§ Order for Second Reading read.
§ 3.50 p.m.
§ The Economic Secretary to the Treasury (Mr. Anthony Barber)
I beg to move, That the Bill be now read a Second time.
It is now over thirty-five years since more than minor amendments were made to the general law governing the investment powers of trustees, and even the Trustee Act, 1925, and the Trusts (Scotland) Act of 1921, were concerned mainly with the consolidation of existing law. II is, therefore, virtually true to say that the existing trustee list has remained substantially unaltered for some seventy years.
I am sure that the whole House will agree that, at least since the end of the war, there has been a growing feeling that the law is out of tune with modern investment practice. The report of the Nathan Committee in 1952 on the Law and Practice Relating to Charitable Trusts echoed that feeling. Four years later, my hon. Friend the Member for Aldershot (Sir E. Errington) introduced a Bill with a view to enabling trustees to invest in certain types of equity shares. More recently, in December, 1959, the Government published their own proposals in a White Paper. Those proposals were well received and it was decided to introduce legislation.
Hon. Members who have compared the White Paper with the Bill will see that the Bill follows very closely the proposals in the White Paper. There are certain differences where we have tried to meet suggestions which were made following the publication of the White Paper. The primary object of the Bill is to give wider powers of investment to those trustees who are dependent for their powers on general legislation. It is important to keep that primary purpose in mind when one comes to consider the Bill in more detail.
The Bill will widen the investment powers of trustees in a number of ways. In particular, it will allow a trustee to invest in industrial equity shares. The full extent of this widening of powers 354 can be fully appreciated only by comparing the investments which are included in the first Schedule of the Bill with the very restricted list of investments contained in Section 1 of the Trustee Act, 1925.
Anyone who takes the trouble to make that comparison is bound to admit that what we are doing represents a very striking advance on the present scheme of things. I want to stress this, because latterly some people have criticised the Government for not giving complete freedom to all trustees. I say "latterly" because there was little or no criticism of the White Paper proposals on this point.
Perhaps I can explain why we have not given complete freedom, but have thought it proper to set a limit on what the Bill terms "wider-range" investments, but what for convenience, I will from now on refer to as equities. The provisions of the Bill are not designed primarily for the very large trusts. They will, of course, be helpful to some larger trusts, but it is fair to say that these trusts will normally have wider investment powers which will have been conferred upon them by the trust instrument.
There is a general provision in the Bill requiring trustees to obtain advice before using the powers conferred by the Bill to invest in anything but a very restricted list of securities. No doubt trustees will seek the best advice they can, but, obviously, the small trustee cannot in every case expect to obtain the same quality of advice as will be available to the larger trusts. We therefore thought it advisable to introduce the limitation on investment in equities as an additional safeguard which will limit the loss which might otherwise occur if an unwise investment policy were adopted.
I have heard it suggested that the Treasury has some ulterior motive in imposing this limit on the amount which can be invested in equities. I assure hon. Members that that is not the case. What we have done is to consider the matter purely from the point of view of the well-being of the trust fund and to avoid any bias in favour of gilt-edged stocks. Indeed, I would have thought that the very fact that we are proposing 355 a fifty-fifty division and the fact that we have made investment in most gilt-edged securities conditional upon the trustees obtaining investment advice speaks for itself.
Nevertheless, the fact remains that by a suitable selection of gilt-edged stocks, a trustee can ensure that a given amount of money will be available at a given time. He cannot have the same certainty if he invests in equities. Some people seem to believe that one cannot go wrong by putting money into equities, but there is no denying the fact that the equity capital of a company is the risk capital, and if there is a general recession or things go wrong with the company, it is the equity holders who bear the brunt of the burden. If a trustee has to make substantial withdrawals at that time, it means that large amounts of capital can be lost.
Finally, before leaving this issue, I would like to say that the idea of a limitation on the amount which can be invested in equities is not just a whim of the Government. As most hon. Members will know, it was a feature of the recommendations of the Nathan Report and it has also been adopted in a number of Bills which Parliament has passed in recent Sessions. For example, last Session there were 18 local authority Bills which went through the House and all incorporated a 50 per cent. limitation on investment in equities. The recent House of Commons (Members' Fund) Bill also contained a similar provision.
Moreover, those of my hon. and learned Friends who appear in the Chancery courts will know that it is by no means the invariable practice of Chancery judges to give trustees complete freedom in this respect. In some cases the courts have given such complete freedom to invest in equities, or have allowed a proportion higher than half to be invested in equities. But it must be borne in mind that the courts are able to look at the circumstances of the particular trust with which they are dealing, whereas in the Bill we are concerned with trying to devise a formula which will be of general application. The Government believe that for this purpose the fifty-fifty method is both reasonable and realistic.
356 If one accepts that some limitation of this kind is desirable—and, as I have said, nobody seriously challenged the idea when it was proposed in the White Paper more than a year ago—then all that remains to be decided is how best that can be done. The method which we have chosen is to provide for the trust to be divided into two parts equal in value at the time of division. It seems to us that this method, which, incidentally, was also explained in the White Paper, has a number of advantages. In particular, it avoids making the limit on investment in equities dependent in any way on the outcome of the trustee's investment policy.
The two parts of the fund are distinguishable from the outset and if the equity half appreciates there is no bar to the reinvestment of the whole of that amount in equities. This is so even though, because the equity half has appreciated in value, more than half the fund after reinvestment may be held in equities. Moreover, it does not make any difference whether the trustee invests in equities up to the hilt at the outset, or whether he proceeds more slowly. This method also has the practical advantage that it reduces to a minimum the need for valuation of the fund. We thought that these features of the scheme would appeal to trustees.
Of course, there are other ways in which the matter could be tackled. We might, for example, have applied a limitation by prohibiting further investment in equities when half the fund had already been invested in that way. The proportion could have been expressed either in terms of current value, or in terms of original cost. I will be quite frank with the House and admit that by these or other methods we could possibly have produced a more readable Bill and we might have relieved trustees of some of the work which is implicit in the proposals now before the House. For instance, we might have avoided the necessity to transfer sums from one account to the other, but we decided that the balance of advantage lay with the method which is set out in the Bill.
I can give the House the reason for this quite simply. We felt that, on the whole, it was a method which gave trustees the most freedom to exploit to the full the basic principle. We have 357 also tried to give trustees as much flexibility as possible. Unfortunately, the price of flexibility is complexity. If hon. Members think that we have paid too high a price, in other words, if it is thought that it would be better to sacrifice some of the flexibility in order to avoid some of the complications, we are certainly ready to re-examine the other methods.
Turning now to the detail of the Bill, Clause 1 is, I think, quite straightforward. It defines the narrower-range and the wider-range investment and, subject to certain exceptions with which I will deal later, provides that a contrary intention expressed in an instrument made before the passing of the Bill shall not deprive a trustee of the powers conferred by the Bill. At first sight this may seem a somewhat sweeping provision, but it is necessary if we are to avoid leaving a large number of trustees in doubt as to their powers.
Clause 2 goes to the heart of the matter. It contains the provisions for dividing the fund. It also prescribes the method of dealing with accruals to the fund, and withdrawals and appropriations from the fund. At first sight the provisions dealing with compensating transfers which are referred to in subsection (1) may seem cumbersome, but, here again, the purpose is to give trustees the maximum room for manœuvre. That is the sole purpose of this provision, which allows for compensating transfers between the two sides of the fund.
We have, in fact, gone further than that by allowing the two parts of the fund to be out of balance for a period of up to one year. It would, of course, be easy enough to simplify the Bill by deleting these provisions. I believe, however, that they are worthwhile provisions which were, incidentally, adopted by the Government as a result of suggestions which were made in another place. No one is, of course, compelled to use these extra provisions.
I now come to Clause 3 which has, I know, attracted considerable criticism. It is certainly not a simple Clause, but then it is not dealing with a simple subject. I t is, however, of the utmost importance to appreciate both the purpose and the scope of the Clause.
What we set out to do was to give the trustee three choices. The first choice is 358 to allow him to use to the full the powers of investment given in the trust instrument. The second choice is to let him use to the full the general investment powers given in the Bill to the exclusion of the powers conferred by the trust instrument. The third choice is to provide, so far as is reasonable, for the two sets of powers to be used jointly. It is this third choice and the ability to alternate between the three courses which gives rise to all the difficulties. The job of dovetailing the two sets of powers is immensely complicated because of the infinite variety of ways in which the trust instrument may be expressed.
We might have taken the easy way out and simplified the Bill at the expense of giving the trustees less room for manoeuvre. Practically the whole of Clause 3 would, in fact, have been eliminated if we had said that trustees must be content with a straight once-for-all option between the powers conferred by their instruments and those conferred by the Bill. But we wanted to go further than that. We believed that many trustees would like to be able to exercise the two sets of powers jointly and would like to be free at any time to use those two sets of powers individually or collectively. We felt—perhaps wrongly—that they would be prepared to face the attendant complexities of Clause 3 to secure benefits of this kind.
I would like to stress that a trustee who simply wants to exercise the general powers conferred by the Bill need not concern himself at all with Clause 3. This is very important, because, as I said earlier, the primary purpose of the Bill is to help those trustees whose powers are now restricted to the present Trustee List, and Clause 3 is irrelevant to their circumstances. We thought that if at the same time we could help those trustees who already have wider powers, so much the better, but of course if they do not wish to use the Bill to the full they need not do so. They can rely either on the trust powers set out in the trust instrument, or, in England and Wales, they can apply to the courts to have those powers amended.
At a later stage we propose to table an Amendment with the object of making it clear beyond doubt that the advent of this Bill is in no way intended to 359 inhibit the courts, if they see fit, from giving particular trustees wider powers than those contained in the Bill. This Amendment will underline the assurance to that effect which was given by my noble Friend the Lord Chancellor, in another place.
Before I pass from Clause 3, perhaps I can say this. It will be relevant only in a limited number of cases. Those are cases where there is the following combination of circumstances. First, the trust instrument must already contain special powers of investment. Secondly, the trustees must be dissatisfied with those powers. Thirdly, the trustees must be dissatisfied with the general investment powers provided under the Bill. It is only in those circumstances that they will look to Clause 3.
The next Clause—
§ Mr. G. R. Mitchison (Kettering)
Before the hon. Gentleman passes from Clause 3. will he tell us how it works?
§ Mr. Barber
Yes. If a trust instrument contains special powers of investment the trustees will have to consider whether they wish to proceed under the general powers of the Bill; in other words, to invest up to 50 per cent. of their property, as defined in the Bill, in equities, or whether they wish to proceed under the powers given to them by the trust instrument, or to combine the two. I have indicated that already, but I shall explain later why we did not think that we could go further than we have in Clause 3 and simplify it by allowing as it were an accumulation of powers, by allowing trustees to exercise both the powers under the instrument and the general powers in the Bill to the full. It is because we felt that there must be some limitations—for reasons which will appeal to the hon. and learned Gentleman—that the Clause has become so complex.
Clause 4 defines a trust fund for the purpose of the Bill and indicates what property in the hands of the trustees should count against that fund. We tried to keep the exceptions set out there to a minimum so as not to add further to the complications of the Bill, but we shall certainly be ready to examine any suggestions which hon. Members have for improving the Clause.
360 Clause 5 is an important Clause. It requires a trustee to have regard to the need for securing a diversified portfolio, and it also requires him to get advice before investing in anything but certain specified small savings securities. It is at this point, the House will note, that the Bill differs from the proposals set out in the White Paper.
Our original intention was to prescribe an arithmetical rule for diversification of investments. The White Paper stipulated that not more than one-tenth of the fund, or £250, whichever was the greater, should be invested in any one company. We also had it in mind to define the term "investment adviser" in more precise terms. The White Paper mentioned stockbrokers, accountants and bank managers as examples of suitable professional advisers. But as a result of comments made on the White Paper we decided that it would be better to couch both these provisions in more general terms. Further improvements were made during the course of the debate in another place, and I think that the Clause now meets the need adequately without being unduly restrictive.
The remaining Clauses of the Bill deal with its application in particular cases. Whilst some of them are important—and I have in mind particularly the provision which gives local authorities power to invest collectively—I do not think that hon. Members would wish me to dwell in detail at this stage on the subsequent Clauses.
I have tried this afternoon to show not only what we are trying to do, but also why we have chosen a particular method of doing it. We have followed as closely as possible the principles outlined in the White Paper and, as I said earlier, there was no serious criticism of those principles. At the same time, within the confines of those principles we have tried to leave trustees as much discretion as possible in conducting, the affairs of their trusts. It may be that we have tried to achieve too much, and that in the interests of simplicity we would have done better to adopt one or other of the alternative methods I mentioned earlier. It may be helpful to hon. Members, therefore, if, before sitting down, I say another word about those alternative methods and outline their advantages and disadvantages.
361 One method would be to give trustees a straight, once-for-all option between continuing to use the powers conferred by the trust instrument and taking advantage of the wider powers conferred by the Bill. If a trustee elected to retain the instrument powers he would still be able, in addition, to invest in any of the securities mentioned in Parts I and II of the First Schedule, which are, roughly speaking, gilt-edged securities. But, unless permitted to do so by his trust instrument, he would not be able to invest in any of the securities mentioned in Part III, namely, equities. The great advantage of this method would be its simplicity; Clause 3 would virtually disappear. But the disadvantage is obvious; it would give some trustees much less latitude than they would have under the Bill as at present drafted.
A second alternative would be to set on one side all investments made under the special powers and to apply the provisions of the Bill only to the rest of the moneys in the hands of the trustees—that is, to the money which was not invested under the special powers. This method would have capricious results. In some cases it would allow an accummulation of powers which would clearly be quite contrary to the intentions of the testator, of the courts, or even of Parliament.
For example, a court might recently have decided that in the circumstances of a certain trust the trustees should have power to invest 50 per cent. of the trust fund in equities. If we were then to permit the trustees to apply the provisions of the Bill to the remaining 50 per cent. of the fund we would, in effect, be permitting them to invest 75 per cent. of the fund in equities, which would be 25 per cent. in excess of what the court considered appropriate. That method, therefore, cannot be regarded as a serious starter.
A third method would be to apply the 50 per cent. limit on investment in equities by reference to the current value of the investments. We could say that so long as the value of the equity investment was at least 50 per cent. of the value of the fund the trustee would be debarred from making any new equity investments. The disadvantage of this method is that it would give a trustee rather less discretion, in certain circum- 362 stances, and it would involve a trustee operating near the limit in rather more valuation work than is necessary under the Bill as drafted. On the other hand, there is no doubt that if we adopted this simplified method it would be possible to dispense with most of the complications of the present Clause 3, and also with some of the accounting work necessary under Clause 2.
A variant of this method would be to control the limitation on investment in equities not by reference to current value but by reference to the initial cost of the investment. This method would avoid the need for frequent valuation, but it would certainly raise some difficult questions concerning the definition of cost. This method, too, would do away with Clause 3 in its present form, and would simplify Clause 2, but, again, it would give the trustee rather less discretion than he gets under the Bill as now drafted.
I have taken the rather unusual course —in opening a Second Reading debate—of putting before the House several alternative methods of implementing the principle set out in the White Paper. I have done so because the purpose of the White Paper was to seek the reaction of the professions and also of the general public to the Government's proposals before they were embodied in the Bill, In the weeks following the publication of the White Paper there was virtually no criticism of the fifty-fifty principle—the power to invest 50 per cent. in equities and 50 per cent. in gilts. Consequently, the Government proceeded on that basis.
There are, however, several methods of implementing that principle, and the Government gave a great deal of thought to the question of which would be the best one. Since the Bill was considered in another place my right hon. and learned Friend the Solicitor-General and I have considered the matter further with the Lord Chancellor. I therefore thought it right to put before hon. Members, at the time when the Bill was first being considered in this House, the pros and cons of the various methods of implementing the fifty-fifty principle accepted in the White Paper.
The choice between these several methods is not an easy one, and we are ready to re-examine any of them if hon. Members think it offers real advantage.
363 We are certainly not wedded to the particular method now contained in the Bill. But, whatever method is adopted, I think that the House will agree that the principle of giving, to those trustees who are dependent on general legislation for their powers of investment, the power to invest 50 per cent. of their trust fund in equities is a considerable and commendable step forward.
§ 4.17 p.m.
§ Mr. G. R. Mitchison (Kettering)
Hon. Members on this side of the House have no objection to the principles of the Bill. They have objections to the machinery, however, some of which will come out in Committee. I think that they would all desire to say that the Bill is not only due, but rather overdue, and, further, that it now appears that there is at any rate one way in which it could well have gone further than it does.
We are recognising, in effect, that the practice of a prudent settlor, dealing even with comparatively small sums, is not to tie up the trustee to the strict terms of the Trustee Act, 1925, and its various modifications. As a rule, the practice nowadays is to go beyond that. Those who are in positions of similar responsibility, whether or not they are actually called trustees, also go beyond it in the same way. I have here the last report of the Church Commissioners, a body to whom it is always useful to refer in matters of investment. It appears to receive and to act upon singularly good advice, with—I hope—excellent results for those sometimes needy people who have to depend on the fruits of their investments. In fact, the Church Commissioners go quite a long way beyond the 50 per cent. mentioned in the Bill.
I want, first, to deal with one or two small points, and to do no more than indicate them, because, generally speaking, they seem to be Committee points. The Economic Secretary, who gave us a very clear exposition of the matter, seemed to get a little lost when he reached Clause 3. He is not the only person to be in that predicament. On several occasions he told us that there were three choices open to a trustee: he could use what are called in the Bill his special powers; he could use the powers given in the trust instrument itself; or he could 364 combine the two. We all wanted to hear how he would combine the two.
That is what the Clause is about. I can only say that I am not going to try to explain it. I know that the Solicitor-General will speak at the end of the debate and that no one is better known in the House for courteous and clear explanations of extremely complicated subjects. I hope that when he comes to it at least he will admit that this Clause is as bad as the worst part of a Finance Bill, though it does not look it, and is nearly as bad as the arrangements for the rating of water undertakings, about which one of his colleagues recently had to say something to the House.
Seriously, I believe that this is the place where the difficulty of applying the Bill will appear. It is not in the formation of new trusts or in cases where there are existing powers confined simply to what are commonly called trustee securities. It is in cases where there are other powers and other property and the question is: what is the position of the trustee who wants, in some respect or another, to avail himself of some power in the Bill slightly wider than the special powers he has already?
One of the points about which I hope we shall hear more is this. There are, of course, in the Bill narrower range securities of two kinds and what are called wider range securities including ordinary shares. Although both the lists are sweeping ones there are a great many trusts which do other things than that. There is the position of the trustees holding real property for instance, and I see that this caused a little trouble in another place. We should like to know what is the difference between the position of the trustee who sets aside in a special fund a house which is occupied by the beneficiary the special case mentioned in Clause 4 of the Bill—and the position of a trustee who has to deal with other real property. It has not escaped my attention that there is some interest in real property which can be taken even under the narrow range securities though I think the wider range list in that respect does not add anything. That is what I may call the Clause 3 point.
I come from that to consider the general question of the Bill. I said that the Bill was overdue and indeed it is.
365 The position of a trustee, or rather of a beneficiary under a trust strictly tied to trustee securities has been getting worse and worse in comparison with the position of a beneficiary where there is a prudent trustee with sufficient powers to invest in other things. Gilt-edged securities ever since 1950, or 1951, have been falling and ordinary shares, by and large, have appreciated. I do not want to go into the details of it, but anyone can find the figures in the Annual Abstract of Statistics. There is no certainty whatever that that position will continue and the hon. Gentleman was perfectly right in saying that we cannot expect ordinary shares to go up for ever. Indeed, at the moment they are probably not going up. But that has been the trend and not merely for those ten years, but for some considerable time previous to that.
