the death, and the intervention of the giving mind is something which breaks the chain of consequence between the death and the gift. That has been held as a matter of law, and I can conceive no reason why it should be otherwise here. In a lawyer's phrase, it is a novas actus interveniens. The mind choosing to give, although, no doubt, the death is the occasion for the gift, the gift is not a consequence of the death.
In our belief, it is not innocuous to put the word "gift" in as the hon. Member for Deptford (Sir L. Plummer) suggests, because to put it in would at once cast doubt upon the general principle on which damages are to be assessed in relation to what are the consequences of the death. For that reason, I advise the House that it is better not to amend the new Clause in the way proposed.
I approach this subject with hesitation in view of the advice which the Solicitor-General has just given to the House, but I confess that I am not altogether convinced by his arguments and I think it only right that I should express my doubts in the matter.
I imagine that the case to which he referred when saying that it has been held by the courts that, where there is a gift, it breaks the chain of causation so that no gift can be regarded as a consequence of the death, is the case of Peacock v. Amusement Equipment Co., decided in 1954.
With respect, I do not think that that is what that case decided. It was a very unusual case. The plaintiff was the husband of a woman who had died as the result of an accident. She had under her will left the whole of her estate to two of her children by a former marriage. She was a woman of considerable substance. The two children by the former marriage decided to make out of the moneys which they had received some provision for the widower. They did this by gift.
The courts held that, in those very unusual circumstances, that gift was not a consequence of the death, and the two learned Lords Justices—it was a case in the Court of Appeal—who gave reasoned judgments both stressed the fact that the reason that they thought that the chain of causation had been broken was that this kind of gift was not in any way a foreseeable consequence of the death: no one had anticipated that, if the widow had been killed, this would result.
In my view, their wording clearly showed that they thought that some gifts could well be regarded as a consequence of the death within the meaning of the Act. I will read two very short passages from the judgments which show the point. The case is reported in (1954) 2 All England Law Reports, at page 689, and I shall quote first from a passage in the judgment of Lord Justice Somervell on page 692:
I think the clue to this problem is, first, to consider the facts of Baker's case, and without saying that that is a line beyond which no voluntary payment would be taken into account—and I do not express that view at all, but I think it would be only in very unusual circumstances that a voluntary payment would be taken into account when there was no expectation of it at the time of the death. It seems to me that that indicates for itself that there is a nova causa interveniens and, therefore, the payment was not made in consequence or as a result of the death. I would say that this payment was not made as the result of the deceased's death.
Lord Justice Birkett, summing up his views, is reported on page 693 as saying:
For my own part, I am satisfied that this payment by the stepchildren to the plaintiff was a voluntary payment which ought not to be taken into account. It is quite clear from all the facts that he had no expectation that any such payment would he made, and it was not a payment—this is where my mind is quite clear—which was made as a consequence of the wife's death.
With respect, I think that those passages show that the law is not as clear on the point as the learned Solicitor-General indicated, and some gifts may be held by the courts to be a consequence of the death, particularly where, as often happens. some intimation has been made by a relative that, in the event of anything happening and one of the parties dying, that relative will look after the survivor.
There is no contractual liability there and it would undoubtedly be a gift.
There remains the question whether on the wording it is necessary to include "gift" in view of the fact that the word "gratuity" is already contained in the new Clause. As far as I am aware, "gratuity" is not a term of art in the law and I do not think that there have been many cases in which its meaning has fallen to be precisely decided. For my part, I would have thought that the conception of a gratuity was clearly that of a monetary payment and that anything which was not a monetary payment could not be considered to be a gratuity. If that be so, clearly there can be many benefits in the form of gifts which would not be gratuities.
From that point of view, I would have thought that the wording is not necessary. Clearly there can be overlapping. Some things could be both gifts and gratuities, but that applies to the existing wording. Some things can be pensions and also gratuities. Some things can be insurance moneys and also pensions. There is plenty of overlapping, but that is not an argument against including the word "gift". I agree that the word "gift"by itself is perhaps a little too wide. It may be held to include, for example. a legacy made by a deceased person in favour of the claimant—a gift in his will. I do not think that any hon. Member would wish to include that among the exempted benefits when assessing Fatal Accidents Act damages.
