HL Deb 18 June 1940 vol 116 cc591-8

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Alness.)

On Question, Motion agreed to.

House in Committee accordingly:

[Lord STANMORE in the Chair.]

Clause 1:

Procedure in petitions or applications for appointment or confimation as executor of persons engaged on war service and presumed dead.

1.—(1) Where there is produced with any petition or application for appointment or confirmation as executor of any person who, at any time during the war period, has been or shall be engaged in war service, a certificate or intimation issued by or on behalf of the competent authority that a report of the death of any such person has been accepted for official purposes, or that such person was missing on a specified date and that it has been presumed or concluded for official purposes that such person is dead, an oath or affirmation that to the best of the deponent's knowledge and belief such person is dead shall, for the purposes of such petition or application, be equivalent in all respects to an oath or affirmation that such person died on the date appearing in the certificate or intimation as the date on which he was missing or reported to have died:

Provided that the provisions of this subsection shall not apply unless between the last-mentioned date and the date of presenting the petition or application a period of not less than twelve months shall have elapsed, or unless between the date when such certificate or intimation has been issued and the date of presenting the petition or application a period of not less than six months shall have elapsed.

4.28 p.m.

LORD STRABOLGI moved, in the proviso in subsection (1), to leave out all words after "elapsed," where that word first occurs, and insert "where a certificate has been issued and confirmation of the particulars contained therein is given by a competent authority, an application may be made forthwith." The noble Lord said: Immediately after the Second Reading of this Bill in your Lordships' House, I was approached by representatives of the merchant seamen, and particularly of the officers' federation, for whom I am always ready to act, as I am sure all your Lordships would be, and to whom we owe so much. They pointed out that they would suffer hardship under the terms of the Bill. The particular difficulty is that until now, when the Registrar-General of Shipping and Seamen has proof of the death of a seaman the estate of that seaman can be administered forthwith, whereas under this Bill there will be considerable delay.

The proposed Amendment, which I fear has been rather hurriedly drafted, may not quite meet the case. I have had the privilege of a short conference with my noble and learned friend Lord Alness, and I understand that, although the Government are sympathetic with the intention of the Amendment, the wording is considered defective. Indeed, my noble and learned friend was good enough to point out to me that it would not altogether achieve the object we have in view on behalf of the merchant seamen. Nevertheless, I would ask leave to put their case very briefly. The original Act passed in the last war, as my noble and learned friend pointed out to your Lordships on Second Reading, did not apply to merchant seamen. Merchant seamen are, however, brought under this Bill. My noble friend said the three services, the Navy, Army and Air Force had been consulted. I am not sure whether the Ministry of Shipping have been consulted, and my suggestion is that they ought to have been. No doubt they have been brought into the conversations.

Many members of the Merchant Navy have lost their lives at sea in consequence of enemy attacks on ships in which they have been serving. It frequently happens that where a vessel is lost, resulting in the death of officers and crew, it is not possible for the exact date of death to be stated on the death certificate which is issued by the Registrar-General under Section 255 of the Merchant Shipping Act, 1894. The certificate in most cases merely records the approximate date of death as a result of the loss of a particular ship, without stating the exact date on which the man in quesion died. In view of the fact that the actual date of death is not known, it became necessary to make application to the Court for leave to presume death before probate or letters of administration were obtained. This procedure entails hardship upon the dependants, as it involves delay in obtaining a grant of representation of the estate, and it also entails expense in many cases out of proportion to the value of the estate. I am sorry to say that the purses of most merchant officers and crew are narrow. The estates they leave are in any case not those which are usually left by successful members of my noble and learned friend's profession. In most cases these estates consist of a house or one or two houses, freehold or leasehold, subject very often to a mortgage. If the dependants of officers of the Merchant Navy or of seamen cannot obtain probate or letters of administration at once, they are left without any money for many months.

These difficulties were pointed out to the Senior Registrar of the Principal Probate Registry, and after consideration the President of the Probate Division directed that when a certificate under Section 255 of the Merchant Shipping Act, 1894, is produced as evidence of death, it may be accepted without further proof and without any order of the Court being obtained, subject to the Probate Registry obtaining from the Registrar-General of Shipping and Seamen a verification of the facts. By reason of this ruling, delay and expense were immediately obviated. The system has worked perfectly well. Having obtained a ruling of the probate authorities in England, an endeavour was made to arrange for the same procedure in Scotland, since a considerable number of officers and men of the Merchant Navy have Scottish domicile and estates and property in Scotland.

