HC Deb 16 May 1930 vol 238 cc2242-7
Mr. MacROBERT

I beg to move, in page 3, line 22, after the word "shall," to insert the words: without prejudice to any liability incurred by them or either of them under contract. This Amendment and the one next but one after it on the Paper go together. They have nothing to do with the Amendment which appears between them on the Paper, which should be in the name of my hon. and learned Friend the Member for Argyll (Mr. Macquisten)—in line 22, after the word "liable," to insert the words "jointly and severally"—with, which I do not agree and which is entirely contradictory of mine. The purpose of my Amendment is this: The Clause as originally framed referred to a proportionate award of aliment and provided that the funeral expenses would be payable in the same proportion as the ailment was payable. When that Bill was originally framed an earlier Clause provided for the court apportioning the aliment between the mother and father, but Amendments were made in it at a later stage of the Committee proceedings which deleted all reference to proportionate aliment and simply provided that the court should award a certain sum against the father.

Clause 5 was passed in the Committee under a misapprehension, and forgetful of the fact that the earlier Clause had been altered in the way I have described. Therefore, the Clause now does not read and is not consistent with the rest of the Bill. Accordingly, I propose to change it by providing that if a father or a mother has come under a contract with regard to funeral expenses, they must implement that contract, and that apart from contracts they shall be liable for funeral expenses jointly, which means that they shall each be liable for one-half. The Amendment goes on to provide that the expenses may be paid otherwise in such proportions as the sheriff on summary application may determine. I have put in, not the court, but the sheriff, because this is a very small matter, and I thought it was more appropriate that it should be dealt with by the sheriff and summarily.

The LORD ADVOCATE

The Government have carefully considered the Amendment, and we consider that it introduces a desirable provision in the Clause. We therefore propose to accept it.

Amendment agreed to.

Mr. MacROBERT

I beg to move, in page 3, line 22, to leave out from the word "expenses" to the word "Provided," in line 25, and to insert instead thereof the words: jointly or in such proportions as the sheriff on summary application may determine.

Mr. C. WILLIAMS

I am not quite clear what is meant by this Amendment, which seeks to take out what might be considered an important part of the Bill dealing with this very interesting question of aliment. The right hon. and learned Member for East Renfrew (Mr. MacRobert) said that the whole thing arose because someone got an Amendment in Committee at a late stage, but the Committee only lasted for two very short mornings, and I do not see how it could have been so very late. I am surprised that the House is not being given a proper reason for amending something which was apparently the considered wish of the Committee. I could understand, if there had been an agreement that the Amendment should be accepted and then reconsidered on the Report stage, but we were not told that, and we have not yet had an explanation as to the position of the Government in this matter. Will the right hon. and learned Member tell us what was the original position, so that those who have an open mind on this subject may be able to understand the position? Many of us on this occasion feel that we are entitled to a thorough explanation as to how these very remarkable changes have taken place. Just as a soft answer turneth away a division, may we have a considered answer from the law point of view, and also from the human point of view as coming from the Secretary of State for Scotland?

The LORD ADVOCATE

The hon. Member has described this Amendment as a remarkable Amendment. There is nothing remarkable about it. It is merely intended to correct a simple error that crept into Clause 5. If the hon. Member will not give his attention, will he look at Clause 5?

Mr. WILLIAMS

Will the right hon. and learned Gentleman define the difference between not giving my attention and giving it?

The LORD ADVOCATE

Perhaps the hon. Member will allow me to read Clause 5: In the event of the death of an illegitimate child under the age of sixteen, the parents of such child shall be liable for the funeral expenses in the proportion in which aliment may have been awarded by the court. In the earlier part of the Bill there is nothing about aliment being awarded in proportions at all, and, obviously, that would not do. I think I am right in saying that previously there was nothing in the Bill about awarding aliment, and, accordingly, there was an obvious error.

Mr. MacROBERT

In the original Bill there was a reference to aliment?

The LORD ADVOCATE

I am obliged to my right hon. and learned Friend. In the Bill, as originally drawn, there was the word "proportion". It was taken out, and when we came to Clause 5 it was forgotten that Clause I bad been altered by the omission of the word "proportion". Therefore, on Clause 5 an Amendment became necessary. I think it is perfectly clear that there will be a joint liability, or a liability "in such proportions as the sheriff on summary application may determine".

Major ROSS

There is a short and rather legal point about which I should like to get some explanation if I could from either of the right hon. and learned Members who have spoken. The Clause as it now stands reads: the parents of such child shall '(without prejudice to any liability incurred by them or either of them under contract)' be liable jointly and severalty.

The LORD ADVOCATE

The words "jointly and severally" are not in the Bill at the moment.

Major ROSS

I should say, jointly or in such proportions as the sheriff on summary application may determine. The point that occurred to me was this: Here we have a prima facie liability on parents in such proportions as shall be deemed just by the sheriff, or, in the absence of such determination, equally. Further, it must be without prejudice to a contractual liability incurred by either. Supposing the death of the child happens fairly soon after birth, the mother, not unnaturally, wishes to make suitable arrangements for the burial of the child. If she goes to the local undertaker and contracts with him that the child shall be buried, the contract would be between her, a single woman, and the undertaker. It may well be that the father is not readily available, and may be in some other part of the country. He may be compelled to bear his share of the cost of these expenses, and it may well be that he refuses.

What is the situation created by this Clause as amended? We are on the question of the proportion, and, therefore, I think it is proper to raise this point at this stage. There is a contractual liability between the undertaker, with whom the expenses have been incurred, and the mother. The father, as far as I can see, must escape that. I do not see how the mother can serve a third-party notice, or the Scottish equivalent, on the father, and it seems to me that the mother is to be in a position to be saddled with the expenses of the funeral, without any remedy provided in the Bill as regards the father of the child. I want to know what is the position under Scottish law created by this Bill in a case where a mother has made this contract, the father not being available to join in the contract? Will she not be liable for the full expenses of the funeral without any redress from the father, because, if that is so, it is a definite flaw in the Bill.

The LORD ADVOCATE rose—

Mr. SPEAKER

The right hon. and learned Gentleman cannot speak again on the Report stage.

Sir G. HAMILTON

I submit that we must have some reply. If the Lord Advocate is not allowed to speak again because we are on the Report stage, may we have a reply from the Secretary of State for Scotland? This raises a very important point.

Major ROSS

On a point of Order. I had attempted to catch your eye before the right hon. and learned Gentleman got up because I wished to put this point, but I was not successful in doing so.

Mr. SPEAKER

If the Minister in charge of the Bill on Report stage were able to speak several times, there would really be no end to it.

Sir G. HAMILTON

This really is a matter of extreme importance.

Mr. MacROBERT

I think that I should be in order in replying.

Mr. SPEAKER

The right hon. and learned Gentleman the Member for East Renfrew (Mr. MacRobert) would be in order in replying, because he is the mover of the Amendment.

Mr. MacROBERT

If the father is not available, and the mother contracts with an undertaker for the burial of her child, she is liable to the undertaker under contract, but she has the right of relief against the father, either for one-half of the expenses, or, she can go to the sheriff to have the whole or greater part placed on the father of the child. That would necessitate an independent application.

Amendment agreed to.

Mr. MacROBERT

I beg to move, in page 3, line 28, to leave out the word "court", and to insert instead thereof the words "the sheriff".

This is merely a consequential Amendment.

Amendment agreed to.