§ Mr. Speaker
The hon. Member for Leicester, South-West (Mr. Tom Boardman) has suggested to me that the House might take this Motion and the next Motion dealing with the Rules together, if there is no objection.
§ 10.1 p.m.
§ Mr. Tom Boardman (Leicester, South-West)
I beg to move,That the District Probate Registries Order 1968, dated 21st October 1968, a copy of which was laid before this House on 31st October, be withdrawn.I am obliged to you, Mr. Speaker, for your Ruling that we may, at the same time, discuss the following Motion—That the Non-Contentious Probate (Amendment) Rules 1968, dated 21st October 1968, a copy of which was laid before this House on 31st October, be withdrawn.which is closely linked.
The effect of the Order is to reduce the number of district probate registries from the present number of 26 to 13, whilst the effect of the Rules is to create a number of sub-probate registries, with more restrictive powers; and the Probate Division will have power to vary those sub-registries.
One of the district registries which is being demoted—I use that word advisedly—is that in the City of Leicester, of which my constituency forms part. It is for this reason that I shall concentrate my speech on Leicester District Probate Registry, although many of my remarks will, I hope, have more general application. Perhaps I shall later be able to explain the special circumstances of Leicester and why the Order and the Rules an; particularly severe on that City.
At present there is one principal Probate Registry and there are 26 district registries at which applications can be made by persons who wish to obtain 182 grants of administration to deceased's estates, or they can be made by solicitors in person or by post. There are also sub-registries, the rôle of which is not defined but which are very much used as probate receiving offices.
There are now 101 probate offices which are available for personal applications and which have taken over the rôle of the Customs and Excise as a result of the Finance Act, 1967, but which have unlimited powers, or which are free from the limitations which the Customs and Excise still has. I have no cause to make comment on the lack of offices.
The proposals, which will reduce from 26 to 13 the number of district probate registries, will also create 20 sub-probate registries, and the number of probate offices will remain the same. The sub-probate registries will be able to receive personal applications from individuals and from solicitors in person or through the post. As a result of these proposals, there would be seven new offices which could receive solicitors' applications. There would be only half the number of the offices which at present exist which would be able to give the full service provided by district registries. I think the issue is whether the effect of the reduction of the powers of district registries and the creation of sub-registries is as substantial as I believe it to be, or is, as I understand the Government case will be, minimal and one of form only. I say that it is substantial for a variety of reasons and I will touch briefly on the main ones.
In the first place, a district registry at the present time has the services of a registrar at periods during the week. A sub-registry will not have a registrar normally available. The registrar may, in the case of Leicester, be obtained by appointment made at the request of solicitors only, and I stress this because it is relevant to my argument. The registrar is in Leicester on Mondays and Thursdays. I ask: how available will he be if the Order and the Rules go through?
The registrar is the man who makes the decisions. He authorises the grants. He is the man who really matters in the ultimate. Solicitors can at the present time make their plans with their clients, 183 and individuals can make plans, too, knowing that on a Monday or a Thursday they can go and see the registrar and discuss matters with him. He is the man who makes the decisions on points that arise on wills and on draft oaths. They can see him on a Monday and the papers can be ready for lodging shortly after in the same week. This is a service which will not apply if the Order goes through. They can produce to the registrar the original will, a document which one seldom likes to entrust to the post.
My next objection is that the grants which are now sealed in Leicester will be sealed in Nottingham under the Order. The result is that papers will have to be sent to Nottingham with the original will, and only there will the ultimate decision be made as to whether they are in order or not. Points arising will not be discussed in person with the registrar. Very often in complicated matters it will mean the papers being sent back with the original will to be resworn. This is a reduction in the service, and this is the issue.
It has been said that these are changes of form only, involving no reduction in the service. I believe that is quite wrong. I am illustrating points where I believe the service will fall short of what exists at the present time. It is no good saying that all the work will be done in a sub-registry by the clerks there and that all that will happen will be a matter of sending the documents through so that the seal can be placed on them in Nottingham. If that were the case, the rôle of the registrar would be useless. The Order will involve delay and a risk of loss in the post.
It may be said that original wills are already committed to the post because they have to be copied in Nottingham as there is no copying machine in Leicester, but one of the recommendations of the Committee that was set up was that copying machines should be available in district registries and thus the risk of original wills being lost in the post, which now exists and will continue to exist if the Order goes through, would be obviated.
There is also the point that records which are now kept in Leicester will be 184 transferred to Nottingham. People will not be able to have access to them and inspect them. It may be said that this is done very seldom. But there is one set of circumstances which frequently arises when earlier papers have to be dug out. I refer to the case of an application for grant de bonis non. The Solicitor-General will know about that, but it may be of help to hon. Members generally if I explain that this is a circumstance which arises when, for example, a person dies intestate, letters of administration are taken out, and the administrator dies before the administration of the estate is complete. It frequently happens because it is often the husband or wife of an aged couple who becomes the administrator of the estate of the spouse who dies first, and then the surviving spouse does not live long enough to complete the administration.
I am sure that there must be several cases a week in the Leicester Registry Office when papers have to be produced for that very purpose. But this will not be possible if the Order and Rules go through. Either the papers will have to be sent from Nottingham or the applicant will have to go to Nottingham. At least two visits to the office will be necessary to deal with a matter which can be dealt with now in one visit, and such visits will often have to be made by aged people of small means. They will go by bus hoping that, when they get to the registry office, their business can be settled. Under the new scheme, however, they may well find that nothing can be done and that they must go to Nottingham or come back some time later when the papers have come through.
