HC Deb 08 July 1935 vol 304 cc117-26

Order for Second Reading read.

8.28 p.m.

The ATTORNEY-GENERAL (Sir Thomas Inskip)

I beg to move, "That the Bill be now read a Second time."

The Bill, with its rather long title, is one of a series of law reforms which are the result of the appointment of a Committee which has been presided over by the present Master of the Rolls, Lord Hanworth. The Committee was appointed by the late Lord Chancellor, Lord Sankey. The Bill deals with two matters which I can shortly bring to the attention of the House. The first part deals with the position of married women. As the House may be aware, husbands are at the present time responsible for the torts, as the lawyers say, committed by the wife, and also for her liabilities. Even in cases where the wife is liable and judgment has been entered against her, it is the law that the liability is not a personal one, but it is what is called a proprietory liability, limited to the extent of her separate estate. That is to say, a judgment for damages recovered against her or a sum recovered against her in an action cannot be enforced in the same way as a judgment can be enforced against a man or against a single woman, for instance, by bankruptcy proceedings.

This Bill proposes to relieve the husband of the responsibility which he now has to bear for his wife's torts or for his wife's liabilities, and it will be possible to recover against the wife in precisely the same way as against the husband, or against a man, or against an unmarried woman. The rule also which I have mentioned as to the extent of the wife's liability in the case of judgment against her will be got rid of, and judgment will be, if we pass the Bill, in the same way as against an unmarried woman or a man. The judgment will be enforceable by bankruptcy proceedings or under the Debtors Acts in the ordinary way.

Another matter is dealt with by this part of the Bill with which lawyers will be familiar and which a good many laymen will recognise, and that is the clause which is very often put into settlements upon a woman, or put into wills, which is known as restraint upon anticipation. To be substantially accurate and without too much technicality, it is a clause which prevents the compass of a sum which is settled upon a wife or the interest upon a sum from being anticipated with a view to satisfying a judgment which has been obtained against her. It was no doubt a device originally for the protection of the woman against the husband in the days when the husband owned everything that the wife possessed, and undoubtedly it has been used in many cases as a means of defeating the wife's creditors. Therefore, it is thought proper to get rid of this clause and to make such a clause ineffective in the future. The Bill in these respects is not retrospective.

The second part of the Bill deals with another matter, and that is what is called the principle of no contribution between two joint tort-feasors. Reduced into intelligible English that simply means this. Under the law as it has been for about 135 years, if a person is injured by two or more persons jointly he can recover his damages in full from any one of those persons, but the one who is compelled to pay is not allowed to recover any contribution from another person who has done the wrong jointly with him, although possibly the other person is just as guilty as, or even more guilty than, himself. This Bill proposes to abolish that rule of law. It is not the law of contract. If two persons enter into a contract jointly, judgment may be obtained against them enforcing the terms of the contract, or by way of damages for breach of the contract, and contributions can be enforced against one of the parties by the other who has been made to pay the damages. The rule with reference to torts has often been criticised, but the judgment given 135 years ago has lasted. Several exceptions have been made to it, with which I need not trouble the Committee. Suffice it to say that this Bill will put an end to it and will give the right of contribution of one wrongdoer or tort-feasor against another who has not been made to pay. It will also extend the rule to cases of a combined wrong. "A combined wrong" is my own phrase, and I hope it will be intelligible to laymen in the House. It is different from a joint wrong, in that the parties were not acting jointly but they have managed by certain circumstances to be responsible for two separate wrongs on the part of each of them against the same person. For instance, when two motor-car drivers, racing on one of the roads going out of London, cause serious damage to another motorist coming in the other direction. They are not acting jointly, but by their action they have been responsible for doing wrong to a third party, and the new rule will make it possible for one of the wrongdoers who has been sued, and against whom judgment has been obtained, to recover a proper share of the damages from the other wrongdoer. It may be asked how will you assess the amount to be recovered from wrongdoer A and wrongdoer B; is it to be on a fifty-fifty basis? The Bill proposes, in accordance with the recommendation of the Committee, that the contribution shall be settled by a judge. It may be that one of the persons ought to be responsible for only one-third of the total damages, and it will be possible for a judge under the Bill to fix the amount of the contribution which is recoverable by one wrongdoer from the other wrongdoer.