If we look at the position of, say, ordinary 2½ per cent. Consols, when the Tory Government came to power they stood at 66; they are now 52, and the general range of long-dated securities has followed a similar course. The Government must accept the fact that their comparatively dear money policy and their use of a varying Bank Rate as an instrument of policy to an extent to which it was never used before and to an extent which I should have thought was rather doubtful wisdom—though one does not want to go into that now—has made the position of a trustee confined to gilt-edged securities and that trustee's beneficiaries, more difficult and uncertain than in the past. It is largely because of that that I repeat, I think this Measure or something of the sort is overdue.
With reference to that I wish to consider for a moment what we are really dealing with here. On the whole, we are dealing with trusts most of which will be for the life interest of widows or the child interest of infants. Of course, there are many other trusts, but, if I understood the intention of the hon. Gentleman rightly, it was not large trusts but this kind of middle-class Victorian instrument—because that is what it originally was—that we would really consider. Of course, those trusts are necessary in view of other legislation and it is, therefore, our duty to do the best we can for the persons affected.
When we turn to the Radcliffe Committee's Report we find that in one 366 respect we have a standard of comparison in two directions. The insurance companies nowadays, at any rate in relation to their life funds, are not in a very different position from trustees and yet, of course, they have shown clearly how necessary it is that there should be some such extension as is now indicated. On page 84 of the Radcliffe Committee's Report-I am not going into this in detail—there is a table which shows, for instance, that in relation to life funds we get somewhere in the region of a quarter —one cannot get it exactly, perhaps one-third is nearer—invested in what would be, under the Bill, wider range securities.
When we turn to what is perhaps an even better comparison, that with the superannuation and pension funds of companies and the like, we find that the proportion there is rather higher. If we take company preference shares and ordinary shares, they alone are a quarter of the investments at the end of 1957. If we look at what happened during that year, which was the year that the Radcliffe Committee was considering, we find the investment in securities of that type for the purposes of these funds is almost if not quite equal to the investment in gilt-edged securities.
I am inclined to think that the fifty-fifty proportion is not far off the mark for a first attempt, but I wish the Government had been able to be a little more realistic about the future. One does not want amending legislation in a matter of this kind. This is really a Committee point and I simply mention it because the Bill seems to me to be rigid.
To turn from those pension funds which are, of course, constituted by people with full knowledge of these matters and contain extensive powers, as, indeed, appears from the nature of the investments carried by the funds, to one other consideration, we have been lately considering in connection with National Insurance alternative schemes, one a Government scheme and another a scheme which may be set up by a company, something in the nature of a pension fund. The pension fund in cases of that kind, as we see here, has the advantage of being able to invest in ordinary shares. It has the type of advantage which is intended to be conferred by this Bill 367 But not so with the Government's own funds, which are held by the National Debt Commissioners, who make a return of what they consist of. I have the list here. It is a public list and there are copies in the Library. The result is that about £300 million, which is a large amount, in the National Insurance Fund itself, is, of course, in Government securities, and in that case I do not say short-dated but tolerably short-dated ones. A far larger amount is held in the National Insurance Reserve Fund. These are the two funds referred to in the National Insurance Act, the first one in Section 35 and the next one in Section 36.
That National Insurance Reserve Fund frightens me. I think that if an ordinary private trustee had distributed the investment of these funds in the way in which the National Debt Commissioners—one of whom is the Chancellor of the Exchequer—have been directed by the Treasury to do so, he would have laid himself open to a little trouble in the Chancery Court if anyone had chosen to take the matter up. All these securities are comparatively long-dated and if we take merely those with twenty years to run or the undated ones, we find that they are about £300 million out of about £500 million in the actual Government stocks. They include, to mention a particular case, £211 million of 2½ per cent. Treasury stock 1975 or after. Suppose a private trustee had done that, would we really have considered his use of the trust funds as prudent, or indeed reasonable?
§ Mr. Denzil Freeth (Basingstoke)
Is it not a fact that that particular holding was there when the Conservative Government took office in 1951?
§ Mr. Mitchison
That may very well be. I am not concerned with that and it is rather absurd to make this depend on questions of which party was in power. The point is a matter of principle. The provisions are at present that the National Debt Commissioners should invest only in what the Treasury tells them to invest. I never remember, for instance, which are called "Daltons" and which are not, but I do not think it matters.
§ Sir Henry d'Avigdor-Goldsmid (Walsall, South)
I suggest that the inability 368 of the hon. and learned Member to remember the name of the particular stock is a Freudian lapse of memory.
§ Mr. Mitchison
These are matters which can hardly be investigated further on a Bill dealing with powers of trustees. They seem more appropriate to a discussion about psychology.
There is this immense amount of public money, not merely held, but actually invested. It is in the position of a pension fund on a very large scale coupled with an accident insurance and the like. Because it is public money it does not get the opportunity of the guard against inflation, which, in effect, the powers in the Bill are meant to be. I should remind the House that at the last General Election—and, of course, anything which the losers say at the last election is no longer their policy, as we heard yesterday from the Minister for Science, in another place—we urged that there should be an opportunity for public funds, particularly these funds, to be invested more widely and to include ordinary shares.
We were told that was a dreadful, a poisonous suggestion. It meant nationalisation by the backdoor, and so on. I merely say to the House that it is unfair, when we get, on the one hand, pension funds of private companies and, on the other, what is really a public pension fund dealing with very large sums indeed, to allow one to have powers which are denied to the other. I wish that the Bill had gone very much further and, as well as providing for the case of persons who were bound to conform to the provisions of the Trustees Act, that it provided for the case of those particular funds which are tied to investments of a character designed for saving banks.
Savings banks were a very different matter and it seems somewhat absurd that that particular provision should remain. I accept, of course, at once that these Clauses were put into an Act passed by a Labour Government, but Labour Governments—and sometimes even Tory Governments—find that circumstances have changed and that powers have to be enlarged. That has been the case in relation to powers of trustees and ought to apply in this case.
I have one last comment on the Bill as a whole. A great many of these trusts 369 will be small. I see the point made by the hon. Gentleman about the machinery being complicated. It is complicated machinery. I hope that in Committee we shall look very hard at it and consider whether we can simplify it, particularly in the matter of valuation and division, I see the difficulty of doing that. I thought that the hon. Gentleman put it very clearly and convincingly, but if, among us, we can find a way to make matters simpler to trustees—in the case of small trustees, at any rate—that will be a considerable advantage.
Similarly, on the question of advice. The steps which a trustee is required to take under the Bill, except in the matter of division, are things which I think a prudent trustee would be required to do now. It is merely that they will have to do them under the Bill, but written advice in the form proposed is rather new. The Government, wisely, gave up the invidious attempt to define people competent to advise. I should say some, but not all, stockbrokers would qualify. It is not always wise to get stockbrokers to advise about things, when they get commissions, and they would be the first to recognise that that is so.
§ Mr. Mitchison
Yes, but that is a little different. I found, when practising at the Bar, that lawyers spend a considerable amount of their time in dissuading litigious clients from going to law. I have not noticed the same enthusiasm among stockbrokers to dissuade people from investing.
Be that as it may, I do not want to be discourteous to a class of people whom I respect, and one or two of whom I see before me. That is not in the Bill, but what is in the Bill is that there should be advice from someone whom the trustee thinks has reasonable financial competence. I do not quite know what the provision means. In the nature of the case, the trustee is not supposed to have financial competence himself, but it is on his judgment that this depends. It might have been better to have been more specific. Perhaps it does not matter, because at the end of the day, although the advice has to be in writing and given by a person competent in this way, the discretion of the trustee will have been 370 preserved and there will be nothing to oblige him either to keep the writing or to follow the advice. It is not so desperately serious.
We on this side of the House think that the Bill is overdue. It does not go far enough, and wants looking at in detail, but we support it on Second Reading.
§ 4.38 p.m.
§ Sir Lionel Heald (Chertsey)
When the White Paper appeared in December, 1960, proposing to widen the powers of investment, it was very warmly welcomed and there is, as there ought to be, today a general appreciation of the decision of the Government to legislate in that direction.
I begin my speech by saying that I thoroughly support the principle of the Bill and would like to see it on the Statute Book as soon as possible. I certainly support the Second Reading very firmly. I must add at once that as the Bill stands there are certain defects and difficulties involved in it which must be remedied if it is to have any chance of being generally accepted by those very people for whom it is intended—the trustees and those on whose behalf they act.
My information leads me to believe that there is considerable anxiety as to whether the Government, at any rate until the last few days, have appreciated what the difficulties are, and one feels that they have been a little reluctant to pay attention to what has been urged upon them by those who are concerned with the practical side of the matter rather than those who are concerned to see that this is a neat and tidy Bill which provides all the answers to all the questions and all the problems.
Many trusts, of course, have been enabled to get a wider measure of freedom by other means, particularly the Variation of Trusts Act, and in some cases by Private Bills and proceedings of the Privy Council in respect of corporations. A large number of smaller trusts, among them some comparatively old trusts, on the other hand, are still suffering under the unfairnesses which Lord Nathan's Committee fully recognised. As has been said today, therefore, and as is generally accepted, legislation is long overdue.
371 When the White Paper was first issued there was not very much critical consideration of it, because the general feeling was, "It is an excellent thing and good luck to it". The fifty-fifty division, in particular, was regarded by those with great experience in the matter with some misgiving but, as so often happens in these cases, the implications of it were not studied. The subject is extremely complicated and difficult, and most people simply did not appreciate what machinery would be required to operate a fifty-fifty division and to provide a workable system to make it effective. Now that the Bill has emerged from another place in its present condition, hon. Members must be aware that there is a considerable amount of concern up and down the country about its effects and about some of the very striking changes which are involved in the whole conception of the conduct of trustees from the legal point of view.
Very few people have fully appreciated it. It is a remarkable fact, bearing in mind that this is a very important Bill, that as far as I have been able to find from my researches there has been no reference to it in The Times. There was a recent article in the Financial Times on 12th January, which illuminated some of the difficulties but, generally speaking, this very important Bill reaches the House with a great many trustees not knowing what is involved for them.
There are one or two points which need very careful examination. I will say at once that I have no personal interest in the matter. Nobody ever has employed me, or would ever be likely to employ me, in connection with matters of this kind, and I have no special knowledge of them, but I have fairly close contact with people who are connected with this subject, and I can assure the House that there is considerable concern among the legal people who have to deal with this work every day.
There is also considerable concern among trustees in the shape of the corporate trustees, for example the investment department of a bank, who handle tens of thousands of accounts in this field. I understand that they have recently been received and have had discussions on this matter, but I have the impression that they did not think that their representations were likely to have 372 very much effect. In any case, we will hope that in due course we shall have an assurance that their very careful representations will be taken fully into account when we come to the wording of the Clauses. Perhaps I may add that the professions involved—solicitors and barristers—could not be said to be concerned for their own welfare in urging changes in the Bill, because it would be more to their advantage to leave the Bill as it is. In certain respects it is a lawyers' paradise.
Clause 3 has been mentioned, and I dare not succumb to the temptation to go into it in detail. I have worked out some figures and some examples, but I am rather nervous whether I should put them before the House. I think that the best thing is to leave it, because it appears fairly clear that the Government have realised that they must have second thoughts about Clause 3.
It may be one of those cases in which it was thought that a tight and perfectly drafted code must be designed in order to retain the agreed fifty-fifty division. It may be that we can avoid some of these complications which I have had demonstrated to me and which I believe are very serious. They may have the effect of driving a number of people away from being trustees—and, there again, I mention the investment departments. Certainly, they are not acting selfishly, because the effect of the Bill as it stands might well be to make people say, "The only way we can do this is to go to one of the banks, because they may be able to find out the answer whereas we certainly cannot".
I wish to make three quite short but very important points. The first concerns the fifty-fifty division. Everybody agrees that the fifty-fifty division is purely and entirely arbitrary. This reminds me of a man well known to many hon. Members who, during the war, arrived at Supreme Allied Headquarters in the rank of brigadier. His previous rank had been that of a private in the Officers' Training Corps. On his arrival somebody said, "This is a little thick, your arriving here as a brigadier." He replied in his inimitable manner, "My dear fellow, one must start somewhere, I suppose". That is what had to be done here, and I do not think that it was appreciated at the time what would happen. Having said 373 that the figure should be fifty-fifty, the view seems to have been that sometimes one must go to all lengths to preserve it, and that leads us into great confusion.
I will not discuss that further, but there is a further consequence of it which is very serious and which I venture to suggest, with the greatest possible respect, that the Government have not yet appreciated. Under the Variation of Trusts Act, it has been possible and common since 1958 for trusts to go to the courts and to get a variation which put them in a far more favourable position than fifty-fifty. Orders are being made in the Chancery Division today. Let us suppose that we say in Parliament that we think that fifty-fifty is the most which should be given. We have been told today that this will be dealt with very simply by putting a provision in the Act to say, "This Act will not affect the exercise of discretion by the Chancery judge."
I have made inquiries from my friends who are practitioners at the Chancery Bar, and they are gravely apprehensive about the position. In fact, they assure me that unless something remarkable is put into the Act, judges will say, "We cannot go beyond what Parliament has decided is right except in the most exceptional circumstances".
I should like to give the House an example of the sort of thing which may arise. One judge has recently made a number of orders on the condition that they are valid only until this new Act comes into force, when they must be reviewed. Most of the orders have not been made on that basis. Thus, one may have two similar trusts, one not made on this conditional basis and having 80 per cent. or 90 per cent. or perhaps 100 per cent., and the other made on this conditional basis. I am assured by those who know that when they are brought before the court the judge will say—unless some matter can be found to affect his mind—that 50 per cent. is the most that they will get. It is a very serious matter.
I believe that it was said in another place that there would be consultation with the judges and that some method would be found of dealing with the matter. We have heard nothing about any statement being agreed or any consultation with the judges, and, although 374 I know nothing about it personally, I assume that there has not been any consultation with the judges.
It is very unfortunate if that is so, because there may be differences of opinion amongst individual judges. Merely to say that the judges are still to exercise their discretion is not, I believe, an answer to the matter at all. One may say, "How is one to plan it?" It will be very difficult to put privilege in an Act of Parliament and say that in no circumstances shall the judge, in exercising his unfettered discretion, take any notice of what Parliament has decided; but that, apparently, is the sort of thing it is suggested should be put in.
If one says that the judge should be entitled to exercise his discretion, all I can say is that the best information I can obtain from the pundits of Lincoln's Inn—and no body of men know more about this subject—is that they assure the it will create a very difficult situation indeed. If that were the situation it would mean that, far from improving the condition of trusts, it would, in many cases, make it far worse. I do not say that it cannot be done, but I say that it will require very careful consideration.
In particular, I hope that my right hon. and learned Friend the SolicitorGeneral—and I feel a great pleasure and privilege in being able to address him in that way, because I know how greatly he deserves that great honour—will be able to assure us that this matter will be taken up and considered very seriously in conjunction with those who have to consider the Variation of Trusts Act and who will be placed in a very serious position unless the matter can be dealt with clearly and definitely.
I want to draw attention to the very extraordinary provision—in the minds of lawyers, at any rate, who are accustomed to this subject—in the Clause which deals with the withdrawal of property and which requires that there shall be an absolute equality of withdrawal as between the two halves. I explained that to one of my very learned Friends and he appeared, at first, to be greatly astonished. He then ejaculated a very emphatic disapproval of that provision. He said that he had never heard such nonsense.
375 It is a new law and it has never been required by any judge that we can ascertain. There is no suggestion in the White Paper of anything of the kind and if one thinks what the consequences may be if, from time to time, there is money to be withdrawn from the trust for education, or other purposes, what do we do at the present time? One consults one's professional advisers and they will advise on what money can be taken out of the trust. If one does that the next thing is that one will find that that advice must be thrown aside, because one cannot break the sacred fifty-fifty. That seems to be quite wrong. It is a sheer passion for tidiness and I suggest that it must go.
Lt will then be said by someone that that upsets the beauty of the scheme, and so forth. So much the worse for the scheme is the answer to that. It serves no useful purpose because at any time after the division the shares' values will alter and one does not preserve the absolutely perfect equality. One almost wonders whether the draftsmen could not have gone further and said that there must be a revaluation and redistribution in half every six months. It comes to very much the same thing. The Bill is intended as a means of dealing with investments and it should not be used as a means of controlling the sale of property.
There is, finally, the question of Clause 4, the inclusion of land. Why is land included? Surely it should be excluded until it has been turned into money and when the money is invested it goes into the pat. After all, it is familiar that trustees may have control and responsibility for things like jewellery, furniture, houses and even farms and stock. When one starts discussing the wide and narrow range of investments in relation to those things one wonders why they have not put in a provision saying that the second or third generation of cows or pigs should be regarded—of course, if they were gilts I suppose that it would be all right.
Undoubtedly, it is something which lawyers feel is quite wrong and quite mistaken. Land varies immensely these days as regards the standing of investments. There is some land that everybody will agree is more or less a cast-iron investment—at any rate, in present political conditions, but one does not know what it would be in other possible circum- 376 stances. In normal conditions there is a great deal of land which has a very high investment value. In other cases it is very different. The general conclusion amongst those with whom I have discussed this appears to be that land should be dealt with separately altogether. That is the way in which it is normally done.
I hope that I have not detained the House too long, but I think that on a Bill of this kind we should look at its provisions with great care. We are doing something of tremendous importance. We are doing it for people who are very often in danger of being forgotten because they do not understand these legal problems. They are very lucky not to have to deal with them. They have to rely on their trustees to do the best they can for them.
I ask again for these very definite undertakings. First, that the question of the Variation of Trusts Act will be taken very seriously indeed, and far more seriously than it has been taken so far. It cannot be dealt with, I suggest, simply by putting in the Bill a Clause which will have no practical effect at all. There should also be consultation with those responsible for the administration of that Act.
Regarding the provisions of Clause 3, for example, I would ask for an undertaking that there will be consultation with people like the banks and the corporate trustees and that not only will they be allowed to get up and say what they think, but that real attention will be paid to what they say. It must be realised that the people who are to administer this Act are not the people in Whitehall who drafted the Bill; they are the people who have to do the job as trustees.
On that basis, if that is understood, I would like to end where I began, by strongly supporting the Bill in principle. I hope that it will bring real relief to the trustees, who, on this subject, as most of us know, are living in great anxiety.
§ 4.58 p.m.
§ Mr. Glenvil Hall (Colne Valley)
For many years there has been agitation for some sort of change to the Trustee List, which has led to the introduction of this Bill. The reason has been the drop in the value of gilt-edged securities. If the 377 Trustee List had remained as many hoped it would several generations ago, there would have been no outcry and no need for a Bill of this kind.
Like most hon. Members in the Chamber at the moment, I followed the debates in another place very closely. The more I read them the more I realised how complicated this Measure is and how unlikely it is that when it reaches the Statute Book—if it reaches it in its present form—it will do what we all want it to do. It was said there —and it is a fact we are all familiar with—that a trustee's real duty is not to the immediate beneficiary drawing the income. His chief duty, and his chief concern, is to protect the corpus—that is, the capital invested. Those of us who have been trustees, even in a small way. particularly where the instrument setting up the trust has been quite wide, have often been extremely worried about investing the money in order to protect its value. This consideration came before the income for the immediate person enjoying it.
I wonder if the Bill will help in that direction. I listened, as we all did, with great care and interest to what the Economic Secretary said. One of his reasons for the fifty-fifty basis is that trustees:lust not be allowed to run away with themselves in buying equities. I agree that there should be a balance and, although I am not wedded to the fifty-fifty bass, if there is to be legislation at all some basis must perhaps be put in. The fifty-fifty basis is perhaps as good as any, but most trustees, particularly if they take expert advice, as they will have to under the Bill, should be capable of being trusted themselves to strike a proper balance.
§ Mr. John Diamond (Gloucester)
If trustees are bound to take advice and are expected to arrive at a sensible balance of investments, will my right hon. Friend explain a little more carefully why he thinks it necessary that there should be any principle for the division?
