§ 4.37 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The EARL OF DROGHEDA in the Chair]
§ Clause 1:
§ Abolition of restraint upon anticipation, and consequential amendments and repeals.
§ 1.—(1) No restriction upon anticipation or alienation attached, or purported to be attached, to the enjoyment of any property by a woman which could not have been attached to the enjoyment of that property by a man shall be of any effect after the passing of this Act.
§ (2) The preceding subsection shall have effect whatever is the date of the passing, execution or coming into operation of the Act or instrument containing the provision by virtue of which the restriction was attached or purported to be attached, and accordingly in section two of the Law Reform (Married Women and Tortfeasors) Act, 1935, the proviso to subsection (1) and subsections (2) and (3t (which make provision differentiating as to the operation of such a restriction between an Act passed before the passing of that Act or an instrument executed before the elate mentioned in the said proviso on the one hand and an Instrument executed on or after that date on the other hand) are hereby repealed.
§ (3) The enactments mentioned in the first column of the First Schedule this Act shall have effect subject to the amendments specified in the second column of that Schedule.1327
§ (4) The enactments mentioned in the Second Schedule to this Act are hereby repealed to the extent specified in the third column of that Schedule.
VISCOUNT SIMON moved to leave out Clause 1 and insert the following new clause:
… Section 169 of the Law of Property Act, 1925 (which enables the Court, in a case where a married woman is restrained from anticipation or from alienation in respect of any property or any interest in property belonging to her, where it appears to the Court to be for her benefit, by judgment or order, with her consent to bind her interest in such property) is hereby amended by adding the following subsections:
'(2) The Court may treat as being for her benefit what it is satisfied would be for the benefit of a husband, child or collateral relation of a married woman whom she desires to assist.
(3) The fact that since the date when the restraint was imposed there has been a substantial diminution in the net income receivable by the married woman from the property the income from which she is restrained from anticipating or alienating may be taken into account in determining whether it should be for her benefit to bind her interest in such property.
(4) The power of the Court shall extend to removing a restraint altogether, if it thinks fit, as well as to binding her interest for the purposes of a particular transaction or transactions.'
§ The noble and learned Viscount said: I have put down this Amendment because I would invite the Committee to consider whether the way in which this Bill is now drawn is really the best way and the right way to meet the difficulty. I do not deny that there is a difficulty, and it is right that we should consider the best way of dealing with it. But it has seemed to me that the method which the Bill proposes is not the best way. In any event, I would invite the Committee to consider the sort of alternative which I have put down in my Amendment. May I say that noble Lords need not run away in alarm, thinking that this is a purely technical and what is sometimes called a legalistic question? In order to understand the question you certainly have to understand what is meant by "restraint upon anticipation," but once that has been mastered the question itself is not a technical one. It is a question of public policy; it is a question of what is the right thing to do: it is a question of whether in the circumstances we ought, by a General Act of Parliament, to cancel a provision which is contained in many marriage settlements and in many wills, 1328 which were made years and years ago and which are now being operated according to their terms.
§ The Committee will forgive me if, in a sentence, I endeavour to point out what restraint upon anticipation is. The Lord Chancellor gave an accurate description of it in his speech on Second Reading and there is no doubt that this procedure has been less frequently resorted to of recent years, particularly since 1935 when Parliament passed an Act which ensured that the procedure would not be adopted in the future; that it should be void in connection with wills or marriage settlements made after the year 1935. But for many years earlier, in various circumstances it had been commonly used. When a daughter was about to be married, somebody, usually the father, although it may have been somebody else, considered what provision he would make for her during the time that she was a married woman. In a great many cases the father took advice, considering the matter carefully, sometimes with the help not only of solicitors but in many cases also of counsel. In the past the father wishing to provide for his daughter found the sum of money which he could put into the settlement—it might be so many thousand pounds—and provided that the income upon that amount during the time that his daughter remained a married woman should be paid to her regularly—by the year or by the half-year, or whatever it was. But he further provided that the money should be settled on the terms that it would be paid to her regularly, as time went on; it was not given to her on the terms that she could anticipate it. In other words, she could not sell the whole of her interest for a lump sum which might be given to her by an insurance company or anyone prepared to take it on.