I hope that this summary is sufficient and clear, but may I say that this principle will not apply to a case where the law has already given a right of indemnity as between two joint wrongdoers? I will give this illustration. Suppose A has been induced to join with B in committing a wrong against C, but that A has been induced to do it by the fraudulent representations of B. The law gives A a right of indemnity against B, and this Bill, which provides for a contribution between two joint tort-feasors, will not apply to such a case. These two matters dealt with by the Bill have been the subject of a great deal of discussion in legal circles for many years, and I am sure the House will wish me to express the obligation under which the community at large are to Lord Sankey, who set up the committee, and to Lord Hanworth and the very distinguished lawyers of both branches of the professions who serve on the committee. These are two out of the four questions which were committed to the consideration of the Law Revision Committee, whose interim reports have been presented to the House and have been carried out in Bills which Parliament has already passed. One likes to think that in this way the anomalies of the law are being gradually removed, and, if the House is willing to give this Bill a Second Reading, I hope it will be possible to take the Committee stage on the Floor of the House, and, even in this overcrowded Session, secure its passage into law at the earliest possible moment.

8.40 p.m.

Major MILNER

We shall all wish to join with the Attorney-General in expressing our appreciation that the late Lord Chancellor took upon himself the duty of laying down certain matters upon which he desired Lord Hanworth's Committee to come to conclusions in order that they may be carried into law. We appreciate the work which the committee is doing. The special! feature is that they are taking these matters piecemeal, but quite regularly, at three months' intervals these Bills are coming before the House. For the most part they are passed with general good will and approval from all parties. The Attorney-General has said all that is necessary on the strictly legal and technical aspect of the matter. On the question of a husband's liability for his wife's debts this Bill will make a very helpful contribution to many of the difficulties which arise in that branch of the law. On this point Lord Hanworth's Committee put the position appropriately in a few words: Women nowadays, whether married or single, engage in almost all professions, trades and businesses and are eligible to hold, and do in general hold, every sort of public and official post, and exercise every right and franchise, just as much as men. There seems no reason, once it is established that they are no longer debarred by the law from holding property independently of their husbands, why they should not do so with all the corresponding rights and liabilities like everyone else. I am sure that those sentiments will meet with the approval of hon. Members. With regard to the question of contribution as between joint tort-feasors, there, in the matter of motor accidents, I think the Bill makes a very useful alteration in the law, which will be more necessary in the future. In the concluding paragraph of their report the Committee refer to one matter which we hope will also be dealt with by a Bill. It is the matter of the hardship falling on a husband in respect of having to pay Income Tax on her property. That is a matter which involves all sorts of difficult questions of law in matrimonial and other cases. If a woman was made to bear her own burden, with the husband free from liability, it would be a valuable contribution. The Committee mention this matter in passing, but say that as it does not fall within the terms of their reference they refrain from making any substantive recommendation in regard to it. I should like to know whether there is any likelihood of this matter being considered by the Committee.

I notice that the Bill originally was called Law Reform (Miscellaneous Provisions) Bill, and that title has applied to one or two similar Bills which have come before the House on the recommendations of the Committee. The Bill now is called Law Reform (Married Women and Tort-feasors) Bill. I do not know why this particular Bill, which is one of a series, should have a, different title or why the continuity of the series of Bills, which have already been before the House and those which are soon to come, should have been interrupted. I should have thought that it was desirable to have retained for all the Bills in this series the same name, Law Reform (Miscellaneous Provisions) Bill, and that in due time they would all be brought together into one measure. I imagine that that would be the intention of any future Governments. Perhaps the Attorney-General would say how it comes about that in this particular instance the name has been changed. I am sure it will be interesting to the House if we can be told what other questions, if any, are still before Lord Hanworth's Committee. I know that there were four questions originally submitted to them. With this Measure I believe we have had legislation before the House in respect of all those four questions. Are there other questions still before that Committee? Lord Han-worth's Committee is obviously an extremely hardworking body, and we all hope that it will continue its labours a little longer and deal with the anomalies which we know still exist in the law. So far as we on the Labour benches are concerned we approve this Bill and hope that eventually it may pass into law.

8.47 p.m.

Sir JOHN WITHERS

I should like to join my congratulations to those already given to the learned Attorney-General for bringing in this Bill. To my mind the most important of its Clauses is Clause 2, which relates to restarint on anticipation. Probably a great many Members do not realise what the restraint on a married woman's life interest really means. It means that she can compel her trustees to pay her her income direct, and her creditors, to whom she may owe thousands of pounds, cannot attach it. The Clause provides: Any instrument executed on or after the first day of January, nineteen hundred and thirty-six, shall in so far as it purports to attach to the enjoyment of any property by a woman any restriction upon anticipation or alienation which could not have been attached to the enjoyment of that property by a man, be void. That is a tremendous step forward. The next provision in importance is the question of the liability of a husband for his wife's torts. That also is a great step forward. These two provisions are almost epoch-making from the ordinary practising lawyer's point of view.