It may be that we shall need to have recourse once again to the expert skill and ingenuity of the Parliamentary draftsmen, but I urge the hon. and learned Member for Warick and Leamington (Mr. John Hobson), who, I think, is handling the Bill, to give an undertaking to look at this matter further and to take the advice of such experts as he may have. If such an undertaking were given, perhaps my hon. Friend the Member for Deptford (Sir L. Plummer) would see fit to withdraw the Amendment. It seems to me that there is great force in the arguments which my hon. Friend has put forward for an Amendment on the lines he suggests.
I am very grateful to the hon. Member for Lewisham, North (Mr. MacDermot) for the way in which he has deployed the arguments about the inclusion of the word "gift". I am perfectly willing to give further consideration to this matter, although I am bound to say that at the moment I feel more impressed with the argument of my right hon. and learned Friend the Solicitor-General that it would be dangerous to include the word "gift" for, at any rate. two reasons.
First, it was suggested by the hon. Member for Lewisham, North that there were circumstances in which it would be possible to have a gift other than money which would not be a gratuity, but by including the word "gift" in the Clause we would not cover such cases, because it would have to be a gift which has been or may be paid. One cannot pay over houses or chattels; one can only pay over cash. Therefore, we would still leave the position that if the word "gift" is included only gifts of money would be covered by the word "gratuity".
Secondly, if the word "gift" is included there is a great danger that we may leave the court with a discretion to hold that a gift coming under a trust or will as a result of death is to be taken into account, and we would therefore be opening far more widely than the Clause intends the benefits which are to be excluded.
While I am not satisfied that the word "gift" should be included, I am always willing to listen to further argument, and on that basis I hope that the hon. Member for Sunderland, North (Mr. Willey) will withdraw the Amendment. He has said that the House is not as representative as it perhaps might be and that many Members of the Committee are not here. However, I had hoped that it was the excellent work of the Parliamentary draftsmen that had convinced all those interested in the Bill that no further discussion was necessary.
I would remind the hon. and learned Member for Warwick and Leamington (Mr. John Hobson) that I moved the Amendment and that therefore the decision to withdraw it rests with me and not with my hon. Friend the Member for Sunderland, North (Mr. Willey). The score seems to be one hon. and learned Gentleman who is against me, one hon. Member connected with the law who is neutral, and my hon. Friend the Member for Lewisham, North (Mr. MacDermot) who is also neutral. In face of this barrage and lack of support, I beg to ask leave to withdraw the Amendment.
I beg to move, as an Amendment to the proposed Clause, in line 3, after "paid" to insert:
by lump sum or by periodic payments ".
I am again asking for information. As the result of an Amendment moved in Committee by the hon. and learned Member for Warwick and Leamington (Mr. John Hobson), the words
and whether the same is received or to be received by lump sum or by periodic payments
were inserted in Clause 2. The Solicitor-General advised the Committee that that was a helpful addition, but agreed that the drafting would require a little attention later.
In the new Clause, it seems that the later drafting has resulted in the deletion of the words. If it was in order in Committee to insert the words and if that step had the support of the Solicitor-General, I should like to know why they have now been left out of the new Clause. Is there not as great a need for them now as there was in Committee? If I could have an assurance on that point, I should be obliged.
I beg to second the Amendment.
I second the Amendment largely for the same reasons as I seconded the first. I should be very interested to hear what the Solicitor-General can say about it. We are discussing a proposal against which the Solicitor-General voted in Standing Committee. That is why I consider that this is a matter of responsibility for the House. It is completely inadequate to say, "I voted against this proposal but with the assistance of the Parliamentary draftsmen it is now all right."
In Standing Committee, the hon. Member for Hitchin (Mr. Maddan), who moved the new Clause said—there had obviously been discussion about this—
My hon. and learned Friend the Member for Warwick and Leamington (Mr. John Hobson) has an Amendment down to the proposed new Clause, at the end to add:
'and whether the same is received or to be received by lump sum or by periodic payments '.
I shall be very glad to accept that Amendment."—[OFFICIAL REPORT, 18th February, 1959. Standing Committee C, c. 28.]
As my hon. Friend the Member for Deptford (Sir L. Plummer) has said, when we came to the Amendment it was moved by the hon. and learned Member for Warwick and Leamington and the Solicitor-General advised the Committee to accept it as a helpful addition. Again, he offered the assistance of the Parliamentary draftsmen, but I hope that we will not have the same operation in reverse. In Committee we moved in an Amendment which was accepted by the Solicitor-General, but it does not appear in the new Clause as drafted.
