§ 4.40 p.m.
§ The LORD CHANCELLOR (Lord ELWYN-JONES)
My Lords, I beg to move that the House do now resolve itself into a Committee on the Bill.
§ Moved, That the House do now resolve itself into a Committee on the Bill.—(The Lord Chancellor.)
§ On Question, Motion agreed to: House in Committee accordingly.—(Lord Nugent of Guildford in the Chair.)
§ Clause 1 [Application for financial provision from deceased's estate]:
The Earl of MANSFIELD moved Amendment No. 1:
Page 1, line 11, at end insert ("who has not attained the age of 18 years or who is, by
reason of some mental or physical disability incapable of maintaining himself").
§ The noble Earl said: I beg to move Amendment No. 1. If it is not improper of me—and if it is I hope I may be forgiven—may I speak to two general matters before I come to the actual substance of my Amendment. First, I should like to say that I have been asked by the noble and learned Lord, Lord Wilberforce, to express his regret at not being in your Lordships' House today. Perhaps I can go further than that and say that I am sure that I speak for us all when I wish him a speedy recovery, and hope to see him in his place very soon. The noble and learned Lord was good enough in his letter to indicate to me that he was with me in the spirit of my Amendments, and I know that your Lordships will pay due weight to that.
§ The second matter which I shall mention in a general context is that we on this side of the House have nothing against the general intentions of the Bill, nor indeed its provisions as a whole. These Amendments fall into two parts. First, they are an effort in various parts of the Bill to try to make the Government think again where the effect of the Law Commission's deliberations would seem possibly to have consequences which they may well not have foreseen and might not have intended. The second group of Amendments is what I might call drafting Amendments, where the language used is always felicitous, but may be not the best that could be used in the circumstances. In the context of these Amendments, although, strictly speaking, I am moving Amendment No. 1, perhaps I could also speak to Amendment No. 2, which would save a little time.
§ The old approach that a man is the best judge of where his money should go on his death has steadily been eroded over the years, and I think rightly so. As has been said on the Second Reading of this Bill, if no earlier or later, the English law in this matter has neither the rigidity of the Scottish system and others on the Continent—for instance the "widow's mite"—nor has it the complete testamentary freedom on the part of the deceased which it once enjoyed. So that our law is a compromise, and we are now considering an extension to the compromise. It may be thought that in some degree the law is becoming rather paternalistic in, 1066 for instance, the increasingly wide class of persons who may come to the court on the grounds that they have been unjustly treated.
The danger, as I see it—and this is the reason for trying mildly to close the clasp —is that disputes will be encouraged as between families, as between members of families, and as between outsiders and families. It is in this sense that I feel that Parliament should give the courts ample discretion to carry out the principles which we are all agreed upon, but no more than is necessary. These two Amendments, therefore, speak for themselves. Amendment No. 1, as does the second one, limits the age upon which a child of the deceased may receive relief under Clause 2. It is interesting that Section 27 of the 1973 Act makes a limit of 18 for such cases, although it is fair to say that that limit can be raised in certain eventualities. It is also instructive to note paragraph 93 of the Commission's Report. It is right to say there that the Commission was concerned perhaps not to open the door too wide to undeserving applicants, to quote their own phrase, "inevitably destined to fail". Nevertheless, in paragraph 76 is set out the criterion under which they, as it were, remove all limits.
One asks what is the criterion for the courts as opposed to the Commission when they try to carry this out. One may well have a deserving case at 18. Once the child has grown up and is living apart from what was once the family, earning his own living, he will be a good deal less deserving. In fact, they might even be said to be undeserving by the time they reach the age of 25. At any rate, the Commission, in paragraph 77, came to the view that, if there was to be a limit, it should be at 18, and that I agree with. If the matter is left as it is, I suggest that there will be an invitation to every excluded child of the family to have a go, at possible cost to the estate. One asks whether that really is the kind of law that we want to see, that every child will have this opportunity.
There can be this situation: why should a man not educate his children—that is to say, give them as good a start in life as he can, and put them in a position where they can work and make their own living—and then as the testator, as he becomes, say to himself, "I am going 1067 to leave all my money to my wife who is, like me, steadily growing more frail". Or he may say, if he has been left a widower, "My children are perfectly all right. I want to leave it to a charity". In those circumstances, one is bound to ask why should not he, and what is the court to say when some strapping 30 year old comes along and says, "I want the cash, and not the cat's home". I promise not to make any more references to animal homes for the rest of this Bill, but I may have to think of another charity or two. How is the judge to decide that? The noble and learned Lord, Lord Wilberforce, drew attention to this in our debate on Second Reading. In the circumstances, I suggest that there should be a limit. I have taken the Law Commission's limit and suggested 18.
The only other point I want to make is that, of course, there is a differentiation between subsections (c) and (d). I concede at once that a child of the deceased may well have a better claim than somebody, for instance, in subsection (d), who was not a child of the deceased but who was treated as a child of the family. One immediately thinks of stepchildren, or children of that type. It may be that the noble and learned Lord would offer to think again about the second category rather than the first, but there it is. I put in the Amendments drafted the same, although the two classes are different.
§ 4.49 p.m.
§ Lord SIMON of GLAISDALE
May I start by thanking the noble Earl for what he said about my noble and learned friend Lord Wilberforce. What he said had a warm and ready welcome and response in all parts of the Committee. I shall make it my personal business, if I may, to convey to my noble and learned friend what the noble Earl has said. However, I am bound to say that that is the only part of the noble Earl's speech with which I found myself in agreement. I very much hope that the noble and learned Lord the Lord Chancellor will not accept this Amendment, and that the noble Earl will not press it.
This Bill is concerned with a fundamental institution of society, the family, and with rights and obligations of support within the family. In many assemblies in the world, the line of division on such an issue would run straight down the 1068 centre of the Chamber, and, holding judicial office in your Lordships' House and speaking for myself, I should in those circumstances not feel it proper to intervene in a debate of this sort. But that is not the position in this country. In most countries of the world one can say that the family as an institution will be supported by the forces of the Right. It will be considered as an element of stability, of cohesion and of discipline in society. It will be considered as an element of continuity—to use the famous words,a coalition of the past, the present and the future".It will be considered, to use the words of the leading sociologist on the unmarried mother and her child,At its best it is the nearest thing to living in love";and it will be considered by the Parties on the Right as one of those groupings which stand between the naked individual and the State.
For those very reasons, in most assemblies a measure of this sort—indeed any measure to vindicate obligations and rights of support within the family— would be opposed by Parties of the Left. In this country, however, it is a truism I think, that the Labour movement owes as much to religious dissent as to Marxism; and certainly it has been a characteristic of religious dissent in this country to place great store on the stability and purity of family life and the rights and obligations which thereby arise. So it is not a matter of surprise that the Government are bringing forward a Bill of this sort, one which vindicates the rights and obligations that arise within the family. It is however a matter for congratulation and gratitude. The noble Earl, Lord Mansfield, has indicated that this Amendment—and I trust subsequent Amendments—are rather more probing Amendments than would otherwise seem to be the case. In my view, if they were pressed they would be wrecking Amendments. However, in a revising Chamber like your Lordships' House it is entirely right that a matter of this sort should be probed.
The basis of the Bill, as I understand it, is two-fold. The first is that the testator owes obligations to his family which should often rank before his testamentary whims. That arises from the nature of the family itself, and it was this 1069 proposition to which your Lordships on Second Reading give wholeheatred assent, and it was again endorsed by the noble Earl. The second element in the background is the assumption of the Bill that the testator has made unreasonable provision for his family. I think it was the assumption of the noble Earl, if I may say so, that there was a different background; namely, that the testator had behaved unreasonably in making provision. But that is not the case. The basis of the jurisdiction conferred by this Bill is not that the testator has behaved unreasonably, but that he has made unreasonable provision. Indeed, he may have thought he had made, and intended to make, entirely reasonable provision, and it may be, for example by some quirk of estate duty incidence, that the provision he thinks he has made for his family is inadequate.
It may be that there is a change in circumstance which he is unable to reflect in his testamentary dispositions, either because he does not know of them or because he is no longer capable of giving testamentary effect to what he would wish to do if he could. What this Bill does, as I understand it (and the noble and learned Lord the Lord Chancellor will correct me if I am wrong) in that sort of circumstance, is to say that the court can do for the testator what he would wish to do for himself. He may well, for example, wish to provide for a son and a daughter after they have reached the age of 18. But under the noble Earl's Amendment the court will be prevented from helping the testator to achieve what he would wish to have done. With respect, that is my first objection to the Amendment.
But it by no means stops there. The second reason is that it cuts down the existing jurisdiction of the court. At the moment under the 1938 Act the court can, as I understand it, make provision for an unmarried daughter of any age. A few years ago a pamphlet was issued I believe by the noble Earl's Party, with the splendid title of Fair Shares for the Fair Sex. With all respect it seems to me that an Amendment which cuts down the present right of the court to provide for an unmarried daughter of any age is impossible to reconcile with such a title.
The third reason why I trust that the noble Earl will not press the Amendment 1070 is because it puts the family which has cohered in difficulty in a worse position than a family which has been subjected to divorce. Under the divorce jurisdiction, what is now the 1973 Act, the court can, after divorce, make provision for a child during its further education, even after the age of 18. Under this Amendment there is no such power. In other words, this Amendment would put a premium on divorce, and I cannot believe for a moment that that is what the noble Earl intends. Indeed, I find that quite impossible to reconcile with Clause 3(3), which directs the court to have regard to the educational expectations of the applicant.
