HC Deb 19 February 1964 vol 689 cc1211-59

3.52 p.m.

Mr. Bruce Millan (Glasgow, Craigton)

I beg to move, in page 2, line 21, at the end to insert: (b) where an intestate is survived by the issue of a husband or a wife, such issue not being also issue of the intestate, but is not survived by any prior relative, such issue shall have right to the whole of the intestate estate, provided that for the purposes of this paragraph "issue" shall not include children of the aforementioned husband or wife who were more than 18 years of age at the date of the marriage of the husband or wife to the intestate, or the issue of such children. In this Clause we are dealing with the order of priorities for the disposal of an intestate estate, and the purpose of the Amendment is to bring into that order of priority the step-children of the intestate person.

The Clause details not only the kind of relatives who are to succeed to an intestate estate, but determines the order in which they are so to succeed. Any category of relative mentioned in one of the paragraphs has priority over the categories of relatives mentioned in the succeeding paragraphs. The Amendment as drafted would put step-children into the priority of succession at paragraph (b). In other words, step-children would come in immediately after the natural children of the deceased person.

Although the Amendment brings stepchildren in at that point, what I am most concerned to do is to establish the principle that step-children should succeed at some point or another. It does not matter particularly whether they are established in the order of priority at the point suggested, or at some other point. The important thing is to establish the principle that step-children should in certain circumstances be entitled to succeed to the estate of an intestate person.

This matter was raised during the Committee stage of the Bill, although it was not raised on precisely the Amendment that we are discussing now. It was pointed out then that Clause 2 as drafted went into a detail about relatives, which brings in practically every kind of relative that one can define. It brings in not only parents, and brothers and sisters, but grandparents, brothers and sisters of grandparents, cousins, and various other relatives. The intention of the Clause taken as a whole is to try to repeat in intestacy the kind of disposition which the intestate person might have made if he had made a will.

The main argument for including stepchildren is, I think, the simple one that a testator would certainly consider leaving his money to his step-children before he would consider—this, of course, is in normal circumstances, and there may be exceptional ones where this would not be true—leaving his estate to some of the remote relatives referred to in the Clause, and certainly before he would allow the estate, in the absence of any relatives at all, to lapse to the Crown as ultimus haeres. But the Clause as drafted would allow the estate to go to the Crown rather than to step-children. That seems to me to be intrinsically unsatisfactory and unreasonable. It does not seem to represent what a normal person would want to do with his estate if he made a will.

There may be many circumstances in which there is a close personal relationship between the intestate person and his step-children. On the other hand, there may be cases in which a parent and his step-children are not on good terms, but that can happen just as well with natural children. For that matter, that situation might exist between a husband and wife, or between brothers and sisters, and between all sorts of people who are already provided for under this Clause. I therefore do not believe that that can be regarded as a substantial argument for excluding stepchildren altogether.

There seems to be some kind of remnant in the Clause as it stands of the idea that in intestacy one can provide only for blood relationships. I do not accept that as a principle. It seems to me that we ought to consider the matter in the much wider context of family relationships generally. Then, step-children and also step-parents—who are not covered by the Amendment, but in respect of whom an equally good case can be made out—would come within the context of what we would like to provide for upon intestacy. I do not believe that the argument about blood relationships has any substance.

4.0 p.m.

Nor is there anything in the argument that the step-children might not have been living with the intestate person. This argument applies equally to all kinds of relatives who are already included within the provisions of the Clause. It applies to grandparents, to brothers and sisters of grandparents, and to even more remote relatives. That, too, is an insubstantial argument.

Nor, considering the provisions that we already make under the Clause for step-brothers and step-sisters, is there any substance in the argument that the step-child will have an opportunity of succeeding to the estate of his natural parents. If it is good to extend the order of succession to step-brothers and step-sisters, the argument that by putting step-children into the Clause we would be giving them an additional advantage—since they might succeed to the estate of their natural parents—is not a valid one.

The final argument used by the noble Lady in Committee was that when a person married someone who had already been married, and had already had children, he did not take the whole of that person's family into his family and, in particular, he did not necessarily take the children of his new wife into his family, especially where he married rather late in life and where his new wife already had grown-up children.

The Amendment specifically provides for this situation by excluding any children of the deceased person's husband or wife—in the case where that husband or wife had been married before—where these children were more than 18 years of age at the date of the marriage to the intestate person. This would exclude the possibility of grownups, as distinct from children, coming into the order of succession of their step-parents even though they were grown up at the date of the marriage of their step-parents to their natural parents.

That was the only reasonable case that could have been made against the previous Amendment in Committee, although I did not think that there was a great deal of validity in it. We have now provided for that in the new Amendment, and in those circumstances there seem: to be absolutely no reason why the Amendment should not be accepted, and why step-children should be completely eliminated from the right of succession.

In Committee, many hon. Members drew attention to cases within their own knowledge where intestate persons would certainly have wished to include their step-children in the sharing out of their estates. Many hon. Members must have come across cases of that kind in the normal course of their Parliamentary duties In those circumstances it seems only right that we should provide for step-children at some point in the Clause. If it is not to be in paragraph (b)—although I think that that is the right place—then it should be in some other part of the Clause. In all the cir-circumstances, and in view of the strong arguments expressed in Committee and the quite inadequate answers of the Government, I hope that they will now change their minds and agree to the Amendment.

The Under-Secretary of State for Scotland (Lady Tweedsmuir)

As the hon. Member for Glasgow, Craigton (Mr. Millan) has said, the effect of the Amendment would be to bring the step-children of an intestate into the line of succession to his estate immediately after his own children and his children's issue. We had a full debate on this subject in Committee, but the Amendment has a new feature. It contains a provision that the step-children of an intestate may enter the succession only if their age did not exceed 18 years at the time when their father or mother married the intestate. This point was raised briefly in Committee. I listened carefully then, as I have today, but I cannot say that I feel convinced by the argument that the hon. Member has put forward with considerable feeling.

I do not wish to go over again all the ground that we covered in Committee, but I want to give the reasons why I take the view that, on principle, stepchildren should not be given a right of succession in the estate of their stepparent. The hon. Member recognised that to insert the Amendment just before the existing paragraph (b) might not be the right place. Halfway through his speech he said that he would prefer to see the estate go to the Crown rather than to remoter relatives. But he himself moved paragraph (h), which greatly extends their right.

One of the main reasons for not accepting the Amendment is that for many centuries it has been the established practice that succession is based on blood relationships. He asked why, instead, we should not base it on family relationships. I do not feel justified in making a major change of this nature after the considerable debate that we had in Committee and bearing in mind that there has been no representation on the point outside the House.

The Mackintosh Committee, on whose Report the Bill is based, made no mention of having received any evidence concerning the succession rights of stepchildren; indeed, its only references to succession of step-relationships was in paragraph 14, where it rejected a suggestion that failing all next-of-kin a stepparent should be admitted to the succession. It is some years since the Mackintosh Committee reported, and the Bill, which has gone through the House with considerable publicity, will have provided ample opportunity for some expression of opinion outside, but we have received none of this nature.

Another main reason for rejecting the Amendment is that we ought to avoid conferring double rights of succession. The Bill does this in the case of an adopted child. That child is brought into the succession of the person who has adopted it, but it loses all rights of succession in the family of its natural parents. If we brought the step-children into the succession of their step-parents it would be necessary, in order to avoid double rights of succession, to proceed as in the case of adopted children and to debar them from succeeding to the estates of their natural parents—who might still be alive if there had been a divorce—and from any right of succession arising from those natural parents.

In many cases such a provision would be unacceptable. For those reasons I feel that step-children should not be brought into succession. I do not alter my view because the Amendment now provides for an age limit of 18 years. It is an age limit which would bring in one person and exclude another because of a difference of a year in their ages. I suggest that that would be an artificial and, I think, an unsatisfactory device. For these reasons I must advise the House to reject the Amendment.

Mr. George Lawson (Motherwell)

I am very disappointed with the reply from the Under-Secretary of State. The noble Lady has spoken of having no representation from outside. But she will remember that our proceedings in Committee received very little publicity. The matters which we discussed were much too difficult to be written about by most Pressmen and, certainly, they were not matters about which stories could easily be made. In consequence, those matters were largely missed by the Press. Many people would not know that such questions were discussed.

I wish to remind the noble Lady that there was a substantial difference of opinion in the Committee and hon. Members on her side supported the proposals then made by my hon. Friend the Member for Glasgow, Craigton (Mr. Millan). In fact, there was a bit of a row after a vote had been taken because some hon. Members on the Government benches had indicated during the discussion that they favoured the point of view expressed by my hon. Friend; and then they obeyed the crack of the whip, and voted contrary to the view which they had expressed. An attitude which received substantial support was indicated by the hon. Member for Aberdeenshire, West (Mr. Hendry). Reference was made to step-children who might have been away from the family home for years, or who might never have been residents there, and the fact that an injustice might arise if they inherited an estate.

That point has been met by my hon. Friend, and in so doing he confronted us with a position which must be confronted. It formed the basis of an argument advanced in the Committee discussions with which so many hon. Members opposite expressed sympathy. There have been two wars within the memory of most hon. Members and as a result many married women were made widows. A great many of those widows married again. There must be many families which include stepchildren who have grown up in the household. To all intents and purposes the second husband has been their father and has never been thought of as anything but their father.

It may be that the step-father's business has been run by his step-sons. But should he die intestate, and there is no question of his desires having been expressed in a will, the step-children will have no rights regarding his estate.

4.15 p.m.

Mr. E. G. Willis (Edinburgh, East)

It seems to me that all these children would be over 18 years of age.

Mr. Lawson

This is how my hon. Friend the Member for Craigton met that objection. He recognised that a valid objection was raised by the hon. Member for Aberdeenshire, West, and I accept that.

We are here dealing with the other situation, involving children who have grown up with the step-parent. There is no recognition for those children. I cannot understand the argument advanced by the hon. Lady about transferring blood relationship to family relationship. We are making the laws and dealing, in the main, with ordinary people whose estates are small. We are not greatly concerned with the aristocracy and their blood relationships. If a member of the aristocracy is not catered for, I am not greatly concerned. We should not shape our laws with the aristocracy primarily in mind, and their so-called claims to an ancient descent. We should think more of modern conditions.

When thinking of blood relationships and ancestral descent I am reminded of the argument advanced by H. G. Wells. He asked from whom was one descended, from one's father or mother? I presume the answer is, from both the four grand-parents; the eight great-grand-parents; the 16 great-great-grandparents; the 32 great-great-great-grandparents; the 64 great-great-great-great-grand-parents; and if one can double the calculations sufficiently quickly one may go on. In a very short time we can count more ancestors than there are people in the world. To my mind, this makes nonsense of arguments about blood relationship. We have reached the stage where far more intimate than blood relationship is the connections of family, of people who have lived, worked and sometimes fought. Such a connection establishes bonds.

If, by means of the Bill, we are endeavouring to get as nearly as possible to what was the intention of a person win dies without leaving a will, we ought to ensure so far as possible that his estate goes to those whom he would have wished to benefit from it. I submit that we should do an injustice if we cut out the rights of step-children in circumstances such as I have described. A family connection is far more important than any question of blood relationship, and I hope that the noble Lady will change her mind and be prepared to accept this modified Amendment.

