HL Deb 03 March 1931 vol 80 cc204-13

Order of the day for the consideration of Commons Message of Wednesday last.

THE LORD CHANCELLOR (LORD SANKEY) moved, that this House do concur in the following Resolution communicated by the Commons—namely: "That it is expedient that the Bill be committed to a Joint Committee of Lords and Commons." The noble and learned Lord said: My Lords, this is not a Motion which commits your Lordships in any way to an expression of opinion in favour of the principle of the Bill, or the particular means whereby that principle is sought to be effected. At this stage, therefore, it is not necessary, nor indeed would it be appropriate, for me to say anything upon the merits. If this Motion be carried, and if the Bill itself obtain examination by a Select Committee, and it come before your Lordships on some future occasion on a Motion for Second Reading, your Lordships will be perfectly free either to accept or reject the Motion. The object of the Bill is to secure that in the distribution of an estate of a testator or a testatrix the surviving husband or surviving wife, or any surviving child who is of an age which necessitates parental support, should have a statutory right to some provision. This statutory right is to prevail against the provisions of the will, subject to this, that any benefits in the will may be put against the benefits of the statutory right. It is only proposed that the Act, should it be passed, should apply to England and Wales.

The English law upon this subject is singular, and for this reason, that it allows a man to ignore his obligations to his wife and family, and to leave his money, should be so desire, to a stranger. The Scottish law and the law of most European countries pays more attention to the family relation. This Bill in the main follows the Scottish law, but it steers a middle course between the Scottish law, which makes definite provision for a surviving spouse or any surviving children, and the law of other parts of Europe, which only allows a surviving spouse or a surviving child to apply to a Court if he or she be left destitute. The Bill was a Private Member's Bill. It was introduced, I think, by Miss Rathbone, who is 'Member for the English Universities, and received a Second Reading by a very large majority—149 to 28. It received the support of many Conservative members.

Now, your Lordships will readily understand that the provisions of this Bill are of a somewhat intricate and complicated character, and would need much minute and detailed examination before a Committee. I do not pause to go into details, but on many points this Bill will involve highly legal technicalities, and those who examine the Bill will find that the promoters of it have treated the subject with very great detail. Now it may well be that some of that detail is not necessary. It may be that there has not been sufficient elaboration. It may be that some of the provisions by which it is sought to carry the enactment into effect will want drastic amendment; or, again, it may be that the Bill itself will have to be entirely remodelled. It appears, at any rate to some of us, that this is hardly a matter which could come before this House or could come before a Committee of the Whole House, having regard to the very difficult legal technicalities involved. For my part I think the best plan would be to refer this Bill, as your Lordships are requested to do, to a Joint Committee, when the great amount of legal talent available in this House could be immediately employed in endeavouring; to find a solution to its many difficulties. I think there is a precedent for this course, and I commend it to your Lordships for your favourable consideration.

Moved, That this House do concur in the following resolution communicated by the Commons, namely: "That it is expedient that the Bill be committed to a Joint Committee of Lords and Commons."—(The Lord Chancellor.)

LORD BUCKMASTER

My Lords, I think when this proposal of the noble and learned Lord on the Woolsack is examined it will be found to be one of the most unusual and startling propositions which, have been brought before this House for a long time. Whether the Bill to which he has referred is right or wrong, whether it be wise or foolish, one thing is quite certain about it: it is to interfere with and to take away rights, which have been possessed by Englishmen for many centuries, to do what they like with their own. I am not saying that there might, not be circumstances in which those rights should be limited. I am not saying that your Lordships might not think that the limitation proposed by this Bill might ultimately be accepted. But I do say without hesitation that to ask your Lordships to assume without debate in this House that the principle underlying that Bill is one which you can accept, and therefore to appoint a Joint Committee of this House and the other House to examine its provisions, is something which, to the best of my knowledge, has never been done. The appointment of Joint Committees is of enormous consequence. They enable Bills, notably Private Bills, or Bills that relate to matters that are essentially agreed, to be discussed between the two Houses at the same time, and it saves an enormous amount of time. But is there any member of your Lordships' House here who can tell me of a Bill that has been referred to a Joint Committee of both Houses, when the underlying proposition is in dispute, and may even be rejected by this House? I must say the thing surprises me.