A further objection is that, although a district registry can be closed at present only by Order which is subject to negative Resolution of either House of Parliament, a sub-registry as proposed under the new Rules may be closed at any time at the whim of the President of the Probate Division. It is no good anyone saying that this will not happen without consultation. Neither the Lord Chancellor nor anyone responsible to either House of Parliament has any control over the actions of the President, and no one can give any assurance on his behalf. So a sub-district probate registry may be closed at any time without Parliamentary control.
185 Leicester had a bitter taste of this in 1952 when there were proposals for the closure of the Leicester District Registry. Only as a result of the active intervention of the then hon. Members representing the City of Leicester was the Order withdrawn. There was loud protest from the city council, the county council and many other authorities at that time, which led to action by hon. Members and caused the Order to be withdrawn. There is a real fear that this might happen again, that the demotion of Leicester District Registry to a sub-registry, with the reduction of service resulting therefrom and the reduction of fees which will follow, will eventually justify someone in saying, "We had better close it altogether".
This is, perhaps, a somewhat parochial point, but it is one of importance to the citizens of Leicester and to me if these offices are demoted. The great City of Leicester will in this respect again become a subsidiary of Nottingham. I say "again" because it seems to be the pattern of Government to put Government administrative offices in Nottingham. Already we have the Stamp Office in Nottingham. The Land Registry is in Nottingham. The Land Commission Office—though, perhaps, for not much longer—is in Nottingham.
§ Mr. Speaker
Order. The hon. Gentleman may talk only about the probate office in Nottingham at this time.
§ Mr. Boardman
There are other offices there, and it is strongly felt that Leicester should retain an office of at least equal calibre to that of Nottingham.
I have studied the Report of the President's Committee on the Organisation of Probate Registries, and I have been given every facility—I pay tribute to them for this—by officers of the Probate Division, the principal Probate Office and the Leicester one, in making such inquiries as were appropriate for my purpose tonight. Perhaps it would be helpful if I distinguished the case of Leicester from that of the other places to be demoted. As I said earlier, Leicester's circumstances are very special. The population of Leicester is over 272,000. The average population of the other 13 places being demoted is under 61,000—less than one quarter that of Leicester. The number of practising solicitors in Leicester is 139. 186 The average number in the other places being demoted is 46. Thus, Leicester stands right out in a different category from the others. The grants which have been issued out of the Leicester Probate Registry have increased since 1952 by 175 per cent. The grants in all district probate registries, including Leicester, have increased on average during the same period by about 32 per cent.
These figures illustrate why Leicester resents so strongly the application of this Order. I recognise that Nottingham is a slightly bigger city but the Report pays scant attention—or perhaps I should say insufficient attention, for I hate to do injustice to a fair Report—to the developments of the areas south of Leicester, in the new towns and so on, the Northamptons, Daventrys and Wellingboroughs on the southern side of Leicester and furthest away from Nottingham.
The Report contains an odd fallacy. It refers to having taken into account the population of these areas and adds that consideration has been given to new developments. But it goes on to say that it is expected that the element of population to be involved in such movement into new towns, etc., will tend to be younger rather than older and that, therefore, it will be many years before the proportion of the grants increases there.
It is, of course, true that younger people are more likely to move than older people. It is also true that older people are likely to die before younger people. But it is not the deceased who goes to the probate registry to prove his will. It is his son or daughter, probably one of the younger people living in a new development. Perhaps the fallacy in the Report may not be really material but it is nevertheless a factor which should have been put into the scales.
This should never have been a choice between Nottingham and Leicester. The Report states that the optimum figure for a probate registry is 14,000 to 15,000 people. We know that the grants coming from the Nottingham-Leicester-Lincoln group—proposed to be continued from Nottingham—are over 15,000 and this will grow fast. Thus, the figure is already over the top limit of the optimum number. The Report devotes only 187 3½ lines to the problems of the Leicester-Nottingham-Lincoln group and does not do justice to them, lumping them all together for reasons not clear to me.
Then there is the important question of finance. The published figures show that the income of the Leicester office is in excess of £30,000 per annum. There is a staff of six. If we add two-fifths of the registrar's time and the charge for the use of existing accommodation, it is clear that the office makes a very large profit. I am delighted that it does because it is very efficient. Perhaps the Solicitor-General will tell us how much profit it does make.
What will the savings be in the Leicester-Nottingham combined office as a result of this change? If we are to get the same service, apart from that of the registrar's two days in Leicester, it is going to cost the same amount of money. I can see no reason for any appreciable saving. The efficiency of the Leicester office is very high. It has been praised in all quarters—by solicitors, legal executives and the public—for its efficiency, speed and courtesy. It is so rare that a Government office is generally praised while at the same time it is paying its way, and I ask why the Government should change what is good.
Inevitably, delays will be suffered if this Order goes through. I know that the Solicitor-General will be able to select a particular day of the week, for example, Friday, and say that if papers are lodged on that day, the applicant will have them one day quicker than under the present system, but I wonder whether he can illustrate a saving of more than one day, if everything works perfectly, when the papers are lodged on any day. On most occasions other than a Friday there will be no saving of time and normally there will be a loss of time on straightforward cases. In cases which present problems, as many do, when papers have to be considered and when there have to be discussions with the registrar, there will be a delay of up to weeks and a matter which could have been discussed on a Monday or Thursday will have to wait until an appointment with the registrar can be made, or until the registrar has had the papers sent over to Nottingham and his opinion has been obtained. There 188 will be a loss of efficiency and a loss of time.