There is still a fourth reason why, in my submission, this Amendment is unacceptable: it produces the most extraordinary anomalies. Under Clause l(l)(e) the court can order maintenance forany person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased".The right there is not cut down to the age of 18. Why should a child of the family be treated worse than any other dependant? But that is not the only anomaly, because a child could bring himself under that paragraph if he were partly supported by the deceased, by the testator. In other words, a son living with his family, partly supported by his family, partly supported by his father, could claim maintenance over the age of 18 because he would come under that paragraph; whereas if he were not living at home and not receiving an allowance he would not be able to come under that paragraph and would have his support cut off at the age of 18.
Then there is the case of a daughter who has forgone marriage and a career in order to support and give attention to her father. If she were partly supported by him, provision could be made for her under paragraph (e) notwithstanding the fact that she was over the age of 18, or to continue after the age of 18 under the third Amendment; whereas if she had small independent means and could support herself—say, living on a small legacy—so that she was not partly dependent on the deceased then, although her moral claim would seem to be so much higher, there would be no power in the court to give her any support 1071 after the age of 18. For these four reasons, the last being a composite one producing more than one anomaly, I suggest that this Amendment is quite unacceptable.
What is said in favour of it? The noble Earl used a striking phrase when he said that it is an invitation to children to "have a go". The late Aneurin Bevan used another striking phrase on one occasion. He asked, "Why read the crystal when you can read the book?" I ask the noble Earl, "Why read the crystal on this occasion without reading the various books that are available?" The noble Earl looks into the crystal ball and sees fantasms of countless children gibbering at him as they rush to the court, but we can test whether that is a reality. One book open to us is the Statute Book of Ireland. Under the Irish Family Provision Law there is no age limit, yet I have never heard that that has ever been considered to be, or taken to be, an invitation to have a go. Another book available is the Statute Book of most of the Australian States. Most of them have no age limit for cutoff, yet I have never heard that the children there "have a go" at every stage.
Then there is the Statute Book of New Zealand, which also does not have an age limit, and I have strong reason to believe that there is no invitation and no acceptance of any invitation to "have a go". So there is one set of books that one can read. Then we have our own civil judicial statistics, because there is no age limit at the moment for unmarried daughters. Yet I have never heard it suggested that they consider themselves invited to "have a go" in every intestacy or every testacy, or that they endeavour to reopen the dispositions in every estate. I suggest, therefore, that these apprehensions are entirely unreal and that the arguments against the Amendment are overwhelming.
§ 5.7 p.m.
Baroness WARD of NORTH TYNESIDE
As I have always had a great interest in the basis of this Bill, I wish to give my warmest approval to the speech of my noble and learned friend Lord Simon of Glaisdale, who I thought described in an absolutely bril 1072 liant way certain points which, in my view, are essential for consideration. I am particularly concerned to know whether my noble friend Lord Mansfield consulted the National Council for the Single Woman about this matter. That organisation has been particularly concerned with the plight of single daughters who take steps to look after aged parents. This is another reason why I was pleased that my noble and learned friend referred to this aspect of the matter.
When the original measure was passed, I spoke of the hard work that had been done by Eleanor Rathbone and I am certain that if she were alive today she would be supporting every word said by my noble and learned friend. I hope that the Amendment will be withdrawn, because I fear that it has not been put forward with all the evidence and knowledge that has become available since the original Act reached the Statute Book. I am therefore glad to be here today to speak in support of my noble and learned friend Lord Simon of Glaisdale and I should hate to think that the Amendment moved from my own Front Bench would be proceeded with.
§ 5.10 p.m.
§ The LORD CHANCELLOR
I wish at the outset to share the regrets expressed by the noble Earl, Lord Mansfield, and the noble and learned Lord, Lord Simon of Glaisdale, about the absence of the noble and learned Lord, Lord Wilberforce. I had the privilege of seeing him a few days ago and it was apparent that he is on the mend. I am sure that we shall all join with the noble Earl in wishing him a speedy recovery. His contribution in this House—to say nothing of his great role in his function as a Lord of Appeal —is outstanding.
We have heard one of the most devastating speeches in destruction of an Amendment that in 30 years in two Houses it has been my privilege to hear. Indeed, I feel that there is really nothing more to say. Perhaps the better course would be to sit down quickly so as to enable the noble Earl to raise his hands in surrender and say, "Without any resistance, but with abject apology, I withdraw the Amendment". However, I venture to think that it may not be quite so easy as that. So perhaps I should spare a moment or two for what can only be an underlining in less adequate terms of what 1073 has already been said by the noble and learned Lord.
I am surprised that the noble Earl should be party to so retrograde—I shall not use the word "reactionary", as this is not a political occasion at all—a series of Amendments. Their purpose is to restrict applications for financial provision by the deceased's children or the children of his family, so that they can be made only by a child who is under 18 or who is suffering from mental or physical disability, and is, therefore, incapable of maintaining himself or herself. We thought that those restrictions would be intolerable and I am most grateful to the noble and learned Lord, Lord Simon of Glaisdale, for the perceptive way in which he has interpreted the wish of the Labour movement—and certainly that of the Labour Government—in this legislation to assert as quite fundamental to the maintenance of the stability of our society the health, welfare and prosperity of the family. That is the very base of social cohesion in our community. As the noble Baroness has indicated, the Bill is intended as part of the process of maintaining the family and, above all, the position of women, married or unmarried, in our society.
One of the remarkable features of the proposed Amendments is, as the noble and learned Lord has said, that they are more restrictive than the present law. Under the 1938 Act, applications can be made by a son who is under 21—not 18— or who is incapable of maintaining himself through mental or physical disability. Secondly, an application can be made by a daughter of any age who has not been married, or who is incapable of maintaining herself through mental or physical disability. The Amendments moved by the noble Earl are contrary to the recommendations of the Law Commission and I may say, in reference to what the noble Baroness has said, that those recommendations were made after very wide consultation indeed, including consultation with the National Council for the Single Woman and her Dependants, to which she referred and which is, I apprehend, an enthusiastic supporter of what is proposed in the Bill. It is also the case, as the noble and learned Lord has said, that the recommendations of the Law Commission and of the Bill coincide with provisions already existing in countries such as 1074 Australia, New Zealand and Ireland. As he has said, there is no indication whatsoever of a flood of applications by undeserving persons, who, after all, would run the risk of having to pay the costs of unsuccessful applications. That is, indeed, a powerful sanction which the court would not hesitate to apply against the undeserving.
In paragraphs 73 to 78 of their Report, the Law Commission point out that the present law may be criticised on two grounds. The first is the assumption that an adult, unmarried daughter is likely to be dependent on her parents, whereas an adult son is not. The Commission think that that assumption may be incorrect, as indeed I believe to be the case. These days, after all, most unmarried daughters are in some professional or other occupation and earning their own income. Indeed, these days, most parents regard it as the best capital that they can give their children to see that they are educated to a point where they can earn their own living, as a very large proportion of them now do. In regard to the adult son, he may well be dependent on his parents for reasons other than incapacity; for instance, while he is training for a profession. In many professions— for example, medicine, the Bar and architecture—the qualifying age before the entrant earns his own living goes well beyond the age of majority.
The second feature which has influenced the Law Commission is the assumption that a daughter who has married will not be dependent on her parents. Unhappily, that may also prove to be incorrect. For instance, we have the case of the young widow with children who may need her parents' support and may have a good moral claim on the estate of the family. Accordingly, in this situation, the better course, and that recommended by the Law Commission, is to remove all restrictions and leave it to the court to do what is just in all the circumstances. As I have said, the court can be relied upon to throw out a claim by an able-bodied undeserving son who is merely—to use the somewhat inelegant language of the noble Earl —" trying to have a go ". That would be an effort, as I say, which, should it fail, could cost such a person dear.
It may be that the noble Earl intends that an adult child who is, in fact, dependent on his parents otherwise than through 1075 disability, should be able to claim as a dependant under Clause l(l)(e). But it seems doubtful whether that was intended because, though these Amendments would leave that possibility open the noble Earl's Amendment to Clause 2 would seem to rule it out. However, even if that is his intention, it does not seem satisfactory, because there are two objections to it, as the Law Commission pointed out. First, it would not cover the case of the child who had a good moral claim to maintenance which the deceased did not honour in his lifetime. The noble and learned Lord has given the example of a child who has looked after a parent and has received nothing. Secondly, it would not cover the case of a child who did not need maintenance at the time of the death, but whose circumstances altered later. I have given the illustration of the married daughter who is widowed shortly after her father's death. Clearly it is right that some provision should be made for her where the result of the intestacy is to leave her penniless.
My conclusion is to suport with enthusiasm the barrage of objections raised by the noble and learned Lord, Lord Simon, to these Amendments. They appear to achieve the elimination of discrimination in favour of the unmarried daughter which the law presently provides for by punishing her as well as the son. I am bound to say that I find this a most unattractive way of eliminating sex inequality— applying the doctrine of letting all suffer equally. Accordingly, I hope that these Amendments will be rejected.
§ 5.20 p.m.