That is the nature of a restraint upon anticipation, and the fact is that the father could perfectly well have secured by other ways, that his daughter did not dispose in one fell swoop of the whole of the money he was providing. He could, for instance, have established a discretionary trust. In the past, however, the practice has been to do it in this way in the case of daughters who were going to be married. The present Bill—if your Lordships will just remind yourselves of it for a moment—provides that
No restriction upon anticipation or alienation, attached or purported to be attached, to the enjoyment of any property by a woman which could not have been attached to the enjoyment of that property by a man shall be of any effect after the passing of this Act.
In plain English it really means: "We do not care what a father wanted, or what he may have deliberately decided. We do not care what he wanted to do with his money. We do not care if he did make this condition because he wanted to make it clear that his daughter should get an income during her married life. Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, that that shall be struck out from every single settlement and every single will, even though it was made thirty or forty years ago.
The question which I raise is this: Is this really a proper thing to do? Once we understand the subject matter the issue is not really a technical issue, but it raises the question of whether we ought to agree to pass a clause which will compulsorily cancel a provision which is to be found in many marriage settlements and wills that have been made in the past by fathers for the benefit of their daughters, so long as those daughters are married. There was a Committee which sat, I think in 1935, to consider whether or not this particular method should be authorised for the future. I believe the noble Lord, Lord Schuster, was a member of it. I would call attention to the fact that when that Committee reported, they reported on what should be done in respect of future married settlements and wills—that, of course, is quite right. That being so, anyone who wanted to provide money for his daughter subject to restrictions knew that he should not do it by this particular device but by some other device—as he can do at this moment. The result of that Committee's Report was that the Act of Parliament was passed in 1935. I invite your Lordships to be good enough to give me your attention while I read a short extract from it. It says:
Provided that nothing in this subsection shall interfere with or render inoperative any restriction upon anticipation or alienation attached to the enjoyment of any property by virtue of any provision attaching such a restriction, contained in any Act, passed before the passing of this Act, or in any instrument
executed before the first day of January nineteen hundred and thirty-six.
§ The meaning of that is, "We leave past marriage settlements and past wills alone. We do not think it is right to go back and alter what has already taken place, but for the future we think it right to enact that this particular form of protection or restriction shall not be effected." That was quite right. It may be that we shall hear in this debate whether or not it was ever contemplated by this Committee that Parliament ought to go behind that and say, "We do not care whether this was done before or after; we are going to take up the pen and strike this provision out of every instrument containing it, no matter when that instrument was made." I think no one ever previously proposed to cancel such a provision in documents made before 1936.
§ I am not at all disputing that there are cases—there may be a large number of cases—in which it would be right for the court to exercise jurisdiction, which it already exercises within certain limits, to relieve a married women from this restraint, or even in an extreme case to remove it altogether. It is already the law that a married women who finds herself unduly hampered by this restraint upon anticipation may apply to the court, and the court, within the limits of the existing permission which the Statute confers can then give her relief, if that is thought to be wise and right. The difficulty is that as the law stands at present the court can do that only if they are satisfied that the relaxation is in the interest of the woman herself. That limitation has in practice often meant that the relief was not given. I think it is a pity that we should not realise that there are two sides to this matter. I do not for a moment claim that my way of looking at it is the only way, and I hope that noble Lords who may take a different view will not think that their view is the only one. I want to urge on the Committee that there are really two classes of case, and that the only way to deal with this problem is to take each particular marriage settlement and to consider whether it is the sort of settlement in which the court should give relief.