The history of this matter is also not a little interesting. I find that on August 1, 1928, the noble Viscount, Lord Astor, brought in a Bill with this effect, and had it read here a second time. So far as I can find out, he did nothing with it then, but left it deposited on the doorstep of your Lordships' House, where in due course it perished from neglect when the Session ended. What advantage had been gained by that except the expense of printing the Bill I do not know, but on March 6, 1929, he repeated the experiment—either brought back the same Bill to be an object of pity on your Lordships' steps, or another one to the same effect. I really do not know which, for this reason, that he did no more with it but left that Bill there, exactly as he did the other, and nothing ensued. I suppose it was that the noble Viscount thought that the Bill did not seem to be much welcomed by your Lordships. No one seemed to take it up, or seemed interested in it.

So he then adopted another method, and on this occasion he moved a Resolution in your Lordships' House which did not exactly, as far as I can make out, carry out the effect of his Bill, but was a Resolution to enable matters to be adjusted for the same purpose through the operation of the Court. And that Resolution had a most unfortunate experience. There was not a single person who spoke on the matter who was not opposed to it, excepting the noble Viscount, Lord Cecil of Chelwood, and the opposition was in part based upon this thing that I am mentioning: the House was not prepared to see its rights taken away by a Resolution of that kind. And the late noble and learned Earl, Lord Cave, who was then Lord Chancellor, pointed out that the limitations in France to which reference had been made were limitations which an eminent French lawyer had declared would for ever prevent France being called a, free country while they remained. So that it cannot be said to have got a favourable hearing here. And yet that is the only opportunity you have had of discussing this matter.

And if this Motion goes through now, and a Joint Committee is appointed, what results? Well, is it not plain that the Bill will come back then prepared, amended, with the authority of both Houses; and that although you have never debated it? I protest against this Resolution. I believe it has no precedent whatever in this House. Its necessary result must be to dull the edge of debate, to obscure criticism, and to prejudge the very issue which underlies the whole matter. And these are the reasons why I find myself wholly unable to accept this Resolution. I sincerely trust that the noble and learned Lord, the Lord Chancellor, will realise that he has asked this House to do something which is out- side its ordinary practice, and that he will withdraw his Motion; and, if he finds himself unable to do that, I shall unhesitatingly ask your Lordships to support me in the Motion which I shall move that this debate be adjourned sine die.

VISCOUNT ASTOR

My Lords, as the noble and learned Lord who has just spoken has quoted me, I think it might be well, before your Lordships go any further, if I were to correct a misapprehension which exists in his mind. He is wrong in regard to the order in which the events occurred. If he will look at the OFFICIAL REPORT he will find that in May, 1928, I introduced a Motion in your Lordships' House before any Bill was ever introduced.

LORD BUCKMASTER

I beg the noble Viscount's pardon; the Motion preceded the Bills? But my history as to the Bill is accurate.

VISCOUNT ASTOR

Yes; but the noble and learned Lord said that, having failed with a Bill—

LORD BUCKMASTER

Yes, there I was wrong.

VISCOUNT ASTOR

—I then came forward with a general discussion here on this question of the unjust disposition of property through will. The debate, I venture to say, was not as unfavourable as the noble and learned Lord has indicated, and the spokesman for the Government of the day, the noble and learned Lord on the Woolsack (Lord Hailsham) said—

I do not think that in the present position of this Parliament and in the present state of public business there is any real prospect of the Government being asked, or finding itself in a position, to pass legislation … The noble and learned Lord did not condemn the proposal as being in itself fundamentally wrong. His difficulty was in finding the necessary Parliamentary time for legislation. He went on to say that the societies which were supposed to be behind the proposal for a change in the law had recently had a great deal of legislation passed on other social matters which they were interested in and, therefore, it was unreasonable for them to ask for more legislative time.