Far be it from me to attempt for one moment to add— indeed, there is no possibility of adding— to the extremely interesting speeches we have heard this afternoon from the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Simon of Glaisdale; and indeed from my old friend on the other side of the House. But there are one or two matters that I. on behalf of a group of people in both Houses of Parliament who are practising in a somewhat different sphere from those who have already spoken, might add to persuade the noble Earl—if he needs any more persuasion—to withdraw this Amendment.
1076 On the question of family, I cannot resist the desire to point out how important it is that anything which restricts in any way the possibility of a family entity being continued is something to be strongly deplored. I do not know whether there is a possibility of making the lie stronger than is intended by the provisions already in the Bill, although I would strongly support that. But I cannot see at present how that can be done. Certainly the Amendment would produce the opposite effect.
What happens in the case of an individual? Usually he consults a solicitor when he is drawing his will—if he draws a will at all. The suggestion that the solicitor may persuade a client who, in his view, has no chance at all of succeeding, to take an action is, 1 think, a slur on the profession, if I may put it as strongly as that. Indeed, even in a case where, for example, a person applies for legal aid he has to prove to the satisfaction of those who are to grant the legal aid that he— or she—has a case which can be substantiated. That, in itself, ought to convince the noble Earl that there are not likely to be many, if any, cases of persons who have no real case applying to the courts. If they have a case, I cannot for the life of me see why the noble Earl should want to prevent them from having that case properly attended to. Surely he would rely on the courts and on the judges to make decisions which are proper; and the proper decision would be as to whether or not the person who is applying, and who is a member of the family, is in sore straits, and how he ought to be helped.
I cannot see why the noble Earl suggests that that is unreasonable or improper. What does he expect? Does he expect that person to be supported by the State? If that is the answer to it, then all I can say to him is that, if there are funds available for the purposes of a family existence, I cannot understand why he should want that person who is a member of the family— whatever his or her age may be—to be supported by the State, when a court would find it reasonable that the family itself should have the benefit of any estate that is left.
I do not want to cover the other ground which has been extremely well covered by noble and learned Lords who grace and who have for very many years graced 1077 the professions in which they are illustrious heads. It would be an impertinence on my part to try in any way to pursue their arguments, or attempt to put them in better terms than they have done— indeed that would be quite impossible for me. But I appeal as an ordinary practising individual who has people coming to him. Many people make wills which they do not amend. Many years go by and their wills are lying there. The family itself may change completely in so far as its financial stability is concerned, and that testator, quite inadvertently in very many cases, does not amend his will, although, undoubtedly, if the matter were brought to his notice, he would do so. Why, in those circumstances, should not the courts fulfil the duty which would be placed on them now by this Bill if it becomes an Act, and so be in a position to say that in their belief provision should be made? Indeed, I am sure that in many cases they would say that this is what a testator would have done if the will had been executed many years before. I hope that in those circumstances the noble Earl will not press his Amendment, and that he will realise that your Lordships certainly would not support him if he did not withdraw.
§ 5.28 p.m.
§ Lord LEATHERLAND
This debate is obviously a field day for very eminent lawyers, so as a rather naive layman I shall be very brief indeed. I find myself on the side of my noble and learned friend the Lord Chancellor and the noble and learned Lord, Lord Simon of Glaisdale. References have been made to many groups of people who might find themselves treated unjustly or unfairly if the Amendment were carried. The noble Baroness, Lady Ward of North Tyneside, and the noble and learned Lord, Lord Simon of Glaisdale, referred to the unmarried mother and her child. Those are sections of society of which I have no knowledge whatsoever.
I wish merely to confine my remarks to the case of a family which has a small business and where it would seem proper, and it would be the wish of the eldest son, to carry on that small business after his father had died. He would find himself excluded from the possibility of relief if the Amendment were carried. Another 1078 example would be the case of the small farm, or small country estate, where, quite naturally, the eldest son would wish to carry on the work done by his father, but again would find himself excluded from relief under the Amendment put forward by the noble Earl, Lord Mansfield. I now find myself using the very same arguments used by the Tory Party in the other place when the capital transfer tax was under consideration, and so perhaps I had better not proceed any further.
However, I think that the case of the small businessman and the small farmer are very relevant to the matter we are discussing. It is desirable that the small business and the small farm should be allowed to continue in the family. I therefore hope very sincerely that the noble Earl will withdraw his Amendment.
§ The Earl of MANSFIELD
I rather think the small business could continue in the family with a greater degree of facility if my Amendment was accepted than if it was not, possibly. But if there is a moral in this tale, it is to avoid putting down probing Amendments unless one can be absolutely sure that their Lordships at the other end of the building are still sitting in these circumstances. If I may say so, I think the noble and learned Lord the Lord Chancellor was perhaps less than fair. I find myself, and I know why, in the middle— and I hope this is not Robing Room gossip—of a first-class dispute between the Chancery Division and the Family Division. I make no complaint of it. I shall, so far as I can, stumble on with the arguments on their merits. Of course, I concede these two Amendments can be turned on their heads and twisted inside out. I think I said as much, in effect, and drew attention to that when I moved them. One can do that, of course.
The whole purpose of these Amendments was to invite the Government to consider whether any form of fetter should be put on the exercise of the discretion of the courts over this matter of age. It was for that and for no other reason. If I can be less than impressed with any part of the noble and learned Lord's argument, it was when he regaled us with what statistics he thought I might have gleaned from Australia, New Zealand and Ireland, and possibly another country. Most of those countries are a 1079 long way away and their combined populations are scarcely more than that of Greater London and they are considerably different societies from those in which we live. I have no desire 10 be unkind to the unmarried daughter. That was not my intention at all.
If I do complain of anything in this debate, it is that it seems unwittingly almost to have got a political tinge to it. We have heard of Left, Right and reactionary. That is not the intention. The intention is a purely innocent one; and it is reflected in a lot of the other Amendments I shall be moving hereafter. It is whether, in fact, and, if so, what, fetters should be put on the freedom of the testator to dispose of his money in the way he wishes. The noble Lord, Lord Janner, asked me if there is money in a family, should some member of it be forced to be supported by the State rather than by the money in the family. My answer is that they should, if it depends on the circumstances. If a child of the family has been consistently ungracious to their father, why should he be left money? Why should it not go to a charity or to a more favoured relative? I just answer it with that. That is not the point. The time is getting on. We are very nearly approaching that moment of the day when your Lordships begin to call it the evening. I am not going to prolong this. I have had my say and so have others. In the circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ Lord SIMON of GLAISDALE
May I just ask the noble and learned Lord, the Lord Chancellor one question that I put to him on Second Reading; but perhaps that was not a suitable occasion? One of the defects of the administration of the present law is that applications under the 1938 Act, as amended, go to the Chancery Division whereas applications under the 1973 Act, as after divorce. go to the Family Division. That is particularly unfortunate after a divorce, because it means that the mother, the wife, the ex-wife, can go to the Divorce Division and generally does go there in order to achieve a general settlement of the financial affairs so far as it affects her; whereas the children cannot go, 1080 under that Act, if my recollection is right, to the Divorce Division, but have to apply under the 1938 Act to the Chancery Division.
The Law Commission recommended that all the applications should be made eventually to one Division; and they recommended that that should be the Family Division. I venture to agree whole-heartedly with their recommendation. There is no reflection of that in the Bill and I apprehend that the noble and learned Lord proposes to deal with the matter through the Rules Committee. I should be very grateful if he could say something about it.
§ The LORD CHANCELLOR
The apprehension of the noble and learned Lord is right. I am afraid I cannot give any final answer to the question as to which is the more appropriate jurisdiction. It is a matter I am carefully considering at the moment in consultation with the Divisions concerned. I am afraid that no conclusion has yet been arrived at. It will be made after the most mature consultations. I am afraid I cannot say more than that at the moment.
§ Clause 1 agreed to.
§ Clause 2 agreed to.
§ Clause 3 [Matters to which court is to have regard in exercising powers under section 2]:
§ 5.38 p.m.
§ The Earl of MANSFIELD moved Amendment No. 4:
Page 4, line 45, at end insert—
("( ) Where an application is made for an order under section 2 of this Act the court shall have regard to the deceased's reasons, so far as ascertainable, for making the dispositions made by his will, or for not making any provision or any further provision, as the case may be, for a dependant, and the court may accept such evidence of those reasons as it considers sufficient.").
§ The noble Earl said: I anticipate that this Amendment will incur the wrath of the noble and learned Lord, Lord Simon, just as much as the last two. Nevertheless, when we discussed this matter at Second Reading, the noble and learned Lord the Lord Chancellor dismissed this part, Clause 21, of the Bill in one sentence. I make no reproof of him. In Col. 922 of the Official Report he said that the remaining Clauses 19 to 26 were 1081 miscellaneous and supplementary. Clause 21 allows as evidence statements of the deceased orally or, in certain circumstances, contained in documents. It is fair to say that the Lord Chancellor came back to the matter when he replied to the debate and then mentioned Clause 3(1)(g) of the Bill. I say this, knowing it may be an unpopular remark, but in no place in this Bill is there any regard to be had for the testator's wishes or reasons for doing what he did or for not doing what he did.