§ Mr. Glenvil Hall
I do not want to quarrel with my hon. Friend the Member for Gloucester (Mr. Diamond) or enter into an argument on this point. Many of those who spoke when the Bill was passing through another place seemed to take the view—at the moment 378 I am not quarrelling with it—that if there is to be a Bill at all some basis should be laid down. As I have already said, I personally should be willing to leave it to the good sense of trustees, particularly as under the Bill they have to seek expert advice.
One of the points the Economic Secretary made when dealing with this aspect was that equity shares fluctuate in value. That is true. I did not interrupt him then, but I remind him now that gilt-edged securities have fluctuated a good deal more, if "fluctuated" is the right word to use. Whereas equity shares have gone up as well as down, many gilt-edged securities, especially the undated ones, have gone down and down and down. Those of us who are interested in superannuation funds where considerable sums have had to be invested over the years in gilt-edged securities are very worried at the drop in the value of many of the securities into which the money has been put. We can foresee no reversal of that trend. If the Bill does not—as it does not—help to redress this, the Government will have to take notice of it eventually.
The Economic Secretary did not make any mention of what is the real difficulty, namely that gilt-edged securities have gone down and many of them show no likelihood of every going up to any appreciable extent. We want really from the Government some scheme which will help to rehabilitate gilt-edged securities.
I have heard it said that a sinking fund should be established or that a date should at last be put on those securities which at present are either very long-dated or not dated at all. I have not the slightest doubt that something of the kind is the real solution and I am fearful that, if we pass this Measure in its present form, it will cause many a trustee sleepless nights and not help in the work he has to do.
It is a curious commentary on the national credit that so few investments are mentioned in Part I of the First Schedule. It is astonishing that only Defence Bonds, National Savings Certificates and Ulster Savings Certificates are amongst the few classes of securities which can be bought without requiring advice. That is simply because those are among the few Government securities which are not likely to depreciate in value.
379 Although I welcome the Bill as far as it goes, I foresee enormous difficulties. I cannot understand why the Bill should be so complicated. All that is required to do is to provide trustees with a wider range of investment for the moneys which they have at their disposal. That is a simple, straightforward object. Several bodies have considered this problem over at least the last eight years, but even after the expert advice the Government have received, it seems they cannot devise a simpler remedy than the one proposed in the Bill.
I hope, however, that when the Bill reaches Committee we shall alter it drastically in order to make it more in keeping with the realities of the situation. This I am sure is the desire of the House as well as of those who now act as trustees.
§ 5.6 p.m.
§ Sir Hugh Lucas-Tooth (Hendon, South)
I view the principle of the Bill with rather less enthusiasm than that evinced by hon. Members who have spoken so far. I view its method with even more distaste. The reason for the Bill is set out clearly in paragraph 2 of the White Paper, the important words being:In the last twenty years the decline in the value of money in relation to other forms of property has meant that the restriction of investment almost wholly to fixed interest securities has in many cases failed to ensure the maintenance of the capital of the trust fund in real terms. The pattern of investment of trust funds is therefore not what an investor today would be likely to adopt. This has led to the desire by many trustees to be allowed to invest trust funds in ordinary shares of industrial and commercial companies.That is the whole case for the Bill. No one has suggested anything else. I agree that what is said is absolutely true, but if that is so the Bill is a case of locking the stable door after the horse has been stolen, and it is about the worst one that I can remember seeing.
After all, the losses which have been incurred by trustees and their beneficiaries have already taken place. The Bill does nothing whatsoever to restore them, and it could not do so. The loss is permanent. We are not dealing, as was rather suggested by the hon. and learned Member for Kettering (Mr. Mitchison) and by the right hon. Member 380 for Colne Valley (Mr. Glenvil Hall), with a mere Stock Exchange discount which could some day right itself. Even if all the securities in the present trustee list were immediately repayable at par, those who have had them for any time will have permanently lost two-thirds of their money in real terms.
The Bill does not touch the past. It is concerned solely with the future. The intention is to enable trustees to ensure the maintenance of the capital of the trust fund in real terms—not the original capital, but the depreciated capital. Its purpose, therefore, to put it in rather crude terms, is to enable trustees to stop the rot.
On the whole, that contention appears to have been accepted. It is accepted by the Government and by those hon. Members who have spoken so tar, but I have some doubt about it. It is one thing for an individual to permit his trustees to continue to hold and to invest in the same type of investments as he himself has held. It is another thing altogether for a Statute to seek to alter the character of established trust funds.
Fixed-interest investments at present give a yield of between 5 per cent. and 6 per cent. at market price —the longer-dated and the undated yielding not far short of 6 per cent. On the other hand, high-class ordinary shares give a yield of between 3 per cent. and 4 per cent.—in some cases, even less than 3 per cent. That means that, in so far as trustees take advantage of this Bill, their beneficiaries must be willing to accept a loss of between one-third and one-half of the income from the investments that have changed.
That, of course, is not an end of the matter. If the Bill should be extensively used there will be a considerable unloading of fixed-interest investments and a considerable demand for equities on the market and that, on the whole, will tend to widen the gap and make the difference even greater. I imagine that my hon. Friend the Economic Secretary has considered this. He did not refer to it in his speech, but I should like an assurance on that score before we finish the debate. My own view is that we really need not worry very much about that, because I believe that the sacrifice of income is so great that, on the whole, 381 this Bill will tend to be a dead letter as regards the old trusts, which are the ones at which it is aiming.
There is another aspect. The purpose of this Measure is to hedge against the possibility of further inflation. A private individual may properly hedge—indeed, that is a normal and proper thing to do —but it seems to me to be quite a different thing when the Government of the day assist in that process. It makes me feel somewhat uneasy. In the case of a Goverment, the process of hedging is not, as it is in the case of an individual, mere speculation as to what may happen. The Government control, or should control, the economy of the country. One may not know what future Governments may do—not even the present Government can foretell that; at the same time, I do not like to see the Government conniving at this sort of thing. On the whole, it seems to tend to put a little more grease on the slippery slope of further inflation.
Having said that about the principle of the Bill, I must say that I think its mechanism is even more open to criticism. I do not at all criticise the drafting. If we are to do what the Bill proposes to do, this Measure is as clearly drafted as it could be. On the other hand, it is extremely difficult to understand, and the attempt to understand it will throw a very grave burden on very many trustees.
Perhaps I should here declare an interest. I am a trustee of a good many trusts. I receive no pay in respect of any of them, or any benefit of any kind from most of them. I undertook the task on the basis of the law as it stands now, but this Bill will throw a very great burden on myself and on all trustees. If we go on doing this sort of thing, we shall have to consider the possibility of further legislation authorising the payment of trustees—but that, by the way.
I do not think that even the lawyers will say that Clauses 2 and 3 are at all easy to understand. It is perfectly easy to state the two principles upon which they are based. One is that trustees should be given power to invest up to half their funds in ordinary shares, and the other is that the existing wider powers of trustees and the powers under the Bill are to be concurrent. Those principles are simply stated in that way, but it is 382 much more difficult to set them out in precise language as the Bill attempts to do. Again, I do not criticise the draftsmen; the difficulty is a real one, and cannot be overcome by mere drafting.
The trouble is that the Bill has adopted the most fantastically difficult method of implementing those ideas that could possibly have been chosen—the idea of dividing the trust funds into two, making the appropriation, and then proceeding from there. I am quite certain that appropriation of trust funds is the most frequent cause of minor breaches of trust of any operation of the trust laws that there is.
As a rule, it does not matter very much. The minor mistakes that are made are of a kind that do not affect anyone —provided that appropriation is quickly followed by division of the funds and payment out. Here, however, final payment is, by the nature of things, to be deferred—and sometimes to be deferred for a very long time. Small mistakes made in the appropriation as between the two halves of the fund or in making the adjustments required by these two complicated Clauses will grow enormously.
For example, by Clause 3, if trustees acquire any wider-range investments in the circumstances mentioned in subsections (4) or (5), they must sooner or later transfer to the narrow-range part of the fund from the wide-range part of the fund property equal in value to the property acquired. I think that hon. Members will agree that I have stated the effect of those subsections accurately.
Nothing is said about the date on which the value is to be taken for the purpose of equality. I think that on an ordinary construction of the words the date would be the date of acquisition, but that is probably the one date that never will be taken. Trustees will be thinking about the matter for a week or two before getting round to taking action. But even that is not clear. To take the date of transfer would certainly be consonant with the language used, but here we are not dealing with trustee securities in the old sense but, by definition, with ordinary shares, and ordinary shares can fluctuate very widely. I have recently been concerned as a trustee with the holding of Ford 383 shares, and there one can get a fluctuation to a very wide extent almost overnight. There are many other similar cases.
Frequent mistakes will be made in dealing with this appropriation as between the two funds, and I should like to be told what should be done by trustees when they find that a mistake, whether large or small, has been made. They cannot go back to equalising the fund—that is quite certain. The Bill does not contemplate that at all. Nor can one go back to what would have been the position if the trustees had done what is right, because one cannot say in what investments they would have put the money had they done rightly.
The only thing would be for the trustees to apply to the High Court to get the position regularised and themselves whitewashed, and that seems to me to be quite intolerable. Small mistakes may involve only £20 or £30. Why should trustees be put in the position of having to go to count and spending a great deal more than that, or run the risk of having a demand made against them in respect of those minor breaches of trust that will constantly take place?
Subsection (1) of Clause 5 is mandatory. The essential words are:In the exercise of his powers of investment a trustee shall have regard… to the need for securing that investments of the trust are… sufficiently diversified….That means that he must consider whether or not it is his duty to take advantage of the terms of the Bill and acquire equities.
This will often be an extremely unenviable decision for any trustee to take. Let us suppose that a trust fund at the moment is held for the benefit of a widow who takes a life interest in the fund. The widow is aged 60 years, with a reasonable expectation of life, and the fund is a moderate one yielding, let us say, £1,000 a year, all invested in the kind of investments which we know such funds are held in, namely, long-dated, perhaps undated, Government securities. The reversioners, who may be the widow's children, her step-children, more distant relatives or, perhaps, a charity, ask the trustees whether the fund can be reinvested in accordance with the 384 terms of the Bill. The trustees take stockbrokers' advice. The stockbrokers quite properly advise them that they should take advantage of the Bill in order to protect the capital of the fund.
The trustees are at once confronted with this situation. They will either have to reduce the widow's income by about £150 to £200 a year or they will have to tell those who look forward to the reversion that they will disregard Parliament, they will disregard the stockbrokers' advice and they will not make any change.
§ Mr. Denzil Freeth
My hon. Friend has mentioned the point about loss of income by exchange from gilt-edged to equities several times. Will he not agree, first of all—this is the minor point—that some Government stocks which have a low coupon give a relatively lower yield, assuming they are dated stocks, than other high-coupon dated stocks and, therefore, his generalisation may not be true over the whole range? Secondly, although such advice may be sought by the trustees, the brokers' advice might well be that, taking the circumstances of the life and the ultimate beneficiaries into account, it may not be the time to carry out such an exchange. It is surely not entirely for the trustees just to close the question in those very narrow terms.
§ Sir H. Lucas-Tooth
I agree that there are short-dated Government stocks which give a very much smaller yield, but we are not here concerned with the trustees' choice of these stocks by buying. It is a matter of what the trustees are actually currently holding, and in the case of most funds of this kind, or many of them at all events, the stocks held will be long-dated or undated stocks. In the case of the short-dated ones, I think there will probably be very little agitation on the part of the reversioners to have the exchange made because there will be capital appreciation going on, as we know. I think my hon. Friend has put his finger on the very point which establishes the case I am making. As regards the purchase of equities, there are, of course, more speculative equities which can be bought. I do not think that the Bill proposes that trustees should buy equities of that kind.
I have the greatest misgivings about the way the Bill will work. I should 385 have preferred a much simpler scheme. I should like to have given a general power to trustees to invest in a wider range of investments to any extent, subject to this, that they must obtain agreement from any adult beneficiaries and the approval of some suitable functionary on behalf of infants and charities and so on. In the case of charities, it would, no doubt, be the Charity Commission. In the case of infants, it might be the Public Trustee or someone of that kind. If we were to do that, we should very soon see built up a sort of case law which would probably amount to something very much like what is in the Bill itself, but, instead of being rigid and unworkable, as is the Bill, it would be something flexible, reasonable and understood by the trustees.
§ Mr. Glenvil Hall
Would the hon. Gentleman include not only the immediate beneficiaries but any ultimate beneficiaries who happen to be living in any such scheme as he mentions? If so, I see no harm being done to anyone.
§ Sir H. Lucas-Tooth
I meant all beneficiaries, either beneficiaries enjoying the income currently or those looking forward to the reversion. I would like to see this done by agreement. I see no reason whatever why we should disturb a testator's or donor's intentions against the wishes of someone who has already a vested interest or even a contingent interest in the fund.
I have two small points to make which are really Committee points. Why has the word "property" been used in Clause 1? The Trustee Act, 1925, uses the expression "funds". Clause 12 of the Bill provides that expressions are to have the same meaning as in the Trustee Act, 1925. As a matter of fact, the Trustee Act defines "property" explicitly as including reversionary interests. In Clause 4 of the Bill, "property" is defined as excluding reversionary interests.
§ Sir H. Lucas-Tooth
In expectancy—I am grateful to my right hon. and learned Friend. But there is a conflict between these two definitions, and I 386 wondered why this strange departure had occurred.
Secondly, I want to know why Clause 9 does not contain any power to subtract particular kinds of investment from. the Schedule or certain parts of the Schedule. This is the Clause which gives power to add to the Schedule. This seems to imply that the Government have an expectation that all kinds and classes of security will go on improving and will be slowly accumulated on the Schedule. That seems to indicate a facile optimism which I think is not justified but which, I feel, does rather permeate the Bill.
§ Mr. Barber
It is really a Committee point, but I think I can help on that. What we felt was that, having given power to invest in certain equities, which are set out, it would be wrong to take away any part of that power without coming back to Parliament. On the other hand, it might be necessary to add to the list. For example, there was recently an issue made by the International Bank for Reconstruction and Development, which would be a very suitable thing for trustees to invest in. We wanted to have the opportunity, should such an occasion arise, to add that kind of investment to the list without having to wait for a further Act.
§ Sir H. Lucas-Tooth
I see that point, but I should have thought that it was possible to take securities out of one or more parts of the Schedule while allowing those already acquired by trustees to continue properly to be held until sold, without doing any damage to the general machinery of the Bill. It is really a Committee point. I was worried about it because it seemed to me to indicate a rather optimistic attitude on which the whole Bill is based. I hope very much that, before the Bill emerges from Committee, it will be in a form totally different from that in which it now is.
§ 5.29 p.m.
§ Mr. John Diamond (Gloucester)
Many hon. Members have criticised the machinery of the Bill, and with all the points they made I entirely agree. Most speakers have spoken in favour of the fundamental principle of the Bill, and with them I agree on that point. I think that only the hon. Member for Hendon, 387 South (Sir H. Lucas-Tooth) has doubted the justification of the Government bringing in a Bill which will fundamentally vary the wishes of dead men. I should not have thought that in today's changed circumstances anybody would argue that point.
§ Sir H. Lucas-Tooth
The hon. Member is extending my argument to a point which I would not wish. I simply said that I would not use the machinery of this Bill to deprive an individual against his wishes of a right which has been given to him. I do not go further.
§ Mr. Diamond
All that the Bill does fundamentally is to give trustees the right to do things which the testator or settlor said they should not do. It is, therefore, merely interfering with the wishes of dead men. The fact that the trustee is given power under the Bill to invest in equities does not mean that he will do so. The hon. Gentleman said that it was likely that he would not do so. I disagree with him, but that was his point. Therefore, he must agree that if his argument is against the principle of the Bill he is arguing in favour of retaining for all time the validity of the wishes of dead men who made their decisions in, possibly, entirely different circumstances.
It is not merely a question that the value of gilt-edged has tended to fall or vary. This is the first time that we are dealing with trustee investment powers in about 75 years. We are now living in an entirely different society. In those days it may have been perfectly true to say that the only thing which was safe was the Bank of England. We are now living in a society in which we must have full employment, whatever party is in power. If we must have full employment, then industry must be practically "flat out" the whole time. This means that industry must make profits and that equities have become safe. It is therefore right that, in addition to the other arguments adduced, we should permit trustees to depart from dead men's wishes. I have always been in favour of trustees having the greatest possible discretion and against the principle of controlling the purse strings from a dead man's grave. The ideas of living men move. Dead men do not move, or if they do it is a little difficult to say in which direction.
388 I should have thought that we were all in agreement that it was more than high time that a Bill should be introduced under which trustees are released from their compulsion to invest exclusively in insecure and unreliable investments, which has been the case hitherto.
As for the rest of the Bill, I cannot find one good word to say for it. I can find many things to criticise, and I shall attempt to do that in principle only. First, let me deal with the fifty-fifty principle. It astonishes me that, after eight years' consideration, the best thing which the Government can do is to come forward with such an arbitrary division. It must be arbitrary because they know that it can be fifty-fifty only at the point of division. From then on, no matter what attempts are made to keep the fifty-fifty principle, it is bound to vary each day as the value varies between the two 'halves of the capital of the trust. It is much too rigid.
Obviously, the Government have not been able to make up their mind whether trustees should be treated as people worthy of discretion or should be given the strictest instructions on what they should do. There is this complete lack of policy in the Bill. One moment it appears to give trustees a certain discretion, the next moment it pulls them back, saying, in effect, "You can have some equities" and the next moment saying, "But you have to keep it right and go through the most complicated and extensive manœuvres to try to keep it that way. We will not allow you any discretion about what happens after that". This is the result of the Government being unwilling to say, "All that has changed is the comparative position of gilt-edged and therefore we should increase the list of trustee securities". They have been afraid to take that simple step. Instead, we are involved in all this complicated machinery.
This fifty-fifty principle is not only rigid, tentative, arbitrary and preliminary. It is something which, as far as I am aware, is not supported by the general practice. In most large investment organisations the general practice is not to have as much as one-half in fixed-interest securities. If there is a figure at all, it is much more like one-third. My point, however, does not concern whether it should be one-half or 389 one-third. The figure moves as circumstances change. It is essential to have people capable of examining values and proper methods of investment in the changed economic circumstances of our society. For that, one needs to be alive and watching the position day by day. Whatever figure is arrived at, it is bound to be harsh or even wrong in a few years' time.
Here I return to the point made by the right hon. and learned Member for Chertsey (Sir L. Heald). It is certainly the case that, to my knowledge as the result of careful inquiries, the courts have allowed rights of investment far more liberal than those proposed by the Bill. As a layman, I am bound to say that I cannot understand the suggestion that the courts will not pay attention to what is in the Bill in a future consideration of the matter. As I said, I am a layman on this topic, but I have asked those who practise in this sphere about it and they take exactly the same view as myself. If we had not raised the point in the House, the Chancery judges might still have felt permitted to say, "This Act is silent on the matter and, therefore, we can use our discretion".
How can a Government feel entitled to propose this entirely new constitutional theory, have a discussion on a particular topic on which the Commons expresses its view and then expect the courts to pay no attention to the view expressed as shown by the Bill approved by Parliament? It is an extraordinary constitutional suggestion of the Government. They are trying to tell us that, notwithstanding that the Bill, as they wish it, will go through with a fifty-fifty limitation, nevertheless the Chancery Court will be entitled to continue to use its discretion and to give more than 50 per cent, investment in equities. It is astonishing that the House of Commons should wish that the law-makers should be entirely ignored by the law interpreters in the courts. We therefore cannot allow this fifty-fifty arrangement to go through under any circumstances.