After the discussion, which I think showed that there was a considerable feeling for some sort of action or inquiry, a Bill was prepared and introduced, it was not proceeded with because, as so often happens, one wanted to elicit expressions of opinion from various legal associations, discussion in the Press, and informal discussion between members of Parliament. That was the object, and there is nothing unusual in it, of introducing a Bill formally and having it read a first time. That is constantly done. As the result of the discussion in the Press and among legal societies and private individuals, the Bill was redrafted and the House of Commons recently passed the redrafted and altered legislative proposals.

As the noble and learned Lord on the Woolsack has said, your Lordships are not being asked to express any opinion either for or against the proposal to-day, but merely to assent to an inquiry being conducted by a Joint Committee of the two Houses to see how strong the case for legislative reform is, and to see whether, if anything is done, it should be done on the lines of the Scottish law or on those adopted in the Dominions or on the lines of some compromise between the two. I suggest that it would be wise to have this inquiry. Your Lordships will not be committed in any way to anything by the inquiry. If there is any doubt or misgiving, I venture to suggest that an inquiry is the best way of obtaining the necessary information on which your Lordships may be in a position subsequently to express an opinion.

LORD DANESFORT

My Lords, I share the surprise of my noble and learned friend Lord Buckmaster at the course proposed by the Lord Chancellor on this occasion. Speaking for myself, I feel great reluctance in not accepting any advice which the Lord Chancellor might give in dealing with a matter which is more or less a legal one. But, as he very truly said, he did not go in any way into the merits of this Bill or of the proposals which we are asked to send to a Joint Committee. He said there were legal technicalities involved; quite true. He said there were difficulties; quite true. If in this House we were expressing our approval of the principle of the Bill I venture to think it would be a very proper course for us to say: "There are these legal techni- calities and difficulties; let us send them to a Select Committee or a Joint Committee that they may be solved." But the position is entirely different. The noble Viscount, Lord Astor, brought forward a Motion some time ago which, I believe, was not carried. Upon the strength of that Motion and two derelict Bills, the particulars of which were never discussed in your Lordships' House, he supports this proposal to appoint a Joint Committee to enquire into a matter of which we have never accepted the principle in any shape or form.

What is the principle? The principle of the Bill which obtained a Second Reading in another place the other day on a Friday afternoon in a very small House, is a very startling one. I forget the exact number but there were certainly considerably under 200 members in the House at the time out of over 600. They carried this; Bill, whether rightly or wrongly I do not say for the moment, with very little discussion, when very few members were present and when there was no opportunity really—there never is on a Friday afternoon—for the full discussion of a great question like this. What is the question? For 600 or 700 years, in fact ever since civilisation arose in this country, the uniform law and practice has been to allow testators to dispose of their own property, and to dispose of it as they liked by will. In the case of intestacy, certain rules were laid down as to what relations should share and in what proportion. This Bill, which was carried in another place under the conditions I have mentioned, proposes to take away from testators that right which they have enjoyed for hundreds of years. Your Lordships are asked to say that the principle on which that Bill is founded is correct and that you will send it to a Select Committee for them to work out the details for carrying it into effect. I respectfully trust that your Lordships will do nothing of the sort.