§ I appreciate that the prime purpose of this Bill is to provide a series of objective tests to discover whether the persons who come into the class envisaged in Clause 1 are entitled to relief. Nevertheless, unless the State is going to maintain a wholly paternalistic attitude over this matter, in which case it might as well say that any money which anybody leaves is subject to the review of the court and may be distributed according to the discretion of the judge who hears the matter, it is at least reasonable that some regard should be had to the thoughts and the frame of mind of the testator when he drafted his will. I do not think in his company I need, as it were, regale the Committee with examples of those children who, for instance, fail to honour their father and mother as opposed to their brothers and sisters who do just that. I do not need to elaborate on relatives who so shape their lives that they prey, either by the present or through their expectations, on what they hope is to come to them.
§ It seems to me and, if I may say so, it seemed to the noble and learned Lord, Lord Wilberforce, when he spoke on this matter at Second Reading, at column 934 of the Official Report, that this is a gap in the Bill which possibly needs filling. What I have done in my own humble way is to take the words from the Inheritance (Family Provision) Act 1938 and reinstate them. My Amendment seeks to enjoin upon the court the duty of at least paying attention to what the deceased has said. It does not do any more than that; it can act in its discretion in any way it seems reasonable to do, and it still has the duty of making reasonable provision for those whom it considers have been unreasonably treated. I suggest that it is difficult, if not impossible, for the court in these circumstances to do justice if it 1082 is not at least to pay some regard to the wishes of the testator.I beg to move.
§ 5.42 p.m.
§ The LORD CHANCELLOR
I do not rise in wrath to express the view that this Amendment should not be accepted. It would reenact a provision which, as the noble Earl has said, now exists in Section 1(7) of the 1938 Act which has been deliberately omitted from the Bill on the recommendation of the Law Commission. The first limb of the Amendment requires the court to have regard to the testator's reasons for making, or not making, a disposition in his will as a separate factor relevant to the court's decision in addition to the matters which are set out in Clause 3(1) of the Bill. Even under the 1938 Act this was criticised as giving the deceased's reasons a weight they could not bear, and led to doubt as to whether the test under that Act was a subjective or an objective one. That doubt has been resolved by later decisions which established that the test is objective. In other words, the test is not whether the deceased acted unreasonably, as the noble and learned Lord indicated when we discusssed the last Amendment, but whether reasonable provision for the family and dependants is made by the will. This Bill firmly adopts the objective test in Clause 2(1):… that the disposition of the deceased's estate … is not such as to make reasonable financialprovision for the applicant".Of course, I see the force of the suggestion that the wishes and views of the testator should not be arbitrarily overriden. But, in my submission, in so far as the deceased's reasons are relevant to the objective assessment of the situation which this Bill will require the court to undertake, they would be taken into account under Clause 3(1) of the Bill. For instance, under Clause 3(1)(d), the court must have regard to,any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;Then, in addition to that, under paragraph (g) the court must have regard to,any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.If, for instance, on the facts, the conduct of the applicant would make it repugnant 1083 to justice that he should be rewarded from the deceased's estate, if he had treated the deceased abominably, that is a factor the court could and should take into account. The matters which are causing the noble Earl anxiety would not arise, given the guidance and indeed the requirements that Clause 3(1) obliges the court to consider.
The second limb of the Amendment relates to evidence of the reasons which may have operated in the testator's mind. In my submission, I do not think it is necessary. Clause 21, to which I referred at an earlier stage in the discussion of the Bill, makes it clear that any order or written statement made by the deceased may be admitted in accordance with the Civil Evidence Act 1968, if it is relevant to the determination of the matter. That enables the court to admit and give such weight as it thinks fit to any ascertainable evidence if direct oral evidence would be admissable on the matter. The relevant sections, as the noble Earl knows from his considerable practice in the courts, are Section 2(1) and 6(3) of the Civil Evidence Act 1968. It seems to me that nothing further is required. Accordingly, I hope that, in the light of what I have said, the noble Earl may feel that it is not necessary to press this Amendment.
§ 5.48 p.m.
§ The Earl of MANSFIELD
If I may say so, that reply, charming as it was, was not wholly unexpected. The last part of the Amendment was to provide for the admissible evidence in order to make sure that the deceased's reasons, as opposed to his intentions, came before the court. I fully accept that that is already covered—if "covered" is the right word —in Clause 21. The difference between us has become very plain. The paternalistic view is the view of the Government, and anything that a testator may have wished will receive consideration only insofar as it can be considered under Clause 21, where any of the matters in Clause 3(1) are to be considered. It is going a little farther than the mere matter of a subjective or an objective test. There may be many reasons why a testator behaves in the way that he does. Whether or not the court will have regard to them will, no doubt, be decided by the objective situation of the applicant under 1084 Clause 2. I have stated my beliefs and, indeed, my attitude on this matter, and I will not weary the Committee any further in arguing it. In the circumstances, I therefore beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ Clauses 4 to 9 agreed to.
§ Clause 10 [Dispositions intended to defeat applications for financial provision]:
§ 5.50 p.m.
The Earl of MANSFIELD moved Amendment No. 5:
Page 10, line 33, leave out ("six") and insert ("two").
§ The noble Earl said: With these next few clauses we are moving into what, at an earlier stage of this Bill, was described as the "anti-avoidance" part. Bearing in mind that the Second Reading came a matter of days after the Second Reading of what is now the Finance Act in your Lordships' House, it rather struck upon my nerves, as it were. But it is, I suppose, the right way to describe these clauses.
§ The object of Amendment No. 5 is to replace the term of six years by two years, because I would submit that six years is too long a period to go back in time to ascertain a deceased's intention—and that is what a court will have to do in this connection. I say this because, if the courts are to concern themselves with the investigation of a man's intentions six years before his death, the situation is unlikely to have remained static during that time and the investigation, I suggest, is likely to be difficult and may well lead to injustice. There will be difficulty, first, in finding out the intention to defeat an application which is made after death. How, for these purposes, will the intention to defeat such an application be proved? If I give a sum of money to A, that merely means I want A to have it, rather than B, at any rate at first blush. Is the fact of giving the money to A, 1 ask, an intention to defeat a subsequent provision for B? Must a specific intent be proved?
§ One then goes to Clause 12 for such help as one can derive, bearing in mind 1085 that I have down two Amendments which are purely concerned with the construction of that clause. What it says is— and here I am paraphrasing rather than quoting—that the conditions shall be fulfilled as to intention, if the court finds that, on a balance of probabilities, the sole or a substantial part of the intention was to defeat a later application. I suggest that the way this has been presented in the Bill makes it almost inevitable that a judge of first instance will find it very difficult to go back in time for six years and say to himself, "Yes, I am satisfied, on the balance of probabilities, that the intention to defeat a later application was there." It will not happen very often because frequently the matter might be quite straightforward, but I foresee difficulties.
If I may also say something arising after my Amendment, so to speak, but still referring to Clause 10(2), unfairness can be piled upon unfairness, because at the bottom of the page the clause informs us that the donee can be attacked, if I may use the phrase,
… whether or not at the date of the order he holds any interest in the property disposed of to him … ".
§ So what we are discussing here is the right of a court to go back six years and disturb something which, as I have suggested, may well not have remained static during that period of time. I would ask the Government to pay particular heed to this matter because, in my respectful submission, these anti-avoidance clauses are not watertight, even as they stand at present. If I were a testator in England— which I am not— and if I wanted to defeat the Bill, I would in fact go for Clause 13(1).
§ Unfortunately the noble Lord, Lord Janner, is not in his place, but he has mentioned before now his duties as a solicitor regarding this Bill and no doubt he would advise me what to do if I were to consult him as solicitor. I would not make a gift if I wanted to defeat a later application under Clause 13(2), but I would give the money to trustees for A — my mistress, perhaps—and if before my death they then convey the money absolutely to A, nothing can be done to defeat that, because trustees cannot be pursued under Clause 13.
§ I mention this, although it is not strictly within the context of my present 1086 Amendment, to suggest that, as I said on Second Reading and as I have tried to say now in my own humble way, if these anti-avoidance clauses are to be included in the Bill, then they should be included in a way which makes them watertight. I have said this frequently enough now, I hope, to be taken genuinely if not seriously. I have nothing against this Bill or against these clauses, but I do suggest they shauld be made watertight.
§ I have picked on two years as being a posisble period for the court to inquire into so far as intention is concerned, because such a period is sufficient to defeat the "death bed attempt" to harm those whom it is the testator's duty to support, but it does not mean going back so far in time as to cause the unfairness which I suggest may be caused by the six-year period. I beg to move.
§ 5.58 p.m.
§ Lord SIMON of GLAISDALE
I was very glad that the noble Earl, Lord Mansfield, said at the outset that these were probing Amendments: otherwise this Amendment, in my respectful submission, could be construed only as a wrecking Amendment. A probe is one thing but, if the noble Earl were really fighting not with a probe but with edged weapons, I think, undoubtedly, he would be accused of being afraid to strike on Second Reading but willing to wound in Committee, in such a way that the lifeblood of this Bill would ebb away.
As the noble and learned Lord the Lord Chancellor pointed out earlier, this Bill applies to, among others, reasonable testators, anxious to provide for their families in a reasonable way, but frustrated by extraneous circumstances. The Bill enables the court to fulfil the wishes of such testators, but the Bill extends further, and rightly so. It recognises that there will be—and, indeed, we have seen this—unreasonable testators, anxious to cast aside moral obligations to a family in favour of other obligations, however worthy, which society feels ought to rank behind the obligations to the family.