It is said—and perhaps this is one of the most material points of my argument—that the Order will affect only the legal profession. I suggest that this is not so. At present, personal applicants have the right to see the district registrar to discuss a will with him and to discuss with him documents which may be required, to get his advice and to get his ruling. Not only solicitors will be concerned. The personal applicant often has a greater need, because it is often a man or woman proving a home-made will who finds that there are many problems. Such an applicant will have great difficulty, because he will not be able to have an appointment with the registrar. The assurances so far given are that the registrar will make himself available for appointment with legal practitioners in Leicester, but there has been no indication that he will make himself available—quite the reverse—to discuss matters with personal applicants.
As the Solicitor-General will know, personal applicants are not able to make application by post. They must apply in person and they will suffer severely. Their only remedy will be to go to Nottingham, or employ a solicitor, either of which courses will involve the very type of people who feel hardship most in additional expense. This will arise because of a misapprehension of the position which has not been fully taken into account in the proposal, or by the Committee.
There will be a grave reduction in the service. For that reason I was surprised by a reply which I received from the Attorney-General when he said:My noble friend the Lord Chancellor is satisfied there will be no deterioration in the service provided as a result of the new scheme."—[OFFICIAL REPORT, 3rd December, 1968; Vol. 774, c. 438.]It must be apparent that there will be some deterioration in the service. Its degree is a matter about which we can argue, but there must be some deterioration and I think that it will be substantial, for the reasons I have given. I find it difficult to reconcile the facts with the statement that there will be no deterioration.
Throughout there has been a lack of consultation with people such as the city 189 and county councils. They made objections to the scheme and received a letter from the Lord Chancellor's office dated 16th December, 1968, to which I take grave exception. I have given the Solicitor-General notice that I proposed to be critical of this letter. Some paragraphs are totally misleading. Referring to the comparison with 1952, the letter says that the Order… is in no way comparable with the proposal which was canvassed in 1952, to which you refer in your letter. That proposal derived from a report made by the Treasury suggesting that substantial economies could be made by a drastic reduction in the number of District Probate Registries.I believe that these changes, too, stem from a Treasury report.
The letter continues:As far as Leicester was concerned, the suggestion"—that is, in 1952—was that the Registry should be closed entirely, with result that there would have been no service available at Leicester for personal applications".That is not correct either, because I believe that in 1952 the proposal was that the Leicester office would be open for personal applicants on two days a week.
The letter then says:Apart from the very small estates which at that time could be dealt with by officers of the Customs, District Registries were the only places outside London where personal applications could be made.
§ Mr. Boardman
I accept that, Mr. Speaker. It is relevant to my criticism of the letter, in that comparisons were then made which I think were not fully supported by the facts at that time but I will move on.
This is a letter to the Town Clerk of Leicester saying why he had not been consulted and why the county council had not been consulted. It says later:The change is one which affects only legal practitioners and that is why it was not thought necessary to consult local authorities.Of course the change does not affect only legal practitioners. It concerns very intimately the personal applicant, the person who is not going through legal practitioners, and the person whom the town clerk and the clerk of the county 190 council had on an earlier occasion been seeking to protect. I believe that the letter is totally misleading there.
The letter continues:A 'Probate Sub-Registry' existing under the scheme has, indeed, a different name from a District Probate Registry, but in practice there is no substantial difference save that the title of a grant applied for through a Sub-Registry will bear the name of its parent Registry.That is not so. To say that there is no substantial difference, in view of the differences which I have outlined is, I believe, misleading.
The letter says:All the facilities previously available to solicitors (as well as personal applicants) will be the same as before.That just is not so. It cannot be so. The letter then says:The District Registrar will be resident at Nottingham, but he will be on call to attend at Leicester whenever a practitioner needs to consult him",confirming that there is no indication that he will be available to personal applicants.
The letter then refers to the gist of the correspondence which had passed with the Leicester Law Society and implies that the Leicester Law Society had had no substantial objection to or complaint about the proposals. Referring to the Leicester Law Society, the letter says this:This Society"—that is, the Leicester Law Society—expressed themselves as being content with the service that they had.That was the former service. The letter refers then to the Society having been invited to make representations and says:The Leicester Law Society wrote to Mr. Registrar Russell on 17th May suggesting that it would be better if the Registry at Leicester were to retain its status as a District Probate Registry.The Leicester Law Society in fact wrote and strongly objected, both on behalf of itself and on behalf of the local executive and gave its reasons for so doing. The letter said:I wish, however, on behalf of my Society to object to the proposals in so far as Leicester is concerned.The Society's letter then set out the objections and ended by saying that it was fully supported by the objectors. 191 That attitude is paraphrased in the letter from the Lord Chancellor's office as: "The Leicester Law Society" suggested "that it would be better". The letter from the Lord Chancellor's office continues:The Registrar replied on 21st May explaining that the change would involve no reduction in the services available to solicitors and the Leicester Law Society did not make any further representation.I must refer to this correspondence, because I believe that it is grossly misleading. The letter dated 21st May from the Registrar to the Law Society said this:Your representations will be placed before the President and I know he will give them close consideration before reaching any final decision.That letter certainly did not invite or permit any further objection. To say, as the Lord Chancellor's Office does,the Leicester Law Society did not make any further representationsis, I believe, stretching the language of these letters much too far.
The letter does not finish there. It goes on to say:Moreover, when the President, after considering his Committee's report and all representations, reached his conclusions thereon, all those who had made representations—including the Leicester Law Society—were informed of this and the point was again made that the service afforded by a sub-registry would in no way be inferior to that afforded by a registry. Once more the Leicester Law Society raised no objections.Let us see what the President or the registrar said on that occasion. He wrote to the Leicester Law Society and said:I have now to inform you that after giving the fullest consideration to all representations made, the President has adopted the recommendations of the Committee relating to your area.There was no opportunity then to object. The wordsOnce more the Leicester Law Society raised no objectionsare, I believe, a grave distortion of the facts.