Mr. Forbes Hendry (Aberdeenshire, West)

My name has been mentioned as one who was sympathetic towards something on the lines of this Amendment, so perhaps I may be allowed to make a personal explanation.

When I spoke in sympathetic terms during the Committee stage, I mentioned that there were cases in which people might benefit by the acceptance of such an Amendment. But I was careful to point out—my noble Friend the Under-Secretary of State took me up on it—that there mere also some hard cases from the other point of view.

I suggested to my noble Friend that she must consider an Amendment on much narrower terms than the present one. On reconsideration, however, I agree with my noble Friend that it is impossible to cater for every different set of family circumstances. That being so, I must oppose the Amendment.

Mr. Willis

I am grateful to my hon. Friend the Member for Motherwell (Mr. Lawson) for explaining the Amendment to me and pointing out that I had not read it properly. Having listened to the argument—this is the first time I have heard it, because I did not have the privilege of serving on the Scottish Standing Committee—it seems to me that my hon. Friends have a very good case.

There is no doubt that amongst ordinary folk, if a man marries somebody who has been divorced, or a widow with a young family, that family becomes the family of both of them and most men accept their responsibilities and bring up the children as their own. This is the common experience in life. While there is a small number of cases to which this probably might not apply, they are a small minority. Certainly, in my experience of mixing with people, I find that they treat children in this category as their own. I am sure that by far the greater number of them would wish their children to become eligible if the step-parent died intestate, as the Amendment suggests.

The Under-Secretary of State has not made a good case. The hon. Lady says that we suggest changing a long-established custom of basing inheritance upon blood relationship. What does it matter? This is not an immutable law of nature which nobody can change. We are not here to uphold something simply because it is a thousand years old. If that were so, there would be no need for a House of Commons. We should all be back in our constituencies enjoying ourselves. There would be no Acts of Parliament if we were never to change anything. It is the biggest piece of rubbish that I have heard as an argument that this is an old tradition and, therefore, we must not change it.

We are concerned here with justice. The Amendment of my hon. Friends is more likely to achieve justice than if we leave the position as it is. Even though we might disturb ancient concepts, at least we should have done more to re move injustices than to create them. In other words, the balance is on our side. I am confident that that would be the result of the Amendment.

What is more, if the Government and the Law Officers advising them applied their minds to this matter, they probably could have made suggestions to limit the possibility of creating injustices. By and large, our proposal would give justice to a very large number of children or grown-ups. For that reason, we should accept the Amendment, even though it would disturb the ancient conception of basing inheritance upon blood relationship.

We could have a long discussion on blood relationship. It is difficult at times to discover what the blood relationship exactly is. I am certain that quite a number of well-to-do families in Scotland would have difficulty in tracing their real blood relationships. Anybody who knows anything about Scottish history knows this to be true.

Therefore, while I agree with my hon. Friend the Member for Motherwell that this is an important matter—nobody would underestimate its importance—I suggest that it should by no means override the consideration of trying to give a fair deal to a very large number of ordinary people. This is something that the House of Commons should do and it should make no fuss about it.

The hon. Lady also said that double rights of succession would be created. What about it? I do not think that in the great number of cases of which I know more difficulties would be created in that connection. The trouble with the Government is that they approach these matters generally from the view of what I would call the sort of upper classes of society, the people who have large estates and fortunes. The whole law of property is based largely upon this.

The law of property and succession has been based on the fight for people who have got things usually by robbing somebody else, because they happen to have been born the wrong side of the blanket or in some other way. They have fought to retain this tradition and at great expense, with the assistance in many cases of subservient lawyers, of which history is full—there are many good lawyers, too, I know, but there are a lot who have been subservient to vested interests—they have created a body of law concerned mainly with promoting and protecting that position. It is time that we let a little bit of fresh air into this business and realised that these are a minority of people.

In the Amendment, we are concerned with the vast number of ordinary people. When I look at my constituency, the great number of people there are ordinary men and women, living ordinary peaceful lives and contributing to society. It frequently happens that a man marries a widow or a young single woman, or a young single woman marries a man with two or three children. My hon. Friend spoke of one or two cases, but we all know dozens of cases in which this happens. The vast majority of them grow up like every other family. The man loves the children even though they are not his. He does what he can because he wants to help them. He makes sacrifices to give them a good education.

Then, however, we are told that the children are not in the line of succession in the matter of the estate. Surely this must strike the hon. Lady as being quite wrong. The great number of men and women would want them to be considered, and we are trying to put into legislation what we feel to be the natural instincts of a great body of men and women. We certainly would not do this by rejecting the Amendment.

I hope that the hon. Lady will have second thoughts. Just because hon. Members opposite, who tended to support this case in Committee, have not stood by the views which they then expressed is no reason why the hon. Lady should not display a little more courage than her hon. Friends have displayed. I hope that the hon. Lady will do this and consider accepting the Amendment.

Commander C. E. M. Donaldson (Roxburgh, Selkirk and Peebles)

This is one of those peculiar occasions when I am in some difficulty. Unlike the hon. Member for Edinburgh, East (Mr. Willis), who was not a member of the Committee, it was my good fortune—or was it?—to occupy the Chair during the Committee stage of the Bill. There is a certain amount of precedent in this House that any hon. Member who is asked whether he will accept the Chair of a Committee knows very well that if he speaks on the Second Reading of a Bill, he is, as Chairman of the Committee, precluded from speaking or taking any part in the Committee stage.

There is also the rule that by a peculiar circumstance an hon. Member who has been in the Chair of a Committee is allowed to address himself to the House on Report and Third Reading although he has been Chairman of the Committee. I do not wish to pursue, in particular, the arguments for or against the Amendment, ably moved as it was by the hon. Member for Glasgow, Craigton (Mr. Millan), the rebuttal to which was made equally ably by my noble Friend the Under-Secretary. The hon. Member for Motherwell (Mr. Lawson) truly said that this was a Bill of intricacy of Scottish law and, because it was intricate, did not attract a good deal of attention from the Press—and one needs to be careful when speaking in this Chamber about the Press. But my hon. Friend the Member for Aberdeenshire, West (Mr. Hendry), when speaking oil a similar point in Committee, made quite clear what we were talking about.

4.30 p.m.

This Amendment seeks to rectify a state of affairs which, in the opinion of hon. Members opposite, concerns people who are affected by intestacy. The point that I wish to raise is the same as that which was raised by my hon. Friend the Member for Aberdeenshire, West in Committee. I am sure that hon. Members opposite as well as on this side of the House feel deeply about this matter and have opinions about the unfortunate circumstance that could occur and which the Amendment seeks to rectify. I do not propose to speak about the Amendment, but surely it is our duty, as Members of Parliament—

Mr. Willis

The hon. and gallant Gentleman must speak about the Amendment.

Commander Donaldson


Mr. Willis

On a point of order, Mr. Deputy-Speaker. Is it in order for the hon. and gallant Gentleman to say that he does not intend to speak about the Amendment which is before the House?

Mr. Deputy-Speaker (Sir William Anstruther-Gray)

I heard the hon. and gallant Member's remark with surprise. I was waiting to hear what he would say. The House will be aware that remarks must be directed to the Amendment under discussion.

Commander Donaldson

I stand corrected. Most people sit corrected. Mr. Deputy-Speaker. When I said what I have just said, and will not repeat, I was trying to express the intention of the Amendment.

The Amendment seeks to rectify what hon. Members opposite feel to be an injustice to certain categories of people. The whole of their argument would be completely offset if those of us, of whatever party, who stand in public places in our constituencies did our utmost, assisted by the Press, to make clear that this circumstance which is envisaged in the Amendment would never exist if people would do the simple act of making a will.

We are discussing intestacy. I take it to be our duty to influence people, whatever their politics may be, for we all have in our constituencies people who do not agree with us politically. If we could make it clear this afternoon that the problem which is envisaged would be overcome in its entirety if people could be persuaded, as I hope increasingly they will, to take the precaution of making a will the Amendment would not be necessary and the suffering anticipated by hon. Members opposite would not arise.

Miss Margaret Herbison (Lanarkshire, North)

It is evident that the hon. and gallant Member for Roxburgh, Selkirk and Peebles (Commander Donaldson) will not be with us in the Lobby when we vote on this Amendment. The remedy which he seeks is that in all our constituencies we should let people know what will be the result if they have step-children and do not make a will.

That applies to the whole of the Bill. The Bill was brought forward because of the intricacies of intestacy, and a very high-powered Committee was set up, chaired by Lord Mackintosh. Lord Mackintosh made certain recommendations, and 12 years later, after a great deal of pressure from this side of the House, the Government have decided to bring in a Bill to deal with intestacy— not just intestacy as it applies to stepchildren, but as it applies to many others.

I am amazed at the arguments of the Under-Secretary. She told us, first, that since the Committee stage of the Bill there has been no public representation made to her or to the Government. My hon. Friend the Member for Motherwell (Mr. Lawson) made it perfectly clear that the Bill was so intricate that it had had very little Press publicity. I look up to the Press Gallery. Usually, when we are discussing Scottish matters, we see a number of well-known faces there. We do not see them today, because of the intricacy of the Bill and the difficulties of reporting it or of arousing interest in the country. I would say that there is a very little chance of the public knowing about the Amendment which my hon. Friends moved and supported in Committee.

The noble Lady also told us that the Mackintosh Committee made no recommendations on this matter. That Committee reported 12 years ago and in the intervening period there has been, as in many other things, a great change in public opinion, particularly in relation to social matters in the country. If I had been the Under-Secretary I would not have relied on either of those two points in opposing the Amendment.

May I put one or two matters to the noble Lady? Does she know that when a widow remarries and has young children she has to give up all her claim to a widowed mother's allowance, and that any allowance paid on behalf of those children is immediately stopped? Why does this happen? Why does our National Insurance law make it obligatory on the mother, when she remarries, to give up all that she previously had, not only for herself but for her children?

The law says that the step-father, from the moment he marries the mother, is responsible for the children—just as responsible for them as he would be for his own children. If, when those children reach the normal school-leaving age of 15, they intend to stay at school for further education, and an application is made to the local authority for a grant, the income not only of the mother, but of the step-father also, is taken into account. The Education Acts put the onus where it should be placed—fairly and squarely on the shoulders of the step-father, since he has accepted the responsibility not only of keeping a wife but of keeping the children that she had before she married him.

It seems strange to me that the Government should be so adamant in rejecting this Amendment. What happens if a man dies intestate and the children, perhaps 17 years of age, are about to go to a university? There is nothing for them, according to the law as it stands at present. The whole future of those children, who until that moment were the responsibility of the step-father, can be jeopardised. Have the Government taken that matter into account? It seems that they have not.

The whole argument of the noble Lady is that of blood relationship. Blood relationship may be very important to those whom we in Scotland call the landed gentry. These are the very people who would be careful to make a will. 'That often happens. Even if they did not, why do we penalise the vast majority of Scottish people because of this small number of landed gentry?

I have understood all the way through Second Reading and the Committee stage that what we are trying to do in the Bill is to dispose of a man's estate as he might have disposed of it had he made a will before he died. I am certain that the vast majority of men would have made a will in favour of their stepchildren, particularly with the limitation that we have put in the Amendment that the step-children must be less than 18 years of age at the time of the marriage.