A testator who wants to do that will go to almost any length to defeat the provisions of a Bill such as this. Therefore, anti-evasion provisions are absolutely necessary. I can remember once trying a case, not under the 1938 Act but under the provisions of the predecessor of the 1087 1973 Act, where a former husband was so anxious to avoid his obligations to his family that he went to the trouble of setting up a large and expensive trust in Liechtenstein where the Court could not get at his assets and where no judgment of the English court could be enforced. So I have no doubt at all that anti-avoidance provisions are necessary. The only question here is whether the court shall be able to go back only a two-year period or a six-year period.
Again here, this Amendment does what the noble Earl's first Amendment did; namely, to put in a less favourable position a woman and her children when she stands by her marriage, perhaps under difficulty, than when she has a divorce. Under the divorce law, under the Matrimonial Causes Act, there is no time limit at all beyond which the Court may not reopen transactions designed to evade the powers of the court to make proper provision for a family. There is a period of three years in which there is a presumption that transactions which actually frustrate the powers of the court are intended for that purpose. This Amendment not only cuts down the indefinite period that exists under the divorce but actually cuts down the presumptive period. What will happen, of course, is that the man will go to his solicitor— there was a character, your Lordships will remember, in one of Peacock's novels, who said: "Sir, I have quarrelled with my wife and that absolves me from all duty to my country." The man will go to his solicitor and say: "Sir, I have quarrelled with my wife. Will you please advise me how I can avoid the court's being enabled to ensure that I perform my obligations to her and to her children? "The solicitor will say:" Well, thanks to an Amendment carried in Committee on the Inheritance Act 1975, all you have to do is to transfer your estate to your mistress and her children, and merely survive two years after that."
I cannot for a moment believe that it is the intention of the noble Earl to place a woman who stands by her marriage in a less favourable position than a woman who is divorced. But, of course, every woman who goes to a solicitor in troubled circumstances, if this Amendment were carried, would be advised that she must for her own sake and for the sake of her 1088 children seek a divorce and not dream of a reconciliation or forgiveness. It is because the Amendment has that effect that I trust that the noble and learned Lord will resist it.
§ 6.5 p.m.
§ The LORD CHANCELLOR
This Amendment would reduce the period during which the deceased's disposition can be reviewed by the court from six years before his death, as the Bill now provides, to two years. It may be well for the Committee to note the circumstances in which these powers are to be exercised by the court. They are set out in Clause 10(2). Where an application is made for an order the court is satisfied:(a) that, less than six years before the date of the death of the deceased, the deceased with the intention of defeating an application for financial provision under this Act made a disposition "—so he must be proved to have had that intention; and(b) that full valuable consideration for that disposition was not given by the person to whom or for the benefit of whom the disposition was made …or by any other person, and(c) that the exercise of the powers conferred by this section would facilitate the making of financial provision for the applicant under this Act,then, subject to the provisions of this section and of sections 12 and 13 … the court may order the donee (whether or not at the date of the order he holds any interest in the property disposed of to him …) "—that is to say, whether he has spent the money or not—to provide, for the purpose of the making of that financial provision, such sum … as may be specified in the order.So there has to be proof of a deliberate intention to secure that no proper financial provision is made for those who deserve to be provided for and that the money is given for consideration for something less than that. Those are the circumstances in which the provisions are to operate.
In my view, a two-year reference back and examination of the deceased's dispositions is too short a period. In matrimonial proceedings there is no time limit. The court can go back indefinitely and review transactions deigned to defeat orders for financial provision on divorce of the wife or, indeed, of the husband, 1089 the only time factor being that where a disposition was made within three years of the divorce which has the effect of defeating such an order there is a presumption that it was intended to do so.
The Law Commission suggest that logically there should be no time limit in this context either, but for practical reasons, since the courts would otherwise have to investigate transactions in the remote past without the evidence of the deceased to assist them, they thought some time limit was advisable and have suggested six years. Whether six years is right or whether two years is right is, of course, a matter for judgment, but, in my view, two years is not a sufficient period to deal with a situation where there is a deliberate contrivance to avoid fulfilling the duty a testator may owe to his family. I would submit that six years is about right. Accordingly, I hope that the Amendment will be rejected. It is sought to make it as watertight as possible.
The explanation of the provisions in Clause 13 is that subsection (1) of that clause is designed to protect trustees who have parted with property. But the beneficiary under the trust will still remain liable to provide money to satisfy a court order under Clause 10. Clause l0(2)(b) defines the donee as aperson to whom or for the benefit of whom the disposition was made ".So I do not think the provisions of Clause 13 point to an escape mechanism for a case where there has been a circumstance requiring and justifying the court in making the order.
§ 6.10 p.m.
§ The Earl of MANSFIELD
I am grateful to the noble and learned Lord for that explanation at least of Clause 13. All I can say is that it is not the way that I read it, that indeed a beneficiary can be attacked under this Bill as opposed to a trustee. Naturally, however, I must take the word of the noble and learned Lord for it—at least at this stage. I do not mean anything offensive by that, but he has the advantage of a Box. I do not.
I still think that the noble and learned Lord, Lord Simon of Glaisdale, has not appreciated the reason for these Amendments. That is not important. What is important is that we should consider the 1090 fairness of them, having regard to what they are trying to achieve. I think I have made it plain that I have nothing against anti-evasion clauses in a Bill such as this. As these Amendments show, what I am concerned about is that they are effective and fair. The noble and learned Lord himself said that a matter of six years or a matter of two years is a question of choice, and I would go along with him.
So far as a divorced wife is concerned, I do not think that this is on all fours or parallel with the situation which we have here. If a man wishes to defeat his wife and she is still living with him, it is unlikely to have happened six years before his death. If somebody had reached that stage in regard to his wife. I should have thought there would have been some kind of separation before death took place. But again, that is perhaps a matter of opinion. At this stage, I think it would be wrong of me to do other than seek leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ 6.12 p.m.
The Earl of MANSFIELD moved Amendment No. 6:
Page 11, line 25,leaveoutsubsection(5).
§ The noble Lord said: This Amendment relates to Clause 10(5). The effect of this subsection is to bring in a possible train of donees. They will be brought in either at the instance of the dissatisfied applicant or possibly at the instance of the original, or later donees.
§ As I read it, the effect of subsection (5) is that where a number of dispositions within the six-year period have been made by the deceased—examples which spring to mind might be successive wives on the part of an over-indulgent husband —and he then dies, any of these dispositions can be called into question either by the applicant or by the donees in turn. This will give the court the duty of undertaking a kind of examination of all such gifts to see whether they fulfil the conditions of Clause 10(2). Further-more, in subsection (6) the court is enjoined to have regard to all the circumstances, including the conduct and financial resources of each donee. As I understand it, that is the effect of the subsection. One wonders what criteria the court will have when it comes to consider how to set about its task. For instance, if there are a number of mistresses 1091 who have been the object of these various dispositions, it will be a kind of legal Judgment of Paris, because once the conditions of subsections (2) have been fulfilled it will, I suggest, be up to the court to decide who, by how much, and by what method one is to satisfy the innocent applicant. Again one can say that the court will be in an almost ludicrous position in having to consider the relative merits and demerits of the behaviour of a number of ladies, some of whom may have been married to the testator and some of whom may not.
§ As before, I have stuck my neck out over this and I have little doubt that the sanctity of marriage and the preservation of family life will be hurled at me. However, may I urge the Government to think again about subsection (5), to see whether a more satisfactory way of enforcing the undoubted wishes of the framers of this Bill—that is to say, the Law Commission —can be found? I beg to move.
§ The LORD CHANCELLOR
This Amendment would delete subsection (5) from Clause 10, which enables the court when reviewing a disposition of property made with intent to defeat claims for financial provision to those entitled to it, to look at other dispositions that the testator may have made as well in the same Court proceedings if the respondent or anyone else asks them to do so. It is quite true that the circumstances contemplated in subsection (5) may not often be invoked. Presumably it is not often that one will find a gentleman with a positive seraglio of the kind that the noble Earl has just been describing. If, however, the circumstances are that for the purposes of avoiding making financial provision or intending to avoid making financial provision the testator has bestowed largesse which should more appropriately be used to provide for his family and dependants, and the court can identify the particular donees but goes for one only, is not that single selected donee entitled to say, "Why pick on me? He gave far more to Mistress ' B'. I came on to the scene late in the day. Find out whether Mistress ' B' still has circumstances from which some provision could be collected from her". There is a certain equity in that. I think it is possible to make a certain amount of fun by creating too fanciful a situation. When one is dealing with a deliberate intent to 1092 defeat members of the family in claims for suitable provision to be made for them, I think it should be possible to be able to look at whatever dispositions have been made to donees with that intention, in addition to the particular disposition which may be in question before the court. In the circumstances, I should have thought that this additional power would be a reasonable one to give to the court.
§ The Earl of MANSFIELD
It is perhaps wrong of me to take the matter in a light-hearted way. However, may I say to the noble and learned Lord that it could work entirely in reverse. A wife who refuses a divorce to her husband and remains his wife but who has treated him shamefully can, as it were, be left everything in his will because he forgets to do something about it. He then makes a new will in which he intends to defeat his mistress, and she would be the person who could make the claim. I do not suppose one could have any complaint against that, but I merely postulate it. I see the force of the argument of the noble and learned Lord. It is a power which I suppose the courts must have in order to pursue dispositions of this nature. As the noble and learned Lord rightly says, one cannot imagine that it will happen too often, especially as there is not now so much money about as hitherto. In those circumstances, I beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 10 agreed to.