8.49 p.m.

Mr. JANNER

In my view, and, I think, in the view of all Members of the party to which I belong, this Bill should be supported and congratulations should be offered to the Hanworth Committee for having brought these matters to a climax. I do not think that in the course of the present Parliament a Measure has been brought about with such expedition as has marked this Measure and similar Measures passed owing to the deliberations of that Committee. In view of the fact that the House is clearly prepared to accept the results of the Hanworth Committee's deliberations in such a unanimous way, it may be within the power of the learned Attorney-General to see that other points which are at present under discussion are brought to a speedy conclusion as far as legislation is concerned. He need have no fear that the House will in any way resist an attempt to make improvements which are still before that Committee for consideration and about which many of us feel deeply.

I hope we shall be told that other matters are at present being dealt with by that Committee, and in particular whether the question of imprisonment for debt is being considered, whether any decision has been reached and whether we are likely to have legislation shortly to deal with it. Then it is rather important, from the point of view not only of Members of this House but from the point of view of the man in the street, that we should get these Amendments of the law carried as quickly as possible, so that we may have the laws codified, and instead of Acts in which there are many cross-references, we may in a short space of time get all the anomalies dealt with and so proceed to codify the Statutes. We are very pleased indeed that the difficulties to which this Bill refers are to be remedied by an Act which will come into force without any opposition, and we hope that this Bill will be followed very speedily by similar Bills to deal with other difficulties.

8.52 p.m.

Mr. TINKER

Having listened to this instruction from the lawyers, and not being able to follow it quite as well as I would like, but admitting that this is a rare place to get information, I want to ask one question. I ask the Attorney-General to turn to page 6 of the Bill, where he will see these words: This part of this Act shall come into operation on such date as the Lord Chancellor may by order appoint. I have no objection to getting advice from the lawyers, the big men, but when we pass a Measure here and it receives the Royal Assent, it ought to come into operation straightaway. Some explanation is due to the House before we allow the Bill to pass with that provision. What the Attorney-General has said is important—that this Bill should be passed immediately, but it seems to me that what I have quoted provides for delay. What is the reason?

8.53 p.m.

Mr. CAPORN

I do not wish to detain the House in dealing with matters that are purely Committee points. I merely wish to say that there are one or two matters which the House ought to consider now. I presume we shall have an opportunity of considering them further during the Committee stage. One question is rather larger than the others. It is the question of withdrawal of restraint on anticipation. I think the House ought to give that matter full consideration in Committee. The doctrine of restraint on anticipation, as I understand it, was the invention of the Court of Chancery, not for the purpose of enabling a woman to defraud her creditors, but for the purpose of protecting a married woman against the influence and control, and perhaps I should add, in these days the optimism, of her husband.

We all know cases in which a husband has persuaded his wife, who has not been under restraint from anticipating her income, or protected in a similar way—has persuaded her honestly to throw the whole of her capital into his business. He has been misled in his optimism and his business has failed, and the money left by the father of the married woman, with the idea that his daughter and her children would for their lives have sufficient to keep them out of the workhouse, has been swept away with the bankruptcy of the husband's business. I am not convinced that a married woman, even in these days, does not still need protection against the optimism, influence and control of her husband. Perhaps we shall have an opportunity during the Committee stage of considering whether it is wise completely to sweep away this doctrine. I have no doubt that the Chancery lawyers will find other ways of securing very much the same object, but I feel that those other ways will be more expensive and, at the appropriate time, I shall venture to ask the Committee which considers the Bill, whether it would not be wiser to stick to the old Chancery method of protecting a wife and not to sweep it away, merely for lawyers to find other methods of securing the same purpose.

8.56 p.m.

The ATTORNEY-GENERAL

I rise only to answer two question. The Title of the Bill has been changed in order to distinguish it from the other Measure. It would not be convenient to have two Acts of Parliament with precisely the same Title unless they dealt with precisely the same subject matter. The second question was why Part II of the Bill is only to come into operation on such date as the Lord Chancellor may appoint. The answer is that that part of the Bill effects some changes in regard to the powers of the court and it will be necessary to revise some of the rules of the Supreme Court in order to provide for the exercise by the court of this new jurisdiction. The Lord Chancellor is the authority who will know when it is possible to bring this part of the Bill into operation, with all the machinery ready to work, and I assure the hon. Member for Leigh (Mr. Tinker) that the intention is to bring this part of the Bill, if passed, into operation at the earliest possible moment consistent with the exigencies of the work which has to be done.

Bill committed to a Committee of the Whole House for To-morrow.—[Sir. G. Penny.]