In this great hunt for blood relationship does the noble Lady argue that any man would want whatever money or estate he had to go to the brothers and sisters of his grandparents, people whom often he had not known about and whom often he had never seen in his whole life? Yet the money or the estate a man leaves can go ultimately to the brothers and sisters of his grandparents.

I plead with the noble Lady to give more serious consideration to the points which have been made and give effect to what we have been trying to do all through. We should make the law in the Bill accord with what I am certain would be the wishes of the vast majority of men who die intestate with stepchildren for whom they accepted in earlier years the full financial responsibility, apart from all the affection and care that they bestowed on them.

Mr. A. Woodburn (Clackmannan and East Stirlingshire)

I sympathise with my colleagues who have supported the Amendment. The cases to which they have referred would arouse the sympathy of u; all. The Bill is not controversial in the party sense. We are all trying to improve the law and ensure that justice is done and that no hardship occurs when a person dies intestate.

Most of us think along the lines that, if a man adopts children, he becomes responsible for them and should make provision or them. I agree with my hon. Friend the Member for Lanarkshire, North (Miss Herbison) that the lawyers of people with property usually ensure that these sort of things are provided for. My hon. Friend the Member for Edinburgh, East (Mr. Willis) will agree that most of those about whom he spoke never have any difficulty in ensuring that their property is disposed of according to their wishes.

In my experience the most bitter quarrels take place and the most bitter feelings are generated, not amongst the aristocracy, who hardly ever see each other, but in a village or a street or a family where property has gone to somebody who does not deserve it. I do not want to go into all the hypothetical cases which the hon. Member for Aberdeenshire, West (Mr. Hendry) might raise on the other side. The very fact that we talk about the great majority being in one category means that there is a minority to whom injustice would be done.

On the earlier stages of the Bill I suggested to the noble Lady that there is no reason why we should guess at what will be justice in these cases. What do we have courts for? One of the troubles about the House is that, when passing a Bill with penalties, it wants to lay down the penalties in advance of the judge hearing the evidence. Here we are laying down a penalty without knowing the facts of each case.

4.45 p.m.

I assume from the fact that the noble Lady has opposed the Amendment that she will not accept it and that the Whips will be put on to ensure that it is rejected. I have been here long enough to know what will happen. Consideration should be given to the possibility of appeals to the courts in difficult cases so that the courts can judge them. This takes place with regard to marriages. If it is a marriage by habit and repute, the court, after hearing all the evidence, judges whether the couple are legally married, in which case they are married. If the evidence is such that the court does not consider them to be married, they are not married.

Is it not equally important that somebody should judge whether these children are members of the family? They may be members of the family, but I can visualise cases when the husband does not adopt the children on marrying a widow with children, and the children go to stay with their mother's relatives, say, the children never being members of the family. In such a case the children may never have seen their stepfather. Their mother may never have told him that she had had children beforehand. Under the Amendment they would automatically inherit. I can visualise many problems arising which would cause injustice to other people and not to the children.

We cannot judge in advance in every case. I think that the noble Lady is right. I think that my hon. Friends are right. Whatever is decided, we shall leave somebody on the wrong side of justice. It should not be beyond the capacity of the Solicitor-General for Scotland and his legal advisers to think of a method of referring doubtful cases to the courts, perhaps flagrant cases where this rule should not apply, with a right of appeal, thus providing the ability to obtain the judgment of a court on what is right and what is wrong. The courts may not dispense anything like absolute justice, but they are much more likely to come to a correct conclusion than we are, legislating in advance of the evidence and of the knowledge. We are apt to think of one or two cases on either side in which things are either black or white, but law is not like that. Families are not like that. Too many complicated cases arise in regard to property for the House to legislate in advance.

Yet if we put it into the Bill in this hard and fast manner, as it is in the Bill already, or as it would be in the Amendment, we are bound to cause injustice and hardship to someone. Therefore, some power should be given to the court to be flexible, to give judgment according to its wisdom and according to the evidence presented. My own experience is of the bitterness which can be aroused in families, of the breaking up of families, not because there is a great deal of property but sometimes because there is too little property. They fight all the more over a little than they do over a lot.

The Government, in another place, since they cannot do it here, should consider drafting an Amendment to cover this point and perhaps reconcile the two points of view, both of which have a certain amount of justification but would bring injustice in some cases to someone.

Mr. William Small (Glasgow, Scotstoun)

I support the Amendment and cannot but admire the splendid manner in which it was moved by my hon. Friend the Member for Glasgow, Craigton (Mr. Milian). I hope that the noble Lady is open to conviction and will change her mind. I believe that she is a very enlightened person, a good example of the modern age in which we live.

However, perhaps speaking from a different point of view, I can tell her that the law of inheritance, in which she may have a deep interest, the Married Women's Property Act, and such things, are not relevant comparisons to the subject under discussion. Today, it is not realistic to suggest that people should rationalise their affairs by going to lawyers and writing out their wills. However desirable this may be, these things are not done by the majority of people today. Property is not dealt with like that. Most owner-occupiers believe that they are doing the right thing by their wives if they cover their mortgage by taking out an endowment policy on their lives. It is not much good telling young people in their twenties or thirties that they should rationalise their affairs in the way that has been referred to, because they have such a long expectation of life.

It is a long time since I heard the word "step-child". I suspect that the noble Lady will not have heard it for a long time, either. I was interested in the clinical manner in which she read her brief. She did not display the warmth I generally expect from such an enlightened person in a case such as this, because we are here dealing with the welfare and interest of human beings. I am sure that the noble Lady would go to the barricades in defence of children who were in intellectual or moral danger and would want to bring in a Bill to protect them.

We are dealing here with a member of the family unit. The reason why the expression "step-child" has not been heard for a long time is that the idea has grown up that a child should not receive adverse publicity, even within his own family. In these days, one does not often hear a member of a family say, "Johnnie is a stepbairn". Today, nothing like that takes place even within a family. Nowadays, in a community, at school, or elsewhere, no account is taken of the fact that the child is a stepchild.

If we are to have any guiding light at all in matters of this kind it must be that we must try to cater for individuals. Is it fair that a child should be penalised because his step-father, who has looked after his intellectual interests and seen to his moral welfare, fails in one material aspect, namely, to rationalise his affairs? Can it not be assumed that his intention in the material sense is to do natural justice to his step-child and let him inherit if something happens to him.

The noble Lady should consider this matter in this modern light when making law for the future. If I instanced a case of child neglect of any kind, I am sure that the noble Lady would rush to the barricades in defence of the child. She should do so now in this case, thus ensuring that no one will suffer because a step-parent has failed to rationalise his affairs.

Mr. Archie Manuel (Central Ayrshire)

I want to make a very brief intervention. Like my hon. Friend the Member for Edinburgh, East (Mr. Willis) I have not had the opportunity of serving on the Standing Committee, because we were on another Committee, which was also one of great importance; but many of us have had Questions down over the years on the necessity of bringing up to date the laud of succession in Scotland.

We were fobbed off on many occasions by promises of legislation and it has taken 13 years for us to have the opportunity of dealing with this matter. I was very impressed by the presentation of the Amendment and the support given to it by my hon. Friend the Member for Glasgow, Craigton (Mr. Millan) and my hon. Friend the Member for Motherwell (Mr. Lawson). They put up a very strong case. The noble Lady, in the rather cold hearted manner in which she dealt with it, did not do justice to the case that vas put or the support that was given to it by other hon. Members.

I have no dubiety about the hon. Lady's position in this House. I have tried before, like my hon. Friend the Member for Glasgow, Scotstoun (Mr. W. Small), to bring forth the finer feelings that should be in her breast. I know of the fount of inspiration which she has for the: protection of birds but she does not seem to have the same under- standing for the protection of human beings, which is what we are dealing with now.

We are looking for some streamlining of our lawn and a little humanity. The reason for the Bill was because of the great number of complaints we have had about the operation of the laws of succession in Scotland. What we need is the wind of change, which was mentioned by the former Prime Minister, and whom we very seldom see now on the belches opposite. He told us that his party was a party of progress. When the noble Lady ties her case to the fact that this has operated for 'hundreds of years and, therefore, it should still be in operation, that is a very weak argument.

The noble Lady's other argument regarding the ties of blood relationship is woefully weak in this age in which we live. What she is really saying is that she will not take the opportunity to bring the laws of succession up-to-date. She is saying that blood relationship should be the determining factor in the line of succession and that what the Amendment asks for is not in the line of succession. The noble Lady is actually saying that step-children are not in the family, and if the father has died intestate they are not to be considered after his death as being in the family.

The law is creating a distinction that ordinary, decent human beings do not apply to the family circle. I object to this very much. We all of us know of marriages where step-children are in the family circle. It is only in very unlikely circumstances, and where great ignorance exists, that there is any dissimilar treatment of children in those families.

I know of no family in which there are step-children where this distinction is made. One has to remember that often the step-children are younger than the 'other children in the direct line of succession. The father's children are often older and the older children look after the step-children. They take them to school and have a protective influence over their lives. The break comes because the father has not made a will and the step-children are treated in a very obnoxious manner so far as the family circumstances of love, comfort and general provision are concerned.

I would make bold to say that if we were able to collect the voices of the people of Scotland we would have a huge majority. in favour of this Amendment. My hon. Friends have gone to the greatest extent in trying to meet the case put by the benches opposite in regard to children of 18 years of age and the date of marriage so that they are excluded. If they are out of the family home, working for themselves and possibly getting married, I can understand that point of view.

5.0 p.m.

I am not all that attracted to the case put by my right hon. Friend the Member for Clackmannan and East Stirling-shire (Mr. Woodburn), because I am not out to create another lawyers' paradise. I fear that that would be the danger of his suggestion. I realise that my right hon. Friend made that suggestion sincerely, but mainly in the hope of wooing the noble Lady into accepting the principle of the Amendment. I regret that my right hon. Friend's tactics will not bring us much success on this occasion.

I was astounded to hear my right hon. Friend say that the Whips would be on hon. Members opposite on this issue. What a deplorable situation. What would the people of Scotland think about an extremely important human matter like this being decided with the Whips on? I see the hon. Member for Glasgow, Kelvingrove (Mr. Lilley) laughing. This is not a laughing matter. I know of families who will be affected if provision is not made by the head of the household before his death and I can assure the hon. Member that, in that event, they will not regard this as a laughing matter.

I regret that hon. Members opposite will be driven like sheep, willy-nilly, into the Lobby against the Amendment. That is not only deplorable, but is against the best interests of Scotland. It is not good law-making and hon. Members who do that should be thoroughly ashamed of themselves.

Mr. William Howie (Luton)

I hope that the Scotsmen present will not be too offended if a sort of step-Englishman takes part in the debate. I will be brief, so that they can get on with it.

There are two aspects of the Clause which immediately strike me. The first is probably the psychological point which underlies the Government's intention. In folklore and fairy tale the stepparent is generally regarded as a villain and is usually cast on the side of wickedness. While that may at one time have been true, the development and growth of human relationships has brought that situation to an end. The Bill seems to assume that step-parents are still wicked and that they would have the intention of not looking after their stepchildren by not providing for them. That assumption is out of keeping with the age in which we live.

The second point concerns the so-called danger of double inheritance and the importance of a blood relationship. There are many aspects of this, some of which have been raised, although I will not go into them in detail. Has the noble Lady considered the position of the wife? She is often entitled to double inheritance from her own parents or grandparents and also from her husband. She is seldom a blood relation of her husband. On the few occasions when she is there is a great hullabaloo and I cannot believe that the Government want that to be the procedure from now on.

