CLAUSE 1.—(Repeal of 5 & 6 Wm. 4, c. 41, s. 2.) (Hansard, 30 June 1922)

§ The ATTORNEY-GENERAL (Sir Ernest Pollock)
I beg to move, "That this House doth not insist upon its Amendment to which the Lords have disagreed."
I will explain briefly the Amendment which the House of Commons made and which has been re-inserted by the House of Lords. When the Bill was originally drafted and brought before another 2480 place last Session, it was pointed out that as it stood then the Bill would have a retrospective effect. We all agree that retrospective legislation is most difficult and, perhaps on many grounds, unwise. Therefore, the Bill was brought in in a form not to have a retrospective effect. At the same time, it was pointed out that difficulty might arise if the Bill was not to have a retrospective effect, because during the interval rights and duties might accrue which would not be covered by a Bill without retrospective effect. Hence, when the Bill was introduced in another place this Session, it was drafted in the form in which it has now been restored by the House of Lords. The passage which was deleted in Committee of this House has now been restored. The question is whether we should insist upon our Amendment, deleting the words No trustee, executor, or other person acting in a representative or fiduciary capacity shall be under any obligation to make or enforce any claim under the said Section in respect of any transaction completed before the passing of this Act, or be liable for any breach of duty by reason of any failure to do so, or whether we should not insist upon the Amendment we made. The lines omitted in this House, which have been restored in the House of Lords, are for the purpose of safeguarding the position of trustees, executors, and others in a fiduciary capacity. The case of Stutter v. Briggs was decided by the House of Lords, judgment being given on 25th October last year. This Bill, if it receives the Royal Assent, will receive the Royal Assent some time during this Session, and, therefore, there is an interval between the time when the law was laid down by the House of Lords in October last, and the time when this Bill comes into force, during which it was possible for actions to be brought to recover moneys paid in respect of gaming transactions. The purpose of this Bill is to put the law in the form in which most people believe it stood before that decision was given by the House of Lords. The Bill, as passed by this House, says that no action for the recovery of money under Section 2 of the Act of 1835 shall be entertained in any Court. Having confirmed that position, we want to make it effective for the purpose, but it has to be rememb red that it is always the duty of 2481 trustees in bankruptcy, or persons acting in a fiduciary position as executors, to do their best for the estate which is entrusted to their care, and during the period between October and the time when this Bill shall receive the Royal Assent, it may be that there was a duty on the part of those who were acting in a representative capacity as trustees in bankruptcy and the like to recover moneys due to the estate in this way. In the early part of the year proceedings were taken by a trustee in bankruptcy to recover moneys paid under a bet. The action failed before the Judge of First Instance, who let fall some observations that such proceedings ought not to be taken. But this view was not accepted by the Court of Appeal, and the words which have been restored in the House of Lords are for the purpose of making plain that there shall be no liability resting upon a trustee or other persons in a fiduciary capacity to take proceedings, and that they shall not be liable for the fact that they have not taken proceedings, during the interval between October and the passing of this Bill. The words which the Lords have re-inserted are No trustee, executor or other person acting in a representative or fiduciary capacity shall be under any obligation to make or enforce any claim under the said Section in respect of any transaction completed before the passing of this Act or he liable for any breach of duty by reason of any failure to do so. When the Bill was before the Committee of this House it was conceived—and it may be arguable—that the liability of trustees and persons acting in a fiduciary capacity was sufficiently safeguarded by the words No action for the recovery of money under this Section shall be entertained in any Court. I can understand that that view might be held. On the other hand, it is better to make it clear what we mean—to relieve trustees and other persons in a fiduciary capacity from liability which ought not to rest upon them. It may be that that liability can be enforced, not merely by an action for the recovery of money under the said Section, but by other means. Therefore, some lawyers think—and I am one of them—that the words which I have just quoted are not sufficient to render trustees immune from the duty which lies upon them between October and the pass- 2482 ing of this Bill. The House of Lords have restored these words to make plain what I think is the general intention both of this House and of the other place. It seems to me that those words are useful, and by not insisting upon our Amendment all that is done is that we prevent an attempt being made to impose an unpleasant liability on certain persons in a fiduciary capacity during the interval to which I have referred. Trustees, whether trustees in bankruptcy or other trustees, have a difficult task. It would, perhaps, be adding to their burden and responsibility if we left them under a duty to take proceedings which were characterised by one Judge as proceedings which ought not to be taken. I agree that the other view might be held; but I think it better to make plain and not to run the risk of any proceedings being taken against persons in a fiduciary capacity to render them responsible during the interval for that for which they would not be responsible after the passage of this Bill.

