CONFIRMATION OF EXECUTORS (WAR SERVICE—SCOTLAND) BILL. (Hansard, 22 June 1917)

§ The SECRETARY for SCOTLAND (Mr. Munro)
I beg to move, "That the Bill be now read a second time."
This small Bill is purely a war measure, which is designed to deal with difficulties which have arisen in the administration of the estates of soldiers who have been reported missing, and who are presumed to be dead. In Scotland, before anyone can deal as executor with the estates of deceased persons, he has to go to the Court and obtain what is termed confirmation, and that confirmation is only granted, according to the existing law, after distinct and definite proof of the evidence of the death of the person whose estate is concerned. A little difficulty has been experienced in regard to the estates of soldiers who have been reported missing. Although these soldiers have been reported missing, and presumed to be dead for official purposes, some judges under the law as it now stands have refused confirmation on the ground that they have no power to grant it. It is obvious that results in great inconvenience, and often in great hardship, because estates are held up indefinitely, and it is impossible to distribute the assets. In these circumstances, the Bill provides that, where a certificate is issued by the War Office or by the Admiralty that a soldier is presumed to be dead for official purposes, an applicant for confirmation of the Scottish Courts will merely have to swear that, to the best of his knowledge and belief, the 2137 person referred to is dead. There are certain safeguards which are provided both by way of information to the War Office and the Admiralty, and certain safeguards with regard to time which render it, I think, impossible, or exceedingly unlikely, that there should be any presumption of the death of a person who, in point of fact, is not dead. I will only add that the Bill has the approval of all the judges who are concerned in the matter in Scotland, and has also the support of the War Office and the Admiralty. In, point of fact, its effect will be to secure in Scotland the same result which has been achieved in England by means of directions issued by the President of the Probate and Divorce Court. We have no corresponding procedure to that in Scotland, and it has been necessary to introduce this measure for the purpose of bringing about the same method, and I would respectfully ask the House now to give the Bill a Second Reading.

§ Mr. WATT
I think the right hon. Gentleman is entitled to the thanks of the people of Scotland for bringing in the Bill. It is much called for, and will simplify and expedite the work of the executors of estates of soldiers and sailors who have met their death in the War. But with regard to the expediting of the confirmation, T think he might have made it a little more drastic than he has. In Sub-section (1) it is provided that, between the date of the death and the date of presenting the petition, not less than twelve months must elapse, or, in the alternative, between the date when the certificate has been issued and the date of presenting the petition, the period must not be less than six months. I venture to think that that is wrong, and that the right hon. Gentleman, in dealing with this matter, might have shortened these dates. Perhaps he will take that into consideration between now and the Committee stage. Another point in connection with this measure is that on the presentation of this petition, which bears a certificate from the Admiralty or the War Office, the sheriff, who is the judge in Scotland, has thereupon to order intimation to the Admiralty or Army Council—that is to say, a certificate coming from the Admiralty or the War Office has again to be intimated by the judge to the Department which has issued the certificate. I cannot see the advantage of that. It almost goes without saying that when the certificates are 2138 issued by those Departments they will be utilised, and the necessity of the sheriffs intimating back seems to be undesirable. Another thing to which I object in this measure—and my observations now may prevent Amendments being put down in Committee—is the proposal for prescribing the fees necessary for carrying the purposes of the Act into effect. This is to be done by the Court of Session by Act of Sederunt. I think the Court of Session are not the best body to arrange fees in this matter. The fees must be very low, and the Court of Session consists of men who are themselves in receipt of very large salaries, £6,000 a year, and they are not content with that, but, I believe, they can go outside and get salaries as directors.

§ Mr. SPEAKER
The hon. Member is not in order in pursuing that.

§ Mr. WATT
I submit that these members of the Court of Session are not the best men to arrange fees in a matter of this sort. The fees, I hope, will not be more than 5s., 2s. 6d., or so on, for various services. It is a matter of a very small amount, and I consider that the members of the Court of Session, who deal with large figures, are not the best body to arrange the fees to be charged, if my right hon. Friend will appoint some other body to whom he will delegate this duty of fixing the fees, I have no doubt that it will be an improvement on the measure. If he does so, the time occupied in Committee will be shortened. I finish, as I began, by thanking the right hon. Gentleman for bringing in this Bill.