The relationship between the husband and wife is a family one, although it has grown into a legal one as well. The relationship is basically the same between step-parents and step-children and surely it is right that what is just for the wife should, in equity, be just for the child.

The Clause contains a sort of jig-saw puzzle; a mass of double inheritance. We find inheritance by way of brothers, sisters, parents, grannies, uncles, aunties—probably ox and ass, for all I know. There is a morass of double inheritance and I hope that the Government will think again on this issue and, above all, accept the Amendment.

Mr. Hector Hughes (Aberdeen, North)

I rise with some hesitation to say a word about the Bill because I am not a member of the Scottish Bar but of the, English Bar.

We have with us a new Solicitor-General for Scotland and he must be aware that the Bill is an attempt to modernise Scottish law. There are many respects in which Scottish law is in advance of English law, but there are other spheres in which English law is in advance. This is one of them. English law recognises step-children while Scottish law does not. Thus the Bill is an attempt to bring Scottish law up to date and up to the level of English law. I urge the Solicitor-General to advise the Under-Secretary of State along these lines so that the Amendment, which is just and proper, may be accepted.

I do not intend to address the House on the aspects of justice. Many confusing issues have been introduced into the debate on this topic. Justice has been argued and the case for the justice of the Amendment has been well presented. I urge the Solicitor-General to agree to bring Scottish law up to the level of English law in this respect.

Mr. William Ross (Kilmarnock)

One of the troubles with the Scottish representatives on the Treasury Bench is that their arguments are not only predictable, but disappointingly so. I had hoped that on this occasion we would have heard the Solicitor-General, because when we began our deliberations on the Bill he was not yet an hon. Member of the House. We were then told about the wonderful things that were coming when eventually he took his seat. It is worth remembering that he only just got here. It might be that he will not be here for very long.

The Under-Secretary said that the arguments adduced by my hon. Friend the Member for Glasgow, Craigton (Mr. Millan) ware made with considerable feeling. Apart from that, I noticed that my hon. Friend spoke with considerable power and that, for the rest of the House, with considerable persuasiveness.

I deplore the attitude of Government spokesmen on issues such as this, when they listen to the arguments put forward and then reply merely by reading a typewritten brier. On this occasion I did not hear the typewriter going while the Government reply was being delivered, so I presume that the brief was prepared in advance. If we have got to the stage when Ministers cannot rise and answer arguments—or, if the arguments are sufficiently persuasive, have the power to accept Amendments—we will need all the time to call for the presence of the absentee laird, the Secretary of State for Scotland. [HON. MEMBERS: "Where is he?"] He is looking somewhere for a Countryside and Tourist Amenities Bill.

I considered the arguments used by the noble Lady not only predictable but even worse than those used by Government spokesmen in Committee and I am glad that on this issue there has been such strong support from my hon. Friends. My hon. Friend the Member for Motherwell (Mr. Lawson) brought the matter down to its basic facts. It is no good the noble Lady saying that the Mackintosh Committee did not consider this and that there is no public demand for it. She must know that the Mackintosh Committee reported 13 years ago—on 9th December, 1950.

The Mackintosh Committee stated that there had been very considerable opposition to the main principle of wiping out primogeniture and introducing the right of women to succeed. What did the opposition say to the Mackintosh Committee? The opponents of change, who included the Faculty of Advocates, the Court of the Lord Lyon and several representatives of the landed interest maintained that there was no public demand for any change.

The Mackintosh Committee overturned that, and went into the merits of the case, based on changed social and economic conditions. I do not think that economic and social conditions have changed so much since 1950 as to overturn the justice of our demand that the Government should face the facts of family life in Scotland—and no one should know more about the facts of family life in Scotland on this issue than the noble Lady.

We cannot get a great body of opinion because there are not very many of these people. Again, they are all affected by this problem at different times, and when their interests go by the board they do not create themselves into an organisation and speak with an articulate and effective voice. It is wrong for the noble Lady to use that argument.

The noble Lady argued the double right of succession, and on this point I was glad to hear my hon. Friend the Member for Luton (Mr. Howie). We welcome him to our Scottish debates—if he does not watch himself he may find himself on the Scottish Grand Committee. As he comes from Troon, and is backed by the sound common sense of the Scottish worthies of Ayrshire, I am sure that his sound common sense would be as effective there as, I hope, it will be here today. He was quite right in what he said about double inheritance. We are in a jungle of double inheritance.

Let us get quite clear what it is we want. What we seek would be applicable only in Scotland. It would only apply to that estate where a man or woman did not leave a will. It would only apply to that part of the estate left after the statutory legal rights, expenses and the rest, had been allowed for. We would seek to dispose of the remainder, through general legislation, by interpreting what the wishes of the intestate person would have been. We place that in paragraph (b).

Paragraph (a) gives to the children of the deceased the right, in the first place, to the whole of this section of the intestate's estate. We must bear in mind that if the deceased has children of his own those children take precedence, and no one else down the whole channel that has been mentioned comes in at all. All ask is that after that point these others should be brought in.

To meet the case of the person who married late in life, my hon. Friend went further by limiting the right to those step-children of the deceased who were 18 years or under at the time of the marriage. There is, therefore, considerable restriction both in relation to rights and precedence, and in relation to the actual step-children who will be affected.

I thought that we might get from the noble Lady some understanding of the strong expressions of opinion in Committee, but she has moved not a single inch. My hon. Friend went further and said, "We do not insist on their being there. Put them in after brothers and sisters, put them in after the spouse, put them in after grandchildren—but give them some right, and establish the principle". The noble Lady was not even prepared to look at that—and, incidentally, she took up my hon. Friend incorrectly on what he said about ultimate heirs. She was even prepared to argue that although these people had been accepted as members of the family the intestate would have preferred the rest of the estate to go to the Crown. That is utter and insupportable nonsense. Even if these step-children were put in at the very end of a very long line, it would be something.

5.15 p.m.

As for blood relations—goodness gracious! We have already made a change in relation to adopted children. I do not know whether my hon. Friend the Member for Luton realises that the wife comes into this table for the first time. The wife is not a blood relation, but if we bring in the wife there is no reason for not bringing in the wife's children, who were accepted as an obligation when the couple married. As for double inheritance, these children may have already inherited. Adopted children may have already inherited. The wife may have already inherited. There is, therefore, no real argument on the basis of double inheritance; that principle, too, is accepted, and should not be a barrier to acceptance of this Amendment.

Scottish opinion has been made quite clear by my hon. Friend, and justification based on the social facts in Scotland today is all on our side. I can only think that the refusal of the Government to budge on this is a last-ditch stand because they know that after the Bill leaves this House it faces its worst trial of all in another place. I would warn my hon. Friends that just as one Bill has been lost this week so may this one also be lost, but I am sure that Scottish public support for the Measure would be strengthened by acceptance of this Amendment.

My hon. Friend the Member for Edinburgh, East (Mr. Willis) was quite right when he said that the law of property in Scotland has been dedicated to the preservation of feudal privilege and is now quite out of touch with modern conditions. The Government's resistance shows their unwillingness to move with the times, and that makes poor showing for those who say that they are determined to modernise.

We did not fight the Bill in Committee on any party basis at all, as I am sure that hon. Members opposite who served on the Committee will appreciate. There was a certain amount of cross-voting. I therefore hope that hon. Members will be allowed to express their opinions here fairly freely. The noble Lady says that we cannot interfere here because this has been the law for 1,000 years. That is the worst argument of all, because if that argument stood we would not have the Bill at all. It is simply because we recognise, after all this time, after the Mackintosh Report, and all the rest, that some change is necessary that we have this Bill, but we suggest that something else ought to be done.

It may be many more years before we get a chance to make a change—let us seize the present chance while we can. My hon. Friends have proved our case to the hilt, and I sincerely hope that the Government, even at this last minute, will give us a crumb of comfort and hope by saying that they will do something, if not exactly on this Amendment than elsewhere in another way.

Lady Tweedsmuir

I think that this has been a very good debate, with arguments of great force and conviction on both sides. The hon. Member for Motherwell (Mr. Lawson), who spoke first, and many other hon. Members—the hon. Member for Lanarkshire, North (Miss Herb son), the hon. Member for Edinburgh, East (Mr. Willis), whom it was good to see really enjoying himself in one of his rousing speeches, the hon. Member for Central Ayrshire (Mr. Manuel), the hon. Member for Glasgow, Scotstoun (Mr. Small), and the hon. and learned Member for Aberdeen, North (Mr. Hector Hughes)—all asked whether this provision could not be considered. The hon. Member for Kilmarnock (Mr. Ross) asked whether this could not, perhaps, be done in another place.

The right hon. Member for Clackmannan and East Stirlingshire (Mr. Woodburn) said, in his usual fair way, that he thought there were good arguments on both sides of the case and he therefore asked whether we could not, instead of accepting this Amendment or keeping the Bill as it is, make some provision whereby in cases where hardship would be caused there should be resort to the courts, which would be able to make a decision one way or the other. In other words, the right hon. Gentleman asked that there should be a middle course. I say to him that I do not really think this would be a good solution.

There are, I regret to say, throughout the Bill instances, which anyone could quote of hard cases, because it is impossible on the law of property and succession to devise a system which will not cause hard cases in some instances. It is quite cut of the question. Various hon. Members have said that they feel that the step-father who takes on the responsibility of step-children treats those children in a manner by which they are virtually members of the family.

The hon. Member for Kilmarnock said that I of all people ought to know this principle, and I agree with him that that is exactly so. That is why I have listened to this debate with very great interest and have studied the whole problem very considerably before coming to the House and before the question was raised in Committee. It is perfectly true that there have been a very large number of cases, particularly after the war, where people have married again and taken on the responsibility of children and where there has been a very happy family relationship. However, one has to remember that those children have had rights in their natural parent's estate.

Mr. Millan

Of course, that is equally true of adopted children whose parents have died before they were adopted, which is a very common case.

Lady Tweedsmuir

That is perfectly true, but in the Bill we specifically make provision that where there is an adopted child it must give up his or her rights under the natural family. We make this provision specifically in order to ensure that this case should not come about.

I am certain that all the cases which have been mentioned are probably very common, but one has to remember that there is the other side of the case about the intention of the intestate. People have said that what we are trying to do is to carry out what we think is the intention of the intestate. My hon. Friend the Member for Aberdeenshire, West (Mr. Hendry), who at one stage was prepared to support this provision that step-children should have a right of succession, mentioned that there are hard cases on the other side. I think that that is perfectly true, and I would say in passing to my hon. Friend the Member for Glasgow, Kelvingrove (Mr. Lilley) that while what we are talking about now applies to intestacy, I agree with him. I hope that what will result from the Bill is that all hon. Members will take every opportunity to suggest to their constituents that they should make their wills.

However, we are now dealing with intestacy and one has to remember that there are instances where the deceased would not have left his property to his step-children. There are also cases where the deceased, had he thought about the matter at all, would have been rather upset if, for instance, his brother or his sister had been left out of the

succession. The hon. Member for Kilmarnock says, "Let us get over this question by, if necessary, putting them right at the end of the list," right back to the ancestors in paragraph (h). I think that the argument for keeping the matter on blood relationship is really a very simple one. It is the one that the child will have had the right of succession in the natural family and that one cannot always say what the deceased would have done for his step-children.