This was a letter from the Lord Chancellor's office to the Town Clerk of the City of Leicester, and a similar letter was sent to the Clerk to the Leicestershire County Council, to call off their protest and say that there was no change and that even the Law Society did not 192 mind about it. It was a remarkable misrepresentation of the facts. If there is any office in the land which should be beyond reproach, or which in such matters should set an example in the statement of facts and not slant them, it should be that of the Lord Chancellor. I feel that the example set in that letter is a very unfortunate one.
It is clear to me that either the Government did not know what the Order and the Rules meant—that is a charitable explanation which I offer—or, if they knew, the matter was unfortunately stated and slanted in the correspondence. I believe that on the merits of the objections to which I have referred, the Order and Rules should be withdrawn. The way in which they have been presented and in which objections to them have been brought off compels the Solicitor-General to withdraw them.
§ 10.32 p.m.
§ Sir Douglas Glover (Ormskirk)
If I may pay my hon. Friend the Member for Leicester, South-West (Mr. Tom Boardman) a compliment, in the last four years, or even in the last 15 years while I have been a Member of this House, I do not think that the House has ever received such an acquisition of strength as it received when my hon. Friend was returned as a Member. He has obviously taken to the House of Commons like a fish takes to water. He is a great believer in freedom and he raises very pertinent matters on many occasions. Tonight, he has raised something of fundamental importance.
I ought to say that one of the happiest periods of my life was spent in Leicester, and therefore, I am not completely non-biased in what I say tonight. I would say—and this is where the Government so often fail in their dealings with the population—that Leicester and Nottingham have been the equivalent of Manchester and Liverpool, if I may say that to the Solicitor-General. Everybody knows that one does not start dealing with the matter completely on a factual basis when dealing with Manchester and Liverpool, because one knows that rivalry which exists between the two cities. Exactly the same situation applies between Leicester and Nottingham.
I think it is true to say that Leicester has always been conscious that it is 193 slightly smaller than Nottingham and, therefore, because it is slightly smaller, it has always been a little more proud. As a person who spent many happy years in Leicester, I support it in its pride.
Fundamentally, however, it is not simply because of the rivalry between Leicester and Nottingham that a decision not to alter the system would be justified. What my hon. Friend has disclosed tonight is appalling. It is really disgraceful. It is really saying that, to start with, there was a belief that, provided a new system was evolved, which did not create any real animosity among the legal profession, including solicitors, then, so far as the Law Department was concerned, that was all right; provided that solicitors and such like people did not raise any real objection, then there was no reason to consider the remainder of the general public.
There was little remembrance that everyone of those people in the legal profession spending the time involved in going to Nottingham instead of Leicester would charge the estates with their fees. As I understand my hon. Friend, this seems to have been completely lost sight of in all those discussions which went on in deciding to reduce the number of offices from 26 to 13. The inconvenience for the general public appears not to have been considered. It was bureaucracy running wild, as usual with this Government, the thought being that this does not really matter because all the legal profession will get their fees and so do not mind whether they go from Nottingham to Leicester or from Leicester to Nottingham, because they will be able to charge the estates for that. No account seems to have been taken of the very large problem, which is that the vast majority of the estates are small in value, and that the people concerned with them do not want to involve a solicitor with them, but want to settle matters dealing directly with the Probate Office. Under these proposals they will be put to very great disadvantage. That would be a sufficient argument for leaving the situation as it is.
Listening to the letters which my hon. Friend quoted, letters from the Lord Chancellor's Department to the council in Leicester, I was appalled, for I would not have thought ever to have sat in this House and listened to such slanted re- 194 plies to letters on a subject of this sort. I hope the Solicitor-General will be able to give the House a satisfactory answer to the inference drawn by my hon. Friend. After all, my hon. Friend was only quoting from letters sent to the council in Leicester and to the Law Society in Leicester and so on.
It appears to me that the Lord Chancellor's office has got a great deal to answer for in saying that it is unbiased, in saying that it is giving completely factual information. I hope the Solicitor-General will be able tonight to remove from the House the feeling that the Law Department is trying by slanted answers to produce a result contrary to what all the correspondence ought to have produced if this had been factually presented to both sides of the argument. After all, one great pride of this country is that our law is completely un-slanted. Yet I think my hon. Friend has tonight disclosed that at least in the administrative field there has been a great reduction in the probity and completely neutral attitude in this field that we have a right to expect. I hope, therefore, that the Solicitor-General will be able to explain to the House how slightly slanted letters came to be written. This has nothing to do with party political business. As a House of Commons man I am very disturbed indeed by what my hon. Friend has disclosed in his speech.
§ 10.40 p.m.
§ Mr. Graham Page (Crosby)
My hon. Friend the Member for Leicester, South-West (Mr. Tom Boardman) has dealt with this Order from the point of view of his constituency and how it affects his constituency. By using that example he has shown how it may affect the country as a whole, and the substantial inconvenience which this Order may cause to the public, the reduction in service to the public and, what is so astonishing, a reduction in the profit to the Exchequer out of a profitable district registry. My hon. Friend the Member for Ormskirk (Sir D. Glover) has shown what an appalling misconception there has been of the practical points involved in the service which the district registries and the sub-district registries give to the public.
I do not want to repeat any of the arguments which were so powerfully put 195 forward by my hon. Friends. I want to take a new point. By Section 108 of the Supreme Court of Judicature (Consolidation) Act, 1925, the Section which is recited at the beginning of Statutory Instrument No. 1676 which is before us, a scheme of district probate registries and sub-registries was set up, and it was set out in Schedule 2 to that 1925 Act. In that Schedule there are two columns; one column of probate district registries and the other of sub-district registries.