The Bill is complicated in its machinery beyond description, particularly Clause 3. I am sure that anyone who has tried to work it out has come to only one conclusion, namely, "Do not let anyone ask me to be a trustee 390 in future". That is certainly the conclusion to which I, finding myself a natural target for invitations to be a trustee, have reached provided the Bill remains in its present form. If one is an accountant who has not been caught "pinching" the petty cash, people naturally think that one is able to act as a trustee. But arduous responsibilities are involved. One accepts them generally for purely friendly considerations and takes one's responsibilities reasonably seriously. No trustee in that position would feel happy about being a trustee in circumstances and under a law by which he finds himself incapable of understanding and does not know what he is required to do.
Despite what the Economic Secretary said, I doubt the honourable intention of the Treasury in framing these decisions. There is nothing like saying it plainly. The hon. Gentleman would have been far better off by coming forward clearly and, in the hallowed tradition of the House of Commons, saying, "I am an interested party. The first thing I want to do is to declare my interest. I am an interested party because one of my jobs is to see that the Government's ability to borrow, and to do so as cheaply as possible, may not be prejudiced. Nevertheless, I think that the Bill deals fairly between the different classes, between the rights of beneficiaries and those of the trustees and, if one likes, the rights of the Government." But it is weighted unnecessarily and wholly—and suspiciously, when one reads the speeches by Government spokesmen in the other place—in favour of retaining the Treasury's ability to borrow cheaply. The Treasury has a real problem.
§ Mr. Barber
Had that been a true statement of the position, I would have said so. What the hon. Member has said runs counter to what I said and is clearly the reverse of the truth. Had we considered that it was in the interests of the generality of trustees to go further than fifty-fifty, we would have done so. I said as clearly as I could that it was not on Treasury grounds that we had reached that conclusion. The hon. Member, who has spoken many times in financial debates, might at least accept what I said so clearly.
§ Mr. Diamond
If the hon. Gentleman says it with such clarity, I am bound to 391 accept it. Equally, he will accept from me what conclusions follow from the Bill. One of the conclusions that follows from it is that if the Bill goes through in its present form, limiting investment in equities to 50 per cent., there will be a certain effect on the price of Government securities and the ability of the Government to borrow. If, on the other hand, it does not limit it to 50 per cent., there will be a further fall in the price of Government securities and the ability of the Government to borrow as cheaply as at present will be prejudiced. Those are the effects that follow from the Bill, notwithstanding that the hon. Gentleman is concerned solely with protecting trustees and beneficiaries.
Therefore, I am entitled to go on and say that the Government are at fault in not grasping that nettle and dealing with it instead of trying to have regard to the circumstances in the Bill. It is a separate issue and should be dealt with as such. If the Government were prepared to make themselves an honest borrower—I use the term "honest" deliberately—by saying that all undated stocks would have a date put against them, if they would make it plain that in future people who lend to the State will in due course—it is not an immediate course—have the right to reclaim payment from the State, it would be an entirely different matter. It would be found that Government borrowing was taken care of and that people would be prepared to lend to the Government for the same reason as the Economic Secretary and his colleagues have often said that people are prepared to hold sterling, namely, because they want to hold sterling and trust it. That is the way, they have said, to deal with it and not, as has often been said from this side of the House, by trying to secure the position of sterling by preventing too much sterling from leaving the country.
If the Government were to adopt their own logic with regard to irredeemable borrowing—borrowing under which a condition of the loan is that it is never repaid—they would not have any of this problem to cope with. Suppose that I were to go to the Solicitor-General and say, "May I borrow £50? I guarantee that the interest will be paid. You can rest assured of that. I guarantee that the capital will never be repaid. Do 392 let me have £50". The right hon. and learned Gentleman would probably look me in the eye and, to change a phrase, probably say to me, "Are you quite sure you are all right, Jack?" The Government nevertheless consider themselves entitled to borrow money on the basis that it will never be repaid. Therefore, if only the Government dealt with this point, they would find themselves free from any possible criticism with regard to the Bill that their motives should have been doubted.
It would be wrong to criticise a Bill so severely without putting forward what the alternatives are. It is because the alternatives are so simple and straightforward that I dare to do this. The Government need only have brought in a Bill of two Clauses and they need to do two things in addition to introducing it. The first thing they have to do is to put their own house in order and make an honest woman of the Old Lady of Threadneedle Street by saying that even at this late date, a time will be set for the repayment of undated borrowing.
Then, the Bill need do only two things. The first is to extend the list of securities which a trustee may hold and to rely upon the discretion of trustees to deal sensibly with their individual estates and responsibilities. The second Clause in the Bill would be to require the trustees to take advice, certainly not to accept it. I agree with what has been said about the way the Bill is drafted in this matter. Advice should be sought but not necessarily accepted. One cannot compel a person to do that. So long as one had knowledge that the trustees were compelled to seek advice, there would be adequate protection. That is all that the Bill need do. That would give trustees the discretion which they ought to have and which, in modern times, most of them use sensibly and wisely.
The other thing which the Government should do to make the position of a trustee much happier is to provide for the very kind of investment that trustees would seek in these circumstances. If through some sort of Government agency —the Bank of England or a similar agency—the Government were to set up a fund, which I might call a "Trusty-fund," on the lines of a unit trust or something of that kind, a fund which would be invested appropriately from time to time in the light of the best advice 393 which was available at the time, invested in fixed-interest securities, in securities that are interested in land or in equities, a fair mixture suitable for taking care both of the immediate interests, the share of a life tenant, and the ultimate interests of a later beneficiary, there would be the automatic safeguard that any trustee who invested in such a fund would be free from any possible criticism.
We all know that the lot of a trustee is not a 'happy one. It is rather like the the lot of a Government. If things go well, they are regarded as being very lucky. If things go badly, it is certainly their fault. This happens to the trustees, too, and they sometimes need same kind of protection. They would have complete protection if they invested in a Government sponsored "Trusty-fund". There would be no need to satisfy the court on the application of any beneficiary that the trustee had acted wisely and well. Consider the saving in time from having a handful of people looking at the investments and investing wisely as compared with the existing necessity for every person separately to receive that advice. Thousands of people in identical circumstances with an identical problem on their hands have to consider the same situation.
All that time and all those fees and estates are wasted in order to achieve something that could be achieved much more easily by streamlining the procedure in the way I have suggested. If the Government would do those two things—put their house in order by putting a date to the irredeemable securities and cause the setting up of a trustee fund—they would find that they could solve the problem perfectly simply by having only two Clauses, one to widen the list of trustee securities and the second to compel the seeking of, although not necessarily acting upon, advice.
In these circumstances, it will be seen that there are practically no reasons for voting for the Second Reading of this Bill, except that it takes a step in the right direction by breaching the previously sacred principle that if one's trust deed so required one had to invest exclusively in trustee savings, notwithstanding that this was outmoded and irrelevant to the society in which we now live. That is a good step forward.
394 As it is the main principle of the Bill one must support the Second Reading. But it is obvious that all the pressure is mounting against the 50–50 principle, and if the Bill does go through on that basis then it will be only a short time before the Government are required to bring in another one.
The Economic Secretary should not pat himself on the back by saying that there has been very little expression of criticism since the White Paper. After all, when a White Paper appears, most people ask: "What is the main principle involved?" In this case the main principle was the one to which I have referred, and everyone noted it and left the matter at that. But all wise practitioners said that when Parliament had done its job in detail they would consider the then Act carefully. Anyone who looks at a Bill in the first House, before the first Amendments have been moved and accepted, has all his time taken up with reconsideration. Even the Finance Bill may be greatly changed.
The Economic Secretary must not take lack of criticism as signifying anything. On the other hand, now that the Bill has come up for consideration and criticism is mounting outside and in this Chamber—
§ Mr. Diamond
As I say, there is only one principle involved—that of getting away from dead men's control—and, as far as that principle is concerned, we must accept the Bill as a step in the right direction, however muddled it may be.
§ 5.53 p.m.
§ Mr. Stratton Mills (Belfast, North)
It is fascinating to follow the hon. Member for Gloucester (Mr. Diamond) in what he says about equity markets today. It is perhaps a further sign of the affluent society that he spoke in such terms. However, in welcoming the Bill today, I welcome it as a step in the right direction. I welcome the wider powers of investment which are given in it, but obviously my welcome cannot be completely unreserved. It is quite clear, as has been said by my hon. Friend the Economic Secretary, that this is a Bill which affects mainly the small trusts and the older trusts. It is clear that it is 395 largely the trusts with less than £10,000 which will be affected. It would be interesting if my hon. Friend could give us an estimate, even an approximate one, of the amount of money involved.
As a solicitor, and speaking also, I fear, as a trustee in certain cases, I must make a criticism of the machinery of the Bill. It has been said that the machinery is unworkable. There have been two main objections. The first is that the Bill is obscure, and this mainly centres round Clause 3. Secondly, it is said that it is cumbersome and will unduly deter the ordinary trustee from accepting office, and that it perhaps means that the trend will be more towards banks and insurance companies in the future.
I understand that objections have been submitted to the Government by the Law Society. Perhaps, in replying to the debate, my right hon. and learned Friend the Solicitor-General might say something about these technical objections which have been put forward. It would be interesting if he would say also what other objections have been expressed to the Bill. What objections were put forward by the banks for their trustee departments?
The objections to the Bill's unworkability are rooted essentially in the fifty-fifty rule, and virtually every speaker in the debate so far has criticised that rule. The objection which I make to it is not the technical one but the very strong one of principle. The rule is essentially based on a supposition which is quite incorrect. It is based on a faith which the Government have in the gilt-edged market.
I have read carefully what was said in another place, and it is interesting to note that the Government spokesman there constantly kept coming back to the point that the 50 per cent. in gilt-edged was safe, as if gilt-edged were some rock to which trustees could cast their eyes when cast adrift in stormy seas. I wonder if it is true. To me, there are two big objections to gilt-edged which show clearly that they are far from being safe.
The first is that inflation must hit gilt-edged. Prices may rise or prices may fall—they normally fall—but nevertheless if one goes back ultimately to their purchasing power, gilt-edged over 396 the years have shown a tremendous decrease. My hon. Friend should bear in mind the purchasing power of £1,000 worth of gilt-edged bought in 1914. Perhaps he would mention the purchasing power of that today, quite apart from its value on the Stock Exchange, and compare it with a wide range of blue chip equities
The second objection I make, which has not been covered so far in the debate, is one of an equally fundamental character, but not of the same degree of importance, though perhaps in the years ahead it will show its importance. The argument has been expressed that the price of gilt-edged—this was put forward by Government spokesmen in another place—is very closely tied to the Bank Rate. I wonder whether that principle is still true today. I have my doubts.
I remind my hon. Friend that when the Bank Rate was 7 per cent. in 1957 War Loan was approximately 60. Recently, when the Bank Rate was 6 per cent., War Loan was at 60 to 61. When the Bank Rate was twice reduced by 1 per cent. recently, one would have expected, if the old argument was still true, that following those decreases War Loan and gilt-edged would have risen. The opposite has happened. The reason for that is that there is a fundamental lack of faith in gilt-edged, and this is due to the fact that it is accepted more and more today that we are in for perhaps a quarter of a century, perhaps half a century, of gradual inflation.
Inflation is not merely a word in political pamphlets. It stems from the policies that have been accepted, and rightly so, by both the main political parties and which essentially lead, and must lead, to very gradual inflation over the years. I sum up that argument by saying that there is no real safety in gilt-edged today.
§ Mrs. Eirene White (Flint, East)
Would not the hon. Gentleman agree that we should stop using the term gilt-edged ", because it gives a spurious air of security to things not really secure?
§ Mr. Stratton Mills
I would possibly listen to other words. In my role of trustee, I should be glad to hear the hon. Lady suggest alternative terms.
I come to what I think are the practical alternatives. The alternatives must 397 fulfil two essential conditions. First, there must be some form of workable scheme so that trustees will not be plagued all their lives. Secondly, one must avoid this dependence on gilt-edged. It has been suggested, and it was admirably put by the hon. Member for Gloucester, that the Trustee List might well be extended and that one might extend it to a certain number of shares, or to certain approved categories.
I am by no means happy with that suggestion, because it has certain difficulties. It has the difficulty that the trust fund will not be sufficiently diverse, which I think is the real objection. It has the other objection, which is allied to that, that certain sections of the market which are thought attractive today may be by no means so attractive ten years hence. One day railways were thought to be the share of the future. One day atomic energy shares are thought to be the share of the future. One day oils, for example, were included in every trustee list, but they are now going through what may be only a temporary phase. That demonstrates that diversification is of the essence.
The other thing is that there are still failures by companies with shares on the Stock Exchange. I wonder how many companies have failed since the White Paper, companies which would have fallen into the category suggested in that White Paper of 1959. I wonder whether Vactric would have come within that category. Perhaps there have been others.
I put forward an alternative, which I recognise has certain drawbacks. I merely suggest that one should allow wide discretion to the trustees in investing up to 100 per cent., if they wish, in shares of certain approved investment trusts and perhaps extending it to certain insurance shares. There would have to be certain regulations about what category and size of trust would be suitable and one might have to provide that not more than 25 per cent. of the trust fund should be invested in any one trust.
Of course, there are disadvantages. The main disadvantage at present is that the market in investment trusts is extremely narrow, but that problem would solve itself over a period and it would certainly give a very much wider spread both in shares and in geographical area.
398 Some short-dated stocks are included in many of the investment trusts and some include land and some have building society deposits for short-term money. Trustees would thus have a very wide spread of investments.
The experience of investment trusts over the years has been that even when things in equities are bad, they can generally keep a more even course. They avoid the highs and avoid the lows. They are secured against inflation and depreciation.
The Bill is to be welcomed as a step in the right direction, but it is not wholly satisfactory and I hope that even at this very late stage the Government will have second thoughts about it.
§ 6.4 p.m.
§ Mr. John Arbuthnot (Dover)
There is general agreement on both sides of the House that for many years we have been labouring under a Trustee Act which does not meet modern conditions. Those people who made trusts in the past would be horrified if they realised that the provisions which they put into their trusts in order to preserve their value have had precisely the opposite effect. Looking back, one can say that, short of horse racing and the casino, there are few surer ways of losing money in real terms than by investing in securities allowed under the Trustee Act, 1925.
I, therefore, welcomed the Government's declared intention to introduce legislation which would help beneficiaries and trustees to preserve the value of trust property. The Bill worries me, however, because I believe that in its present form it will not carry out the Government's intention. I am sure that it will not have escaped my right hon. and learned Friend the Solicitor-General or my hon. Friend the Economic Secretary that speakers on both sides of the House have been unanimous in damning the fifty-fifty principle. I completely undertsand the view which was reasonably put by my hon. Friend the Economic Secretary when he said that the White Paper had set out in some detail the pattern of the Bill which the Government proposed to introduce and had not created an immediate protest. None the less, it is not adequate for him to say that because we did not all immediately see the implications of the fifty-fifty proposals and protest at once when 399 they were put forward in the White Paper that we are therefore precluded from objecting to the fifty-fifty proposals now. I hope that even at this late date the Government will think again.
The Economic Secretary suggested that we could simplify the Bill by giving trustees less room for manoeuvre, but it would be much better to simplify the Bill, which we all agree is complicated, by giving trustees more room for manoeuvre. He will no doubt consider what was said by the right hon. Member for Colne Valley (Mr. Glenvil Hall), that he favoured leaving the proportion of gilt-edged and other investments to the good sense of trustees. That is a view which would meet with the general approval of the House.
The Bill worries me because I do not believe that it will give the trustees the discretion which they ought to have. The fundamental error, from which the complication of the Bill flows, is the decision compulsorily to divide the trust fund into two equal parts. I know that this follows the recommendation of paragraph 289 of the Nathan Report, but I can see no logical basis for that particular proportion or for any division of trusts.
As has been pointed out by earlier speakers, the investment climate varies. At one time, it might be best to invest the whole of the trust fund in equities. At another time, it might be best to invest in dated gilt-edged stock. I know of no time at which it is likely that the best interests of the trust will be served by a fifty-fifty proportion. Prudent trustees should be given the maximum freedom of investment and I understand that the banks, through the Bank of England, are making very strong representations to my right hon. and learned Friend the Chancellor of the Exchequer to this effect. I am sure that he will take them very seriously.
The acid test of the proposals in the Bill is whether any new testator, if the Bill had been applicable to him, would have set up a trust taking advantage of the provisions of the Bill. It seems to me that the answer to that would be clearly "No." Any modern trust gives the trustees a much wider discretion, and, if the trustees are not to have that discretion, then they are not fit to be trus- 400 tees. Nothing short of the abandonment of the underlying principle of fifty-fifty will make the Bill work. My right hon. Friend the Chancellor of the Exchequer has a reputation for clarity of thought and courage. I suggest that he should abandon the fifty-fifty basis and try to put into the Bill some guiding principles whilst giving trustees freedom to invest provided that they take proper advice. The sort of principles that I have in mind are that trustees should pay due regard to the security of income as well as to the maintenance of true capital values and that they should have due regard to the special circumstances of each individual trust.
The fear was expressed in another place by the noble Lord, Lord Conesford, that if the Bill were passed in its present form it might be taken in the courts as a modern and up-to-date declaration by Parliament of what the powers of investment by trustees should be. The courts would, therefore, feel precluded from allowing the type of investment clause which they have been allowing since the 1958 Act has been on the Statute Book. My hon. Friend the Economic Secretary said that he proposed to move an Amendment which would cover this point and make clear that the freedom of the courts to give wider powers of investment would not be interfered with. Naturally, we were all very glad of that assurance, but some suspicion was cast on the effectiveness of that assurance by what was said by my right hon. and learned Friend the Member for Chertsey (Sir L. Heald).
§ The Solicitor-General
I am sorry to have to say this in the absence of my right hon. and learned Friend the Member for Chertsey (Sir L. Heald), but it is a pity that disturbance should have been caused in that way, because my right hon. and learned Friend the Lord Chancellor was quite specific on this point. He said:I will give an undertaking that before the Bill passes to another place I will consult the judges of the Chancery Division about this matter."—[OFFICIAL. REPORT, House of Lords, Tuesday, 20th December, 1960; Vol. 227, c. 952.]I need hardly say that that was done. They were consulted, as indeed they were consulted about the White Paper. When my hon. Friend the Economic Secretary gave a specific assurance, it was given 401 in the light of that consultation. There is no need for apprehension on this point.
§ Mr. Arbuthnot
I am grateful to my right hon. and learned Friend for what he said.
It is not only the question of the courts whose decisions might be affected that disturbs me. I am worried that some other decisions, for example, in this House, may be affected. We must not forget our own Committees considering Private Bills. I trust that if the Bill becomes law it will not be regarded as precluding Committees considering Private Bills from giving to the promoters of such Bills much wider powers of investment than the general powers under this Bill as at present drafted, and that such Committees will feel free to give these wider powers of investment to those promoters of Private Bills who have asked for them, should the Committees think that a wider discretion is appropriate.
My basic point, however, is that I do not believe that the Bill will work in its present form. I am convinced that the right thing to do is to alter it to give complee discretion to trustees provided that they take proper advice.
§ 6.14 p.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
There is not much meat left on this bone. I simply say that, after the speeches to which I have listened this afternoon, I welcome the Bill rather more warmly than most hon. Members.
The hon. Member for Gloucester (Mr. Diamond), whom I last saw 7,000 feet above sea level on top of the alps, was much more ebullient then than he is today. Like my hon. Friend the Member for Dover (Mr. Arbuthnot), he prophesied a great deal of gloom about the operation of the Bill, but I do not agree. One of the reasons why I can accept the fifty-fifty division—although nobody else seems to be able to—is the existence of the Variation of Trusts Act, which my right hon. and learned Friend so rightly made clear is not to be affected either directly or by implication by the passage of this Bill.
The saving effect of the Variation of Trusts Act, a different Act with different wording and with different duties cast on the judges, is that it gives them an 402 absolute discretion. I am delighted to hear, not only on account of this Bill, but for other reasons, that the Chancery judges have been consulted, because up to now I agree that there has been not only a variation of trusts but a variation of judges in the sense that judges have disagreed among themselves in a way that hitherto amounted to something of a lottery as to which judge one came before as to how wide one's powers would be.