Mr. Willis

The hon. Lady is not doing too well on that.

Lady Tweedsmuir

The hon. Gentleman is trying to make his case look better by making murmurings while sitting down.

I say to the House, after most careful consideration, that I think we should get into as much difficulty if we accepted the Amendment as if we stuck to the present arrangement, which, at any rate, is clear and is based on the assumption that the step-children inherit from their natural parents.

Mr. F. J. P. Lilley (Glasgow, Kelvingrove)

Is my hon. Friend aware that the original law in this instance is not quite Greek? I am advised by a very well-known man of law in Scotland that this is so. This law, in fact, states that whether it be a step-child or an adopted child—my friend said that it did not matter a damn one way or the other—they should both be interested.

Lady Tweedsmuir

I think that this would be a matter for my hon. and learned Friend the Solicitor-General, and I do not think that I would divert from what I have said.

Question proposed, That those words be there inserted in the Bill:—

The House divided: Ayes 164, Noes 223.

Division No. 25.] AYES [5.29 p.m.
Albu, Austen Bowden, Rt. Hn. H.W. (Leics, S.W.) Callaghan, James
Allaun, Frank (Salford, E.) Bowles, Frank Carmichael, Neil
Bacon, Miss Alice Boyden, James Castle, Mrs. Barbara
Barnett, Cuy Braddook, Mrs. E. M. Chapman, Donald
Baxter, William (Stirlingshire, W.) Bradley, Tom Cliffe, Michael
Beaney, Alan Bray, Dr. Jeremy Collick, Peroy
Benn, Cyril Brookway, A. Fenner Braddock, George (Bradford, S.)
Benn, Anthony Wedgwood Broughton, Dr. A. D. D. Grossman, R. H. S.
Blackburn, F. Brown, Rt. Hon. George (Belper) Dalyell, Tam
Bottomley, Rt. Hon. A. G. Butler, Herbert (Hackney, C.) Darling, George
Davies, Ifor (Gower) Janner, Sir Barnett Peart, Frederick
Davies, S. O. (Merthyr) Jay, Rt. Hon. Douglas Pentland, Norman
Deer, George Jeger, George Prentice, R. E.
Delargy, Hugh Jenkins, Roy (Stechford) Price, J. T. (Westhoughton)
Dempsey, James Johnson, Carol (Lewisham, S.) Purvey, Cmdr. Harry
Diamond, John Jones, Dan (Burnley) Randall, Harry
Dodds, Norman Kelley, Richard Rankin, John
Doig, Peter Key, Rt. Hon. C. W. Redhead, E. C,
Driberg, Tom King, Dr. Horace Rees, Merlyn (Leeds, S.)
Duffy, A. E. P. (Coins valley) Lee, Frederick (Newton) Roberts, Albert (Normanton)
Ede, Rt. Hon. C. Lee, Miss Jennie (Cannock) Roberts, Goronwy (Caernarvon)
Edelman, Maurice Lever, L. M. (Ardwick) Robertson, John (Paisley)
Edwards, Robert (Bilston) Lewis, Arthur (West Ham, N.) Robinson, Kenneth (St. Panoras, N.)
Edwards, walter (Stepney) Lipton, Marcus Ross, William
Forman, J. C. Loughlin, Charles Silverman, Julius (Aston)
Fraser, Thomas (Hamilton) Mabon, Dr. J. Dickson Silverman, Sydney (Nelson)
Galpern, Sir Myer McCann, John Skeffington, Arthur
George, Lady Megan Lloyd (Crmrthn) MacColl, James Slater, Mrs. Harriet (Stoke, N.)
Ginsburg, David McInnes, James Slater, Joseph (Sedgefield)
Gourlay, Harry McKay, John (Wallsend) Small, William
Greenwood, Anthony Mackie, John (Enfield, East) Smith Ellis (Stoke, S.)
Grey, Charles McLeavy, Frank Snow, Julian
Griffiths, David (Rother Valley) MacPherson, Malcolm (Stirling) Sorensen, R. W,
Gunter, Ray Mallalieu, J.P.W. (Huddersfield, E.) Soskice, Rt. Hon. Sir Frank
Hate, Leslie (Oldham, W.) Manuel, Archie Spriggs, Leslie
Hamilton, William (West Fife) Mapp, Charles Stewart Michael (Fulham)
Hannan, William Marsh, Richard Stones, William
Harper, Joseph Mason, Roy Swain, Thomas
Hart, Mrs. Judith Mayhew, Christopher Symonds, J. B.
Hayman, F, H. Millan, Bruce Tomney, Frank
Healey, Denis Milne, Edward Wainwright, Edwin
Henderson, Ht. Hn. Arthur (Rwfy Regis) Mitchison, G. R. Warbey, William
Herbison, Miss Margaret Monslow, Walter Weitzman, David
Hill, J. (Midlothian) Moody, A. S. Whitlock, William
Holman, Percy Morris, Charles (Openshaw) Wilkins, W. A.
Houghton, Douglas Morris, John Willey, Frederick
Howell, Charles A. (Perry Barr) Neal, Harold Willis, E. G. (Edinburgh, E.)
Howie, W. (Luton) Noel-Baker, Francis (Swindon) Wilson, Rt. Hon. Harold (Huyton)
Hoy, James H. O'Malley, B. K. Winterbottom, R. E.
Hughes, Emrys (S. Ayrshire) Oram, A. E. Woodburn, Rt. Hon. A.
Hughes, Hector (Aberdeen, N.) Owen, Will Woof, Robert
Hunter, A. E. Paget, R. T. Yates, Victor (Ladywood)
Hynd, H. (Accrington) Pannell, Charles (Leeds, W.)
Hynd, John (Attercliffe) Pargiber, G. A. TELLERS FOR THE AYES:
Irvine, A. J. (Edge Hill) Parker, John Mt. Rogers and Mr. Lawson.
Irving, Sydney (Dartford) Parkin, B. T.
Agnew, Sir Peter Cleaver, Leonard Gilmour, Ian (Norfolk, Central)
Allan, Robert (Paddington, S.) Cole, Norman Glyn, Sir Richard (Dorset, N.)
Allason, James Cooke, Robert Goodhew, Victor
Anderson, D. C. Cordeaux, Lt. Col. J. K. Gower, Raymond
Barlow, Sir John Corfield, F. V. Grant-Ferris, R.
Batsford, Brian Costain, A. P. Grimond, Rt. Hon. J.
Beamish, Col. Sir Tufton Courtney, Cdr. Anthony Grosvenor, Lord Robert
Bell, Ronald Craddook, Sir Beresford (Spelthorne) Hamilton, Michael (Wellingborough)
Berkeley, Humphry Critohley, Julian Harris, Frederic (Croydon, N.W.)
Bevins, Rt. Hon, Reginald Crowder, F. P. Harris, Reader (Heston)
Biffen, John Cunningham, Sir Knox Harrison, Brian (Maldon)
Biggs-Davison, John Currie, G. B. H. Harrison, Col. Sir Harwood (Eye)
Birch, Rt. Hon. Nigel Dalkeith, Earl of Harvey, Sir Arthur Vere (Macclesf'd)
Bishop, F. P. Dance, James Hastings, Stephen
Black, Sir Cyril Deedes, Rt. Hon. W. F. Hay, John
Bossom, Hon, Clive Digby, Simon Wingfield Henderson, John (Cathcart)
Boyle, Rt. Hon. Sir Edward Donaldson, Cmdr. C. E. M. Hendry, Forbes
Braine, Bernard Doughty, Charles Hiley, Joseph
Bromley-Davenport, Lt.-Col. Sir Walter Drayson, G. B. Hill, Mrs. Eveline (Wythenshawe)
Browne, Percy (Torrington) Duncan, Sir James Hill, J. E. B. (S Norfolk)
Bryan, Paul Elliot, Capt. Walter (Carshalton) Hirst, Geoffrey
Buck, Antony Elliott, R. W. (Newe'tle-upon-Tyne, N.) Hogg, Quintin
Billard, Denys Emmet, Hon. Mrs. Evelyn Holland, Philip
Bullus, Wing Commander Eric Errington, Sir Eric Holt, Arthur
Burden, F. A. Enroll, Rt. Hon. F. J. Hopkins, Alan
Butcher, Sir Herbert Farey-Jones, F. W. Hornsby-Smith, Rt. Hon. Dame P.
Campbell, Gordon (Moray & Nairn) Farr, John Hughes Hallett, Vice-Admiral John
Carr, Rt. Hon. Robert (Mitoham) Finlay, Graeme Hughes-Young, Michael
Cary, Sir Robert Fletcher-Cooke, Charles Hutchison, Michael Clark
Channon, H. P. G. Fraser, Ian (Plymouth, Sutton) Irvine, Bryant Godman (Rye)
Chataway, Christopher Freeth, Denzil Jackson, John
Chichester-Clark, R. Galbraith, Hon. T. G. D. James, David
Churchill, Rt. Hon. Sir Winston Gammans, Lady Jenkins, Robert (Dulwich)
Clark, Henry (Antrim, N.) Gardner., Edward Johnson, Eric (Blackley)
Clarke, Brig. Terenoe (Portsmth, W.) Gibson-Watt, David Johnson Smith, Geoffrey
Kerans, Cdr. J. S. Osborn, John (Hallam) Storey, Sir Samuel
Kerby, Capt. Henry Osborne, Sir Cyril (Louth) Studholme, Sir Henry
Kerr, Sir Hamilton Page, Graham (Crosby) Summers, Sir Spencer
Kershaw, Anthony Page, John (Harrow, West) Talbot, John E.
Kirk, Peter Pannell, Norman (Kirkdale) Tapsell, Peter
Kitson, Timothy Partridge, E. Taylor, Edwin (Bolton, E.)
Lagden, Godfrey Pearson, Frank (Clitheroe) Taylor, Sir William (Bradford, N.)
Lancaster, Col. C. G. Peel, John Temple, John M.
Langford-Holt, Sir John Percival, Ian Thatcher, Mrs. Margaret
Leather, Sir Edwin Pickthorn, Sir Kenneth Thomas, Sir Leslie (Canterbury)
Legge-Bourke, Sir Harry Pitt, Dame Edith Thompson, Sir Richard (Croydon, S.)
Lewis, Kenneth (Rutland) Pounder, Rafton Thornton-Kemsley, Sir Colin
Lilley, F. J. P. Powell, Rt. Hon. J. Enoch Thorpe, Jeremy
Lindsay, Sir Martin Prior, J, M. L. Touche, Rt. Hon. Sir Gordon
Linstead, Sir Hugh Prior-Palmer, Brig. Sir Otho Turner, Colin
Litchfield, Capt. John Proudfoot, Wilfred Turton, Rt. Hon. R. H.
Lloyd, Rt. Hon. Selwyn (Wirral) Pym, Francis Tweedsmuir, Lady
Loveys, Walter H. Quennell, Miss J, M. van Straubenzee, W. R,
Lubbock, Eric Ramsden, Rt. Hon. James Vane, W. M. P.
McAdden, Sir Stephen Redmayne, Rt. Hon. Martin Vaughan-Morgan, Rt. Hon. sir John
Maclay, Rt. Hon. John Rees, Hugh (Swansea, w.) Vickers, Miss Joan
Maclean, Sir Fitzroy (Bute&N. Ayrs) Ridley, Hon. Nicholas Vosper, Rt. Hon. Dennis
McMaster, Stanley R. Ridsdale, Julian Wade, Donald
Macmillan, Maurice (Hallfax) Roberts, Sir Peter (Heeley) Walker, Peter
Maddan, Martin Ropner, Col. Sir Leonard Wall, Patrick
Maitland, Sir John Royle, Anthony (Richmond, Surrey) Ward, Dame Irene
Marten, Neil Russell, Ronald Wells, John (Maidstone)
Matthews, Gordon (Meriden) Scott-Hopkins, James Whitelaw, William
Mawby, Ray Seymour, Leslie Williams, Dudley (Exeter)
Maxwell-Hyslop, R. J. Sharples, Richard Williams, Paul (Sunderland, S.)
Mills, Stratton Shaw, M. Wills, Sir Gerald (Bridgwater)
Montgomery, Fergus Shepherd, William Wilson, Geoffrey (Truro)
More, Jasper (Ludlow) Skeet, T. H. H. Wolrige-Gordon, Patrick
Morgan, William Smith, Dudley (Br'ntf'd & Chiswick) Wood, Rt. Hon. Richard
Morrison, John Spearman, Sir Alexander Woodhouse, C. M.
Mott-Radclyffe, Sir Charles Stainton, Keith Woodnutt, Mark
Nicholson, Sir Godfrey Stanley, Hon. Richard Woollam, John
Nugent, Rt. Hon. Sir Richard Steward, Harold (Stockport, S.) Worsley, Marcus
Orr, Capt. L. P. S. Stodart, J. A.
Orr-Ewing, Sir Ian (Hendon, North) Stoddart-Scott, Col. Sir Malcolm TELLERS FOR THE NOES:
Mr. McLaren and Mr. MacArthur.
Mr. Ross