I think that we should behave in a more responsible way than this. I hope that this is merely an oversight by the draftsmen and that the hon. and learned Member for Warwick and Leamington, who successfully promoted the Bill, will be able to accept his own Amendment, and that the Solicitor-General will be able to reinforce it with his acceptance.
It may appear to be mysterious that I should move an Amendment in Committee to insert the words and then should promote a Clause that does not include those words. I should like, however, to assure the hon. Members for Deptford (Sir L. Plummer) and Sunderland. North (Mr. Willey) that I am satisfied that by reason of the new form of wording of the new Clause it was unnecessary to include those cautionary words which had seemed necessary to include in the Clause as it stood in Committee.
The Fatal Accidents Act. 1908, contains the words:
any sum paid or payable on the death of the deceased ".
In the course of giving judgment in a case in 1957, Mr. Justice Hallett said that he thought that that form of words meant that only a lump sum could be excluded from benefits and that periodic payments could not. It was not necessary for him to come to that conclusion on the decision of the case. What he said was only obiter. Nevertheless, it is quite plain that on that state of the law it was essential that if the words—
sum paid or payable on the death of the deceased "—
were to stand, it should be made plain that period payments were also included.
I do not say "at my disposal". I have a certain knowledge of the law and I was aware of that decision in that case. It was in view of my knowledge of that and no more that I thought it better to clarify the position. At that stage, I had only by own native wit and moderate skill to guide me in tabling that Amendment. On the draft as it now stands, the vital words
any sum paid or payable on the death of the deceased
no longer appear and the words which now appear are "any insurance money ". It is quite plain that "any insurance money "would include insurance moneys paid by way of periodic payments in bits and pieces or at any intervals of time and in any quantities.
"Benefit" is expressly defined and plainly covers periodic payments. Pension, obviously, is a periodic payment and it has been held in another case that the word "gratuity" can be cut up into slices and that a gratuity is still a gratuity even though it falls in several parts, in the same way that a cake is still a cake even though it is cut up into slices. Therefore, we have authority that all the words which are used in the present Clause will cover periodic payments. It was for that reason only that I thought it was not necessary to include in the present draft the words
by lump sum or by periodic payments ".
I hope that that will satisfy the hon. Member for Deptford and the hon. Member for Sunderland, North and particularly the former, who moved the Amendment, and that in view of this explanation he may consider it proper to withdraw the Amendment.
Major Hicks Beach:
A good deal has been said on the question of the matter being settled by Parliamentary draftsmen. I do not dispute that in general, they are people of extreme skill, but I do not regard it as an explanation of a Clause or a defence of a Clause to say that it has been settled by Parliamentary draftsmen, however much we all appreciate their skill.
As a humble solicitor, I know too well that a great part of litigation which arises these days comes from the fact that in certain cases, a number of Bills have been drawn by Parliamentary draftsmen and that what they intend should be carried out is not so interpreted by the courts. Therefore, this Amendment. like the previous one, has the useful purpose of seeking to clarify the exact position.
When I first read the Amendment, it seemed to me that it was probably a wise addition to the new Clause. After the explanation of my hon. and learned Friend the Member for Warwick and Leamington (Mr. John Hobson), however, I am beginning to waver, Nevertheless, the fact remains that the Amendment makes me wonder whether we are doing exactly what we want to do. I shall be interested to hear what my right hon. and learned Friend the Solicitor-General has to say.
As the Solicitor-General is not accepting that invitation, I should like briefly to say that on this matter I support the hon. and learned Member for Warwick and Leamington (Mr. John Hobson) on the ground that under the new wording it will inevitably be the result that any sum that is to be paid will include sums paid either by lump sum or by periodic payments.
I did not find the first part of the argument of the hon. and learned Member for Warwick and Leamington quite so convincing, because the words of which he was afraid in the 1908 Act—
paid or payable on the death of the deceased "—
had already gone in the new Clause of the hon. Member for Hitchin (Mr. Maddan). There remains the equivalent of "paid or payable" but not
on the death of the deceased.
The whole basis of Mr. Justice Hallett's opinion was, I understand, that because the sum was payable on the death of the deceased, it must be a lump sum. Be that as it may, there is a clear decision of the courts that "gratuity" includes either a lump sum or periodic payments and that that is the only one of these words about which there could be doubt. The others, obviously, by their nature, could include both lump sums and periodic payments.