By Section 108(3) of that Act the President of the Probate Division was given the power to vary that scheme, but he was given the power to vary it only by an Order and in no other way. Under that Act the Order had first to come before the House in draft and be approved by both Houses of Parliament before it could be made. But by Section 26 of the Administration of Justice Act, 1965, that procedure was altered, and the President of the Probate Division was given power to alter Schedule 2 of the 1925 Act by an Order which merely needed to come before the House and could be subject to annulment by either House.
Orders of that sort have been made from time to time. There was an Order in 1938 and another one in 1951, and in those Orders the registries and the sub-registries—and I stress sub-registries—have been altered. Never has that Schedule been altered otherwise than by an Order laid before Parliament subject to the Parliamentary procedure of annulment.
Now we have before us in Statutory Instrument No. 1676 a third Order of that kind, but on this occasion it differs considerably from the original Schedule to the 1925 Act and from the two Orders in 1938 and 1951. The Order before us sets out only the registries and not the sub-registries, and alters the scheme entirely from that set out in Schedule 2 of the Act. It makes no mention of sub-registries, and so it alters the scheme to the extent of setting out only the registries and not the sub-registries. The sub-registries are removed altogether from the scheme.
To find out what has happened or will in future happen to the sub-registries we turn to Statutory Instrument No. 1675, 196 which is also before us tonight, and we find that the President seeks to take power to create sub-registries as he chooses, with no formal Order, and not only to create sub-registries as he chooses but, as my hon. Friend the Member for Leicester, South-West pointed out, to close down registries as he chooses without bringing any Order before the House to do so.
He asserts in the recital to Statutory Instrument No. 1675 that he has the power to do that under Section 100 of the Supreme Court of Judicature (Consolidation) Act, 1925. But Section 100 merely gives the President power to make probate rules and orders for regulating the procedure and practice of the High Court with respect to non-contentious or common form probate business.
Section 100 has never previously been used to alter Schedule 2 to the 1925 Act. It has never previously been used to create or to close sub-registries, and I think that it behoves the hon. and learned Solicitor-General to satisfy the House that it can be so used now. It is a complete breakaway from precedent. I submit that it cannot be so used.
However, let me for a moment consider the use of it, and assume that perhaps Section 100 can be used. If it can be used, every order under it must be laid before Parliament. That is Section 100(2). Section 100 does not give the President the power to make rules by order giving himself the power to make rules without an order. That is what he seeks to do in Statutory Instrument No. 1675. If I may quote the rule which he proposes to insert,Sub-registries may be established at such places and under the control of such registrars as the President may from time to time direct.This is what we know as the "grandchildren procedure" of delegated legislation, and Parliament does not recognise it unless it grants it specifically to a Minister. The parent Statute here is the Supreme Court of Judicature (Consolidation) Act, 1925, which gives power to make rules of procedure and lay them before Parliament. It is not within the competence of the President of the Probate Division to make rules giving himself the power to make further rules without laying them before Parliament.
If there is power to alter sub-registries under Section 100 of the Act of 1925, it 197 must be done by order laid before the House and not merely by a direction of the President. However, I do not think that Section 100 gives that power. It has never been used before to create or close sub-district registries, and it is extremely doubtful whether it can be used now to alter the Schedule to a Statute in face of a specific section in the Statute giving the right to alter that Schedule in a specific way; that is, by means of an order brought before the House subject to the Parliamentary procedure of annulment. That should be done in this case. It should not be done by giving to the President the power to make orders without bringing them before the House.
This may seem to be a very small point. It deals only with sub-registries in the Probate Division. As the Lord Chancellor's letter endeavoured to show, it deals only with the practice of solicitors; it does not concern the public at all. It is a small matter. But it is a very substantial constitutional matter when the Lord Chancellor and the Lord Chief Justice concur with the President of the Probate Division to override the powers given to them by Statute and seek to give themselves the right to make rules which give them further power to direct certain matters to be done without bringing them before the House, when the Statute says clearly that these matters should be brought before Parliament.
I hope that the Solicitor-General will be able to dispel the fears which I have expressed. But, for the life of me, I cannot see any other explanation than that this Order No. 1765 is ultra vires the President of the Probate Division.
§ 10.50 p.m.
§ Dame Irene Ward (Tynemouth)
I intervene briefly, because I see in the procedure which has been adopted by the Lord Chancellor, as has been disclosed by my hon. Friends who have spoken on the matter, that it brings a threat to those living on small fixed incomes. It is very important in Parliament today that we should try to protect the interests of such people because it is very difficult, under present circumstances, with the law as it stands, for those not accustomed to the law and not accustomed to seeking professional advice to ensure that they get the rights which this House and another place have laid down for their 198 protection. I therefore add my voice, because this episode provides a real threat to those living on small fixed incomes.
I should like to add a personal note as a magistrate. I sit on the bench at Newcastle-upon-Tyne where the number of courts has had to be increased to six a day. I should like the hon. and learned Gentleman to convey to the Lord Chancellor that my fellow magistrates and I are not very pleased with the way that the Lord Chancellor is carrying out his responsibilities as, so to speak, a father figure in our law of procedure. We do not like it and I am glad to be able to intervene in the debate—
§ Mr. Deputy Speaker (Mr. Sydney Irving)
Order. I think that the hon. Lady is going wide of the Order.
§ Dame Irene Ward
I think that the Order proves what I am saying. We have had quite a few examples in the North of England of matters in which we do not like the Lord Chancellor's administration. I am glad that this matter has been brought to my notice so that I have this opportunity of asking the hon. and learned Gentleman to convey my views, as a magistrate, to the Lord Chancellor.