§ Clause 11 agreed to.
§ Clause 12 [Provisions supplementary to ss. 10 and 11]:
§ 6.20 p.m.
The Earl of MANSFIELD moved Amendment No. 7:
Page 14, line 2, leave out (" of the opinion that, on a balance of probabilities,") and insert (" satisfied that").
The noble Earl said: Perhaps I may speak to Amendments 7 and 8 together in order to save the time of the Committee. As your Lordships no doubt will have gathered this is purely a matter of drafting. When I moved an earlier Amendment I said that in my humble submission Clause 12(1) was less than helpful to a judge of first instance, and
I do not really need to read it out again. It seeks, as it were, to inform the court how it can determine whether or not there has been an intention of defeating an application that is proved. What it says as the Bill at present stands is that,
… if the court is of the opinion that, on a balance of probabilities,"—
so far as Amendment No. 7 is concerned—
the sole intention of the deceased, or a substantial part of his intention, in making the disposition",
and so on.
Is it not right, one asks, that in this area of the law the court always has to be satisfied in this kind of matter on a balance of probabilities. I suggest that is the standard of proof and therefore one asks what help is given to the court if it is merely regaled with what is already settled law. This is not like the criminal law, which imposes a very much higher standard of proof. What I have done— and I am the first to admit that my drafting is probably worse than that of any-body else, but at any rate it will give the Committee an opportunity to discuss the matter—is to take away the somewhat inelegant language that,
… the court is of the opinion that, on a balance of probabilities,
§ In my submission the courts will have to be satisfied according to then normal rules of evidence, and that is a more succinct and certainly tidier way of putting it.
So far as Amendment No. 8 is concerned one can see what is meant by:
… the sole intention of the deceased, or a substantial part of his intention",
although it is fair to say that either somebody intends the consequences of his act or he does not intend them. But that will not do for this kind of Bill. At any rate, for the consideration of the Committee I have put it in the way that I have drafted it, which means that the lesser includes the greater. In making the disposition or contract, if he substantially intended to defeat a subsequent application, then in my submission that reads better than if he substantially intended the same effect, and if that was his sole intention. I beg to move.
§ Lord SIMON of GLAISDALE
I feel very bad about continually opposing the noble Earl's Amendments, but although I am by no means happy about the wording of the Bill which the second Amendment (8) seeks to amend, I think in both Amendments the wording of the Bill is preferable. The word "satisfy" is liable to cause difficulty in the law. As the noble Earl said, it is quite true that "normally" means "on a balance of probabilities", but it does in itself say what standard the court is to apply. There was one case which I think was called Blyth v Blyth, which was fought up to your Lordships' House to determine what the word "satisfy" meant and, by the time their Lordships had oracularly delivered their opinion, everybody started discussing what they had decided. In view of that, in my respectful submission it is better, as the Law Commission says, to make it quite clear that the test is on a balance of probabilities. Then it leaves no room for argument at all.
So far as Amendment No. 8 is concerned, the wording of the Bill itself seems to me to be very obscure, although I think the court would make out the meaning which I believe the draftsman intends. I very much doubt whether that will be done in respect of the Amendment, but I would ask the noble and learned Lord the Lord Chancellor whether he does not think that the words,the sole intention of the deceased, or a substantial part of his intention ",could be improved. The word "intention" is apt to be very confusing when it comes to statutory construction.
I noted that there was a rather similar wording—although I think clearer—in what was the Finance Act 1960, Section 28, which was a Finance Act of the Party of the noble Earl. It is now no doubt in the consolidated Income and Corporation Tax Act, but I cannot remember the section. The wording there was—and it was dealing with transactions in securities—that none of the transactions had as its main object, or one of its main objects, the obtaining of a tax advantage. I certainly do not ask for instant drafting, but I would ask the Government to look again at those words in the light of the provision that I have just cited.
§ The LORD CHANCELLOR
I am certainly not disposed to be dogmatic about the drafting questions which have been raised by the noble Earl and the noble and learned Lord on this subsection. The problem is in regard to identification of intention, and the language that is suggested, thatthe court must be satisfied that the intention is …gets near to imposing the standard of proof required in criminal proceedings. That is what obviously vexed the draftsman in suggesting the language in sub-section (1), but it may shorten proceedings if I undertake to look at the matter again in the light of what has been said in the course of the discussion on the Amendments.
§ The Earl of MANSFIELD
I am obliged to the noble and learned Lord the Lord Chancellor, and, of course, in those circumstances I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 12 agreed to.
§ Clauses 13 to 18 agreed to.
§ Clause 19 [Effect, duration and form of orders]:
§ 6.30 p.m.
The Earl of MANSFIELD moved Amendment No. 9:
Page 19, line 3, leave out (",including the purposes of the enactments relating to capital transfer tax,").
The noble Earl said: For the purposes of this Bill, the wording of Clause 19 has been taken straight from the suggestion of the Law Commission, but as their deliberations were concluded before estate duty became capital transfer tax, the one has been substituted for the other. I should have said that to save time I also intend to speak to my next Amendment, No. 10, which, as it were, seeks to remedy the position later on. It is, no doubt, due to my stupidity, but as Clause 19 is presently worded it does not seem very easy to understand what is meant by,
all purposes, including the purposes of the enactments relating to capital transfer tax".
§ On Second Reading, when I was accused of wounding but not striking, I postulated an example where I thought the results might be less than happy, 1096 unless the Government gave some thought to the question of capital transfer tax and relief. Indeed, I think the noble and learned Lord the Lord Chancellor promised to do just that. What I have done—and it may be a way round or it may not, but I suggest something will have to be done—is to provide that where an order is made under Clause 2 of the Bill, the variation shall, for the purposes of capital transfer tax, have effect as if it were in a deed of family arrangement under Section 47 of the Finance Act as it now is.
§ The effect of that will be, I suggest, that if a variation from the testator's wishes is ordered by the court, the capital transfer tax position will not be disturbed, because it will be treated, as it were, as a deed of family arrangement. It would obviously be inequitable if, as a result of ordering his affairs in the way that he intended, and a court disturbed what had been proposed, especially in the hands of a donee, that person were not only forced to pay back what he might already have paid tax on, but, even worse, further tax might be incurred as a result of the variation of the court. I have no doubt that this matter has been considered by the noble and learned Lord the Lord Chancellor. I will say no more at this stage.
§ The LORD CHANCELLOR
The purpose of Clause 19(1) is to make it clear that when a court order under Clause 2 alters the disposition of the property of the deceased, which would otherwise follow from the terms of his will or the law of intestacy, that alteration shall date back to the death of the deceased and, in effect, be deemed to have resulted from the terms of the will or the law of intestacy. That is to be the effect of an order for all purposes, including the purposes of the capital transfer tax.
That same principle is incorporated in the present law under Section 3(1) of the 1938 Act, except that the reference was previously to death duties instead of to the capital transfer tax referred to in the Bill. The principle of the provision seems to me to be fair and reasonable. Let us suppose, for example, that the deceased has made no provision in his will for his widow, but has left all his property to someone outside the family. Death 1097 duties, or now capital transfer tax, may have been paid on that basis. If the court intervenes and orders part of the estate to go to the widow, it is right that the tax position should be adjusted on the basis that this property was left to widow under the will. The relevant exemption for gifts in favour of the spouse, and the resulting benefit to her, will then be obtained. That is what the law now provides, and that is what Clause 19(1) preserves for the future.
If that principle is agreed to, I confess it is not clear to me why there should be any wish to alter the terms of the Bill by providing that the court order under Clause 2 shall take effect as if it were a deed of family arrangement within Section 47 of the Finance Act 1975. That section adopts the same principle, but it applies where there is no court order, and the family of the deceased have come to an agreement whereby the dispositions of a will or the law of intestacy shall be rearranged. As the noble Earl, Lord Mansfield, knows, it provides for that rearrangement to apply as if the variation had been effected by the deceased. Again, the result in the example I have quoted, assuming the matter to have been dealt with by family arrangement and not by court order, would be that the tax position was adjusted to take account of the benefit to the widow. There seems to be advantage in dealing with the matter in the way that is proposed in Clause 19(1), which achieves the same purpose as the deeming exercise which the noble Earl contemplates in his approach to the matter.
I do not know whether what I have said satisfies the noble Earl about the adequacy of what is proposed in subsection (1). If the noble Earl still remains unhappy about the language proposed, I can look at it again, if he will be kind enough to enlighten me further on what exactly is troubling him. I am not absolutely clear about that at the moment.
§ The Earl of MANSFIELD
The example postulated by the noble and learned Lord the Lord Chancellor, the situation of money coming to a wife, would not attract capital transfer tax in any event, whereas under the old law of estate duty it would. The situation about which I was concerned was where, for 1098 instance, under Clause 10 there may have been a disposition up to six years before the death. Capital transfer tax would have been paid on that, either by the donor or, alternatively by the donee, and different rules would have applied according to who paid it. If an order is made under Clause 2 of this Bill, money will be taken from the donee in order to satisfy the application which is made under Clause 2. It may be that I was suffering under a misapprehension, but I was worried that that money which goes as a result of the court order to, let us say, someone who is not a wife—because that complicates the matter for capital transfer tax—to an outsider, to a child, would also be subject to capital transfer tax. The Amendment sought to exempt that from the possible event of paying twice over.