I beg to move, in page 2, fine 21, at the end to insert: (b) where an intestate is survived by a husband or a wife but is not survived by any prior relative the surviving spouse shall have right to the whole of the intestate estate.

Mr. Deputy-Speaker

It would be convenient also to discuss the next Amendment, in the hon. Member's name, in page 2, to leave out lines 36 to 39.

Mr. Ross

We are still on the same Clause, dealing with the rights of succession to intestate estate. We are concerned now with the position of the surviving husband or wife. I suppose that we should pay due tribute to what has been done, because for the first time in the law of succession, after a battle of over 1,000 years, we have recognised the right of the wife. The active discussion on this matter has ranged through the whole of this century. It reached the length of having private legislation and led eventually to the establishment by my right hon. Friend the Member for East Stirlingshire (Mr. Woodburn) of the Mackin tosh Committee which reported favourably in 1950. Since then we have had 13 years of pressure, discussion and battling to give the widow the right to share in succession.

What we now suggest is that, as it has taken so long to look at this, and as the Government have placed the surviving wife, as also the surviving husband, in the situation of paragraph (e), we should reconsider that which places them right after the rights of children. Let us appreciate that the prior right in relation to an intestate estate after legal rights have been exacted goes, first of all, to the children. According to the Bill as it stands, failing that it goes to the parents and brothers and sisters, and failing that to the brothers and sisters.

But when we recollect that there are rights of representation, I think that the point made by my hon. Friend the Member for Luton (Mr. Howie) in the last debate comes in here as well, that there are a tremendous number of relatives who take precedence over the wife if she is the surviving spouse in relation to the intestate estate.

Frankly, we do not think this is in accord, or would be in accord, with the wishes of the intestate. I do not think that it is in accord with social aspects. I know what the noble Lady will say, that we have made changes, changes which we pressed for and welcomed, in relation to legal rights, that we have given the surviving spouse very considerable legal rights in relation to the house and finance, and in respect of moveables I think it is £2,500 if there are children and £5,000 if there are no children. Even granting that, we feel that with the still to be disposed estate under intestacy it is only fair to place the claims of the surviving spouse higher.

The position is certainly changed by the new legal rights that we have given, but during the Committee stage my hon. Friend the Member for Glasgow, Craig-ton (Mr. Millan) argued very forcibly that where an estate consists mainly of heritable property and where the legal rights do not spread over—in other words, although we have assimilated for succession purposes the heritable and moveable property, in relation to the legal rights they are not so assimilated, and so one gets different results in relation to whether the bulk of the estate is moveable or heritable—the surviving spouse can do very badly out of this. We think it is only fair, and we hope we shall be able to persuade the House, to think about this and elevate the rights of the surviving spouse to the position after that of the children.

5.45 p.m.

Lady Tweedsmuir

An Amendment in almost identical terms to this one was moved during the Committee stage and we had a considerable debate on it. It differs from the one we have just discussed in the sense that whereas on the first Amendment I felt that as a matter of logic and principle even, if hon. Gentlemen opposite did not agree, I could not accept it, on this Amendment it is entirely a matter of judgment and largely one of opinion.

The hon. Member for Kilmarnock (Mr. Ross) rightly said that the surviving spouse did not come into the table of succession as laid out in Clause 2 until the recommendation of the Mackintosh Committee put the surviving spouse in under paragraph (e). The reason why the spouse was put rather farther down the table than the hon. Gentleman and his supporters would like was because of the provision of legal rights. That position, as the hon. Gentleman acknowledged, is greatly enhanced by what we have been able to do in this Bill. I think, and the Law Society and others with which I have discussed the question think, that the position of the surviving spouse on intestacy is a sound one under the Bill as it stands.

One has to remember that on balance we are talking about the medium or small type of estate. We are hardly ever dealing with the very large estate, because in these cases nearly always a will would be made. Therefore, one has to remember that if the legal rights provided for in the Bill are taken out of a medium or small estate before Clause 2 comes into operation, we shall then see a very considerable amount taken out of the estate which remains to be disposed of.

The spouse will be entitled to take, first of all, the deceased's interest in the dwellinghouse; second, the furniture and plenishings to a maximum value of £5,000; and third, a sum of money amounting lo £2,500 if there is issue and £5,000 if there is no issue, and for jus relictae, one third of the moveable property if there is issue and a half if there is no issue.

I do not know whether it is in order to say this on the Amendment, Mr. Speaker, bat perhaps one might just draw attention to the fact that we have all just been privileged to witness an historic occasion—my right hon. Friend the Member for Woodford (Sir W. Churchill), after his illness, passing through the Division Lobby. I am sure that the whole House is glad to see him here.

Mr. Ross

It was the wrong Lobby, however.

Lady Tweedsmuir

Happily, as I had my right hon. Friend's support, I felt that he was in the right Lobby.

It will be realised that the surviving spouse before Clause 2 comes into operation will get a very considerable part of the property. That being so, I think that to take the surviving spouse up to the position suggested in the Amendment would mean probably that virtually nothing would be left for the brothers or sisters or for any surviving parents.

I think one has to remember that children—this is a particular quality of Scottish family life—like to think about their parents and what they have managed to do for them, and they also care usually for their brothers and sisters. I think that if the surviving spouse is well cared for, as I believe she is, under the Bill on intestacy, then I think that these remaining relatives should have a chance to inherit what is left of the estate. I therefore advise the House to reject the Amendment.

Miss Herbison

When the noble Lady began her reply I thought she was going to accept the Amendment. She pointed out how different it was from the previous one. She said that the previous one was a matter of principle—which we did not accept. Then she told us that this one was a matter of judgment and opinion. From what she has said, I think that her judgment and opinion are faulty in this matter.

On this Amendment she has used an argument which she dared not use on the previous one, for if she had done it would have backed up our case. She said that intestacy usually applied to small estates. We tried to make our case on that on the previous Amendment. Once the children are taken care of, as they are, in coming under paragraph (a) and taking prior position, the next in line, particularly in a small estate, whom any man or woman who died intestate would have wished to come next, is the surviving spouse. It seems to me, with particular reference to small estates, that it would be very fair to move this class of person up to paragraph (b), following the children.

Mr. Small

I think that I now understand the real trick of the noble Lady's argument. She rested her case on the last Amendment on the classical historical argument which is expressed in the words, With all my worldly goods I thee endow". When a man takes a wife, she has no domicile of her own; whether he is domiciled in a foreign country or not, she is entitled to occupy that domicile and have the benefit of all that is therein. The idea is that this state of affairs is for perpetuity, for eternity, although, of course, we do know that divorce can sometimes come later.

If the noble Lady wishes to use that historical argument on the previous Amendment, she should accept it on this one.

Mr. Willis

I did not have the benefit of hearing the arguments in Committee. Not having had time, owing to other Parliamentary duties, to read the OFFICIAL REPORT of the debates in Committee—not that I should like to read the debates of the Scottish Grand Committee—I am trying to follow the argument on the Amendments as they come forward. On this Amendment, I was struck, as was my hon. Friend the Member for Lanarkshire, North (Miss Herbison), by the fact that on this occasion the noble Lady used the argument that there would be only a small amount left. That is an argument which would have weighed on our side on the previous Amendment. It would not have weighed on the noble Lady's side because, otherwise, she would have used it. Her failure to use it on that occasion indicates that it lent support to our case.

I wonder whether brothers and sisters should be put before the wife. Of course, there is great affection between parents and children and between brothers and sisters, but I take it that the noble Lady will not suggest that this is a great deal more than that between man and wife. This is a matter of judgment. There are cases in which, perhaps, a man would have wished to leave something to his brothers and sisters or mother and father, particularly if they were not in very good circumstances, but I believe that he would be inclined to leave it to his wife in spite of the fact that she is entitled to certain other things under the Bill. Most men would wish their wives to have as much security as they could possibly give them.

Cases which have come to my attention have caused me to wonder why preference is sometimes given to children, as it is in the Clause. On many occasions, the mother is left with practically nothing and the children have everything. The mother then has to administer an estate, work in a shop, or something like that, for many years; the estate is not hers at all but she is working for her children and running it for them. I do not believe that it is always right to put the children first, and I incline to the view that the most important person is the mother, particularly if there are young children. The case for trying to ensure that the woman is in a position to be able to face all the responsibilities confronting her on the death of her husband is one which appeals very much to me.

On the whole, I should have preferred to see the wife put in at least after the children. As I say, I am not certain that the wife should not come in at (a), having regard to the cases which have come to my attention in the past. Certainly, the wife should come second and be given priority over the relatives.

We all know of the enormous amount of migration from Scotland which has gone on over the years. A man goes to Australia; he loses touch with his relatives, perhaps seeing them only very occasionally. That tie tends to become weakened but the tie of the man's own family remains the real thing. I am very sorry that the noble Lady did not consider the Amendment rather more kindly than she did. She has not answered the case which we have put.

Mr. Millan

We have had a very disappointing reply from the Under-Secretary of State, As she said, this is very much a matter of judgment in considering exactly where one should put the surviving husband or wife in the order of priorities, and it is fair also to admit that we have at later points in the Bill made additional provisions for a surviving spouse which, in small estates, go a long way to ensure that the bulk of the estate goes to the surviving spouse. Some of the provisions made later have been improved by suggestions made by our side, and we are very glad, therefore, to welcome what is being done.