§ 10.54 p.m.
§ The Solicitor-General (Sir Arthur Irvine)
The hon. Member for Leicester, South-West (Mr. Tom Boardman) is praying to annul these two Instruments which were made by the President of the Probate Division on 18th and 21st October respectively, both being laid before Parliament on 31st October.
The President has power, as I contend—but I have taken note of the arguments of the hon. Member for Crosby (Mr. Graham Page), though I am not persuaded by them—to amend non-contentious probate rules under Section 100 of the Supreme Court of Judicature (Consolidation) Act, 1925, with the concurrence of the Lord Chancellor and the Lord Chief Justice. Any procedure that it is suggested has been made ultra vires has certainly been made under the most impressive auspices.
In the District Probate Registries Order, the President is exercising his power, with the concurrence of the Lord Chancellor and the Treasury, to amend the Second Schedule of the Supreme Court of Judicature (Consolidation) Act. The power is conferred by 199 Section 108(3) of the Act, as amended by Section 26 of the Administration of Justice Act, 1965, which removed the need, as was mentioned, for an affirmative Resolution.
These Statutory Instruments, as has been indicated in the debate, are concerned with the district probate registries, which with their subsidiary offices, are the only places, other than the Principal Probate Registry at Somerset House, where members of the public or their solicitors may apply in deceased estates for letters of administration or probate of wills.
Until recently, probate in small estates could be obtained by personal applicants, but not solicitors, from local offices of Her Majesty's Customs and Excise. Section 10 of the Finance Act, 1967 relieved the Customs of the duty to provide this service, and it devolved on the President. A service for personal applicants without limitation as to the amount of the estate is now provided through offices known as probate offices which are attached to and staffed by district probate registries.
The President had, in 1966, appointed a Committee under the chairmanship of Mr. Registrar Russell to consider what improvements should be made in the organisation of district probate registries as well as the service for personal applicants. That Committee presented its final and very helpful, Report to the President in February, 1968. Subject to certain modifications, the two Statutory Instruments are designed to give effect to the scheme recommended in the Report.
The effect of the District Probate Registries Order is to reduce the number of district probate registries in England and Wales from 26 to 13. However, the amendment to the Rules gives the President power to establish sub-registries and, with the exception of Durham and Wakefield, his intention is to establish these at all the places which are no longer to have district probate registries and at seven further towns not previously served at all.
In the context of this general proposal, I come to the bearing of the Report of Mr. Registrar Russell and of these Instruments on the Nottingham group with 200 which the hon. Member for Leicester, South-West is understandably especially concerned. With regard to the group, the Committee recommended that the main registry at Nottingham should continue as the district probate registry, that Leicester and Lincoln be reduced to sub-registries and that the group should not otherwise be disturbed.
The President's Committee considered—carefully, as I have ascertained—whether Nottingham or Leicester should be chosen as the site of the district registry to replace the current group comprising Leicester, Lincoln and Nottingham. It considered, of course, the matter in the context of a scheme under which the service offered by a sub-registry would in no way be inferior to that offered by a registry. This is an important point in the whole of the consideration that I invite the House to give to this matter.
There were several considerations that had to be taken into account by the Committee in arriving at its decision, which it did with its proper sense of responsibility and of the importance of the matter. I will give some of the relevant factors, and it is on the aggregate of these matters that I found that the decision was an absolutely correct one. One factor was that the amount of work in the Nottingham district probate registry was substantially greater than the work at Leicester. The figures show that in 1968 the number of grants issued in Nottingham was 6,869, while in Leicester the number was 5,520.
A second factor was that, under the scheme, the Nottingham group was also to include the sub-registry at Lincoln. Lincoln, Nottingham and Leicester were to be considered together. Nottingham was reasonably regarded as the obvious centre for these three places.
A third factor was that the Nottingham District Probate Registry was already established and staffed as the main registry in the Nottingham-Leicester-Lincoln group. The population factor, though not decisive, none the less had some importance, and it was to be observed that Nottingham's population was 309,740 and Leicester's 282,200. So there were quite obviously sensible, serious and responsible grounds for taking the view that if we were to resort to 201 what I can call, in this context, the group system, Nottingham was the appropriate site for I he district registry.
I want to emphasise that the reorganisation proposed, of which the treatment of Nottingham group is only a part—because the matter is nation-wide—is designed and intended to lead to extended and improved services, benefiting both personal applicants and solicitor applicants at an overall saving in cost. This is hoped and expected to be achieved by the inter-connected activities of the registries, the sub-registries and the probate offices, leading to greater flexibility and expedition.
So much for the merits of the decision that Nottingham should, as it were, have this relative status to Leicester. I suggest that that was a wise decision. I now turn to the matter which has been referred to—
§ Mr. Graham Page
Are we to understand that under the Order, whereby the President will in future be able to create or close sub-registries, Leicester might now lose its sub-registry by a mere stroke of the pen, without any Order being brought before the House?
§ The Solicitor-General
As the hon. Member must be aware, the matter is subject to the ordinary restraints and processes of our affairs. It is unthinkable, in my view, that decisions on the scale just adumbrated by the hon. Member would be made without reference to the House. In this matter there has to be—much more than has thus far been exhibited—reliance upon those in authority to deal with such an issue.
I turn now to the letter from the Lord Chancellor's Department and the observations made about it. Serious things were said. The expressions used were to the effect that very grave exception was taken. It was said that the letter from the Lord Chancellor's Department was totally misleading. The hon. Member for Ormskirk (Sir D. Glover) has manifested his anxiety about the level of probity of the Lord Chancellor's Department by departing from the Chamber. This matter has been dealt with in a fashion which has surprised me. But I think it appropriate, if that sort of thing is going to be said, to invite the House to consider what is the setting 202 in which this letter is to be read by any fair-minded person.
