INTESTACY (SCOTLAND) (Hansard, 12 April 1961)

§ Mr. Hector Hughes (Aberdeen, North)

I beg to move, That leave be given to bring in a Bill to amend the law of intestacy in Scotland. The Bill I seek to bring in is very urgent and is essential to implement the recommendations of the Lord Mackintosh Committee. It should be approved by Members on both sides of the House, because it is not on party lines, it is not controversial, and it is based on a Parliamentary Report. It is recommended by the Bench, the Bar, the solicitors and the public of Scotland. It was actually mentioned in the Queen's Speech. It has not been introduced by the Government because of shortage of their Parliamentary time. I now hope to find the time myself, as a private Member.

It would implement the recommendations of Cmd. 8144 and would abolish certain archaic laws relating to primogeniture and sex discrimination in succession to property in Scotland, hereditable and movable property. The present law which I seek to alter causes great injustice in Scotland, especially to women. It is, indeed, in many ways antiquated and one would expect that kind of law before the period of the women's sufferage movement in this country.

I shall not trouble the House with an exposition of the law, because it is complex in its history and in its effect, but I shall content myself with one example mentioned to me in a letter from the Law Society of Scotland, which shows in a graphic and touching way the inequity of the present law on intestacy and succession in Scotland. It is this. If a widower dies intestate survived by a son and a daughter leaving a house worth £2,250 and movable estate worth £250 the son will take the house, nine-tenths of the whole estate, while the daughter will take only the movables, one-tenth of the whole estate. That kind of law, in my submission, is unjust, outmoded, and ought to be altered.

It is worthy of remark that both England and Northern Ireland already have reformed their law in this respect. Scotland remains the only part of these islands which retains these archaic and 248 unjust laws. These laws have been adversely criticised by the Judicature in Scotland, and by the Bar, and, indeed, by everyone else. They were adversely criticised by the Lord Justice General, Lord Cooper, in 1945, by Lord Mackintosh in 1950, and by the Mackintosh Committee itself in 1950, by the Law Society of Scotland, which speaks for the Bar, by the Scottish Law Agents Society, which speaks for the solicitors, and by other authoritative bodies and persons.

§ Mr. Hughes

The recommendations on which I rely are authoritative. They are the work of a Government Committee of Inquiry appointed by the Secretary of State for Scotland and presided over by the learned Lord Mackintosh, Senator of the College of Justice of Scotland, and seven other members of that Committee of great erudition and distinction.

The Committee was appointed as far back as 30th July, 1949, nearly twelve years ago. It reported, with great expedition, on 9th December, 1950, about eleven years ago, and, indeed, the Queen's Speech on 27th October, 1959, promised implementation of its recommendations, but that promise has not been fulfilled and I ask for the opportunity of fulfilling it now. These recommendations were based on written and oral evidence from learned and authoritative sources, including the Faculty of Advocates of Scotland, the Law Society of Scotland, the Writers to the Signet in Scotland, the Law Agents Society of Scotland, the Society of Solicitors of the Supreme Court of Scotland, and many other distinguished, learned and authoritative persons.

I shall put the matter briefly by making to the House six submissions. First, the Committee was one of unchallengeable weight, learning and importance, as indeed, I hope I have already proved. The Committee did its work in a manner which was diligent, exhaustive and expeditious and its recommendations have never been challenged. They are worthy of attention. They are sound and practical and they should be embodied in the law of Scotland. Its recommendations are ardently desired by the people and by the legal profession of Scotland.

249 This reform of the law of intestate succession in Scotland was actually promised in the Queen's Speech, but the promise has not yet been implemented. I feel sure that the Government, who, in response to Questions by me, have given shortage of time as the reason for its not being implemented, will be very grateful to me for finding an opportunity out of my own time to perform this task. This delay of twelve years is not in the interests of the legal system of Scotland and not in the interests of the people of Scotland.

I wish to emphasise the fact that the Committee, in taking oral and written evidence from various learned sources, did not confine itself to the law of Scotland. In its Report, the Committee says that its work involved comparative studies of relevant aspects of the law of England, France, the United States, Germany and Austria. This vast work of erudition and practical utility was undertaken at the public expense in time, labour and money and it is not only a great loss, but morally and politically wrong that the public should be deprived of its consideration by Parliament and its implementation by legislation. It is wrong that the Scots alone should be forced to be the victims of this outmoded system of law which this authoritative Committee has recommended should be amended in the way I have indicated.

The Government, of course, were free to choose their own time. But that the delay is not due to mere forgetfulness is evident from the fact that on 15th December, 1960, the Council of the Scottish Law Agents Society passed unanimously the following short Resolution: This Council deplores the delay in making Parliamentary time available to introduce legislation based on the recommendations of the Mackintosh Report on intestate succession in Scotland. Her Majesty's Government did not make time available for the purpose, did not introduce legislation and did not accede to the urgent request of the Scottish Law Agents. I venture to fill the gap by finding out of my own private Member's time an opportunity to do so.

I want to make perfectly clear my authority in this matter. In a letter dated 12th January, 1961, the Scottish Law 250 Agents Society, representing Scottish solicitors, wrote to me: The report of the Lord Mackintosh Committee published over nine years ago made recommendations for the modernisation of the law on this subject. It is understood that a Bill is in draft based on these recommendations but there is no prospect of its being introduced this Session. My Council is gravely perturbed at the long delay in giving effect to the Committee's recommendations on this important subject particularly so when an Act has been passed dealing with intestate succession in England, though the Committee under the chairmanship of Lord Morton of Henryton reported later than that under Lord Mackintosh. The reforms desired would remove the injustice and inequity of the present archaic system of law and there should be no technical or controversial difficulty to prevent early reform". That was the Scottish Law Agents Society, representing Scottish solicitors.

Here is the Society which represents the Bar—the Law Society of Scotland, whose secretary, in a letter to me, writes: I am instructed by the Council of the Law Society of Scotland respectfully to direct your attention to the position of outstanding Scottish legislation generally and in particular with reference to the law of intestate succession. This is a long letter and I do not propose to trouble the House with it at any length.

I have put on the Order Paper from time to time several Questions to Her Majesty's Ministers on this subject. On 7th February, the Secretary of State for Scotland gave me a long reply, which ended: … I see no prospect of legislation to amend the law on intestate succession during the current Session of Parliament."—[OFFICIAL REPORT, 7th February, 1961; Vol. 634. c. 201.] Here am I, ready to fill the gap. If the Secretary of State cannot find the time I shall try to find the time. I am authoritatively informed that the Scottish Office has a Bill to deal with this problem. I now ask the Scottish Office to give me the Bill and I shall pilot it through. If the Scottish Office will not give me the Bill I shall draft a Bill of my own and pilot it through.

In common justice to jurisprudence, and to Scotland in particular, Her Majesty's Ministers in Scotland should do either one of those two things. The Lord Advocate is quite competent to 251 pilot the Bill himself. I should be very glad if he took the task off my hands, but I owe a duty to Scotland and to the writers of these letters and I ask the House now in this non-controversial matter to give me liberty to bring in the Bill.