However, a serious point still remains here. Most of us would consider that, on an intestacy, the wife and children should, in normal circumstances, take the bulk of the estate, to the exclusion of any other relatives. Although there may be cases in which that would be rather unfair, in the vast majority the emphasis ought to be on providing for the wife and children. I admit that in most cases, certainly in small estates, this is what we are doing under the Bill, but it still remains true that cases can arise, as my hon. Friend the Member for Kilmarnock (Mr. Ross) pointed out, when this is what we are not doing. This is so because the Government are still maintaining the increasingly artificial distinction between heritable and moveable property for the purposes of legal rights.

6.0 p.m.

At present, if there is a house, the widow has the right to the house and to the furniture and fittings in it up to a certain limit. She also has a right to the first £2,500 of the estate if there are children and the first £5,000 if there are not children Over and above that, after taking into account these various prior rights, she has certain legal rights of jus relicti ever the remainder of the estate but only in so far as it is moveable property. We argued in Committee that after these other legal rights of jus relicti had been taken into account the other legal rights should apply to the whole of the remainder of the estate, whether it is moveable or heritable estate because there may be cases in which heritable estate—land and property—makes up the bulk of the estate. Despite what we are doing in the Bill to provide additional rights for a surviving widow or widower, in those cases really bizarre effects can arise from the application of Clause 2 and there could be a distribution of the estate which no one could reasonably call fair.

I gave an example in Committee which I should like to give again. Admittedly it deals with a large estate, but we are trying to put matters right in the Clause for all kinds of estate, and certainly for small estates, but also in the case of large estates where there may be intestacy. I gave the example of an estate worth £120,000 which consisted of a house worth £10,000, moveable estate worth £10,000 and heritable estate worth £100,000. The man died leaving a house and no children. The wife would take about £19,000 or, perhaps, £20,000 and, the only other surviving relative being a nephew, £100,000 of the estate would go to him.

I do not believe that anyone could possibly defend that kind of distribution of an estate. It arises because we do not allow legal rights to adhere to heritable estate in the same way that they adhere to moveable estate. Therefore, the distribution of an estate still depends, quite unnecessarily, on the division of the total estate between moveable property and heritable property. If the bulk of the estate is moveable, the surviving widow has very much greater rights than if the bulk of it is heritable property. Since heritable property, like moveable estate, is often just one kind of investment as against another, there seems no reason why we should continue to make this distinction.

We argued about this unsatisfactory division between heritable and moveable estate at great length in Committee without making any impression on the Government. They produced no arguments which even approached validity in the circumstances of 1964. While we have this distinction and the possibility, or probability, of injustice arising under Clause 2, it seems that the only remedy we have is to make absolutely sure that the widow or widower is protected by moving their right to the intestate estate further up the order of priority laid down in Clause 2.

If we had this assimilation of heritable and moveable estate for the purposes of legal rights, I should be willing to accept the argument that there is a case for bringing in brothers and sisters and grandparents. But as long as this is not the case, and as long as it is possible that a widow will come off very badly in the distribution of an estate compared with a nephew, grandparent, cousin or someone even more remote, we must try to give the maximum protection to the widow. I have heard nothing from the Under-Secretary of State to demonstrate that our judgment is wrong. In all the circumstances, I think that our judgment is about right. If the noble Lady is not able to be a little more helpful than she has been, I hope that my hon. Friend will carry the Amendment to a Division and vote for it.

Lady Tweedsmuir

I am not convinced by the arguments of the hon. Member for Glasgow, Craigton (Mr. Millan). He devoted a great deal of his argument to the question of assimilation of heritable and moveable property. Such organisations as the Law Society, which originally accepted his point of view, have, because of the new provisions in the Bill about the added legal rights for the surviving spouse, accepted that the position should stay as it is with this separation of heritable and moveable property.

The example which the hon. Member gave dealt with a large estate. He calculated that if the estate was worth £120,000 the surviving spouse would have £20,000 and he argued that it was unfair that the present table of succession laid down in Clause 2 should operate so that the remainder would go first to children and then to parents, brothers, sisters, and so on. The hon. Member argued that the surviving spouse should have much more than £20,000 in such a case.

I think that most hon. Members will agree that in the case of large estates people make wills, but, if they have not done so, I hardly think that £20,000 would be insufficient for a surviving spouse. Not all surviving spouses are young. Everyone seems to argue on the basis that all surviving spouses are young widows or widowers. But that might not be so. In the case of a large estate, it would be perfectly logical for the intestate to have wished that, after his widow had been properly provided for, the rest of the estate should go, for example, to his brother. This shows how difficult it is for hon. Members to interpret the exact wishes of an intestate.

Miss Herbison

Surely the noble Lady is trying to make very bad law in basing her argument against our Amendment on the age of the widow, whether she be old or young. The intestate might have a brother older than his wife who would benefit.

Mr. Willis

I do not follow the hon. Lady's argument that because a person gets old and his wife gets old with him he becomes less fond of her and does not want to leave her anything. Is not this a curious argument to adduce?

Lady Tweedsmuir

I did not say anything about whether a person was fond of his wife or not. That did not come into my argument at all. If the hon. Member will listen for a minute, I will try to explain my argument.

I turn to what is without doubt the bulk of estates with which we are trying to deal in the Bill—the small or medium estates. Certainly under these provisions the surviving spouse would inherit the bulk of the estate and the children, if she had children, would benefit after that. The position as it affects the small estate is fair. We must remember that the intestate might well wish to leave something to a brother or sister or even to a parent. It is a very natural wish.

We cannot possibly interpret accurately everything that an intestate would like to do. On a matter of judgment, I beg to differ from the hon. Member for Craigton and I ask the House to resist the Amendment.

Question put, That those words be there inserted in the Bill:—

The House divided: Ayes 152, Noes 202.

Division No. 26.] AYES [6.11 p.m.
Albu, Austen Hamilton, William (West Fife) O'Malley, B. K.
Bacon, Miss Alice Hannan, William Oram, A. E.
Barnett, Guy Harper, Joseph Owen, Will
Beaney, Alan Hart, Mrs. Judith Pannell, Charles (Leeds, W.)
Bence, Cyril Hayman, F. H. Pargiter, G. A.
Benn, Anthony Wedgwood Healey, Denis Peart, Frederick
Blackburn, F. Henderson, Rt. Hn. Arthur (Rwly Regis) Pentland, Norman
Bottomley, Rt. Hon. A. G. Herbison, Miss Margaret Prentice R, E.
Bowden, Rt. Hn. H. W. (Leics, S.W.) Hill, J. (Midlothian) Price, J. T. (Westhoughton)
Bowles, Frank Holman, Percy Pursey, Cmdr. Harry
Boyden, James Houghton, Douglas Randall, Harry
Braddock, Mrs. E. M. Howell, Charles A. (Perry Barr) Rankin, John
Bradley, Tom Howie, W. Rees, Merlyn (Leeds, S.)
Bray, Dr. Jeremy Hoy, James H. Rhodes, H.
Brockway, A, Fenner Hughes, Emrys (S. Ayrshire) Roberts, Albert (Normanton)
Brown, Rt. Hon. George (Belper) Hughes, Hector (Aberdeen, N.) Roberts, Goronwy (Caernarvon)
Butler, Herbert (Hackney, C.) Hunter, A. E. Robertson, John (Paisley)
Callaghan, James Hynd, H. (Accrington) Robinson, Kenneth (St. Pancras, N.)
Carmichael, Neil Hynd, John (Attercliffe) Rogers, G. H. R, (Kensington, N.)
Castle, Mrs. Barbara Irving, Sydney (Dartford) Ross, William
Chapman, Donald Janner, Sir Barnett Shinwell, Rt. Hon. E.
Cliffe, Michael Jay, Rt. Hon. Douglas Silverman, Julius (Aston)
Collick, Percy Jenkins, Roy (Stechford) Silverman, Sydney (Nelson)
Corbet, Mrs. Freda Johnson, Carol (Lewisham, S.) Skeffington, Arthur
Craddock, George (Bradford, S.) Jones, Dan (Burnley) Slater, Mrs. Harriet (Stoke, N.)
Crossman, R. H. S. Jones, Elwyn (West Ham, S.) Slater, Joseph (Sedgefieid)
Dalyell, Tam Kelley, Richard Small, William
Darting, George Key, Rt. Hon. C. W. Smith, Ellis (Stoke, S.)
Davies, Harold (Leek) King, Dr. Horace Sorensen, R. W.
Davies, Ifor (Gower) Lee, Frederick (Newton) Soskice, Rt. Hon. Sir Frank
Davies, S. O. (Merthyr) Lever, L. M. (Ardwick) Spriggs, Leslie
Deer, George Lewis, Arthur (West Ham, N.) Stewart, Michael (Fulham)
Delargy, Hugh Loughlin, Charles Stones, William
Dempsey, James Mabon, Dr. J, Dickson Swain, Thomas
Diamond, John McCann, John Symonds, J. B.
Dodds, Norman MacColl, James Tomney, Frank
Doig, Peter McInnes, James Wainwright, Edwin
Driberg, Tom McKay, John (Wallsend) Warbey, William
Duffy, A. E. P. (Colne Valley) Mackie, John (Enfield, East) Weitzman, David
Ede, Rt. Hon. C. McLeavy, Frank Whitlock, William
Edwards, Waiter (Stepney) Mallalieu, J.P.W. (Huddersfield, E.) Wilkins, W. A.
Foot, Dingle (Ipswich) Manuel, Archie Willey, Frederick
Forman, J. C. Mapp, Charles Willis, E. G. (Edinburgh, E.)
Fraser, Thomas (Hamilton) Mason, Roy Wilson, nt. Hon. Harold (Huyton)
Galpern, Sir Myer Mendelson, J. J. Winterbottom, R. E.
George, Lady Megan Lloyd (Crmrthn) Millan, Bruce Woodburn, Rt. Hon. A.
Ginsburg, David Milne, Edward Woof, Robert
Gourlay, Harry Mitchison, G. R. Yates, Victor (Ladywood)
Greenwood, Anthony Monslow, Walter
Grey, Charles Moody, A. S. TELLERS FOR THE AYES:
Griffiths, David (Rother Valley) Morris, Charles (Openshaw) Mr. Lawson and Dr. Broughton.
Hate, Leslie (Oldham, W.) Neal, Harold
Agnew, Sir Peter Bennett, F. M. (Torquay) Bossom, Hon. Clive
Allan, Robert (Paddington, S.) Bevins, Rt. Hon. Reginald Bourne-Arton, A.
Allason, James Bldgood, John C. Bowen, Roderic (Cardigan)
Anderson, D. C. Biffen, John Boyle, Rt. Hon. Sir Edward
Atkins, Humphrey Biggs-Davison, John Bullard, Denys
Barlow, Sir John Birch, Rt. Hon. Nigel Bullus, Wing Commander Eric
Beamish, Col. Sir Tufton Bishop, Sir Patrick Burden, F. A.
Bell, Ronald Black, Sir Cyril Butcher, Sir Herbert
Campbell, Gordon (Moray & Nairn) Holland, Philip Prior, J. M. L.
Carr, Rt. Hon. Robert (Mitcham) Holt, Arthur Prior-Palmer, Brig. Sir Otho
Cary, Sir Robert Hopkins, Alan Proudfoot, Wilfred
Channon, H. P, G. Hornsby-Smith, Rt. Hon. Dame P. Quennell, Miss J. M.
Chataway, Christopher Hughes Hallett, Vice-Admiral John Ramsden, Rt. Hon. James
Chichester-Clark, R. Hughes-Young, Michael Redmayne, Rt. Hon. Martin
Churchill, Rt. Hon. Sir Winston Hutchison, Michael Clark Ross, Hugh (Swansea, W.)
Clark, Henry (Antrim, N.) Iremonger, T. L. Ridley, Hon. Nicholas
Cleaver, Leonard Irvine, Bryant Godman (Rye) Rippon, Rt. Hon. Geoffrey
Cole, Norman James, David Roberts, Sir Peter (Heeley)
Cooke, Robert Jenkins, Robert (Dulwich) Roots, William
Cordeaux, Lt.-Col. J. K. Johnson, Eric (Blackley) Royle, Anthony (Richmond, Surrey)
Corfield, F. V. Kaberry, Sir Donald Russell, Sir Ronald
Costain, A. P. Kerans, Cdr. J. S. Scott-Hopkins, James
Craddock, Sir Beresford (Spelthorne) Kerby, Capt. Henry Seymour, Leslie
Critchley, Julian Kerr, Sir Hamilton Sharples, Richard
Crowder, F. P. Kershaw, Anthony Shaw, M.
Cunningham, Sir Knox Kirk, Peter Shepherd, William
Currie, G. B. H. Kitson, Timothy Smith, Dud'ey (Br'ntf'd & Chiswick)
Dalkeith, Earl of Lagden, Godfrey Spearman, Sir Alexander
Dance, James Lancaster, Col. C. G. Stainton, Keith
Deedes, Rt. Hon. W. F. Leather, Sir Edwin Stanley, Hon. Richard
Digby, Simon Wingfield Legge-Bourke, Sir Harry Stodart, J. A.
Donaldson, Cmdr. C. E. M. Lewis, Kenneth (Rutland) Stoddart-Scott, Col. Sir Malcolm
Doughty, Charles Lilley, F. J. P. Storey, Sir Samuel
Drayson, G. B. Linstead, Sir Hugh Studholme, Sir Henry
Duncan, Sir James Litchfield, Capt. John Summers, Sir Spencer
Elliot, Capt. Walter (Carshalton) Lloyd, Rt. Hon. Selwyn (Wirral) Talbot, John E.
Elliott, R.W. (Newc'tle-upon-Tyne, N.) Lovers, Walter H. Tapsell, Peter
Emmet, Hon. Mrs. Evelyn McAdden, Sir Stephen Taylor, Edwin (Bolton, E.)
Errington, Sir Eric Mac Arthur, Ian Taylor, Sir William (Bradford, N.)
Erroll, Rt. Hon. F. J. McLaren, Martin Temple, John M.
Farey-Jones, F. W. Maclay, Rt. Hon. John Thatcher, Mrs. Margaret
Farr, John Maclean, Sir Fitzroy (Bute & N. Ayrs) Thomas, Sir Leslie (Canterbury)
Finlay, Graeme McMaster, Stanley R. Thompson, Sir Richard (Croydon, S.)
Fraser, Ian (Plymouth, Sutton) Macmillan, Maurice (Halifax) Thomton-Kemsley, Sir Colin
Freeth, Denzil Maddan, Martin Thorpe, Jeremy
Gammans, Lady Matthews, Gordon (Meriden) Tilney, John (Wavertree)
Gibson-Watt, David Mawby, Ray Touche, Rt. Hon. Sir Gordon
Gilmour, Ian (Norfolk, Central) Maxwell-Hyslop, R. J. Turner, Colin
Glyn, Sir Richard (Dorset, N.) Mills, St ration Turton, Rt. Hon. R, H.
Gower, Raymond Miscampbell, Norman Tweedsmuir, Lady
Grant-Ferris, R. Montgomery, Fergus van Straubenzee, W. R.
Gresham Cooke, R. Moore, Sir Thomas (Ayr) Vickers, Miss Joan
Grimond, Rt. Hon. R. More, Jasper (Ludlow) Vosper, Rt. Hon. Dennis
Grosvenor, Lord Robert Morgan, William Wade, Donald
Hamilton, Michael (Wellingborough) Morrison, John Walker, peter
Harris, Frederic (Croydon, N.W.) Nicholson, Sir Godfrey Wall, Patrick
Harris, Reader (Heston) Nugent, Rt. Hon. Sir Richard Ward, Dame Irene
Harrison, Brian (Maldon) Orr-Ewing, Sir Ian (Hendon, North) Whitelaw, William
Harmon, Col. Sir Harwood (Eye) Osborn, John (Hallam) Williams, Dudley (Exeter)
Harvey, Sir Arthur Vere (Macclesf'd) Page, Graham (Crosby) Williams, Paul (Sunderland, S.)
Hastings, Stephen Page, John (Harrow, West) Wilson, Geoffrey (Truro)
Hay, John Pannell, Norman (Kirkdale) Woodhouse, C. M.
Henderson, John (Catheart) Partridge, E. Woodnutt, Mark
Hendry, Forbes Peel, John Worsley, Marcus
Hiley, Joseph Percival, Ian
Hill, Mrs. Evefine (Wythenshawe) Pickthorn, Sir Kenneth TELLERS FOR THE NOES:
Hill, J. E. B. (S. Norfolk) Pitt, Dame Edith Mr. Batsford and Mr. Pym.
Hirst, Geoffrey Pounder, Rafton
Hogg, Rt. Hon. Quintin Powell, Rt. Hon. J. Enoch
Lady Tweedsmuir