§ I have indicated to your Lordships how this matter in practice arises. I ask you to consider why is it that a father—such 1331 as any noble Lord here may be—within the last thirty years or so may have made a marriage settlement in which he has provided money for his daughter, saying, in effect: "I have provided this money so that my daughter may enjoy this income, subject to restraint upon anticipation." It is ridiculously archaic to suggest that that was done merely because the woman might be a simple sort who could not stand up and look after her own affairs. Many women can; some cannot. That is not the fundamental reason. The reason—I speak for myself and I hope perhaps for other noble Lords here; I am sure that others in this House have done the same sort of thing—is that the father says: "My girl is going to be married and I should like to do something now to make sure she will have a certain income of her own as a married woman. In the circumstances, I think it is important that I should secure that she will get that income regularly, so long as she is a married woman, and that she will not be in the position or under the temptation to take her rights under this settlement and sell the whole thing for a lump sum with the result that for the rest of her married life she will have no secure income of her own." I am sure that there are fathers in this House who have been actuated by that motive. It is not a dishonourable motive. It does not inflict injustice on anyone, and it does not insult anyone. It is a provision made by a father who is likely to die long before his daughter, so that he can say: "At any rate I have done what I could for my girl. I have made sure that whatever happens throughout her married life she is secure in having this settled income."
§ I trust the Committee realise—I do not think it will be contradicted—that if we pass this clause and do not amend it, that is absolutely destroyed. Anyone who has relied on that provision, who has been actuated by that motive, is from this time forward told: "You are a fool. You have made that provision but this Bill is going to strike it out." If there was something innately wicked or selfish about the father's action I would acquiesce in this step. But your Lordships know as well as I do that it is not true that it is wicked or selfish. I think it will need very strong arguments to show that this Bill as it stands is right. 1332 And this is by no means the only case in which, by reason of public policy it has been thought necessary to restrict the power of commutation. There may be members of your Lordships' House—there probably are—who are drawing retired pension from the Army or the Navy, or whatever it may be. I remind your Lordships that, if such a person be here, he is not allowed to commute his pension. Under regulations he is allowed to commute a portion, because it is felt that it is not right that a man who has served the country as an officer, by giving away for a lump sum his right to pension, should find himself destitute. If that is good public policy for officers on retired pay, why is it not permissible for a father to make a corresponding provision to protect his own daughter from being rendered destitute by the dissipation of her inheritance?
§ VISCOUNT MAUGHAM
It is hardly a corresponding provision, is it? In the daughter's case it is during coverture only.
§ VISCOUNT SIMON
I think I have not said anything inaccurate up to now. I think I said his married daughter. It is true, and I am grateful to the noble and learned Viscount for having pointed out this to me on Second Reading, though I think I have clearly understood it, that restraint upon anticipation applies only during the married life of a married woman.
§ VISCOUNT MAUGHAM
I only commented on the word "corresponding" provision. It is a very different provision.
§ VISCOUNT SIMON
I accept the correction. I thought there was a certain guidance to be derived from this comparison; but if my noble friend thinks not, I am content to leave it. At any rate, let it be clearly understood that restraint upon anticipation operates only during the married life of a married woman. That may be regarded as a difficulty, but it is so. I hope I have made plain and stated accurately that in many cases the father who provides the money is thinking about his daughter who is to be married and who during her married life is to be protected by being assured of this regular income. I agree that there is another class of case in which, largely owing to a change in circumstances, it would be right to give relief. That was 1333 the object of the Mountbatten Bill. I think it was my noble and learned friend, Lord Simonds, who presided over our Committee and reported that the Bill should become law.