I beg to move, as an Amendment to the proposed Clause, in line 5, after "section," to insert:
insurance money ' means money paid or payable under any contract of assurance or insurance.
I move this Amendment because of the exhaustion and disappointment of my hon. Friend the Member for Deptford (Sir L. Plummer) and I do so with some confidence. I am sure that the Solicitor-General refrained from speaking on the last Amendment because he felt that he was disappointing the House and would rather reserve himself for an occasion on which he could advise the House to accept an Amendment.
This is not a matter to cause controversy. The Amendment would improve the new Clause. It provides a definition which I consider to be of advantage and I hope that both the hon. and learned Member for Warwick and Leamington (Mr. John Hobson) and the Solicitor-General will be able to advise the House to accept it.
I beg to second the Amendment.
I do so with no optimism that I will be supported by the occupants of either Front Bench—the Solicitor-General or my hon. Friend the Member for Lewisham, North (Mr. MacDermot) —who have united today in casting a good deal of derision on my Amendments. This, nevertheless, is a serious Amendment.
To use a phrase uttered by my hon. Friend the Member for Lewisham, North in his Second Reading speech on the Clause, "insurance money is not a term of art. What does it mean exactly? I know that the legal field that I am about to enter is covered with tripwires and that case after case will be hurled at me in denunciation of anything that I as a layman bring forward in support of the Amendment. Nevertheless, I refer the hon. and learned Member for Warwick and Leamington (Mr. John Hobson) to the case quoted by my hon. Friend the Member for Lewisham, North, also in his Second Reading speech, of Bowskill v. Dawson in the Court of Appeal, in which there was doubt whether the money paid out was insurance because it was paid out by trustees under a group insurance scheme.
A short while ago, when arguing the case for the Amendment concerning gifts, I said that it was necessary that we should have absolute clarity on all Clauses of the Bill. There should not be any confusion as to what insurance money "means. The Clause ought not to be produced in such a form that it makes for a lawyers' holiday in the courts and in the Appeal Court. We ought to know what we are doing and what we are writing into the Bill. It is because I feel that there should be a clear definition of the true meaning of the words "insurance money "that I have tabled the Amendment and I now second it.
Major Hicks Beach:
Once again, I find myself in agreement with the proposers of this Amendment to the new Clause. When one drafts a Clause, one wants, if there is any doubt at all about its meaning, to put in words to clarify the meaning exactly. Here, as the hon. Member for Deptford (Sir L. Plummer) so cogently said, if there is doubt, let us clear it up. To be quite honest, I have not studied this matter very carefully. No doubt we shall hear from my hon. and learned Friend the Member for Warwick and Leamington (Mr. John Hobson) who will be able to clarify the matter in my mind, but, frankly, as at present advised I cannot see why these proposed words should not be put in.
Subject to what we may hear from the Solicitor-General, who, perhaps, we shall hear upon this matter, or from my hon. and learned Friend the Member for Warwick and Leamington, I personally feel that at this stage it would be wise to insert these words.
—because I know that they are actuated, as we all are, only by a desire to improve the Bill. However, the inclusion of these words "insurance money "in the new Clause is intended to pick up and carry on the provision of the 1908 Act and that Act included some of the words which the hon. Members
now propose should also be put in, namely,
money … payable under any contract assurance or insurance".
On that point there was a distinction in 1908 between "policies of assurance," which was normally applied to life policies, and "policies of insurance," which normally was applied to policies of fire, marine, accident or other types of policy. That distinction has now gone with the passage of time. Hardly anybody nowadays ever refers to policies of "assurance "and life policies, marine, fire, accident and other policies would be covered by the simple use of the word "insurance ". Therefore, "insurance money payable "would be covered, and there is no advantage in defining it as covering both assurance and insurance.
However, the chief objection, I would respectfully submit, to the proposed Amendment is that it includes in the definition "money paid or payable under." We have already got that in the new Clause which says:
insurance money … which has been or will or may be paid as a result of the death ".
The Amendment, therefore, duplicates and slightly alters the words which define the occasion upon which benefit can be excluded.
It is for those two reasons that I would respectfully submit to the House that the proposed Amendment does not, in fact, assist, and may lead to some difficulty in interpreting the new Clause. I realise that the new Clause as drafted effects a change from the words of the 1908 Act, and if the intention is to carry forward what has been the law but to extend it, one would have thought that one ought to use precisely the same formula as appeared in the 1908 Act. Nevertheless, I am bound to say that I cannot at the moment think of any case which could have come under the 1908 Act which would not come under this new Clause. On that ground, I would suggest that the Amendment is unnecessary.