Perhaps the consultations that have taken place as a result of the Bill will bring some sort of uniformity to that procedure which is additional to the procedure under the Bill and which gives much wider powers to the judges than does anything in this Bill. Because of that power, I do not think that the fifty-fifty division will be quite so binding and so disagreeable as it might otherwise be.
§ Mr. Arbuthnot
Does not my hon. and learned Friend agree that the only people who can afford to come before the judges and get this wider discretion are the larger trusts, and that it is the smaller trusts which will be penalised?
§ Mr. Fletcher-Cooke
I am not sure that they will be penalised. Although it is assumed by everybody that equities are the thing today, it does not by any means follow that they will be the thing for the future.
My concern for the trustees of the smaller trusts—and that is what we are primarily talking about today—is that no greater burden should be put on them than was the case in the past. The Bill will, to some extent, put a greater burden on them. When my hon. Friend the Economic Secretary opened the debate he very fairly asked for the opinion of the House whether they would prefer simplicity to width of power, even if it involved complexity. I plump straightaway for simplicity, because I think that the importance of the lay trustee knowing what he has to do is much more important in the case of small trusts than giving him wider but complicated powers.
I should like to see Clause 3 considerably reduced and amended. I should also like to see Clause 2 (4), to which my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) objected—the subsequent re-division into compartments in the case of property going out 403 of the fund—abolished. If one is to retain the fifty-fifty division, it is enough to make the division in the first place. Thereafter, the two limbs must have a life of their own. To expect trustees to go on thereafter constantly re-dividing and putting one back to compensate for the other, and so on, is complexity for the sake of logic and not simplicity for the sake of reducing the burden on the lay trustee.Thou shalt not muzzle the ox when he treadeth out the corn.One cannot go on putting more on the wretched trustee than merely to make him take advice, make divisions in the first place, and then do the best he can. If one makes him do more than that, all the people, both inside the House and outside, who take on this disagreeable job, involving them in a great deal of worry and personal expense, will not do it. It will mean that the small trusts will all go into the hands of institutions which, quite rightly, charge fees and the beneficiaries will therefore get that much less.
I do not want to see that any more than I want to see the suggestion made by the hon. Member for Gloucester for some sort of Government trust fund come into being. If settlors wish that sort of thing they can appoint the Public Trustee to do the job. If we are to have these powers of decision spread, as I think they may be, all over the country in different hands, we must not load those hands with too much worry and too much work.
My criticism of the Bill, which I welcome more warmly than most people, is that this difficult balance between complexity for the sake of logic and simplicity, even though it is occasionally harsh and illogical, comes down too fat on the side of complexity, bearing in mind the sort of people who are likely to have to operate the Bill.
This is a much more pleasant occasion than when we last had to deal with a trustee matter in the House, and I am, therefore, very glad to be able to support the Bill as warmly as I do, but there are two points which I want to put before my right hon. and learned Friend. First, it is a pity that an opportunity has not been taken to see that the powers of investment in the case of the 404 amalgamation of companies—a very frequent phenomenon today—are widened and brought up to date. There is a decision—I believe that it is re Walker —which gives a very narrow interpretation of the word "amalgamation", and which means that the power to invest in equities by companies which amalgamate in the modern form, by the formation of holding companies to acquire the shares, or by the swapping of shares one with another, is not included. The opportunity should have been taken to include it.
§ Mr. Denzil Freeth
Is it not a fact that Part IV of the First Schedule, in lines 30 to 35, as the Bill has emerged from another place, covers the situation fairly fully?
§ Mr. Fletcher-Cooke
I am obliged to my hon. Friend. I had not noted that. I dare say he is right, although I am not sure that he is from a casual reading of the Bill. No doubt my right hon. and learned Friend will deal with that point in winding up.
§ The Solicitor-General
Perhaps I may say that I am aware of the point which my hon. and learned Friend has in mind. It is not met completely, and I will certainly consider it further.
§ Mr. Fletcher-Cooke
I am obliged to my right hon. and learned Friend.
Secondly, in Clause 6 the same powers are given to persons not being trustees but having statutory powers to make investments as are given to trustees. Although I do not share their doubts myself I have been told that certain persons having powers of investment in respect of things such as colleges incorporated under the Royal Charter fear that they will not be included among the persons having statutory power to make investments if we define the term "statutory power" very narrowly. If we define this as a power conferred by Statute—and these bodies incorporated by Royal Charter do not have their powers conferred directly by Statute—they fear that they will be omitted from this new freedom which is to be given to trustees and persons not being trustees having the statutory power. That may be a false alarm.
In regard to the new obligation upon trustees to take advice, I note that the 405 advice of one of their own number will be sufficient. If one of them happens to be a stockbroker, accountant or something of that sort, it will not be necessary for them to go outside their body. They will be able to ask his advice, and if it is given in writing that will be enough. That is an important point, because in the case of these small trusts money must not be wasted by taking unnecessary advice outside the body of trustees.
I believe that the Bill will work, and I am very glad to have the opportunity of supporting the Government. It seems to me that they have been rather unfairly knocked about today. The Bill represents a large advance. This is the first time that all these wretched widows and orphans of whom we have been thinking will have a chance of sharing in the benefits of the affluent society. If that is not a large advance I do not know what is. I do not want to repeat the arguments over and over again. I hope that the Government will get the Bill through and that it will work as well as I think it will.
§ 6.25 p.m.
Major W. Hicks Beach (Cheltenham)
I must declare an interest in this matter. I am a practising solicitor and a trustee of a great number of trusts. I am also on the committee of an insurance company which acts as a corporate trustee.
We ought to thank the Economic Secretary for the clear way in which he sought to explain the intricacies of the Bill, which I have found very difficult to understand. The only point on which I would join issue with my hon. Friend is in regard to his statement that after the publication of the White Paper no adverse criticism was received within the first week. I do not think that that is the proper approach to the matter.
§ Mr. Barber
I think that my hon. and gallant Friend will find that what I said was that there was no serious adverse criticism in the weeks following the publication of the White Paper. The only reason I said that was that the White Paper was published specifically so that we might obtain reactions before we started the drafting of the Bill. I do not want to make any greater point than that.
Major Hicks Beach
I entirely accept that explanation. It would, therefore, be 406 appropriate at this moment, when everyone recognises that the people who have to administer the Bill will be the legal profession. and especially solicitors, to give that profession's criticisms of the Bill, which I know my hon. Friend has received during the past few days. They have come through the usual channels of the Lord Chancellor's Department, which are the proper channels through which the Law Society deals. In a letter Ito all solicitor Members of the House of Commons, dated 8th January and headed "Trustee Investment Bill", the Secretary of the Law Society writes:In its existing form the Bill is, in the Council's view, both obscure and largely unworkable; while they are convinced of the desirability of extending the power of investment of trustees on the general lines of the proposals in the White Paper, they have come to the conclusion that it is quite impracticable to attempt to define the mechanics with such rigidity; they have indeed formed the view that the difficulties both in the interpretation and in the administration of the Bill are so fundamental that serious consideration should be given to re-drafting certain of its main provisions.That is the considered view of the legal profession, to which, in relation to a Bill of this kind, the House ought to give very serious consideration.
All members of the legal profession support to the full the general principle that the scope of trustee investments should be extended. There cannot be any argument about that from either side of the House. The present scope of trustee investments is based on the situation when the Trustee Act, 1925, was passed. That Act is now hopelessly out of date, and I should not like anything that I have to say to be interpreted as in any way criticising the Government in their attempt to put right that completely out-of-date and anomalous position; but when we are trying to produce complicated legislation of this sort it is very important to make certain that it will be both practicable and capable of being understood, and in this case understood by lay trustees and not necessarily only professional people.
It is also important for the House to realise the number of and size of trusts which will be affected by the Bill. Since the passing of the Variation of Trusts Act, 1958, where such trusts were limited to strict trustee investments many applications under that Act have successfully been made to obtain extended powers of 407 investment. There has been some dispute whether the courts and the judges would continue to give that extended power if legislation of this nature is passed by this House. I do not propose to go into that, as I do not think it affects this issue, particularly after what my hon. Friend has said, that there is to be some provision to safeguard that situation. But I think it proper for me to say that in every case with which I have been concerned so far, and my firm does a tremendous lot of trust work, when there has been an application to extend the power of investment it has been successful. Therefore, I think it fair to say that most of the trusts of any size with money available have probably already secured an extended power of investment.
It is also fair to say, in my judgment—I am not criticising what has been said about what judges may or may not do—that when a judge studies the provisions of this Bill should it become an Act, he will continue in the practice which has been adopted because he will realise what a difficult position will face trustees who are limited to trustee investments as is proposed. I do not see any danger of Chancery judges restricting the discretion they have been exercising in very wide terms since 1958, but that is purely a matter of opinion. On the assumption that what I have said is correct, I think it disposes of the big trusts which have a method of applying to the courts. The costs are not excessive and most will have already put their house in order.
There is another important point which I do not think has yet been mentioned and, as has been said by my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke), this "bone" is getting a little short of "meat". From a practical point of view, I think it is fair to say that since 1945 virtually every solicitor drawing up a new trust or will has put in not only a vastly extended investment clause but, in the majority of cases, has included complete discretion of trustees about investments. Therefore, most new trusts, wills or settlements will not come within its purview and will not be affected by this Bill. The reason I give that information to the House is that it brings us to the fact that we are dealing with only a small number of trusts of a very limited size. The big trusts can 408 get their powers extended and most recently created ones will not be affected by the provisions in the Bill.
That brings me to my main argument, that we must realise that a great number of the small trusts are not big enough to justify an application to the courts to get their powers extended and they cannot afford continually to take professional advice which, let us face it, costs money. Therefore, there is an onus placed on individual trustees to make decisions about whether investments will result in the commission of a breach of the trust within the standards laid down in the Bill. I am not criticising the Civil Service, but I feel that that general situation regarding the Variation of Trusts Act, the present position of trusts and the creation of new trusts since 1945 has not been appreciated by the Treasury. I hope, therefore, that the Government will give fresh consideration to this problem.
I am bold enough to suggest a solution to their problem. I believe it is unreasonable that any trustee should not have a list of investments setting out clearly and plainly what are trustee investments. It is perhaps one of the failings of the Treasury that it does not consider a Bill drafted by anyone else to be workable, but I recommend my hon. Friend to study the Private Members' Bill introduced in 1955 by my hon. Friend the Member for Aldershot (Sir E. Errington) which sought to set out clearly a new basis for trustee investments. Curiously enough, it largely follows the list of equity investments authorised under this Bill. I think that it would be much simpler if the Government withdrew this Bill altogether and introduced another Bill based on the Bill of 1955, where it is clearly set out what are trustee investments and what are not.
I am not suggesting that the principle of extending the scope of investments is not right. Of course it is, but we have to bring it up to date. Hon. Members who are members of the Stock Exchange will confirm that what happens so often in practice is that someone will ring up a firm of stockbrokers and say, "I should like my trust to have an investment in so-and-so." It may be that the firm of stockbrokers has an investment adviser whom they would consult, but what usually happens is that the firm rings up a solicitor and asks, "Is this 409 investment within the terms of the investment clause of the trust?" The solicitor has first to find out exactly what is the position and whether the trust has a full 50 per cent. of equity shares, and various other matters, and it may be a considerable time before he can give an answer which he guarantees to be correct.
The present system works well and I say with sincerity, and with experience over a number of years, that any trustee, or an adviser to a trustee, is entitled to have before him a list of trustee investments. It is unreasonable that the law should be otherwise, and I hope, therefore, that the Government will give this matter close consideration. I hope also that they will give consideration to the views which I quoted earlier from the Law Society which, after all, represents the legal profession. I consider that the sensible thing would be to withdraw the Bill and to start again. As the whole matter has been conducted on a friendly basis, and as the Economic Secretary has been so frank with the House, I am sure that hon. Members with knowledge of trust work would be prepared to assist the Government to draw up a sensible Measure, and I certainly should be prepared to do so.
§ 6.38 p.m.
§ Mr. Denzil Freeth (Basingstoke)
Like my hon. and gallant Friend the Member for Cheltenham (Major Hicks Beach) I must declare an interest, in that I am a member of the London Stock Exchange and I think I am the first stockbroker to speak in this debate. I suppose that in so far as this Bill may increase Stock Exchange activities some of it may conceivably pass by me.
I should like to dissociate myself from the criticism of the Bill made by my hon. and gallant Friend. I believe that the Government deserve far more praise in this matter than they have received so far, even including that from my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke). In the face of the natural desire of the Treasury to do nothing to encourage the sale of gilt-edged securities, I believe that this is a brave and courageous thing to do. I also believe that it is a recognition, to an extent which, quite frankly, one does not always see from Governments, of the way in which life has changed and the need to amend our out-dated legislation.
410 We have heard much this afternoon about the risks of gilt-edged. Certainly, anybody who has invested in fixed-interest securities since 1925, or even since 1945, has had no increase in income in money terms and only a limited capital gain if he held dated gilt-edged stocks. If they were undated, he has suffered a very severe loss, not only in real terms, but in money terms as well. I think a fair conclusion is that it is most unlikely that the 3½ per cent. War Loan will ever in our lifetime again reach par. If it ever does, one wonders what par will then buy. Equally, it has been said this afternoon that equity shares give one an opportunity to participate in the expansion of the economy and to protect oneself to some extent from the ravages of inflation.
I have got out one or two figures which I think are rather startling. If we take the years 1950 to 1959, we find that the national income in money terms rose by between 6 per cent. and 7 per cent. a year, and about 2 per cent. in real terms. If one takes dividends paid out by all the leading British companies which publish their results, we find that dividends actually rose in that period by between 7 per cent. and 8 per cent. a year—almost exactly equal to the rise in national income—while those companies which comprise the Financial Times index of industrial ordinary shares raised their dividends at an annual rate, not of 7 per cent. or 8 per cent., but of 12 per cent.
Therefore, one finds oneself in the position of saying that in real purchasing power the dividends of all companies over those eight years went up by 3 per cent. a year and dividends of the companies comprising the Financial Times index went up by 7 per cent. a year, while the real purchasing power of someone who held fixed-interest stocks fell by 4 per cent. per year—by 32 per cent. over eight years. Even though that is so, we also have to admit that there are certain risks in equity and investment. Some industries grow while some decline. We have seen a decline over the years in the cotton industry. We have seen the enormous growth of the chemical industry. Even within a given industry some companies expand and get a larger share of the available market while others tend to contract. Management becomes less dynamic and they 411 tend to lose their share of the available market.
Although the risks in equity shares are less than they were in the 1920s, before there was full employment and this country was committed to so high an annual expenditure on social security and before we were committed to a high and fairly enduring expenditure on defence, the fact remains that equity investment carries with it some element of risk greater than is present in investment in gilt-edged, unless those investments are looked at from time to time. That is because, if one is dealing with equity investments, one is dealing with the lifeblood of the economy and there may be great changes in the whole picture of the economy.
It therefore seems right as a first step that we should have the fifty-fifty principle because, as my hon. and gallant Friend the Member for Cheltenham said, we are now to deal not with the trustees of large funds, who have been to the courts and had their powers enlarged. We are to deal with the small men, with trustees appointed to look after trusts comprising investments listed in the 1925 Act. Such a trustee was not chosen, as a trustee today may be chosen, to have control of a portfolio of investments under an investment clause which is so wide that it includes practically anything. He was chosen in the days when he had virtually nothing to do except be honest.
As we push the trustee into his new position and place on his shoulders these new burdens, even if he does nothing he is in fact making a positive decision to do nothing. It is right that we should go as far in the first step as only 50 per cent. I approve of the 50 per cent. rule and also of what seem reasonable provisions for adding to or subtracting from the funds of the trust by making a compensatory payment. My right hon. and learned Friend the Member for Chertsey (Sir L. Heald) was a little unfair to the Bill in this respect.
I also much prefer the Bill to the suggestion of a State-run unit trust. There are various people, who may be many or few—various trustees, various beneficiaries—who all have different needs according to the age of the life tenant and who gets the money when the life 412 tenant dies. One wants to give the trustee the right to choose investments suitable for the conditions of the trust rather than to suggest that he may only go into equities by buying a unit in one particular unit trust, even though it is State-run.
§ Mr. Sydney Silverman (Nelson and Colne)
I am following the argument of the hon. Member with great care and with some sympathy, especially in what he says about the burdens and changed circumstances of the small men acting as trustees for small estates, but which for that very reason are so important to their beneficiaries. Does he not appreciate that one of the principal criticisms of this Bill is that to such a man it is virtually unintelligible, and that he gets no guidance nor help from a Bill which he is absolutely unable to understand? Does the hon. Member agree with that?
§ Mr. Denzil Freeth
Having dealt with the principle of the fifty-fifty rule, I am coming to the mechanism, which has been the subject of a great deal of debate this afternoon. I certainly agree with the hon. Member for Nelson and Colne (Mr. S. Silverman) that simplicity is something at which we should aim. For that reason, I hope that Clause 3 will be very drastically redrafted. I hope also that property in the sense of freehold property held by a trust as an investment will be put on one side. It seems to complicate the Bill to an enormous degree to consider a property under these headings. I suggest that what we should consider in relation to this Bill are purely investments held by the trust, either in cash, or under Parts I, II and III of the First Schedule.
One or two possibly smaller points, certainly come under the heading of simplicity. The trustee has to obtain the written advice, not ofa competent professional financial adviseras was the wording of the White Paper. He has to get proper advice from one whom he believesto be qualified by his ability in and practical experience of financial mattersI am a stockbroker and people ring me up with ideas they have been given by people who "know". Therefore, I should like to go a little further in qualifying the phrase, about somebodywho is reasonably believed413 to haveability in and practical experience of financial matters.I am not sure that the trustee should not commit to paper the reasons for his believing the person from whom he sought advice was one reasonably qualified to give it. I am not altogether sure that he should not write down and leave for the beneficiaries his reasons for accepting or rejecting that advice.
I should also like to raise, although it may be a Committee point, the question of Clause 5 (4) and 5 (6), in connection with getting advice. Are they completely clear? We all know what the Bill is aiming at when talking about an "officer or servant", but surely the Bill should be drawn a little more clearly. Where the officer or servant is the sole trustee, apparently he need seek no other advice at all. Surely we should have some wording in the Bill as to by whom he is employed or of whom he is the servant, because if we are allowing a person employed, even though employed by the investment department of a bank, for example, to act as a sole trustee and to take no other advice whatever, we are surely opening the door quite wide.
There are one or two other points which I want to mention because I hope that by the Committee stage the Government will have had time to consider them. I ask hon. Members to look at the First Schedule, which deals with the list of shares which may be bought in the wider range. One wonders why the stock of the Bank of Ireland still remains in Part II. Presumably it remains from the days when the Bank of England and the Bank of Ireland, hand in hand, were the independent Central Banks. But the Bank of Ireland today does not come under the laws of the United Kingdom, even though it was founded by Royal Charter many years ago. Unlike almost all the other shares in Part II, Bank of Ireland stock is an equity share and the dividend has, in fact, risen from 14 per cent. in 1952 to 20 per cent. in 1960. In addition, one has to note that apparently the stockholders are potentially liable for the amount of money of the notes in circulation should the bank fail. Et is difficult to see how the Bank of Ireland is to be considered a far more respectable security and more suitable for the narrower range than, for example, 414 the equity shares of the note-issuing Scottish banks or even the joint stock banks of the United Kingdom.
Is paragraph 3 (b) of Part IV of the First Schedule enough? My hon. and gallant Friend the Member for Cheltenham referred to the Bill which was introduced into the House in the last Parliament by my hon. Friend the Member for Aldershot (Sir E. Errington), which attempted to define, in general, certain types of equity shares. Are sub-paragraphs (a) and (b) alternative or are they cumulative?