§ VISCOUNT SIMON
The noble Lord was a member of the Committee; I beg his pardon. As the noble and learned Viscount the Lord Chancellor pointed out, a most unusual thing happened to the Mountbatten Bill. After we had passed it in this House, when it went to another place objection was taken and the Bill had to be withdrawn. I understand that it is therefore considered desirable, and I agree, to make a new provision. The whole question is what sort of provision. I submit for the judgment of the House that the right provision is not to cancel every one of these marriage settlements and wills, retrospectively and automatically, whatever the circumstances, but to extend the power of the court, which at present is limited, to certain cases not yet covered. I included in my Amendment, as well as I could and after taking some advice, these three further considerations. As I have said, at present a court can give relief only if they are satisfied that it is for the benefit of the married woman herself. In my Amendment I suggest that:The Court may treat as being for her benefit what it is satisfied would be for the benefit of a husband, child or collateral relation …There are some married women who find their income so much reduced by, let us say, surtax that in practice what the father designed is largely defeated by the heaviness of taxation. I provide, therefore, thatThe fact that since the date when the restraint was imposed there has been a substantial diminution in the net income receivable by the married woman from the property the income of which she is restrained from anticipating or alienating may be taken into account …in determining the giving of relief. I agree that there may be cases in which the court might go so far as to say the restriction should be removed altogether. I admit that this class of case requires the attention of Parliament and further relief, as was provided in the Mountbatten Bill. I have not the slightest desire, any more than has any other of 1334 your Lordships, to interfere with proper relief in that or similar cases. I respectfully submit, however, that it is wrong, in order to do what is thought to be wise in a certain class of case, to pass this measure which says, in elect, "We do not care what the circumstances are, or what the reasons of the father were, we are going to cancel that out and alter the provision which he made"—and that though the provision wits made, in many cases, after careful reflection, because he thought the circumstances justified what he did.
I do not want to keep your Lordships much longer, but I want to call attention to one other matter. I made these; observations on Second Reading—I am afraid perhaps in rather too heated a manner, and I am sincerely sorry that I have upset anybody. But I made them because I feel that some of your Lordships were making the change without realising its full significance. I happen to have here a letter sent to me this morning by an eminent and well-known firm of solicitors who are responsible for many of these marriage settlements. Any of my noble friends interested in the status of the firm may willingly look at this letter. I have the permission of the firm to read to the House a passage from the letter: it seems to me to put the case very fairly.
It is a fact that since 1935 such restraint has been of no effect, but there must still be a very large number of settlements made prior to that date, in favour of a woman on marriage, in which such restraint was imposed by the senior (generally her parent) expressly for her protection. Without such restraint or at least some alternative protection for her, the funds for the settlements might not have been provided.That is to say the man who provided the money might not have been prepared to give this lump sum unless it was given in this way. The letter goes on:In all such settlements this protection is to be swept away at a stroke regardless of the merits of each case.We suggest this action may well be too drastic. If it is thought that some modification of the present law is desirable to meet, for instance, a case such as was indicated in the recently withdrawn Mountbatten Bill, the wiser plan would seem to be to enlarge the powers of the Court for that purpose, even to the extent of lifting the restraint altogether in a proper case.I am glad to be able to read that letter because it will show that I have not raised this question in your Lordships' House 1335 out of any desire to be obstructive. I desire nothing but this: that contracts should be carried out, that good faith should be preserved, and that the merits of the individual case should be considered.
What is to be said against this? I listened with great attention to my noble and learned friend, and his view may be held by other noble Lords. I do not think this is so much a lawyers' question as a question for the good sense of any member of the House good enough to take an interest in it. What may be said against it? I have endeavoured to list the criticisms on the other side. First, it may be said, and it would be true, that in the past this provision about restraint upon anticipation has been inserted merely as a matter of tradition, as a matter of form, without very special examination of a special case. These people in Chancery—nice people in all respects, but they are on the other side of the road!—take up their big volumes (I think I know them) and find there the provision about restraint upon anticipation. There may be cases, I admit, in which this has been put in a marriage settlement as a matter of form. But is that so in all the cases? I am sure that no one here who has had anything to do with this business will say that it is.