Of course, it may be at a different rate. For instance, if a person, with intent to defeat his old unmarried daughter who had been looking after him all these years, conveyed his farm to his son who was a fulltime working farmer, and the capital transfer tax was paid by the donee on that basis at a reduced rate— which we discussed in your Lordships' House not so long ago—and the court then interfered with that disposition, as it is fully entitled to do (and, indeed, from what has been said this afternoon, as it is likely to do), a quite different rate of duty would apply, as it does to the fulltime working farmer. It is just that sort of situation about which I was asking the noble and learned Lord the Lord Chancellor on Second Reading. It is this sort of situation which I was hoping, however naively, to clear up with these Amendments.
§ The LORD CHANCELLOR
I am grateful to the noble Earl, Lord Mansfield, for having clarified the anxiety in his mind. I will certainly look at the matter to see whether the kind of inequity which he fears might arise under the present provision could arise. I give the undertaking to look at the point the noble Earl has raised with me before the next stage in the proceedings of this Bill.
§ Amendment, by leave, withdrawn.1099
§ The Earl of MANSFIELD moved Amendment No. 11:
Page 19, line 26, at end insert—
(" (4) In any case where on an application for an order under section 2 of this Act the court does not make any such order, the court may order the applicant to pay the whole, or any part as the court may think fit, of the costs of and relating to the application, or, if the applicant is an assisted person, may (whether or not such an order might have been made apart from this section) order such costs to be paid by the Legal Aid Fund.").
§ The noble Earl said: This Amendment may well have been tabled under a misapprehension on my part. The situation that I envisaged was as in normal applications, if I may so call them, for a share of money in a will, when the estate bears the costs. I was anxious to do two things: first, to make the court empowered to make any applicant pay the whole or any part of the costs if the court thought he deserved such a fate; and, secondly—and I admit this—the last part of the Amendment goes a good deal further, because in that instance the judge may order the costs in the case of an assisted person to be paid by the Legal Aid Fund. I will not say that that was done with my tongue in my cheek, but it goes further than the ordinary Legal Aid Fund rules. If I am under a misapprehension so far as the first part of the Amendment is concerned, no doubt the noble and learned Lord will quickly tell me so. I beg to move.
§ Lord SIMON of GLAISDALE
I want to say only a word or two on this Amendment. It falls into two parts, as the noble Earl explained. The first part seems to me to be unnecessary, and the second part to be mischievous. The first part seems to me to be unnecessary because the court, under the Judicature Act, has an unlimited discretion as to costs. Under the rules of the Supreme Court, as I understand them, the court is directed to exercise its unlimited jurisdiction in such a way that the costs should follow the event, unless some other order should be made. I quote from memory, and the noble and learned Lord the Lord Chancellor will correct me if I am wrong. But if this is so, the first part of this Amendment would merely be cluttering up the Statute Book with a completely unnecessary provision.
The second part deals with costs out of the Legal Aid Fund, and that is already 1100 provided for by the Legal Aid Act 1964, subject to certain conditions. The only two conditions which seem to be relevant are, first, that it should be just and equitable that the order should be made against the Legal Aid Fund. I do not know whether the noble Earl intends that to be bypassed by his Amendment. The second condition that is relevant is that if the applicant was not legally aided the costs would be made against him personally. I have known that to cause injustice in only one case, and that was not because of the provisions of the Act itself, but because the Legal Aid Committee, quite exceptionally, had made a mistake in refusing legal aid. The court found itself unable to help the successful party, but suggested that there might be an ex gratia payment out of public funds, and I have always understood that that was done. In other words, the 1964 Act works perfectly satisfactorily and this provision is merely treating invidiously an applicant who is legally aided. I hope that the noble Earl will withdraw his Amendment.
§ The LORD CHANCELLOR
The legal position, as one would expect, has been correctly stated by the noble and learned Lord, Lord Simon of Glaisdale, and indeed the Amendment largely reflects the present law which will apply as the Bill now stands. The Bill, like the existing legislation which it replaces, makes no mention of costs, and they are therefore left to the general law. As the noble and learned Lord has pointed out, the costs are in the discretion of the court, and the governing order is Order 62, Rule 3, which noble and learned Lords will, of course, know by heart, I have no doubt.
As regards assisted litigants, the general provisions of the legal aid legislation will apply. Perhaps for the Record I may briefly refer to them. As to the first limb of the Amendment, providing that the court may order an unsuccessful applicant to pay the whole or any part of the costs of the application, as has already been said this the court can already do. Of course, it is sometimes thought—and the error is discovered too late by some litigants—that costs are normally ordered out of the estate. That is an illusion which, in a number of cases in my younger days on the Wales and Chester circuit, cost dearly to some of the 1101 litigious-minded countrymen in parts of the Principality whom I will not dare to mention as I hope to return there again one day. But the fact is that whereas the costs of a successful application are normally paid from the estate, the costs of a beneficiary who unreasonably opposes the application might not be charged on the estate. That seems a reasonable enough arrangement, since the testator should, I suppose, be regarded as responsible for the proceedings being necessary because of the terms of his will.
As to the unsuccessful applications, I think the courts are alive, and have been increasingly alive in recent decades while I was in practice, to the need to prevent a small estate being drained by an order for costs. It brings to my mind one of my favourite anti-lawyer anecdotes. Two famous "silks" appeared for the first day of a will dispute which was expected to last many days, with a large number of pending refreshers in prospect, but the parties came to their senses and settled the case on the first morning. It is said that as one famous QC left the court he said to his opponent: "It is a shame to see a fine estate being frittered away among the beneficiaries". No doubt that is a grossly libellous story affecting my former great profession. But, as I say, as to unsuccessful applications, the courts are alive to the need to prevent a small estate being drained by an order for costs, and it is unusual for the costs of an unsuccessful applicant to be paid out of the estate.
As to the second limb of the Amendment, which is designed to enable the costs of the proceedings to be charged on the Legal Aid Fund if the unsuccessful applicant is an assisted person, that power, as has already been said, exists already, although in proceedings at first instance it is exercisable only if the unassisted party would suffer severe financial hardship if he could not recover his costs from the Legal Aid Fund. That would seem to be a reasonable proposition. If this limitation is thought to be too harsh—and I doubt whether it is—it is certainly a matter which should be considered as a general question, and should not receive special treatment in the context of proceedings under this Bill.
I do not know whether I need trouble the Committee with a detailed account of 1102 the relevant statutory provisions. They are in Section 13 of the Legal Aid Act 1974, which replaced the Legal Aid Act 1964, and that sets out that which I have already summarised. If the noble Earl in his enthusiasm for pursuing these matters wishes to examine it further, the machinery for the application of Section 13 of the 1974 Act is contained in the Legal Aid (Costs of Sucessful Unassisted Parties) Regulations 1964. In the light of what I have said, I hope that he will not feel disposed to press this Amendment.
§ The Earl of MANSFIELD
I am more than grateful to the noble and learned Lord for his information and the courteous way in which he gave it. In those circumstances, I beg leave to with-draw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 19 agreed to.
§ Clauses 20 to 23 agreed to.
§ Clause 24 [Interpretation]:
§ 6.52 p.m.
§ Lord SIMON of GLAISDALE moved Amendment No. 12:
Page 23, line 33, at end insert—
(" (8) Reference may be made, for the interpretation of this Act, to the Explanatory Notes to the Draft Inheritance (Provision for Family and Dependants) Bill, contained in Appendix 1 of The Law Commission's Second Report on Family Property, "Family Provision on Death" (Law Comm. No. 61), laid before Parliament by the Lord High Chancellor pursuant to section 3(2) of the Law Commissions Act 1965, and ordered by the House of Commons to be printed on 31st July 1974; but such Explanatory Notes shall be for guidance only and have no binding force.")
§ The noble and learned Lord said: I beg to move Amendment No. 12 on the Marshalled List. If the noble Earl's Amendments were probing Amendments, this one is moved merely on an exploratory basis. As I have shown considerably less than enthusiasm for some of the noble Earl's Amendments, I cannot expect him to show enthusiasm for this one. I put it down, though, because it raises an important point which your Lordships might think should be further ventilated by Parliamentary discussion.
§ This Bill is based on a Report of the Law Commission. A recent decision of your Lordships' House sitting judicially in a case called Black Clawson held that 1103 such a Report could be looked at for certain limited purposes. The question arose in that case which is raised in this Amendment. The Act which fell for discussion and interpretation in that case, Black Clawson, was—like this will be— based on a Bill produced by a Committee and drawn by a Committee on which there was an elaborate explanation, an elaborate commentary, in a Report, just as there is by the Law Commission in the instant case. The opinion expressed by your Lordships' Appellate Committee in this case was divided. My noble and learned friend Lord Dilhorne and I were prepared to go further than our colleagues and, in effect, to say that the law should be much on the lines suggested by this Amendment. I think, though, that we were in a minority.
§ I certainly do not feel it right to press this Amendment, partly because it is based on a similar Amendment put down by my noble and learned friend Lord Wilberforce to the Theft Bill in 1968, and also, I think, to an Animals Bill. The noble and learned Lord the Lord Chancellor will correct me if I am wrong. It may very well be that, in the light of his speech in Black Clawson, my noble and learned friend Lord Wilberforce has changed his mind. Owing to his unfortunate illness I have not been able to discuss the matter properly with him.