The letter of the Department on 16th December was sent in reply to a letter which had been received from the Town Clerk of Leicester, and the burden, I hope it is fair to say, of the letter from the town clerk was the complaint that there had been insufficient consultation of the local authority about these proposals.
What I believe any fair-minded reader of the letter from the Lord Chancellor's Department would be the first to recognise is that that letter had as its objective, as one would expect, the desire to disabuse the town clerk of what was felt to be a misunderstanding by him of the matter. It was because this was the objective that reference back was made to the earlier suggestions in 1952 about changes under this head.
It was pointed out that the intention then was to do away with the services that were available from the registry in Leicester, and the point was made—I should have thought perfectly fairly and sensibly—that if that kind of alteration was going to be proposed, then that was something which, because of its scale and content, it was entirely appropriate should be made the subject of consideration with the local authority and consultation with it.
But it was pointed out in this letter, which has been attacked in this unexpected and one hopes uncharacteristic fashion, that the present purpose was entirely different from that. It was pointed out, for example, that the services that were going to be available from the sub-registry were to be for all practical purposes on all fours with the services which had been previously offered by the registry. That was what was conveyed in the letter.
Because that was the view taken, the consultations which the Lord Chancellor's Department set in train or thought appropriate were consultations not with the local authority but with the local Law Society and with solicitors. Whatever may be said about the decision by the Lord Chancellor's Department in this respect, it is quite preposterous to suggest that there has been anything in the nature of observations which were totally misleading. It is quite preposterous and unworthy to suggest any 203 element of lack of probity. The hon. Gentleman who used that expression, I think, has left us, so that I do not have the opportunity of checking whether he seriously intended such an observation. Here was an effort being made by the Department, on what were regarded as serious grounds, to dispel the misunderstanding that was felt to exist in the mind of the town clerk about the content and effect of the changes.
What I have just said, of course, raises the issue: is there in the new proposal an intention of a change of substance? The hon. Member for Leicester, Southwest indicated that he thought there might be and that the Lord Chancellor's letter had somewhat glossed over that fact. But my understanding is, for example, on the question of the availability of the registrar, that the intention is that he will be available to see personal applicants if they want to discuss problems with him and will be available to do so at Leicester if necessary.
There will be, in other words—it is hoped and intended and there is no reason in the wide world why this should not prove possible—a reasonable, flexible, sensible arrangement under which the personal and individual services of the registrar will be available to personal applicants in Leicester where it is appropriate under the new scheme, as it has been in the past.
§ Mr. Tom Boardman
Then will the Solicitor-General confirm that there has been a shift of ground since that letter was written, because it made perfectly clear that the services of the registrar would be available to legal practitioners only?
§ The Solicitor-General
I am not prepared to acknowledge that there has been a shift of ground in this regard. There may have been a misunderstanding. I am giving the House now an account of what, in my understanding, is the intention, and the importance of it in the context of my argument is that it goes to the issue of the propriety or lack of propriety of the letter, because on my reading of it what is perfectly clear is that in it the Department is anxious to dispel misconceptions which it is reasonably and sensibly felt have arisen in the mind of the town clerk.
204 In dealing with the matter in that fashion, I feel bound to observe that I regard it as very undesirable that the kind of reflections that have been made this evening should have been made.
§ Mr. Tom Boardman
As the Solicitor-General is well aware, I gave notice that I was proposing to attack the contents of the letter, and the grounds on which I do it are those which are now slightly shifted. Can he possibly reconcile the following four passages in the letter?The change is one which affects only legal practitioners … there is no substantial difference save that the titleis changed.All the facilities previously available to solicitors (as well as personal applicants) will be the same as before.The registrarwill be on call to attend at Leicester whenever a practitioner"—a legal practitioner—needs to consult him.Those four points justify my making serious criticism of the letter.
§ The Solicitor-General
I do not think that we want to split indistinguishable hairs in this matter. I think that all that the hon. Gentleman has drawn attention to is entirely consistent with the belief entertained and sustained in the Lord Chancellor's Department that there was going to be no difference in the scale and character of the service available both to solicitor applicants and to personal applicants in Leicester. Anyhow, that is the position as I declare it now. I can only say that, even if one can argue in barrack-room fashion that here and there in a sentence there is an element of ambiguity, to found upon that an attack upon the probity of whoever settled the terms of the letter is something which I deplore.
The hon. Member for Leicester, South-West made some observations about the treatment of Leicester relative to other cities affected. It may be of interest to the House to have some particulars about that. It is true that Leicester is the largest city in which the existing district probate registry is to become a sub-registry. That is true as a matter of fact, but not, I submit, as a matter of great significance. The President's Committee made clear in its Report that the population of a city was not in itself the determining factor in deciding where the 205 various kinds of registry or office should be sited.
Leicester has a population of 282,000, and several cities much smaller than this are, it is true, to retain their district probate registries. They are Bristol with a population of 162,160, Ipswich with 121,940, Oxford with 109,350 and Winchester with 30,740. Several cities of about the same size as or larger than Leicester are to have sub-registries, not having had district probate registries before. These are Coventry with a population of 333,830, Kingston upon Hull with 295,900, Stoke-on-Trent with 275,730, and Bradford with 296,860. Bradford, which is larger than Leicester, is to have merely a probate office under the new scheme.
In the light of the relative sizes and populations of these towns, it is clear that there is no substance in any suggestion that Leicester has received relatively harsh treatment in this matter. The treatment of the Nottingham group, as I have said, is part of a large reorganisation.