There are plenty of cases in which the the matter has been considered deliberately, where the one who is providing the money has discussed it with the solicitor, and possibly with the father of the young man. It has been discussed between them and they have each put in their money on certain terms—sometimes, indeed, on the advice of counsel. What I want to know is: Is it any justification for cancelling and nullifying those cases to say that there are other cases where it will do no harm to nullify them?
The second suggestion that is made is that if it is done in the way I propose, it means applying to the court. I agree that it does. Already there is a provision in law for applying to the court, but on rather too narrow a ground. If, after the event, you are going to interfere with trusts of this kind, I think it is not unreasonable to say that you ought to get the leave of an impartial, judicially-minded authority. It is suggested that it would be a great expense. I stand 1336 subject to correction by those fortunate persons who used to be Chancery K.C's.—I was never one—but I should have thought that in a great many cases the expense is very small. It is a simple application, supported by affidavits, not, as a rule at any rate, requiring the calling of witnesses, and it has been done in proper cases again and again. Moreover, I think I am right in saying that if the trustee of the settlement thinks it a proper application for a married woman to make, there are cases in which the trustee himself will come forward to assist. According to the ordinary practice of the law—I stand subject to correction by those who know so much more about it than I do—if the trustee makes a reasonable application, and it is granted, the costs, whatever they are, usually come out of the estate.
But there is a further consideration. We are not dealing here with an arrangement which is entered into habitually by people of all sorts and kinds. We are here dealing with marriage settlements. Though there are a great many of them—I suppose 10,000 or more—still they are settlements that are entered into by people who have some money, who consult solicitors, who appoint trustees and all the rest of it. So by my Amendment I am not proposing any burden upon the ordinary man and woman, who possibly never dream of such a thing; indeed, there are some of us in this House, if our secrets were told, who would have to tell your Lordships that we had no marriage settlements—we had no money I am talking of the people who have money and who feel they live in circumstances where it is reasonable to take advice, to draw up the document and to impose this limitation.
A third view—and I know this is the view taken by some distinguished friends of mine, and they may urge it to-day—is that this particular system is much less used than it was; it was falling off before 1935. I believe they are quite right. I suppose that was one of the reasons why the Committee to which the noble Lord, Lord Schuster, belonged recommended that in future it should be stopped altogether. But what has that to do with the question of whether it is right to strike this out in cases in which it already 1337 exists, and where there was every justification for putting it in? The plea:To do a great right, do a little wrong,is not supposed to have been very effective since the time of the Merchant of Venice. But let us say: "For doing good in 50 per cent. of the cases, do wrong in the other 50 per cent." Is it any better? If there is an alternative remedy by enlarging the power of the court in proper cases, I respectfully submit that `mine is the proper way.
There is one other matter to which I must refer. I hope I have made it plain that what I propose is proposed with no intention on earth of resisting the reasonable claims dealt with in the Mountbatten Bill. So far as I know, they were completely reasonable, and the fact that a Committee of this House so reported confirms that view. But I believe some people are under the impression that the Mountbatten Bill was withdrawn more or less on a gentleman's understanding that a Bill in the form of the Bill now before your Lordships would be introduced and carried. Even if that were so, it would not relieve your Lordships of your duty. But it is not so. I have asked to be provided with the terms of the Motion tabled in the House of Commons as a result of which the Mountbatten Bill was withdrawn. These are the terms:On Second Reading of the Mountbatten Estate Bill [Lords] to move, That this House"—that is the House of Commons—declines to give a Second Reading to a Personal Bill promoted to secure an amendment of the law which, if justifiable, should be made by Public Act for the benefit of all whom it may concern.The important words are "if justifiable." That is the whole question. What is the just way of doing this? In my respectful submission, the right way to do it is by the method I have endeavoured to suggest. I very much regret that I should have come into collision—almost a head-on collision—with the Lord Chancellor on Second Reading, and I hope he will forgive me. I trust that I have made plain to your Lordships this afternoon that I am concerned merely with trying to get in a General Act of Parliament the sort of provision which is right. There is no doubt whatever that we should never have heard of this Bill had it not been for the Mountbatten Bill. I think it was quite reasonable to seek a 1338 way out of this difficulty if the Personal Bill failed. But I submit, with great respect, that the method proposed in this Bill is not the right way to do it. I am glad to know that I am not alone in this, because on Second Reading (the noble Marquess, Lord Salisbury, could not be here then; perhaps he will say something to-day) my noble friend Lord Swinton expressed what I think is the commonsense view. He said:I am not saying there is act a case for relieving married women in instances in which it is justified and where it is right and reasonable to overrule the declared wishes of the testator. But that is a pretty strong thing to do. After all, if we once get into the habit of general legislation, and of feeling that we can undo all that has been done and settled in the past, we are creating a rather dangerous precedent. The Lord Chancellor admitted that that is true.Your Lordships will judge, and I shall take the result with complete composure. I have only done my best to call the attention of the Committee to what I think is a very serious question. When your Lordships have heard the full argument, you will decide. I beg to move.