If this Scottish Bill is passed in its present form without some amendment of the nature I indicate in my proposed Amendment, it will mean that where a certificate is issued by the competent authority—for example, the Registrar-General of Shipping and Seamen—that a report of the death of any person engaged in war service has been accepted for official purposes, or that such a person was missing on a specified date and has been presumed dead for official purposes, no application to the Court to presume the death will be necessary. Application for confirmation, however, cannot be made until either twelve months after the date appearing in the certificate as the date on which the deceased was missing or reported to have died, or six months after the date of the issue of the certificate. Delay of at least six months is therefore inevitable, but the expense of Court proceedings to presume death is obviated. If this Bill is passed for Scotland in its present form, it will in many cases bring hardship on the dependants of merchant seamen, since they cannot afford to wait for six months before they will be allowed to use what little money may have been left to them. It is urged that the same procedure should be followed in Scotland, or that the Bill be amended to enable application for confirmation to be made immediately the Ministry of Shipping have confirmed the facts contained in the death certificate issued by the Registrar-General of Shipping and Seamen. That is the case for some amendment. I admit that this Amendment, having been tabled in adverse circumstances, may not be in the right form, but I beg that my noble and learned friend will give a sympathetic ear to this plea for the Scottish officers and seamen of the British Merchant Marine. I know I can rely on him to do what he can to remedy a grievance. I beg to move.

Amendment moved— Page 2, leave out lines 3 to 6 and insert ("where a certificate has been issued and confirmation of the particulars contained therein is given by a competent authority, an application may be made forthwith.").—(Lord Strabolgi.)

4.35 p.m.


My noble friend was good enough to give me notice of his intention to put down this Amendment upon the Paper, and therefore I have had an opportunity of looking into it in advance. I have no doubt he will accept from me that I humbly regard the class of men on whose behalf he speaks as deserving of every sympathetic consideration which one can extend to them, and it is from that point of view that I approach the Amendment which he has moved. May I say a preliminary word about the form of the Bill as it stands? As I reminded the House on the last occasion, this Bill is really a reproduction of an Act which was passed in 1917, during the last war, but which did not, as my noble friend has truly said, apply to the Merchant Service. At that time, however, representations in the same sense as those he has made to-day were made to me in another place—namely, to shorten the period during which confirmation must be awaited. I resisted that attempt at the time, and urged the honourable Member who made it not to press his Amendment, assuring him, as I assure the noble Lord now, that I had taken the fullest and most adequate counsel upon the matter from those who are best informed regarding it before putting in the Bill the periods which are there specified. All I can say about the Act of 1917 is that, so far as is known in the Scottish Office, it has worked with complete adequacy and without any hardship or difficulty due to the period of time which it prescribes shall elapse before confirmation is taken out.

So much by way of preliminary to my noble friend's Amendment. Coming to the Amendment itself, I think he will be the first to admit that, even though I accepted the Amendment in its present form, it would not carry the applicant one step further, and for this obvious and simple reason. So long as the first part of the proviso which deals with the twelve months interval remains in the Bill—and my noble friend does not propose to delete it—it governs the whole of what follows; and therefore, whenever the application is made, it cannot be fruitfully made until the expiry of twelve months. I am sure that is not what my noble friend desires. Further, if I accepted his Amendment in its present form, the only effect which it would have would be to wipe out of the Bill the shorter period, the period of six months, which I have no doubt my noble friend would prefer to twelve months. Accordingly I hope that I have satisfied my noble friend that the Amendment in its present form will not do.

At the same time, having listened sympathetically to what he has said, I desire to repeat, if I may, here what I have said to him already—namely, that I shall be happy, before the Third Reading of the Bill is taken, to consider carefully the case which he has made today and to see whether it is possible in a reasonable way to meet his wishes by, as I understand it, shortening the period during which the applicant for confirmation has to wait. That I gather to be the substance of his argument, and I shall consider with my advisers before the Third Reading takes place whether that can reasonably be done. With that assurance perhaps my noble friend may see his way to withdraw the Amendment on the Committee stage. It can, as I think I am right in saying, be appropriately made on the Third Reading.

4.40 p.m.


I am very much obliged to my noble and learned friend. As I explained, the Bill has been of necessity pressed through rather hurriedly. I was approached about this difficulty only after the Bill had passed Second Reading and when your Lordships were on the point of rising, and I had not the opportunity of considering further the Amendment which was suggested by my friends of the Mercantile Marine. They are obviously not skilled draftsmen, and even sea lawyers have not a great knowledge of Parliamentary procedure! I admit that their Amend- ment does not really achieve what they want to do. I am very grateful to my noble and learned friend, however, for his undertaking. He will appreciate, I know, that the case of the merchant seaman or officer is rather different, for example, from that of a seaman in the Royal Navy or a soldier; if he is missing, in all too many cases the means of subsistence of his family ceases for the time being, and there are not the same facilities for bringing proof, and so on, as are available in the case of men of the regular Fighting Services.

I am sure that my noble and learned friend is seized of the case of the merchant seaman, and perhaps one day—it may be quite soon, as the result of this war—our Mercantile Marine will be on the same footing as the Royal Navy as regards these matters. I think that the nation would wish that the officers and seamen of the Mercantile Marine should have the same status as regards benefits to their dependants and in other ways as those who belong to the regular services. This is a matter which I have had at heart for a long time. I believe that my noble and learned friend is aware of the need for great reforms, so that the family of a deceased seaman of the Mercantile Marine is in no way worse off than the family of a deceased seaman of the Royal Navy. I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Remaining clause agreed to.

Bill reported without amendment.