The places other than Leicester where district probate registries are to be replaced by sub-registries are as follows: Bangor, Chester, Lincoln, Bodmin, Exeter, Norwich, Carlisle, Gloucester, Peterborough, Carmarthen, Lancaster and York. In one or two of these instances, representations were received, and in one case an adjustment was made. Broadly, however, it seems that the proposals have been accepted in these places. It seems reasonable to suppose that the proposals will be warmly welcomed on behalf of those seven places which have never before had any probate registry, namely, Chelmsford, Maidstone, Reading, Coventry, Middlesbrough, Stoke-on-Trent and Hull.
The salient point to be emphasised is that the service to the public and to their advisers which will be offered by this new kind of office, the sub-registry office, is almost identical to, and in some respects better and more expeditious than, that which has been available through the previous district probate registry. This has already been mentioned to Parliament in the Answer referred to by the hon. Gentleman.
The main purpose of the scheme adopted by the President on the recommenda- 206 tion of his Committee is to deploy staff in the establishment of district registry groups with attached sub-registries and probate offices so that each group will provide a convenient and efficient working unit under the control of one parent district probate registry and thereby ensure, without any deterioration of service, not only over all economy in manpower and cost but some extension of the service to places where there has been none before.
The registrar will be based at the district probate registry, but will be available by appointment at the sub-registries. Nearly the whole of the paper work required to be done by the registrar will be done at his base, the district probate registry, but his availability by appointment at sub-registries is intended to be a feature of the scheme. The expectation is that the solicitors or personal applicants will notice no difference in the day-to-day work, except that the grants of probate eventually issued will bear the name of the parent district registry and not that of the sub-registry.
The economy that is expected will be effected largely through the more efficient use of the registrars time. Briefly, it can be said that a relatively small number of applicants need to see the registrar personally and most of his work can best be done from a single office without spending time and money in travelling. The total number of registrars will be reduced from 16 to 13 and six clerks of senior grades, who are, in any case, due to retire soon, will retire and not be replaced. There will be no redundancies, but some transfers among the more junior staff. Leicester itself will be losing one staff clerk, who has asked to be transferred. Despite this overall reduction, a better service will be offered and work is expected to be done in the provinces which would otherwise have been sent to London.
§ Mr. Graham Page
Has not the Solicitor-General read out a completely new scheme of registries and sub-registries to be brought into operation without any Order brought before the House? How can be possibly justify that in face of the specific direction in Section 108(3) of the 1925 Act that this should be done by Order brought before the House?
§ The Solicitor-General
I reject the hon. Gentleman's argument that Section 100 does not give all the authority required in Statutory Instrument No. 1675. I believe that he is wrong about that, and that the judges who have concurred in the preparation and making of the Order are right. I am sure that little will be gained by labouring the point. The powers vested in the President by Section 108 are the relevant powers under Statutory Instrument No. 1676, and so far as Statutory Instrument No. 1675 is concerned, the powers are in Section 100.
My recommendation to the House is that the Orders and the Rules are intra vires and, because of their content and because of the kind of reorganisation they propose, they offer the prospect of an improved service with an overall saving of funds. Having regard to that view of the matter, my recommendation is that the House should support these Orders and welcome them as measures designed to have the effect of improving a valued service.
§ Mr. Tom Boardman
I must express considerable concern at the way in which the Solicitor-General has shrugged off the very pertinent comments of my hon. Friend the Member for Crosby (Mr. Graham Page). The real issue goes far deeper than these Orders and if my hon. Friend is right in his arguments, as I believe he is, their effect could be very serious. This is government by regulation, government by order, and the House of Commons is charged with the duty of preventing such an abuse.
The Solicitor-General has made some adverse comments about my raising the issue of the letters, but he has not answered the points I made. I had hoped that he would state that there had been misunderstanding but instead he has shifted his ground. What he said about the registrar being available to personal applicants was an answer which came very late in the day. I am delighted to know that the registrar will be available to personal applicants who telephone and want to see him, but that makes it clear that there will be no economies, because the registrar would be far better sticking to his present programme of coming on 208 two days a week instead of coming when a personal applicant makes an appointment.
I am sorry that the Solicitor-General took exception to the way in which I referred to the letter which has caused some controversy. I believe it to be an unbalanced account of the events and I think that on reflection the Solicitor-General will come to the same view. The higher the office from which such letters emanate, the more stringent should be the scrutiny given to them.
§ The Solicitor-General
After I received notice that this matter was to be raised, notice for which I was grateful, I read the letter repeatedly and the more I read the letter, the more satisfied I felt that its content was entirely proper and correct.
§ Mr. Boardman
It is impossible to reconcile the contents of the letter with the facts or with the correspondence with the Lord Chancellor, to which the Solicitor-General has not referred. I cannot believe that any impartial mind could have reached any conclusion but that the letter, perhaps as a result of an insufficient understanding of the situation, did not tell the truth and the whole truth in the way in which the Town Clerk of Leicester was entitled to expect.
I referred to Nottingham v. Leicester and I asked why it should be one or the other. I pointed out that the combined group now exceeded in grants the maximum recommended by the Committee. The choice need not have been either Leicester or Nottingham. It could have been both in a slightly different grouping. With the maximum already exceeded and with the excess becoming greater, in the next few years we shall find another Order which it might not even be possible to debate in the House. I think that the Orders are misconceived and they should be withdrawn.
§ Question put and negatived.
Motion made, and Question,
That the Non-Contentious Probate (Amendment) Rules 1968, dated 21st October 1968, a copy of which was laid before this House on 31st October, be withdrawn.—[Mr. Tom Boardman]—put and negatived.