I beg to move, in page 3, line 6, to leave out paragraph (h) and to insert: (h) where an intestate is survived by brothers or sisters of any of his grandparents (being a parent or parents of either parent of the inestate), but is not survived by any prior relative, those surviving brothers and sisters shall have right to the whole of the intestate estate; (i) where an intestate is not survived by any prior relative, the ancestors of the intestate (being remoter than grandparents) generation by generation successively, without distinction between the paternal and maternal lines, shall have right to the whole of the intestate estate; so however that, failing ancestors of any generation, the brothers and sisters of any of those ancestors shall have right thereto before ancestors of the next more remote generation. This Amendment adjusts an addition which was made to Clause 2 of the Bill by an Amendment which was moved in Committee by the hon. Member for Glasgow, Craigton (Mr. Millan). The hon. Member's Amendment had the effect of restoring to the Clause a paragraph dealing with the succession of brothers and sisters of the grandparents of the intestate and with the succession of even more remote relatives. This had been included in the Bill which was first introduced last Session, but we omitted the provision when this Bill was introduced in the present Session of Parliament. At the time, the hon. Member thought his Amendment must be allowed because it was simply restoring a provision which was previously in the Bill. In the meantime, the earlier paragraphs of Clause 2(1) had been redrafted, and we found, on further study, that the paragraph restored by the hon. Member's Amendment did not conform to the pattern set by the paragraphs and that it therefore required redrafting for this reason.

It also required redrafting because when it is necessary to go further back than grandparents and their brothers and sisters the paragraph does not make it clear that the brothers and sisters of an ancestor of the intestate take precedence over the ancestor of the next or more remote generation. Therefore, I move this Amendment to take account of those two points. We take the opportunity of splitting one paragraph into two because we hope that will make for easier study.

Mr. Ross

I do not want to quibble about what the Government are doing. It would be rather unfair because, after all, this was an Amendment of ours which was accepted. I think the hon. Lady is right in stating that this is much clearer we have got two categories, and it is far better to deal with them in this way, since we do get a better pattern. However, even as we get it clearer we appreciate just how far back we are extending, and it makes it all the more difficult to understand why the poor step-children were left out.

Mr. Hendry

While I welcome this Amendment as being an improvement on the present wording, in that it eliminates certain ambiguities which it seems the present wording has, even so it is not altogether clear, and I wonder if my hon. and learned Friend would assure me whether or not there is representation in the case of brothers and sisters of an ancestor who have predeceased the deceased. If there is representation it seems to me we might get into a very complicated family tree. These were difficulties which were put to the Committee by my hon. Friend the Member for Galloway (Mr. Brewis), who instanced certain circumstances in which the winding up of an estate might be almost interminable.

I would ask my hon. and learned Friend whether under this Amendment an estate might be eventually wound up in the event of various beneficiaries not being ascertained.

The Solicitor-General for Scotland (Mr. D. C. Anderson)

There is representation in the circumstances which my hon. Friend the Member for Aberdeenshire, West (Mr. Hendry) described, and the representation occurs by virtue of the representation provisions which apply in other circumstances under the Bill. It will in certain circumstances lead to uncertainty with regard to persons who are to take where collaterals are the beneficiaries—descended, for example, from the brothers or sisters of great-great-grand parents. The executor is under the duties of prudent inquiry, which he possesses in his capacity as a trustee, an alternative capacity which all executors possess. If he carried out his inquiries diligently and with reasonable competence he would be protected if there did emerge more remote relatives than he had anticipated. Also, there are in the Bill further provisions which we shall come to which do provide further protection in those circumstances.

Amendment agreed to.

Lady Tweedsmuir

I beg to move, in page 3, line 16, to leave out from "blood" to the end of line 23 and to insert: and in the said subsection prior relative ', in relation to any class of person mentioned in any paragraph of that subsection, means a person of any other class who, if he had survived the intestate, would have had right to the intestate estate or any of it by virtue of an earlier paragraph of that subsection or by virtue of any such paragraph and section 5 of this Act". This is a drafting Amendment to correct an internal contradiction which arises from the present wording of subsection (1,c) of Clause 2 when read with the present definition of "prior relative" in subsection (2). Paragraph (c) says that the brothers and sisters of an intestate are entitled to succeed to the estate if there are no prior relatives, but, of course, brothers and sisters are themselves prier relatives on the present interpretation of the expression, because they are mentioned in the preceding paragraph (d) of the subsection along with the parents of the intestate. A similar contradiction arises in paragraph (d), which says that the surviving parents are entitled to succeed if there are no prior relatives; but the parents are themselves prior relatives, because they are mentioned with brothers and sisters in an earlier paragraph of the subsection. The Amendment removes these contradictions by redefining the expression "prior relative".

Mr. Ross

This only shows, Mr. Speaker, what happens when a Bill is raced through the Scottish Committee. It is only because of the undue haste, and pressure to hurry up and get this Bill through, that we omitted to notice this slipshod draftsmanship—which, I must admit, is now fairly unusual in the Scottish Department.

Mr. Willis

Oh, no, My hon. Friend must really not run way with the idea that slipshod draftsmanship is now unusual. He should cast his eyes over the Scottish provisions in the Housing Bill.

Mr. Ross

I am dealing only with those Bills which are entrusted to the Scottish Committee. Of course, if it is known that Bills are going to an English Committee, or a predominantly English Committee, then they may be justified in a more careless attitude, because they know that those Bills will not be subject to the same kind of scrutiny they get elsewhere.

However, this only shows how careful we have to be about these questions of priority, and who is "lower than" somebody else. I am sure the hon. Lady is still working out what she meant the other day when she described somebody as being "lower than a sheriff", and when we see how, after 13 years of discussion of the complexities involved, we eventually get this Bill which, after all, is Mark 2, and we still, even then, have errors of draftsmanship, we realise that we must be very much more careful about what is put before us in this House. However, it is an improvement and we do not object to it.

Amendment agreed to.