May I suggest to the noble Viscount, Lord Astor, who takes a deep interest in this matter, that if he wants this question to go forward he should at once bring in a Bill founded upon the lines of the Bill passed in another place, or any other principle he likes, and have it discussed in your Lordships' House. If the principle is admitted and the Bill receives a Second Reading, I think it would be a reasonable thing to send that Bill for discussion to a Select Committee either of this House or of both Houses where the legal technicalities, of which the noble and learned Lord on the Woolsack has spoken, could be looked into, examined and, possibly, removed. But though your Lordships have never expressed your opinion on the principle, you are asked to sanction a proceeding which, in substance, accepts the principle involved in the Bill which passed a Second Reading in another place, and you are asked to make an enormous and unprecedented alteration in the law and practice of this country without discussion in this House. I sincerely trust that your Lordships will not accept that view, but will accept the view put forward by my noble and learned friend Lord Buckmaster, that this Motion should be postponed and if and when a Bill has passed a Second Reading in this House that will be the time to consider the question of sending it to a Select Committee.

THE LORD CHANCELLOR

My Lords, I purposely refrained from discussing the principle of the Bill, because the principle of the Bill has nothing to do with the Motion which I was venturing to put before your Lordships' House. I rather gathered from the speech of my noble and learned friend Lord Buckmaster, although he very carefully concealed it, that he was somewhat against the principle, and I gathered also from my noble and learned friend Lord Danesfort, that he was somewhat against the principle of the Bill. I would rather like, if I might, to ask my noble friend Lord Danesfort a, question. He said: "Why, this is perfectly ridiculous. Look at the House of Commons. They passed this Bill in a very small House. There were 149 for the Bill and 28 against it." I admit that my arithmetic is not very good, but I believe the addition of those two numbers makes 177. The question I would like to address to my noble and learned friend is this—How many people would he like to see in the House of Commons when a Bill is passed?

LORD DANESFORT

I will answer that question at once if the noble and learned Lord will allow me. My experience of the House of Commons is that, to pass an important Bill in a House consisting of less than 200 is extremely unusual, and I think everyone who has been in the House of Commons will say that is so. I should like to see a Bill of this sort passed, if it be passed, or rejected by a House in which there were about 500 present.

THE LORD CHANCELLOR

I hope the noble and learned Lord will encourage a House of 500 for the debate upon this Bill. I am rather appalled at the violence of the language used by my noble and learned friend Lord Buckmaster, which I do not think the mere passing of this Resolution justifies. After all it is a very small Bill, and it is a small thing to ask this House to approve this Resolution. I regret that I am unable to withdraw the Motion, and I still hope your Lordships will accede to its terms for the reasons I have already given.

THE MARQUESS OF READING

My Lords, I had not intended to take part in this debate. I am rather disturbed at the course it has taken. We are discussing a question of procedure; we are not discussing the principle of the Bill. I gathered that that was stated by the noble and learned Lord, Lord Buckmaster, and by the noble Lord who supported him. The question has become this, whether we should refer this Resolution to a Joint Select Committee in consequence of a Resolution which has been passed in the House of Commons and which the Government is supporting. For my part, without discussing the merits of the Bill, I hope your Lordships will accept the proposal which was put forward by the noble and learned Lord on the Woolsack. So far as I can understand the procedure of the House it commits us to nothing except to refer the Bill to a Committee. The House of Commons passed a Resolution; it came to the conclusion on a first view that it was a difficult matter to deal with in discussion, and thought, therefore, that it was expedient it should be referred to a Joint Committee in order that there should be an opportunity of discussing it such as you do not get otherwise.

That is all we are dealing with at the present moment, and no one who supports this Resolution is prevented from taking any point he chooses when the Bill comes up for further discussion in this House. Everything will be as free to the members of this House as it was before the Motion which is now proposed. It does seem to me that the case is hardly made out for refusing to accept this request, which is made to us in the form of a Motion to carry out what the House of Commons desired, solely in order to get further information and further knowledge for the purpose of trying to fashion a Bill which might have a better chance of support. Your Lordships can again consider it after it has been before the Joint Select Committee. It is in my view a pure question of procedure and nothing else. I ask your Lordships not to resist the Motion which is put forward by the Government. The Government has few members in this House, and it is not able to carry this

Resolved in the affirmative and Motion agreed to accordingly.

Ordered, That a Message be sent to the Commons to acquaint them therewith.