§ I should like, if I may, to put shortly the arguments in favour of what is proposed. Parliament legislates in the light of the Law Commission Report, including the commentary on the draft Bill. That is part of the shared information that is available to Parliament and to the public. Since the duty and task of the court is to interpret the will of Parliament by putting itself in the position of Parliament by arming itself with the knowledge that Parliament has in passing the enactment which calls for construction, it seems to me that it is reasonable that the courts should be able to look, at any rate for general guidance— as this Amendment suggests, following Lord Wilberforce's draft earlier—at what the Law Commission has said they think the provision means. I beg to move.1104
§ 6.57 p.m.
§ Lord MORRIS of BORTH-Y-GEST
Although my noble and learned friend Lord Simon of Glaisdale, has, as he has indicated, moved this Amendment so that the matter may merely be explored and, as I gather, he does not propose to press it, he renders a valuable service in giving further opportunity for this difficult matter to be raised, considered, and ventilated. We shall all much appreciate anything that the noble and learned Lord the Lord Chancellor says in dealing with this matter. It constantly gives difficulty in the courts when the question of interpretation of an Act arises. When it is known that there has been a Report, either of the Law Commission or of a specially constituted Committee, it is obvious that there will be a great deal of material in the Report which will be of the utmost value to a court. For one thing, there may be a very accurate statement of the existing law, and it may be helpful for the court to go to that statement and be saved a good deal of labour in investigation, and to consider the Report.
The difficulty that I see is that ultimately the task of the court in the matter of interpretation is to decide what Parliament has enacted. Parliament must use the words of the English language in order to enact, and it is the duty of the court, it seems to me, not to discover what Parliament may have meant but to discover what Parliament has said. On these occasions, it is of the greatest value to a court to have a report, such as the Report of the Law Commission in this case, or comparable reports, for consideration. The difficulty—to use the correct words—is to know the way in which a court is to use anything in the Report. Parliament goes line by line through a Bill and then decides whether it will or will not put on the Statute Book certain words. But Parliament cannot go through the Report line by line and give approval to it. Parliament cannot go through the explanatory clauses line by line and give approval to them. The explanatory clauses will bring in the Report. I would be firmly against any system under which we had to have final resort to Hansard in order to gather what happened in Parliament, so as to glean what we think should be the right interpretation. So, while I think it is 1105 valuable to discuss this matter, one wonders what will be the effect of the words,… for guidance only but to have no binding force "."For guidance" as to what? "For guidance" as to interpretation. If it is guidance as to interpretation but having no binding force, does that mean Parliament will be saying, "When you come to interpret the words which we enact, you must have regard for guidance to what is in the explanatory notes which bring in the Report". Does that mean that Parliament would be affirming all that is in the explanatory notes or all that is in the Report before Parliament?
There are great difficulties in accepting this interpretation entirely. I have always felt that it is of the greatest value, for reasons which I have stated, for a court to look at a Report and explanatory notes, but I do not think that the court can be guided by those or guided by what may have been said in Parliament. Ultimately, the court has to decide what the words mean. I think it has been expressed at some time that the court does not try to decide what Parliament meant to say. The court must decide what Parliament has, in fact, said. I add only these few words to thank my noble and learned friend Lord Simon of Glaisdale for raising this subject one again, which has been before your Lordships' House on one or two previous occasions. I believe there is great value in looking at a report of this nature. I believe courts look at them and are greatly helped. The difficulty is in defining the precise words to know how the court must act. We should be greatly assisted by anything that the noble and learned Lord the Lord Chancellor can say on the subject.
§ 7.4 p.m.
§ The LORD CHANCELLOR
Noble Lords will be grateful to the noble and learned Lord, Lord Simon of Glaisdale, for his initiative, even at this hour, in raising the important question which has arisen several times before as to the extent to which the Report of a Law Reform Committee may be used as an aid to the construction of a Statute which sets out to implement that Report. The noble and learned Lord has indicated the present state of the law. A court is entitled to construe a Statute against the back 1106 ground of the situation in which it was enacted. And it can ascertain the mischief to which the Statute was directed by looking at the Report of a Committee. But it cannot use the recommendations of that Committee to help construe a provision in a Statute. That view of the law, as has been indicated, was confirmed by the majority of the Appellate Committee with the noble and learned Lords, Lord Reid, Wilberforce and Diplock in the majority in the Black Clawsor case. The noble and learned Viscount, Lord Dilhorne, thought the Report of the Committee was a valuable aid to construction, and could be looked at where the Statute was identical—and I mark those words— with the Committee's draft Bill. The noble and learned Lord, Lord Simon of Glaisdale, regarded the point as still open for decision, as I understand the matter.
Suggestions have previously been made for clarifying the law on the lines of this Amendment. In a Joint Report on the Interpretation of Statutes, the English and Scottish Law Commissions recommended in 1969, among other things, that:… any relevant report of a Royal Commission or Committee which had been presented to Parliament should be available for consideration in ascertaining the meaning of any provision of an Act.That proposal met with somewhat fierce opposition from the Bar Council, the Law Society and some, but not all, of the judges and others. In October 1973 the then noble and learned Lord the Lord Chancellor, Lord Hailsham of Saint Marylebone, my predecessor, said in answer to a Parliamentary Question by another predecessor, the noble and learned Lord, Lord Gardiner, that this Report had received insufficient support to justify legislation. However, on two occasions this House inserted a provision on the lines of the Amendment of the noble and learned Lord, Lord Simon of Glaisdale, in law reform legislation, the Matrimonial Proceedings and Property Act 1970, and, as he has pointed out, the Animals Act 1971. But, on each occasion, the other place disagreed with the clause. In the case of the Animals Bill, the clause was inserted at the instance of the noble and learned Lord, Lord Wilberforce, supported in the Division Lobby by the noble and learned Lord, Lord Morris of Borth-y-Gest, and also by the noble and learned Viscount, Lord Dilhorne, on that occasion.
1107 A significant and relevant step was taken in 1973 when the whole question of the preparation of Public Bills was referred to the Renton Committee, whose Report we expect in May. It is expected to contain some reference to this matter. In the light of that development your Lordships may not think that it is appropriate to use the occasion of the Bill to seek to deal with the matter, but that it is much better that it should be regulated expressly in a general way as a matter of policy. It may well be that consideration of the matter, in light of the Renton Report, will enable Parliament to do so.
But on the merits of the proposal, it is now perhaps relevant to make certain points. Although the Amendment appears only to admit the Law Commission's explanatory notes for consideration, that is, I fear, misleading, for the reason that the notes are not self-contained. Several of them, as indeed is usual, merely refer to paragraphs in the Report and are quite unhelpful without reference to those paragraphs. In effect, therefore, the Amendment proposals require the Report also to be admitted, which raises the general question as to the status of Reports for that purpose. A second difficulty is that the Bill may, of course, not accurately or entirely reflect the contents of the Report. Alterations may be made before introduction—as now is the case in regard to this Bill—and during the Parliamentary proceedings. Although the noble Earl, Lord Mansfield, has not been singularly successful today, it may well be that a future consideration of the matters which he has properly raised will result in Amendments following consideration of the matter at the subsequent stages of the Bill. To ascertain the full intention, reference should also be made to Hansard, and possibly also to Ministers' briefs explaining the alterations in the drafting, and so we would find ourselves in a hopelessly complicated situation.
Other difficulties were pointed out by the noble and learned Lord, Lord Morris of Borth-y-Gest. One suggestion which has been strongly canvassed is that Parliament itself should publish authoritative notes as to the purpose of each section in an Act, but that again is highly controversial and it would certainly be very expensive as an operation. My present feeling at any rate, and I have an open 1108 mind on this, is that the present position is not so very unsatisfactory. As has been indicated, the trial judge or appellate judge can, like anyone else, read the Report to inform himself out of court— I do not see anything wicked or wrong in that, and I have little doubt that it is done, anyway—as to the background of the legislation based on the Report.
But my feeling is that in court it is better for him to construe the Statute as it stands against the known background, and that, I apprehend from his words, seemed to be the broad view of the noble and learned Lord, Lord Morris of Borth-y-Gest. I think that that, at any rate, would tend to produce more certainty in the application of the law, and of course certainty is of great importance to both the public and practitioners. However, the points that have been raised are very interesting and I have little doubt that we will revert to the matter before long in the light of the Renton Report. It has been said that this Amendment was only a probe and, in the circumstances, perhaps the noble and learned Lord will be content with the discussion of it.
§ 7.12 p.m.
§ Lord SIMON of GLAISDALE
My noble and learned friend Lord Morris of Borth-y-Gest was my master in the law, I have gone on learning from him ever since and I learned again this evening, needless to say. I fully see the force of his observations, and indeed the force of those of the noble and learned Lord the Lord Chancellor. Nevertheless, I cannot regard the present position as to statutory interpretation as satisfactory. I am sure that the noble and learned Lord the Lord Chancellor is right in saying that it would be wrong, particularly in the light of the Parliamentary history of similar attempts, to try to use this Bill as a vehicle. The proper occasion will undoubtedly be when we get the Renton Committee Report. I shall return to the battle then and, in the meantime, I trust that the noble and learned Lord the Lord Chancellor will keep his mind not only open but actively receptive to the suggestion made. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 24 agreed to.
§ Remaining clauses agreed to.1109
§ Schedule agreed to.
§ House resumed: Bill reported without Amendment.