I am desolated that my hon. Friend the Member for Deptford (Sir L. Plummer) should feel that his earlier Amendments have been received with derision. Certainly, for my part, I never intended to convey anything of the sort. I think the Amendments he put down have led to some most helpful discussion, and one of them, as I indicated, assisted in eliciting an undertaking from the hon. and learned Member for Warwick and Leamington (Mr. John Hobson) that he would look at the matter again, because there is much point in that Amendment.
I certainly think that there is great force in the argument to support this Amendment to the new Clause. There is not much, it would seem, between us about intention. The question is how to achieve that intention. The hon. and learned Member for Warwick and Leamington said that the intention of the new Clause is to pick up and carry on the wording of the 1908 Act. The great pity is that that is not what it does. It substitutes new wording, and I think I can confidently say that lawyers know and have experience that the courts are most astute, where they find that Parliament has changed the wording in a new Act, in trying to ascertain what was the change in meaning and in sense which Parliament was intending in changing the wording.
That is a very well-established principle of construction in construing Statutes, and, rightly or wrongly, judges go to the most ingenious lengths at times to try to discern the supposed intention of Parliament when, it may be, all that Parliament intended to do was to replace ten words by two words because it thought two words would be clearer than ten. That intelligence, or that kind of intention, is very seldom ascribed to Parliament, I am afraid, by the courts. It is always assumed that if there is a change of wording some change of sense is intended.
I think that there is great danger of that here. I think that the hon. and learned Member was right in saying that in 1908 there was a distinction in general parlance between contracts of assurance and contracts of insurance, and now the term "insurance "is used to cover both. That, no doubt, is what the Parliamentary draftsman had in mind in introducing the new phrase—I think it is a new phrase in the statute law—" insurance money." But there are further dangers which I see connected with the case to which I have already referred, Bowskill v. Dawson.
In that case it was held that these moneys which were paid to a widow under a group life pension scheme were moneys paid or payable under a contract of assurance or insurance. It is far from certain in my mind that a court would hold that these payments would be insurance moneys. The reason is this, that under the scheme moneys were paid by the insurance company to a trust fund, and then the widow received the money from the trustees.
The trustees had a certain measure of discretion about the payments which they made, and, of course, it was because of that that the defendants, the insurance company who were handling the case on behalf of the defendants, argued that these were not moneys payable under a contract of assurance or insurance. The widow was not directly a party to the contract. Nor was the deceased. He was in a group pension scheme between the employers and the insurance company. But these were held to be moneys indirectly paid under that contract.
I take the view that it would be difficult for the courts to hold in the same way that such a payment by trustees under such a scheme would be insurance money. I think, therefore, although it may look a little inelegant and may involve introducing a few more words into the new Clause, that the House would be very wise to re-enact the words from the 1908 Act so as to make quite sure that all decisions which have already been taken by the courts under that Act will be applicable under the new one and the claimants will not be forced to litigate, at times very expensively, up to the higher courts, with a wealthy insurance company against them, to establish that Parliament intended to achieve the same result as was provided for by the 1908 Act.
As to the second argument put forward by the hon. and learned Gentleman, that there is a difference between the words "paid or payable "in the Amendment and the words
insurance money … which has been or will or may be paid as a result of the death
in the new Clause, I do not feel that would present any difficulty, because I think that the word "payable "in the Amendment is apt, and obviously apt, to cover a payment which "will or may be paid as a result of the death "in the wording of the new Clause.
However, this is a purely drafting point, and if the Amendment were accepted there would be opportunity, of course, for the matter to be looked at again and any necessary alteration of the wording of the Amendment to be made. For my part, I would urge my hon. Friend the Member for Deptford not to be disheartened by his lack of success to date and to press this matter. There is great substance in the points he has raised.
I am glad that the argument has evoked such a powerful response from my hon. Friend the Member for Lewisham, North (Mr. MacDermot). It is not, however, powerful enough to persuade us to force this matter to a Division. I am satisfied that this Amendment to the new Clause in its present form is not entirely satisfactory. It is obviously under criticism, but I hope that as a result of the debate an opportunity will be sought in another place to seek to devise words to meet the point of substance that has been raised. Resting on that assurance, I beg to ask leave to withdraw the Amendment.