§ Sir F. BANBURY
I am very much obliged to the Attorney-General for the very clear statement he has made regarding the object of the Bill and the Amendment. I agree with him that trustees have in many cases an extremely arduous and an unpleasant duty to perform. Therefore I should certainly vote for any method by which we could relieve trustees from the disagreeable task which they have voluntarily undertaken, if by doing so we could avoid inflicting an injury upon the beneficiary or the persons concerned in any trust. The Attorney-General says that the Bill as originally introduced was retrospective, and he affirmed the doctrine, which I am glad to see affirmed by the senior legal representative of the Government, that all retrospective legislation was bad. He will have an opportunity of pressing those views upon the Prime Minister and other Members of the Government who might possibly be induced by the Chancellor of the Exchequer to bring in legislation contrary to the views which have just been expressed by so great an authority as the right hon. Gentleman, with whom I humbly agree. But I am not certain that this Bill is not retrospective. I am inclined to think that it is, because the words at the end No action for the recovery of any money under this Section shall be entertained in any Court 2483 seem to me to convey the possibility of actions which have been commenced being stopped.

Mr. DEPUTY-SPEAKER
The words which the right hon. Baronet has quoted are no part of the subject of difference between the two Houses. They have been agreed to between the two Houses. The only subject is that contained in the words which have been left out in another place.

§ Sir F. BANBURY
I am aware of that, but I was only answering the point made by the Attorney-General. The Attorney-General specially alluded to these words, and it was only in that respect that I was alluding to the matter. The words which were left out in the Standing Committee upstairs are the words which the House of Lords propose to re-insert. I was not a Member of the Standing Committee, but I have taken some trouble to ascertain what actually took place upon this question. Unless I have been misinformed, these words were left out on a Motion made by a Member of the Government, and the reason given by the Member of the Government was that the words were superfluous because they were protected by the words which the Attorney-General had read, No action for the recovery of money under the said Section shall be entertained in any Court. The Committee accepted the view of the Government that the words were unnecessary and they were left out. The Attorney-General has admitted to-day that other views might be entertained. He was under the impression that the words were necessary and could he reinserted in the Bill without doing any harm to it.

§ Sir E. POLLOCK
Two opinions may be held. I would be far from quarrelling with those who take the view to which the right hon. Baronet has referred. It is a matter of doubt. My own view is that it is better to make it quite plain and certain that you relieve the trustees.

§ Sir F. BANBURY
I am much obliged for that interruption. There are two points for us to consider, and I will deal with the minor one first. I have always been told in this House, not only by Mem- 2484 bens of all Governments, but by every Law Officer during the last 30 years, that if it was unnecessary to put words into a Bill, if the object of the Bill could be achieved without those words, it was a mistake to put superfluous words in. The Standing Committee was told that these words were superfluous and that it was unnecessary to put them in. While I am most anxious that this Bill should become law, yet I do not want to put in words which may possibly lead to litigation. The second point is more important, be cause it shows what may arise when Bills of all descriptions, which involve any legal technicality, are taken before a Standing Committee without the presence of any Law Officer. As I am informed there was no Law Officer present on the Committee when these words were left out, except the Lord Advocate, who expressly stated that he was not an authority upon the law in England. If the Standing Committee had had the advantage of the presence of the Attorney-General on that occasion, a good deal of this complication would not have arisen. The Government ought to remember that it is very much better for their own interests that there should be a Law Officer present who will say what is right and what is wrong, and so avoid the extraordinary position of one Member of the Government in Standing Committee saying that words are unnecessary, and then another Member of the Government at a later stage saying that the words are necessary and must be put in. For a business Government, who desire expedition in the conduct of this House, it would be far better to take a little more trouble in the initial stages of a Bill and so avoid the necessity of the Attorney-General having to come down and say that another Member of the Government has committed an error of judgment. Let me point out to the Labour party the great usefulness of the House of Lords. If the House of Lords had not insisted on this Amendment, we might have allowed the Bill to become an Act which, according to the Attorney-General, might inflict undue hardship and unnecessary cost upon trustees. Thank God for the House of Lords!