Secondly, merely to have an issued and paid-up equity share capital of £1 million and to have paid a dividend in each of the five years preceding the investment are not sufficient to give an assurance that the company will forge ahead. If a company has an issued equity capital of £1 milion and last year paid 10 per cent. and the year before 12 per cent, and the year before that 14 per cent., it is obviously not the sort of company in which the simple investor for the small trust should be encouraged to invest. I think that we should try to cover this matter by suggesting that, in addition to having an issued equity capital of £1 million, the gross amount paid out in ordinary dividends should not have been reduced within the last three years before the investment was made. The wording could be analogous to that in the White Paper on dividend limitation in the summer of 1951.
I believe that equity investment needs supervision. I do not believe that the trustee who perhaps has done nothing for years, because all the investments were in trustee securities, can—like the sleeping beauty—go to sleep and forget all about it. He may perhaps hope that the beautiful take-over prince will come and rescue him, but possibly the beautiful take-over prince will not. Equity shares can decline in value and dividends can be reduced. The Bill recognises this by putting on trustees in Clause 5 (3) the onus of taking advice and reviewing the portfolios of investments at such intervals as they may think fit.
This is very different from the Clause in the Bill when it was introduced in another place. It was then suggested that the trustees must have the list of investments reviewed at intervals of not more than five years. Following a speech 415 by the noble and learned Lord Nathan in another place on 28th November, my noble and learned Friend the Lord Chancellor moved an Amendment deleting that Clause and inserting the Clause which we have in the Bill, as reported in column 948 of the House of Lords HANSARD of 20th December.
My noble and learned Friend's argument was that if we put a period in the Bill, automatically that period would come to be regarded as the norm for reviewing the investments. He said that in some trusts it was essential to review more frequently than in others. I fully agree with all that, but as the Bill stands at the moment the trustee could go to sleep and do nothing for years, and I do not think that it is much use the beneficiaries having the right to seek compensation if the trustee has no money left. I hope that we shall return to this in Committee.
For the moment, I welcome the Bill and congratulate the Government on it. I believe that it will help trustees, beneficiaries and local authorities and that it will hinder no one, unless it is the Treasury in managing the gilt-edged market—and that is possibly too big a problem already to be greatly magnified by this Bill and certainly to be discussed on Second Reading.
§ 6.58 p.m.
§ Mr. David Webster (Weston-super-Mare)
Like my hon. Friend the Member for Basingstoke (Mr. Denzil Freeth), whom I was glad to hear making a cheerful noise on this subject, I must declare an interest. I follow the same occupation as he does. Like him, too, I welcome the purpose of the Bill in giving belated justice to those trustees where the remainderman has not already given an indemnity to the other trustees indemnifying them against capital loss and in other trusts where they have not made application at considerable expense and trouble to the court and already have escaped from the trammels of the Trustee List.
Having welcomed the Bill, however, I must say that there are certain doubts whether it will work and whether in all respects it will fulfil the Government's very honourable and realistic intention. The first changes which I suggest—and 416 here again I follow my hon. Friend the Member for Basingstoke—are in Part IV of the First Schedule, where there is a reference in paragraph 3 (a) to £1 million nominal value. This itself throws into disrepute our old acceptance—we have not yet go rid of it—of the nominal share value and makes yet another case where we should have shares of no par value.
A company with £1 million paid-up capital will be all right for the Trustee List in the new form, but it may have exploded all its reserves in order to keep itself on the dividend list for the last five years. On the other hand, a company with £750,000 nominal value, paid-up shares, might have accumulated considerable reserves by self-financing and have a greater worth and a greater integrity than the company which will be on the Trustee List. I suggest that if this is not amended in Committee, then after the Bill becomes an Act, as I hope it will, we shall have a spate of scrip issues of only paper worth to bring the nominal value up to the specified amount. I therefore recommend to my right hon. Friend that the specified amount should be that the paid-up capital plus the free reserves of the company should be brought up to £1 million in order to make it eligible for the Trustee List.
In 3 (b) of the same Schedule, we have the qualification that the company must have paid dividends for each of the last five years. A company such as an expiring gold mine, a wasting asset, could quite easily have paid out dividends for the last five years, but, because of that, exploded its reserves and would no longer be of any value to a widow or orphan. I understand that one of the main purposes of this Bill is to protect such people. At the same time, the Bill does insist that trustees get competent advice. In both of these cases, the qualification and requirement is flying in the face of competent advice, and I very much hope that in Committee it will be changed.
Like most of my hon. Friends and most of the right hon. and hon. Members who have spoken from the other side, my main objection is to the fifty-fifty principle. I do not want to labour that, because I think it has been expressed very clearly by other hon. Members already. I think that the fact that it is itself harsher than the requirement of 417 the court and that an Amendment is being considered by the Government to suggest to the court that it does not in fact enforce the law is, I think, an interesting possibility, although I realise that the Bill is protecting the smaller trusts which would not in fact go to the court and, for that reason, are endeavouring to be exceptionally cautious.
On the other hand, I think there is the very dangerous possibility that the Bill is doing something that the Trustee Acts did not do; that is, trying to control not only the purchase but also what should be sold by the trustees. It is a new principle, and it is a dangerous principle.
For example, I would take the case where a trust has very commendably set aside redeemable gilt-edged securities in order to pay Estate Duty in due course and in order to avoid the necessity of selling shares in a private company. Under the strict observation of the Bill, if it is passed into law, we would have the trust being compelled to sell stock from the broader range; in other words, the equity section of the trust. I think that is flying in the face of the direct intention of the testator when he requested the setting up of a special fund of redeemable gilts in order to pay any Estate Duty in due course. That is an unfortunate possibility, and I should be grateful if it could be looked into.
I have declared an interest because I am a stockbroker. There are people Who suggest that there will be a great rush into equities as a result of the Bill being passed into law. I do not deny it, but I place a limit upon it because any trust that goes into equities as a result of this will be obliged, unless the life tenant is to suffer loss of income, to look for a company that is paying as a yield 6 per cent. or more. These are the companies that today have been left behind in the equity surge forward of recent years.
In these categories there are companies that are definitely of a high risk element which no competent adviser would suggest. There are also other companies which have proved themselves to be unfashionable, and no doubt those will be the ones which trustees will be commended to look at. This is not an insuperable objection, but I think the need to avoid the forgoing of income will necessarily slow down the process of the change from gilts into equities. I wel- 418 come this in many cases, because it will enforce prudence by people who, by their very nature and because of the responsibility they have undertaken, will wish to be prudent anyhow.
I welcome very much indeed the purpose of the Bill, and I wish it well. At the same time, I hope that the Amendments can be included in order that it will fulfil the intention of the Government in bringing it to this House.
§ 7.5 p.m.
§ Mr. Martin McLaren (Bristol, North-West)
It is always a pleasure to follow my hon. Friend the Member for Weston-super-Mare (Mr. Webster), particularly in a matter where he has professional and practical experience. I especially welcome what he said about the requirement in Part IV of the First Schedule that companies to be eligible must have a total issued and paid up capital of not less than £1 million There is a growing realisation that this idea of capital of fixed par value means very little and is only of historical significance. A large part of a company's original capital may in practice already have became lost. Many of us look forward to the day, which has been so long delayed, when the Report of the Gedge Committee will be implemented and companies, if they wish, will be allowed to issue shares of no par value. When that day comes, if the present provision is not altered in Committee, it will then have to be amended.
I welcome the Bill as a step in the right direction. I suppose we all agree that the underlying need for it has been caused by the failure of Governments of all parties to keep the value of money steady. The inflationary tendencies of currencies have made any money stock dangerous and have made it more prudent to invest in real values. As the Nathan Committee said some years ago, the very restrictions which were intended to be a safeguard have become a snare and a danger.
People's ideas of investment change. A hundred and fifty years ago it was the fashion for people to invest in land, mortgages, and in funds. That was perhaps all there was to invest in. The other day I was reading the life of Lord Eldon in Campbell's "Lives of the Lord Chancellors". There was a passage there in which we were told what 419 he did with his money. This is what it says:He bought some land and laid out considerable sums on mortgage, though like his brother, Lord Stowell, he preferred for his accumulations the elegant simplicity of the 3 per cents ".Those days have gone and the modern idea, in the changed conditions of our times, is that it is better to invest in the equities of the great growth companies, such as, for instance, the chemical companies, where large sums are retained every year out of profits and reinvested, with the result that as time goes on the assets of the companies and the values of their shares, admittedly with fluctuations from time to time, tend in the long run to rise as they must almost inevitably do. People have found that it is only by investment in equities that they can keep pace with the welcome improvements that salary and wage earners have received.
I wonder whether the Bill, welcome as it is as a step in the right direction, may not be too little and too late—too little because the powers given by the Bill will still condemn trustees to hold as much as half of their funds in fixed interest securities. Historically, during the last thirty years or so, there can have been few times when if would have been prudent for the managers of a fund to put as much as half of it into fixed-interest securities. I would rather see more elasticity in the Bill, and perhaps a provision that the fifty-fifty balance could be altered later by Statutory Instrument.
In that connection it is interesting to look at the modern practice of investment trust companies. They are very well managed. As a matter of current practice, they find that it is wise for them to invest 80 or even 90 per cent. in equities and only the balance in fixed interest securities. That is a marked change compared with ten years ago.
The hon. and learned Member for Kettering (Mr. Mitchison) mentioned the Church Commissioners. They are a very well-managed and prudent body. They have found it desirable to have roughly one-third of their investments in equities, one-third in land and property, and only the remaining one-third in fixed interest securities. They thus have an arrangement by which as much as two-thirds of 420 their fund is in property which it is hoped will appreciate.
The Bill may be too late because it has come at a time when the gilt-edged market is very nearly at an all-time low. It will present trustees with the difficult problem of deciding whether to sacrifice their holdings of Government stock at present prices and reinvest in equities at a lower yield.
Trust funds would have been saved heavy losses if the Bill had been introduced some years ago. My hon. Friend the Economic Secretary gave us a historical review, starting with the Report of the Nathan Committee in 1952 and with the valuable Bill of my hon. Friend the Member for Aldershot (Sir E. Errington) in 1956. My hon. Friend did not tell us how very lukewarm, and indeed hostile, was the reception of the Government of the day to the recommendations in Chapter 8 of the Nathan Committee's Report as to investment in equity shares by private trusts.
On 27th July, 1955, a statement was made by Lord Selkirk in another place in which every conceivable objection was made to the idea of allowing trustees to make any investment at all in equities or to adopt what has been called the fifty-fifty rule. I believe it is worth while my reading one or two sentences from what was then said:In the opinion of the Government, the proposal for a general extension of the range of investment to include equity stocks and shares is open to serious objection. The very considerations which in some circumstances would lead to the enhancement of the trust funds might in other circumstances lead to considerable losses, and the Government has to recognise the possibility that the inclusion within the Trustee List of securities hitherto excluded might be regarded by the general public as conveying a measure of official guarantee of their suitability for investment.'What a bad argument that was. The passage continues:' The object of the Trustee List is to ensure the safety of the trust funds in cases where, for example, the settlor has not thought fit to give a wider power of investment. Its purpose is not to offer wider opportunities to trustees to exercise the skill in investment which the management of investments in equity securities continually requires.'Later on these words appear:'The Government's conclusion is that any general extension of the powers of investment of trustees would not be desirable.'"—(OFFICIAL REPORT, House of Lords, 27th July 1955; Vol. 193, cols. 1095 and 1096.]421 The attitude of the Government today is very different from the attitude of the Government five years ago. I look on those five years as having been lost. It is perhaps an illustration of how opinion on the back benches is about five years ahead of opinion on the Front Bench. I welcome the tardy conversion of the Front Bench, expensive though it has been for beneficiaries. We can affectionately describe the Treasury Bench in a phrase which was used not long ago in another context—"wandering souls but happily not lost".
In future economic and social history today may be recognised as rather a landmark, as being the day when Treasury Ministers have for the first time acknowledged to the House that their own securities are not necessarily the most worthy for trust funds. It is rather an Ash Wednesday for the Treasury Bench, a day of sackcloth. It is a red letter day for trustees and beneficiaries.
I agree that the provisions of the Bill as they now stand will make it much more difficult for the ordinary trustee to administer his trust without having to go on practically every occasion to his professional advisers to ask whether he is all right. I hope that in Committee we shall be able to look at the Bill in detail with a view to making it more plain and straightforward.
Having made those few comments, I want to say again how glad I am that the Bill has at last arrived.
§ 7.17 p.m.
§ Mr. Donald Box (Cardiff, North)
The Bill has been long awaited and will be warmly welcomed by all categories of trustees and beneficiaries who have suffered in the past under the yoke of the Trustee Act, 1925. I welcome it as an investment adviser and a trustee, but not, unfortunately, as a beneficiary. Nowhere will it be more warmly received than by the unfortunate widows and infants whose funds, awarded as damages or compensation, have been invested under the Rules of the Supreme Court, because up to the present they have 'lad a very raw deal indeed. Because of the plight of poor unfortunate people like these, about which I wish to say more in a moment, I am very sorry that Clause 5 is not more 422 specific in requiring a review of investments at regular intervals of, say, every three years.
I will describe to the House just what can happen when a regular review is not made. I do not know how many hon. Members are familiar with the position of funds in court. I discovered the position when I was investigating the case of the young son of a constituent of mine. This boy was awarded £750 damages after being injured by a British Railways' lorry in 1955 at the age of 4.
In accordance with what I now discover is normal practice, this sum was invested under the Rules of the Supreme Court in that rather discredited undated stock, 3½ per cent. War Loan. As hon. Members can imagine, the capital value of this boy's damages, as represented by this investment carried out by the equivalent of his trustees, has already taken a nose-dive in value. His £750 is worth a mere £534 at today's values. That is a depreciation of 28½ per cent. on the capital sum in just over 5½ years. I shudder to think what it will be worth when he comes of age if the provisions of the Bill allowing wider powers of investment to trustees do not become law.
In answer to a letter on the subject that I wrote to my noble and learned Friend the Lord Chancellor, I had a detailed and courteous reply which also referred me to the Report of the Committee on Funds in Court set up by the Lord Chancellor under the chairmanship of Mr. Justice Pearson. That Report, which was published in July, 1959, made interesting if somewhat alarming reading, for from it I was horrified to learn that some 95 per cent. of the funds belonging to widows and infants were—and, presumably, still are—invested in 3½ per cent. War Loan. As the capital depreciation on this stock in recent years has been enormous, it is hardly surprising that a good part of the Report is taken up with explanations to justify this rather extraordinary choice of an undated stock from a list which includes a number of apparently highly-desirable dated and redeemable Government stocks.
I do not want to appear to be trying to be wise after the event; in financial circles we have a name for that—we call it "jobbing backwards". However, 423 I am quite sure that were I a beneficiary under the present system of handling—I nearly said "mishandling"—funds in court I should want some explanation of the circumstances surrounding the strange decision to invest on behalf of widows and infants such a large proportion of these funds in an undated Government stock. I should also want to know what steps were taken to obtain expert financial advice on the wisdom of the choice at the time of the investment, and how often the investment had been reviewed since the purchase.
As I understand it, the duty of a trustee is to invest in such a way as to maintain the reasonable balance between capital and income. In some cases, special circumstances may require that a higher-than-average income is needed from a trust, but in others the reverse may be the case. In such conditions, I would expect a conscientious trustee to take expert advice with the object of meeting, as far as possible, the beneficiary's wishes, as long as it were consistent with prudent investment. If the beneficiary were an infant, however, there would be no doubt whatsoever in my mind that the most important factor to be considered would be the protection of the capital sum until that beneficiary came of age.
That that view is shared by the Queen's Bench Master—in theory, at any rate—is substantiated by the following sentence in the reply that I had from my noble and learned Friend the Lord Chancellor, which reads:It has always been the Master's view that the system should provide that the capital should maintain its value, and not be subject to market fluctuations and that a reasonable rate of interest should be provided.My noble and learned Friend also expressed what I fear to be the rather pious hope:If of course the price of 3½ per cent. War Stock increases sufficiently, the infant may still benefit from a capital gain.For the sake of widows and infants, I hope that he is right.
The main reason given in paragraph 44 of the Pearson Report for choosing 3½ per cent. War Loan is not, as one might expect, the higher interest rate obtainable, but the rather lame one that the interest was, and still is, paid without deduction of tax. It is argued that in 424 this way many beneficiaries were relieved of the task of reclaiming Income Tax overpaid and to which they were not liable. I need hardly point out that if the wider powers of investment envisaged by this Bill are adopted—and, incidentally, they broadly comply with the recommendations of the Pearson Committee—some solution to this problem of reclaiming tax will have to be found, as a large proportion of the dividends on future investments is bound to be paid after deduction of Income Tax.
Another advantage claimed for 3½ per cent. War Loan is that it is one of the Government stocks included in the Accountant-General's exchange system. This system sets off sales and purchases against each other, and quick settlement is effected. But as Government stocks can already be sold through the market for cash settlement within two or three days, I cannot see any great advantage here.
The third rather dubious reason given is that where funds are not required to meet the immediate needs of the beneficiaries, as in the case of an infant, the income can be capitalised and reinvested from time to time. This is almost adding insult to injury, for any infant who has had his funds entrusted to the High Court in this way in the past has not only suffered considerable depreciation in his original capital but has also had his interest whittled away as capital in the same way—and this ignores any loss the child may suffer from depreciation in the value of money over the years
It is as well for some people that trustees are protected by law. It is impossible to estimate the total loss involved, but as widows' and infants' holdings of 3½ per cent. War Loan exceed £4 million the sum must be considerable. Unfortunately, under the existing rules of the Supreme Court, there is no provision for the periodical revision of investments, and no claim can be apparently made on the High Court for restoration of capital lost.
In the county court, however, things are totally different. Funds of widows and infants paid into the county court bear an interest rate of 3½ per cent., but they are also subject to a guarantee by the Government for the repayment of capital and interest, £ for £, without any 425 capital appreciation or depreciation. Despite this provision, these county court funds are invested—behind the scenes, so to speak—by the National Debt Commissioners, again mostly in undated Government stocks, so that whenever a beneficiary is paid out by the county court at par there is inevitably a difference that is, presumably, met in one form or another by the taxpayer.
On the evidence contained in the Pearson Report, and the information given to me by my constituent, I believe that the High Court has failed miserably in its duties as trustee, especially in the case of infants. It is possible that if the Trustee Act required a regular review of investments such deficiencies would rarely arise, and, even if they did, one would at least be compensated in the knowledge that every reasonable precaution had been taken to avoid them.
I hope, therefore, that at a later stage Clause 5 will be amended to include a definite periodic review of investments. I hope also that my right hon. and learned Friend may feel disposed to initiate a close investigation into the past handling of widows' and infants' funds by the High Court because, on the face of it, it would seem to me that these beneficiaries have a very strong case for claiming compensation from the Government for the disastrous losses they have incurred.
§ 7.29 p.m.
§ Mr. John Hobson (Warwick and Leamington)
I intervene at this late stage only to ask three short questions of my right hon. and learned Friend. The speech that we have just heard from my hon. Friend the Member for Cardiff, North (Mr. Box) seemed to proceed on the basis that the Bill deals with funds in court. I must say that I have found myself to a large extent mystified by many provisions of the Bill, but I had assumed that as it at present stood it did not deal with the question of funds in court. Will my right hon. and learned Friend clarify that point and say whether it is the intention of the Government, if the Bill does not apply to such funds, either to amend it so that those funds can be dealt with, or to deal with the point in some other manner?
