Clause 1.—(JURISDICTION OF COURTS TO VARY TRUSTS.) (Hansard, 18 April 1958)

Mr. F. P. Crowder
I beg to move, in page 1, line 8, to leave out "assent" and to insert "approve".
I wonder, Mr. Speaker, whether, for convenience and economy of time, we 497 can discuss with this Amendment the Amendments in page 2, lines 1 and 9?

Mr. Crowder
The drafting of subsection I was criticised in Committee and at other times on the ground that it might be held to restrict the powers of the court to the case in which the arrangement is proposed independently of a person on whose behalf the court's assent is asked for. On this view, it would not be possible for the proposed arrangement to be brought forward on behalf of an infant or any other person under disability. The argument is that the word "assent" in page 1, line 8, suggests that the initiative is elsewhere and that, as a man cannot be said to assent to his own proposal, the court, which is doing for the infant what he would do for himself if he were of full age, cannot assent to a proposal brought forward on his behalf.
I am sure that the House will agree that it is clearly desirable that there should be no doubt that the court should have power to approve an arrangement in a proper case irrespective of whether it is brought before the court by the trustees, by a beneficiary of full age or, indeed, on behalf of a person under disability.

Major Hicks Beach
I beg to second the Amendment.
On Second Reading, I ventured to say that I considered that various drafting Amendments were necessary. In Committee, I put down a number of Amendments, two of which seem to be dealt with by the Amendments now proposed by my hon. Friend.

§ Sir Lynn Ungoed-Thomas (Leicester, North-East)
I welcome the Amendment. On Second Reading, the intention of the House was quite clear: namely, that infants should be put in precisely the same position as people who are sui juris in applications contemplated by the Bill. The difficulties arising from the drafting of the Bill were two. The first was that it did not cover the case where the proceedings was initiated by an infant. The second was that by the reference to the word "arrangement" and the way it was used in the original form of drafting, it might be held to indicate that the arrangement had to be brought before the court independently of the court's participation in its making.
498 For that reason, this matter was considered by the Committee of the Chancery Bar Association. That Association was anxious that the matter should be put right, obviously in accordance with the Parliamentary intention. In accordance with its wish and my own conviction, I was asked, as Chairman of that Association, to further its views upon the matter. I accordingly put down an Amendment, which stands in my name, in page 2, line 34, at end insert: (7) An application to the Court under this section may be made by the trustees, or by any of them, or by or on behalf of any person beneficially interested under the trusts (whether or not such person is sui juris) and the Court may on any such application make an order assenting on behalf of any person (including a person not sui juris on whose behalf the application is made) to an arrangement proposed by the applicant, and whether or not there is any other person beneficially interested under the trusts who is of full age and capable of assenting thereto. I am satisfied that the Amendment of the hon. Member for Ruislip—Northwood (Mr. F. P. Crowder) completely covers the purpose of my own Amendment and, therefore, I very much welcome it.
There is one small point about which I feel a little difficulty, because I have seen the Amendments of the hon. Member for Ruislip—Northwood only this morning for the first time. I refer to the Amendment in page 2, line 9. I do not quite follow exactly what is in the hon. Member's mind. As I interpret them, the words of the Amendment seem a little startling and I should be grateful for an explanation.

Mr. Crowder
Strictly speaking, that Amendment might well be said not to be necessary. It is meant to be purely consequential upon the Amendments in page 1, line 8, and page 2, line 1.

Mr. F. P. Crowder
I beg to move, in page 2, line 19, at the end to insert: (4) Subject as hereinafter provided the jurisdiction conferred by subsections (1) and (2) of this section shall be exercisable by the High Court, except that the question whether the carrying out of any arrangement would be for the benefit of a person falling within paragraph (a) of the said subsection (1) shall be determined by order of the Judge or Master in Lunacy if a committee has been appointed of that person's estate or a receiver has been appointed of his income. The purpose of the Amendment is to ensure that on application to the High Court for approval of any arrangement affecting the interests of a person who is of unsound mind for whom either a committee or a receiver has been appointed, the Judge or Master in Lunacy should have to be satisfied that the arrangement is for the benefit of the patient, while at the same time—this is the differentiation—leaving to the High Court, which in practice will be the Chancery Division, the wider question of whether in all the circumstances the arrangement is one which should be approved.
As the House knows, the Judge in Lunacy already has an inherent jurisdiction to approve of a variation of any trust in which a person of unsound mind is interested if he considers it to be for the patient's benefit. It would be undesirable that on an application to the Chancery Division under the Bill, a receiver should in effect be able to bind his patient's interests without reference to the Court of Protection under whose jurisdiction or directions he normally acts.

Major Hicks Beach
I beg to second the Amendment.
This is a complicated Amendment and I have had only half an hour in which to consider it, but it seems to me to be right. It also seems to me, from what I know of lunacy practice, to be exactly the same as the existing law. There is, however, no harm in making the position quite clear.

Mr. F. P. Crowder
I beg to move, in page 2, line 34, at the end to insert: or the powers of the Judge in Lunacy". I wonder if I may remind the House of the jurisdiction in lunacy. This was formerly vested in the Lord Chancellor and the Lords Justice of Appeal. It was not transferred to the Supreme Court when that was set up in 1873. It is still an independent jurisdiction, and is now exercised by judges of the Chancery Division. Much of the jurisdiction is exercised in the first instance by the Master in Lunacy, from whom, of course, appeal lies to a judge. Since 1947 the office of the Master in Lunacy has been known generally as the Court of Protection.
The purpose of this Amendment is to preserve the inherent jurisdiction which enables the Judge in Lunacy to approve of any variation or rearrangement of trusts in the interests of persons being of unsound mind. In a case in which such a person is the only beneficiary under disability the application for the variation of a trust or settlement will no doubt continue to be made to the Judge in Lunacy rather than to the High Court under the new powers provided by this Bill.

Major Hicks Beach
I beg to second the Amendment.
I would venture to say that the Amendment leaves the law exactly as it is and is, therefore, unnecessary, but if it makes for any clarification of the point, so far as the Judge in Lunacy is concerned, it gives me pleasure to second it.