§ Sir CHRISTOPHER JOHNSTON
I think the Secretary for Scotland has dons well to introduce this measure. I was cognisant of several cases in which doubt was entertained as to whether confirmation would be granted in the circumstances dealt with by this Bill, and this undoubtedly meets the difficulty. I sympathise with the hon. Member who has just spoken in the view that the Bill is certainly extremely cautious, but I have no doubt that the right hon. Gentleman has been guided by certain of my former colleagues and sheriffs who are concerned in being cautious. But there is one suggestion I would venture to make, and that is that this extreme caution was not observed in some sheriffs' Courts, and confirmations were issued as soon as these certificates were granted by the Admiralty and by the War Office that the man was presumed to have died. This might suggest 2139 some doubt and anxiety in the case of those who have got confirmation under circumstances which is not granted under this Bill, and I think this difficulty might be obviated by inserting the words "nothing contained in this Act shall affect the validity of any confirmation already issued." That may not be necessary, but I think it would be useful in removing the doubt and some possible anxiety.

§ Mr. MUNRO
I am very much obliged to the lion. Member for the College Division of Glasgow (Mr. Watt) for the kindly way in which he has referred to this Bill, but I would ask him to consider carefully whether it is really worth while to press the point he has raised. In view of one or two considerations I am extremely anxious to get the other stages of tins Bill, for now there is an opportunity which may not readily recur in these crowded days. As it seems to be admitted that this Bill is very desirable and useful, I appeal to my lion. Friends to co-operate with me in securing the other stages to-day. My lion, and learned Friend the Member for the College Division referred to certain safeguards at the end of the Clause, and he indicated that he thought in one case the time was too lengthy. In a Bill of this sort it is necessary to provide all safeguards against improper or precipitate action. It would be an extremely unfortunate thing if after an estate were divided it turned out that the person who had the best right to it was not in point of fact dead. Therefore we have to proceed with great caution, and I assure my hon. Friend that the point he has put has been considered by myself and the Lord Advocate, in conjunction with our advisers, and, in view of the advice we got, we thought proper to use both these safeguards in order to prevent abuse occurring under the Bill. Under these circumstances I urge my hon. Friends not to press their objections. With regard to the point raised about the fees to be provided under this Bill, they will be extremely moderate, and I know no other body to fix the fees other than the Court of Session. I think it is entirely in accordance with practice and precedent that they should fix fees under a Bill of this kind. The hon. and learned Member did not make any other suggestion, and under these circumstances I ask him not to press that point. With regard to the suggestion that a provision should 2140 be inserted to provide that nothing in this Bill should affect the competency of any confirmation granted before this measure was introduced, I do not think that that is in the least necessary, and I do not think there is anything in this Bill that would in any way invalidate such cases. As these are the only objections taken, and as I contend that the provisions of the Bill meet them, I earnestly appeal to my hon. and learned Friend not to insist upon those objections, and to allow me to have the other stages of the Bill.

§ Mr. PRINGLE
I am sure the Scottish Members present will be glad to respond to the appeal of the Secretary for Scotland that this Bill should go through all its stages, but before parting with this Order there is a question I wish to address to the Patronage Secretary. As we have agreed to pass every stage of this Bill, perhaps the Noble Lord will inform us how many other Orders the Government intend to take to-day?

§ Lord EDMUND TALBOT (Joint Parliamentary Secretary to the Treasury)
We propose taking the next Order (the Committee stage of Navy Excess, 1915–16 Vote) and the last Order (Representation of the People Expenses—Committee).

§ Mr. PRINGLE
I wish to say that I think it is somewhat unfair to take those Orders when hon. Members who may be interested have not had notice that Orders of this importance were going to be taken. I make this protest in view of what was done on Friday last on the Report stage of the Corn Production Expenses Resolution, which was closured.

§ Sir F. BANBURY
Personally, I do not think the Report stage of this Resolution is very important, but the Committee stage is, and in view of the fact that the business has gone through very quickly and there are few Members present, I would appeal to my Noble Friend not to press the taking of the last Order.

§ Lord E. TALBOT
Very well, we will not take it.