My second question is this. Will my right hon. and learned Friend make clear 426 to the very many mystified trustees, who already have wider powers of investment in a reasonably extensive list of investments, whether or not they need to try to disentangle the mysteries of Clause 3 of the Bill? I was visited yesterday by a trustee of considerable experience in the City of London, who is a trustee of a well-known charitable and highly respected scientific society. That society has recently, by order of the court, been told that it may invest up to two-thirds of its investments in equities, but he does not know, and the is anxious to find out, whether that is quite sufficient, whether he can forget about the Bill because he already has adequate powers under the order of the court, or whether he has to divide his funds, whether he has in future to seek advice under Clause 5 before he does any investment, or whether, because he has these extensive powers allowing him to invest in equities to an extent greater than 50 per cent., he need trouble about the Bill at all. It would allay a very great deal of anxiety now felt quite unnecessarily by very many trustees if my right hon. and learned Friend explained to the public generally that there are very many trustees who will receive no benefit from the Bill and need not try to understand it.
Thirdly, I want my right hon. and learned Friend to look again at Clause 5 (4), which deals with the persons who are entitled to give advice and the persons upon whom a trustee is entitled to rely. As it is drafted now, the words area person who is reasonably believed by the trustee to be qualified by his ability in and practical experience of financial matters.Of course, everyone who has ever been in a criminal case knows that the one thing that the confidence man does is to create in the mind of the person he is defrauding a very reasonable belief indeed. He leads him up the garden path by all kinds of stories so that the person who is defrauded has an utter faith in the capacity and ability of the individual who is really going to take the funds away from him. How the standard of the person who should be entitled to advise the trustee could be a reasonable belief created in the mind of the trustee to be advised I find very difficult to understand.
I very well appreciate the great difficulty in laying down categories. There are many solicitors who know almost 427 nothing about investments, and stockbrokers and bankers may be far too small a class. I should have suggested that it might be possible to consider classifying, shall I say, stockbrokers, bank managers, bankers, merchant bankers, investment experts and such, other persons as may obtain either from the local county court judge or from the local magistrates, or some other form of authority where someone responsible can conduct some sort of inquiry to determine whether a person is qualified to give advice to those who may be quite ignorant and poor people who have not the faintest idea about who is or is not experienced in financial matters and who may, indeed, think that the local grocer who once was left a legacy of £300 and invested it with success is a great financial expert.
I am sorry to have detained the House, but I should be very much obliged if my right hon. and learned Friend would give an answer to each of those three questions.
§ 7.34 p.m.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
This has been an interesting debate upon issues of general interest though not of a kind to generate vehemence, certainly not on party lines. Most hon. Members who have been here during the debate will agree that the object of the Bill has, by and large, met with general approval.
In recent years, the position has been that the severe restrictions governing authorised trustee investments have occurred in the context, first, of the great freedom for settlors and testators to authorise investments in the trust instrument and, secondly, of the powers under the Trustee Act, 1925, and under the Variation of Trusts Act, 1958, to go to the courts for orders which will, if given, secure greater freedom of action for trustees. The extraordinary restrictiveness of the provisions affecting trust instruments where investment intentions are not spelt out stands out all the more strikingly when it is considered in contrast with the freedom of action which may be allowed by the court under the Acts I have mentioned or which exists where special investment powers are incorporated in the instrument creating the trust.
As I understand it, the law in this respect has proceeded upon the assump- 428 tion that the requirements of a testator who has not expressly conferred special investment powers are best met by confining his trustees to a noticeably narrow range of investment. That does not seem to be an assumption which it is necessarily correct or desirable to make. For these reasons, and because we know that this state of affairs has worked harshly upon many people, there has been general agreement that the time has come for amendment of the law, and, generally speaking, the Bill has received a welcome from the House.
When one turns to inquire how well the machinery proposed in the Bill meets the case, all those who have listened to the debate will realise that at that point hon. Members take rather different views. There has been a good deal of variation in the reaction of hon. Members to what is proposed. It is fair to say that many who have spoken in the debate have clearly been impressed by what struck them as the rather arbitrary and rigid proposed division of the trust fund into two halves. Speaking only for myself in this regard, I would subscribe to that view.
Even now, under the provision of the Bill if it become law, a trustee can invest only one-half of the trust fund in the wider range. One wonders how that division was arrived at. We have had the assurance of the Economic Secretary that it was a ratio decided upon having regard to general considerations of equity and compromise and without any attention being paid to the factor that any other apportionment might possibly have brought an undesirable additional strain upon the price level of Government stock and fixed-interest investments. One accepts that assurance entirely, of course, but one is nevertheless left with a doubt about the reasoning which led to the choice of the fifty-fifty ratio.
The first reaction of many of us has been one of regret, in this respect and in certain other respects, that a more pliable and flexible method was not adopted, a method which might even, I should have thought, usefully have gone to the length of taking into account such matters as the size of the fund or even such circumstances as the age of beneficiaries and matters of that kind which are factors which noticeably affect the question of what is an appropriate 429 exercise of his discretion and his duty by a trustee.
One must remember that the Bill is intended to govern this matter not merely for a short period but for many years to come. Bearing that in mind, one is inclined to regret all the more the absence of flexibility in the provisions. In these years it is likely that there will be periods when prudent trustees will be well advised to invest more than half of any trust fund in equities. The value of gilt-edged may be expected to fluctuate during these years with Bank Rate, yet here is imposed on trustees by Statute a scheme of division which, beyond a certain point, noticeably limits their freedom of action.
In offering that last point for reflection, I bear in mind the observations of the hon. Member for Belfast, North (Mr. Stratton Mills), who indicated that the relationship between Bank Rate and gilt-edged prices was not so close as it used to be. This may well be the case, but I should have thought that it was quite obvious that, over a period of years, one cannot exclude the possibility of situations developing in which it is perfectly clear that a prudent trustee would be well advised to have more than half the trust fund either in the narrower range or in the wider range. Yet here is proposed a provision which imposes a rigid and inflexible limitation.
I venture to think that it is very important to remember that this degree of rigidity applies to the narrower range investments as it does to the wider range. If affects both, as I understand it, and this should not be overlooked. If the decision is once made to have a division of the trust fund under the Bill, surely the fifty-fifty limitation applies to the narrower as well as to the wider-range investments. I appreciate that, until that division has been made, there is a discretion in a trustee to put all the funds in the narrower-range investments. I should like to be corrected here if I am wrong, but, once the fund has been divided under the provisions of the Bill, it would seem that this rigidity applies to the narrower-range investments as well as to the wider ones.
I have put forward these observations about the rigidity of the proposals in the Bill, but I am bound to acknowledge the difficulty. I am inclined to think that 430 it is probably not desirable that trustees should have an unrestricted discretion to invest the whole of the trust fund in equities. I differ from some hon. Members, including the hon. Member for Dover (Mr. Arbuthnot), who would prefer an unrestricted discretion. I think that it is desirable that there should be some restriction. The moment that I adopt that position I am in trouble, because it is undoubtedly true that when it comes to rigidity or arbitrariness one ratio is as arbitrary as another. I acknowledge that. What I am concerned with at the moment is to acknowledge the difficulty and to say that I should he disinclined to quarrel strenuously with the Government's decision, although I am one of those hon. Members who might have preferred, let us say, a five-eighths wider-range discretion rather than a fifty-fifty discretion.
I should like to know what would be the Government's reaction to the suggestion that, just as by Order in Council additions can be made under Clause 9 to the list of investments, there might be a provision, additional and parallel to the Clause 9 power, that by Order in Council it could be made possible to vary this ratio from time to time. This suggestion was adumbrated by the hon. Member for Bristol, North-West (Mr. McLaren). Clearly, it would be undesirable and impracticable for that to he done at too frequent intervals, but. as in all likelihood we are making provision in the Bill for many years to come, would not this be another possible method of trying to rid the Bill of the degree of excessive rigidity which I think it is inclined to have?
There are only one or two additional points that I wish to put before the House. The first concerns the effect of Clause 1 (3). This is one of the provisions in the Bill which I think makes one pause. As I understand it, the effect of it is this. If a testator or settlor in an instrument made before the Bill becomes law vetoed an investment which by virtue of the Bill becomes authorised, then the veto loses its effect altogether in the case of the settlor or testator having died, and in other cases unless the settlor or testator executes a new instrument or codicil.
I should have thought that this was a somewhat odd position, since a testator who has gone to the length of an express 431 provision of this kind and of vetoing certain classes of investment must be taken to have felt rather strongly on the point. Although this is by way of comment on what is really a Committee point, I should have thought that it may perhaps be open to objection in principle that, where there has been for some reason a strongly felt wish of this kind on the part of a testator or settlor, there should be this automatic statutory abandonment of an intention so carefully formed and expressed.
§ The Solicitor-General
I want to be sure that I understand the point that the hon. and learned Gentleman is making. Is he suggesting that if, say, there is a codicil to a will executed before the passing of the Bill into law, and a codicil executed afterwards in which a contrary expression to the wide investment powers given in the Bill is expressed, that contrary intention would not take effect? Or have I misunderstood the point?
§ Mr. Irvine
I am obliged to the right hon. and learned Gentleman. No doubt entirely through my fault, he has not quite seized the point I was making. It went no further than this. Under the subsection to which I have referred, I understand that if a testator or settlor has made a provision in the trust instrument which debars the trustees from certain classes of investment and then, before the Bill becomes law, he dies, the effect of this Measure is that the veto which he has incorporated in the original trust instrument ceases entirely to have effect. That is a remarkable result of statutory provisions bearing in mind the circumstance that any settlor who made a provision of that kind in his trust instrument must be presumed to have felt rather strongly upon the point. That is the only observation I made, and I added that the same point applies, although with less force, to the case of the settlor or testator who has included such a veto in his trust instrument and who still survives and, after the Bill becomes law, if it does, does not execute a new instrument or codicil.
These matters indicate the fashion in which, here and there, quite important and interesting departures have been made from what thus far have been the principles governing the law in these matters. For my part, I have no ad- 432 verse criticism to offer of Clause 5, which relates to the duty of the trustees. It is right that there should be this statutory provision that the trustee must take advice. Moreover, it is entirely right that there should be no requirement that he should follow it. Any such requirement would surely involve a derogation from the independent judgment of the trustee, which would be contrary to the whole basic conception of a trustee's status and duty.
I also do not feel disposed to make any criticism of the contents of the narrower and the wider ranges of investments, although, from some of the observations that have been made during the debate, one would come nearly to the conclusion that irredeemable undated Government stock should not be permitted to have a place even within the narrower range. Considerations of that kind, however, affect more the financial and economic policy of the Government than they affect our present debate.
Over all, I would expect that the House, on both sides, would be inclined to welcome the Bill. If in certain respects it seems to some of us to be some-What arbitrary and inelastic in its method, I should be the first to acknowledge that it is not easy to suggest alternative methods against which similar objection could not be raised.
§ 7.55 p.m.
§ The Solicitor-General (Sir Jocelyn Simon)
The hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) was justified when he was good enough to say that this is an important Bill and that, by and large, it has been welcomed by the House. Certainly, with the possible exception of the misgivings expressed on principle by my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth), the House has recognised that the Bill represents a considerable and desirable advance in enlarging the discretion of trustees in the investment of their trust funds.
The scheme which is now implemented by the Bill was, as my hon. Friend the Economic Secretary reminded the House, put forward in the White Paper of December, 1959. It was enthusiastically acclaimed by informed opinion. Such criticism as there was was confined to matters of detail and has been largely met in the respects in which the Bill 433 differs from the White Paper. Those deviations from the White Paper have been welcomed this evening.
It is fair to say that there was no criticism of the general concept set out in the White Paper, which has found expression in the Bill—although it is true that, as the hon. Member for Gloucester (Mr. Diamond) urged in unholy alliance with my hon. and gallant Friend the Member for Cheltenham (Major Hicks Beach), that certainly does not preclude the House from subjecting the Bill to hostile scrutiny if hon. Members so wish. On the other hand, it is fair to point out that when the Bill was published the favourable view of informed commentators continued.
The Economist, for example, had said of the White Paper:The principles of the proposed reform will command wide acceptance.When the Bill was published, that journal had a further note in which it said that some fruitful changes from the proposals in the White Paper had been made in the Bill and it described it as a "Good Bill". Thus, it is only quite recently that any substantial criticism has been made of the Bill and, as I hope to show, a considerable number of those criticisms are based on misapprehensions. I recognise, on the other hand, that some criticisms as to the machinery provisions have weight. I shall have more to say about those.
I submit, however, that the initial favourable reaction was abundantly justified. The Bill represents a considerable step forward towards that freedom for trustees to invest in equities which almost all hon. Members wish to see. It seemed to me that some hon. Members tonight were not so much looking a gift horse in the mouth as inserting a gastroscope into its very entrails. I was encouraged by my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke), who has great experience in the courts in this kind of work, when he said that he thought the Bill would work. That is a justified point of view. My hon. and learned Friend urged us to simplify, and I will have more to say about that presently But, in view of certain criticisms of the proposal that 50 per cent. of trust funds should remain in Government stock, or some other such easily realisable securities—what, for con- 434 venience sake, we have been calling today gilt edged as opposed to equities—perhaps I may recapitulate what led the Government—as I say with general approbation—to this conclusion.
First of all, it is fair to say that the view that 50 per cent. of trust funds should be in gilt edged was the view of the very experienced Nathan Committee. The Chairman of that Committee, as a solicitor—
§ The Solicitor-General
Certainly that was the scope within which he had to consider the problem. As I say, that was the view taken by his Committee. It is difficult to see why there should he a different rule for charities from that for private beneficiaries. On the contrary, one would have thought that in the case of charities one would be justfied in having a wider rather than a narrower discretion for the trustees.
I was pointing out that the Chairman of the Committee has very great experience both as a solicitor and in his public and charitable work, and he presided over a committee of very great ability, which examined this problem for a considerable time.
§ Mr. Diamond
I am sorry to interrupt again. Am I not right in saying that when the noble Lord made his speech on this topic in much more recent times than when his Committee reported, he said several times that his view was that the greatest discretion should be given to trustees?
§ The Solicitor-General
I read the proceedings in another place, which we are not allowed to quote, because Lord Nathan is not a member of the Government, but that is not my recollection of what he said. My impression is that he stood by the fifty-fifty division and thought that it was right.
§ Mr. Mitchison
Why should not the right hon. and learned Gentleman quote the proceedings in another place? They were in the last Session.
§ The Solicitor-General
I think not. I think that the hon. and learned Member for Kettering (Mr. Mitchison) has obviously had such a fabulously good 435 Recess that anything before that recedes into a distant past where it is confused with a former Session.
Secondly, the White Paper, as I said, set out the principle, and it was then generally accepted. Thirdly, the principle was accepted by Parliament in the House of Commons Members' Fund Act, 1960, and in local authority private Acts in recent Sessions.
Fourthly, it accords with the view taken by the courts in many cases—though not invariably. In charitable trusts, a common formula is the retention of one third of the funds in the present Trustee List. Although I think it is fair to say that in private trusts the courts frequently give unlimited power, they are usually of the very large sort of trusts referred to by my hon. and gallant Friend the Member for Cheltenham.
§ The Solicitor-General
Nevertheless, it is true that, by and large, only the large trusts do apply. Fifthly—and this is really the crux of the matter—a safeguard of this kind is necessary particularly for the trustees of small trusts who may not be able to get the best possible advice. As my hon. and learned Friend the Member for Darwen pointed out, we are dealing with the generality of trusts, particularly the generality of small trusts.
Whatever it may be fashionable to say today, investment in equities can involve very heavy risk of loss of capital. Their values can fall at times very far indeed. I do not think it would be difficult to find among some of the very top companies in, for example, electrical engineering or shipping, firms which would undoubtedly have been recommended to trustees by competent financial advisers. Yet their shares have fallen proportionately as much as or more than War Loan, and in a period of months rather than of years.
We can think of the case, not very long ago, of great shipping companies where virtually the whole of the capital disappeared in a crash. There have been recent reports, which hon. Members probably have in mind, of the case of a company with a nominal capital of £1 million, an issued capital of £800,000, 436 and assets which were at one time valued at more than £3 million. Today the ordinary shareholders will get nothing of their capital.
My hon. Friend the Member for Basingstoke (Mr. Denzil Freeth) was abundantly justified, therefore, when he emphasised that what we are talking about is risk capital. That is the term we use. It is risk capital. We on this side of the House at least, for this reason, say that it should be specially rewarded. It is at risk. For that reason, there is a case for saying that in the generality of these trusts, especially the small trusts which may not be able to get the very best possible financial advice, a proportion of the funds should be retained in gilt edged.
I must also point out that this is not, as has been stated, a rigid fifty-fifty proportion. The hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) suggested that the rigidity had been extended to narrower range investments. That is not right. There is no restriction on narrower range investments, that is, in gilt-edged securities. I emphasise that all that is provided is that not less than 50 per cent. of the funds should be in gilt edged. But there is a provision for the growth of the equity funds, and no attempt is made, as could have been made and would have produced a simpler scheme, for periodical revaluations which would have preserved a strict fifty-fifty balance between the two parts of the funds.
There is another point I should emphasise in this connection. Besides giving powers to invest in equities, the Bill very considerably liberalises narrower range investments. The outstanding example is company debentures. Thus, the Bill marks a very big step forward, as my hon. Friend the Member for Basingstoke suggested.
One should also give weight to the consideration urged that we are expressly over-riding here the directions of a settlor. We are justified in doing that for the reasons given by the hon. Member for Gloucester; nevertheless, in deciding whether we shall give unlimited power to invest in equities, we should bear in mind that we are over-riding the wishes of the settlor.
My right hon. and learned Friend the Member for Chertsey (Sir L. Heald) and 437 a number of other hon. Members, especially my hon. Friend the Member for Dover (Mr. Arbuthnot), asked whether we were right to say that a proportion of a trust fund should be retained in gilt-edged stock. It is a fact, emphasised by my hon. and gallant Friend the Member for Cheltenham, that the Bill will not prevent recourse to the High Court for enlarged investment powers. The court will still retain all its discretion, and we shall make that absolutely plain. There is nothing in the Bill which is intended to bind the discretion of the court if it thinks that there is a proper case for giving investment powers beyond the amplitude given in the Bill.
§ Mr. Glenvil Hall
Will the right hon. and learned Gentleman indicate where that provision occurs? This was a matter which was raised in another place. One of the Law Lords there spoke to it, and the right hon. and learned Member for Chertsey (Sir L. Heald) referred to it today. I have not yet had a proper answer to satisfy me or many others that the Bill will not be regarded by the courts as over-riding the 1958 legislation.
§ The Solicitor-General
The right hon. Gentleman was not present when I gave an answer on this point, but it is of sufficient importance for me to repeat. The reason why we propose and why we are confident that the discretion of the judges under the 1958 legislation will not be over-ridden is, as stated by my hon. Friend the Economic Secretary, that we propose to move an Amendment to that effect.
§ The Solicitor-General
My noble and learned Friend the Lord Chancellor said, and I repeat the quotation:I will give an undertaking that before the Bill passes to another place I will consult the Judges of the Chancery Division about this matter."—[OFFICIAL REPORT, House of Lords, 20th December, 1960; Vol. 227, c. 952.]He was there referring to this matter. I said earlier that that undertaking has been implemented, and it is in view of that that we will move an appropriate Amendment.
§ The Solicitor-General
In this connection, my right hon. and learned Friend the Member for Chertsey referred to an order of one learned judge which was conditional, which I take to mean terminable, on the coming into force of the Bill. It was purely a matter for the learned judge what powers of enlarged investment he gave, but it is certain that he gave them in the light of the proposals in the White Paper which the Bill implements.
My hon. Friend the Member for Hendon, South raised three important topics. First, he proposed a scheme whereby unlimited powers would be given to trustees to invest, provided that the trustees could obtain agreement among the beneficiaries. Considering the conflict of interests between a life tenant and the ultimate beneficiary, it seems too optimistic to expect to get that agreement. Their interests must often be in direct conflict, and if that were the provision, we would be inviting incessant recourse to the courts.
Secondly, he and my hon. Friend the Member for Belfast, North (Mr. Stratton Mills) raised a very important matter, that of whether the Bill was a sop to inflation. It is not intended to be. It is not a confession of weakness in the face of a threat of inflation. Even if there is no inflation—as we all trust will obtain—there is still a case in these days for allowing trustee investment in equities. One would expect, quite apart from inflation, that equities would show some growth in an expanding economy. It is not fair, therefore, to attack the Bill as a sop to inflation.
The third point which the hon. Baronet made was to ask whether we had considered the effect on the gilt-edged market. Of course we have. As my hon. Friend the Economic Secretary pointed out, although this was naturally a matter of which any Government would be bound to take account, it was not allowed to militate against consideration of the welfare of trust beneficiaries. In particular, it was not any consideration of the effect on the gilt-edged market which led to the decision that part of a trust fund ought to be retained in gilt-edged. That decision was made on its merits.
I return to what is fundamental to the scheme—the stipulation that 50 per cent. of the fund should be retained in gilt-edged. Everything beyond that is 439 machinery, even including the division into two parts. But that stipulation is a fundamental decision which was justified for the reasons which I have given. There are several ways in which such a scheme can be worked out. Each has its attendant advantages and disadvantages, and we are by no means hidebound to the machinery set out in the Bill. My hon. Friend and I will give full weight to the criticisms, particularly of Clause 3.
Major Hicks Beach
Do I understand my right hon. and learned Friend to mean that the Government are not prepared to consider the 50 per cent. rule on general principles?
§ The Solicitor-General
I said that the decision to retain half of a trust fund in gilt-edged is fundamental. That was a provision of the White Paper, but the rest, including the division into two parts, is all machinery, and we will consider that.
We have been very willing to listen to the views of hon. Members, whom I recognise as lay and professional advisers in this matter, and we are prepared to have great authority to speak in this matter, and we are prepared to consider their experience of this problem. We shall give full weight to their views and consider them with completely open minds before the Committee stage. However, the general tenor of the criticism —and I acknowledge its weight—has been that the method we have chosen, although having the advantage of flexibility, as my hon. and learned Friend the Member for Darwen acknowledged, results in a disproportionate loss of simplicity and lucidity.
I should make it clear, however, that once it is accepted that a given proportion of trust funds should be retained in gilt edged, certain consequences inevitably follow. The first is that unless the trust fund is divided into two parts at the outset, one is faced with the difficulty of avoiding a revaluation whenever one is operating near the equity limit. I do not think that that is insuperable, but it is a difficulty that one faces right away. Secondly, and this is far more serious for those who want to use equities as a sort of hedge against inflation, one tends to narrow the scope for further equity investment 440 as the existing holdings of equities appreciate. The great advantage of the Bill scheme is that one does not narrow one's scope for further equity investment as the existing holdings of equities appreciate.
Apart from the division of the fund, once one has taken the decision that a proportion of the fund should be retained in gilt edged, it seems to me that one is bound to provide for accruals and withdrawals. Unless one does so, one will allow a great steamroller to be driven through the Bill. All the withdrawals will be made from the gilt-edged side, and all the accruals put into the equity side. In the end, any safeguard that is desired will disappear.
§ Mr. Diamond
The Solicitor-General said that this arises only if one makes the first decision to divide. If one does not make the first decision, one has none of these complications.
§ The Solicitor-General
It does not arise from the first decision to divide. It arises from the anterior decision to retain part of the fund in equity.
§ The Solicitor-General
Rules for the withdrawal of property are necessary to maintain the principle of the retention of a proportion of the fund in gilt-edged securities.
The criticism of Clause 2 has been considerably exaggerated. It is not a difficult Clause either to understand or to operate. In particular, some of the practical criticisms levied, particularly by my right hon. and learned Friend the Member for Chertsey, do not take account of the fact that every trustee, I should have thought, keeps a certain amount of cash on capital account, and will certainly keep a certain amount of cash on capital account on each side in each of his funds. He will obviously keep a sort of running account between the two parts of the fund, cash in one being treated as owing to the other. In other words, a precise equality in withdrawals would be achieved by topping up by the small float of cash that is held in both parts. Any system except a complete at lib, that 441 is to say, a full discretion—which has not appealed to the bulk of the House—involves keeping accounts.
May I now deal with the point raised by the hon. and learned Member for Kettering, who asked whether trustees should De given power to invest in land? There are two aspects to this. First, the ownership of land involves special problems.
§ Mr. Mitchison
I can relieve the right hon. and learned Gentleman's mind on that. I did not ask him. Perhaps I did not make myself clear. Where we already have what are called special powers in the Bill—and the powers are given in the Bill—we were told by the Economic Secretary that some combined way of using them was buried in the middle of Clause 3. I am afraid that I have been unable to disinter it. I asked for the right hon. and learned Gentleman's expert assistance as one of the grave diggers.
§ The Solicitor-General
I am coming to Clause 3.
It is sufficient at this stage to say that land is treated as a wider range investment. As the hon. and learned Gentleman was not directing his observations particularly to land, perhaps we could leave any discussions on that to the Committee stage.
§ The Solicitor-General
No, simply treating land as a special case. I am prepared to deal with it, but I do not think that it has raised any question this evening, so I pass from it.
A number of minor points were raised. Perhaps I might deal with some of them and postpone consideration of the others to the Committee stage. The hon and learned Member for Edge Hill referred to a point under Clause 1 (3). If I understood him correctly, it was that the testator or settlor might express an intention to limit investment powers to a narrower scope than is permitted by the Bill at some time between the introduction of the Bill and its passage into law. I understood him to argue that in that case it seemed rather hard to say that his decision should be overridden by the Bill. That is an arguable point. Perhaps we could consider it in Committee, but, for the generality of cases, 442 undoubtedly the date of passage into law ought to be the operative date when one is considering whether one should override an intention expressed by a testator or settlor.
My hon. Friend the Member for Basingstoke, my hon. Friend the Member for Cardiff, North (Mr. Box), and my hon. and learned Friend the Member for Warwick and Leamington (Mr. Hobson) raised a question on Clause 5. I think that it has been universally accepted in this debate that it is reasonable that the trustee should be bound to seek advice, but not to accept the advice that is tendered to him. We must leave the responsibility to him. Reference was made to the definition of the person qualified to give advice. I will consider the points that were made before we come to the Committee stage, and perhaps we can take this question up again then. The same might be done with regard to the requirements for investment in companies. This was referred to by my hon. Friend the Member for Basingstoke, and by my hon. Friend the Member for Weston-Super-Mare (Mr. Webster).
As regards the question canvassed between my hon. Friend the Member for Cardiff, North and my hon. and learned Friend the Member for Warwick and Leamington, the Bill is not designed to deal with funds in court. I put it in that way advisedly, because there might be some question whether, now that our attention has been drawn to it, they might not be caught by Clause 6. It seems a remote chance, but I would like to consider it further and to leave that point in reserve. I am, however, grateful for having had our attention drawn to it.
We now come to Clause 3, which I recognise has had no friends at all today. This Clause deals with the relation between special investment powers which may be given by the trust instrument and the Bill powers. As for its alleged complication and incomprehensibility, I feel that they have been somewhat exaggerated. In answer to the invitation of the hon. and learned Member for Kettering, I am prepared to explain my understanding of the way in which it works. On the other hand, in view of what I am going to say the House may feel that this explanation 443 would be better postponed to the Committee stage. I am in the hands of the House in this matter, and it is my duty to explain how the Clause works if the House wishes me to do so.
In answer to my hon. and learned Friend the Member for Warwick and Leamington, I would point out that trustees are not bound to use the Clause. They can proceed quite independently of it. They must have recourse to it and observe its machinery only if they wish to use both the powers they have been given and the Bill powers. It is then necessary to ensure that the main intention of the Bill is implemented. In the case put forward by my hon. and learned Friend, if a trustee has sufficiently wide powers of investment under the instrument creating the trust he does not need to have recourse to the Clause.
§ Sir H. Lucas-Tooth
Is it not true that a mere power to retain given to a trustee is a special power? As this power is almost invariably used, Clause 3 will almost invariably have to be brought into operation.
§ The Solicitor-General
No. It is true that power to retain is a special power, and that it is almost invariably used, but in addition to the power to retain investment powers are given which are wider than those given under the Bill. In that case it is not necessary to invoke the Bill powers and to worry about the Clause.
§ Mr. Mitchison
This matter has confused many people. Am I right in supposing that, under subsection (1), a trustee with special powers—let us take as an instance unrestricted powers of investment—can throw the Bill and its contents into the waste paper basket and pay no attention to it? Is it true that he need not get written advice, or make any division, or do anything that he did not do before?
Secondly, if he has limited powers and desires to accept those conferred by the Bill in substitution, is it true that again he has nothing to do with the Clause and needs only to look at the rest of the Bill? Is it true that the Clause is concerned only with the case of the trustee who wants to supplement his existing special powers by some of the 444 powers given in the Bill? That is the very puzzling position which the Economic Secretary mentioned but did not elucidate.
§ The Solicitor-General
That is quite correct. Only when a trustee is using both sets of powers—the Bill powers and the special powers—does the Clause come into operation. My hon. Friend did not feel justified in explaining the workings of the Clause in detail. I have offered to, but I thought that we might first see how things went in the course of the next five minutes.
§ Mr. Glenvil Hall
Can the right hon. and learned Gentleman say whether there is a time limit on the use of the Clause? If the first trustees do not use the powers provided by the Clause but another set of trustees who come along some years later wish to do so, can they reopen the matter and use both kinds of power if they are so minded?
§ The Solicitor-General
I have lost my copy of the Bill, but I think that I am right in saying that there is a power to postpone decision. whether the Bill powers are used in addition to the special powers or the special powers in addition to the Bill powers. It is when both are used together that the Clause comes into operation.
§ Mr. Denzil Freeth
I cannot understand the Clause at all. I agree that if a trustee wishes to retain only his special powers he can throw the Bill out of the window, and if he wishes to renounce his special powers he can accept the Bill in toto, but if I am the trustee of a trust 80 per cent of which is invested in equity shares and which provides, as a special power, that the investment is limited to insurance shares, am I allowed to switch my 80 per cent. investment in insurance shares into a general spread of well diversified equities?
§ The Solicitor-General
In the case mentioned by my hon. Friend, the trustee has a special power to invest as to 80 per cent. in insurance shares. If he does not go beyond that he is not invoking the Bill powers. But, if he wants to switch a portion of that 80 per cent. into general equities, then the Bill powers must be relied on—there are no other powers which can be relied on—and then the machinery of Clause 3 445 is invoked. In other words, he may at that time invest up to 50 per cent. in equities—
§ The Solicitor-General
Yes, that is so, only up to 50 per cent., subject to a certain power as to the time lag which exists between subsection (4) and subsection (6).
As I was saying, the first point is that I do not think the Clause is as difficult as it appears at first sight. I feel that trustees, when they get used to working it, will not find it unduly cumbersome. Secondly, and more important, trustees are not bound to invoke it. It is only if they wish to use the special powers and the Bill powers. Thirdly, I should like to cite to the House a passage from the Law Journal of 16th December, 1960, about this Bill. As hon. Members will know, the Law Journal is a paper of the highest repute and very closely in touch with the problems of solicitors and trustees.The point occasionally lost sight of is that the language of enactments is often complex because the Legislature wants to make provision for complex situations. The Clause under review k concerned with three different courses which trustees will be able to pursue: they can continue to act under their special powers, that is. the powers conferred otherwise than by the Bill, and ignore the Bill, or they can act under the Bill and ignore their special powers, or they can combine the two. The real problem, so it seems to us, is whether the intention of the Clause can be more simply phrased within the accepted canons of drafting statutes. It will be interesting to see whether Amendments will be put down showing how better to express principles"—and I emphasise this—which, though complex, are generally accepted as reasonable.The general problem could, of course, have been avoided by adopting one of the expedients to which my hon. Friend the Economic Secretary referred. We could have required trustees to make a once-for-all election between using special powers of investment or using the Bill powers. Another alternative would be to say that the special powers and the Bill powers could be exercised cumulatively. But, as my hon. Friend said, both of those are really non-starters and nobody today has argued in favour of them.
446 On the other hand, my hon. Friend did mention one method of implementation which would not involve constant revaluations and yet would obviate most of the complications of Clause 3. That would be to control the limitation on investment in equities by the historic cost of the investment instead of on the basis of current valuation. For example, the trustee who put 40 per cent. of his funds into I.C.I. would be able to put another 10 per cent, into equities, despite the fact that the original holding in I.C.I. had appreciated. Of course, it would still be necessary to keep accounts, and one might lose the advantage which we have under the Bill whereby trustees lose nothing by delaying to the most propitious moment the taking up of their full number of equities. But it is obviously an alternative scheme, and I think it will produce very much simpler machinery for implementing this Bill.
In conclusion, therefore—
§ Mr. Mitchison
I am obliged to the right hon. and learned Gentleman, but he has not yet told us the meaning of Clause 3 and a great many of us do not understand it. We understand now that it applies to the case where a trustee wishes to use both special powers and those in the Bill. Will the Solicitor-General be good enough to comply with the one request I made to him and tell us what Clause 3 means in that connection? It is not much use asking us to put down Amendments until we have a better understanding than, at any rate, I have of the meaning of the Clause.
§ The Solicitor-General
Of course, I gladly comply if that is what the House wishes. Clause 3 (1) makes it plain that the powers given by the Bill are in addition to and not in derogation of what we have been calling special powers, the powers given by the trust instrument. Clause 3 (2) is merely emphasising one aspect of the foregoing because it is so very important, namely, thatnothing… shall prevent a trustee, in the exercise of a special power, from investing property belonging to the narrower-range part of a trust fund in investments other than narrower-range investments or retaining such property so invested.In other words, if given special powers to invest in investments he can do so notwithstanding the other provisions of 447 the Bill. Subsection (3) says that if he exercises such a special power and is givenspecial power…to invest property in any investment for the time being authorised by law for the investment of trust propertyor some such formula, which is a very typical formula, the Bill must have effect on that property. In other words, he then has the duty of splitting the fund and the duty of seeking advice and so on. In subsection (4) we come to the difficult machinery provisions. Subsections (4) and (5) are designed to lead to subsection (6). They deal with two cases. The first is where the trustee makes the investment himself under the special powers given to him by the instrument or retains part of the original trust property which is invested in the special investment. Subsection (5), on the other hand, deals with the case of property which comes to the trustee already invested in the special investment after the division of funds has taken place.
I go back to subsection (4). Subsection (5) deals with property accruing after division and subsection (4) deals with the case where the trustee either makes the investment himself or retains part of the original trust property. It earmarks how much of the narrower-range part has gone into the wider-range part or outside investments. I take one of the limbs and follow it through. If in the exercise of a special power, a trustee invests property belonging to a trust fund in an investment other than a narrower-range investment—I go to (a)—the investment is allocated to the narrower-range part of the fund on the division of the fund in pursuance of subsection (1) of Clause 2.
Take the case of a trustee under a special power with power to invest in South African gold shares. On splitting the fund, he allocates that to the narrower-range part of the fund. He has the power to invest the whole of the fund in South African gold shares. He has to split his trust fund, and half of it then goes into the narrower-range part of the fund on the division of the fund. That is paragraph (a). We then come to line 10, which reads:the property shall forthwith be transferred to the wider-range part of the fund…448 That leads on to subsection (6), which reads:Where either of the two foregoing subsections has effect,—that is, including that which I read—the trustee shall not have power by virtue of section one (a) to invest property belonging to either part of the fund in wider-range investment… until there has been transferred from the wider-to the narrower-range part of the fund—I am now at line 29—property equal in value to the propertypreviously transferred from the narrower-range to the wider-range part of the fund.
§ Mr. A. J. Irvine
Taking that example, will the Solicitor-General explain why it is necessary that the South African gold shares to which he referred should pass through the narrower-range department an their way to the wider-range?
§ The Solicitor-General
The answer is that it follows from the splitting of the fund. I hope that I may pursue this, because I have been asked to explain how it will work. I gave the example of South African gold shares, but it might have been the power to retain shares in a family business.
Under subsection (4, a), we have the gold shares transferred from the narrower to the wider-range part of the fund. Subsection (6) says that notwithstanding Section 1, the trustee cannot invest property belonging to either part of the fund in wider-range investment, in equities, until he has transferred from the wider-range to the narrower-range property equal in value, and when it goes back it must under Clause 2 (2) be put into gilt edged.
§ The Solicitor-General
This is not an easy subject, and it makes it all the more difficult when I am interrupted in the middle of trying to explain it and to give an example. What Clause 3 (6) says, in effect, is that one cannot use the Bill to buy equities—paragraph (a)—or to hold equities—paragraph (b)—until one has compensated the narrower-range part of the fund.
§ Sir H. Lucas-Tooth
I think I have followed what my right hon. and learned Friend has said. In effect, it means that if one takes from Peter to add to Paul.
449 one cannot add again to Paul until one has paid back Peter. But the question which I put in my speech earlier was this: when one takes the value for this purpose, is it the value at the original date or is it the value at the last date? It may be five years later and, in the case of gold shares, the property may be worth ten times as much. A very great deal will turn on this.
§ The Solicitor-General
I think that it is at the time of the transfer. It is not the historic past. It is at the time of the transfer that one takes the value. There must obviously be a valuation on the division of the fund,
I am quite prepared to work through the other limb, which I omitted, or, indeed, subsection (5), but I hope that I have given an illustration of the way in which the Clause will work and have shown that it is in fact comprehensive.
§ Mr. Hobson
Is not the result of all this that, having made the adjustment, if one operates Clause 3 one simply finds oneself in the long run, after a great deal of complicated mathematics and machinery, in exactly the same position as one would be simply by operating the powers of the Bill?
Major Hicks Beach
How does my right hon. and learned Friend expect an ordinary lay trustee, operating a small trust, to interpret the provisions of the Bill when he, with his great legal knowledge and lucidity, has taken forty minutes to explain it to the House—and I still do not understand it?
§ The Solicitor-General
The trustee will be allowed a little serious, quiet study and, although I make no complaint about it, I have not had that advantage.
I think I made it perfectly plain that we are conscious of the weight of criticism which has been levied against Clause 3. My hon. Friend and I are very willing to consider what, I confess, was the universal hostility it has met today and give due weight to it. With that concession, I submit the Bill to the House as a very considerable liberalising Measure.
§ Mr. Mitchison
I do not wish to ask a question but to make a request. We shall have a Committee on this Bill and we need not go any further than the right hon. Gentleman has gone today. We shall study his remarks with great attention, but would it be possible to circularise, among the members of the Committee at any rate, a rather fuller statement of what Clause 3 means?
§ The Solicitor-General
My hon. Friend and I will certainly consider that.
It has been generally recognised today that this is a very considerable liberalising Measure. Its fundamental principle of limitation on the proportion of the fund which can be invested in equities is, of course, basic to the Bill. It is justified by the powerful reasons which I ventured to lay before the House. Such an opportunity to invest in equities does represent an enormous advance in enlarging the investment discretion of trustees. Beyond that, as I admitted, all is machinery.
As my hon. Friend and I have, I hope, made clear, we are very willing to consider alternative methods of implementing the principle of the Bill. We are very grateful for the suggestions and comments that have been made. I am certain I have sensed the temper of the debate when I say that there is a general and, indeed, a universal feeling that we should sacrifice some flexibility, if necessary, in order to achieve greater simplicity and lucidity. Hon. Members will appreciate that at this stage I cannot give a more specific undertaking, but I can assure the House that my hon. Friend and I will bear this very much in mind. We will consider carefully what has been said today and, if necessary, come forward with alternative machinery proposals for the consideration of the Committee.
It will be in that spirit that my hon. Friend and I will approach the Committee stage. Therefore, I commend the Bill to the House.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 38 (Committal of Bills.)