Leave out Clause I and insert the said new clause.—(Viscount Simon.)
§ LORD SIMONDS
My Lords, it is seldom that I have felt impelled to intervene in your Lordships' debates. I do so rather unwillingly on this occasion, for this reason. I rise for the first time to challenge the view of my noble and learned friend who has moved this Amendment, and to oppose it as vigorously as I may. I do it unwillingly, for I cannot but remember the encouragement I had from him when I first entered and anxiously addressed this House. Nor, indeed, can I forget that my noble and learned friend was already an acknowledged master of the law when I as yet lisped it in uncertain phrase—some of my candid friends may say that I do that still. But, at any rate, I have the consolation that the opening words of the speech of my noble and learned friend indicated that, at least, we have the same aim—namely, to remove a disability which in many cases is a source of injustice and sore distress. I think the only difference between us is that I would apply a more drastic surgery, and he a palliative; I by giving my whole hearted support to the Bi1l before the Committee, and he by an Amendment which, in effect, substitutes a 1339 new Bill for the existing Bill, and which I humbly think and fear may prove a disservice to those whom he would serve.
As my noble and learned friend said, this is really a question of what is to be done to meet a situation which demands that something should be done. Which of two remedies will the Committee adopt? I suppose the Committee, like any good doctor, when considering what are the remedies will look at the disease. What does the Bill propose to do? It proposes to remove a strange anomaly. It is called the restraint upon a married woman's anticipation during coverture. Your Lordships see how, from long familiarity, those words trip lightly off my tongue! But indeed it would not surprise me if many a man in the street—and, indeed, some of your Lordships, from conversations that I have had—were to ask me: What is this strange creature of which you are speaking? And it is a strange creature. It is an anomaly in our law, owing its existence to the conditions of a previous age and, in particular, to the status of women in a state of society which we do not now know.
Let there be no doubt about this, because my noble and learned friend has talked as if this bore some relation to a protective and discretionary trust which is imposed for the benefit of a beneficiary. It is nothing of the kind. Your Lordships will forgive me if I appear to lecture, but this is, after all, a rather technical subject in which I have spent my days. It is a cardinal feature of our law that a man may do what he will with his own, subject, of course, to the rule of law and of ethics alike that he must not so use his own as to injure another. But, subject to that, a man may do what he likes with his property, be it horse, dog, house, stocks or shares, and whatever his interest in it may be. If he has an absolute interest he may dispose of it; if he has a limited interest he may dispose of it or deal with it how he will. But upon a married woman this strange restraint was imposed, a doctrine and a device invented towards the end of the eighteenth century. Again, your Lordships can be in no doubt about this, that it was invented for one single purpose—namely, to mitigate the rigour of the Common Law, and to make sure that a husband should not use his influence or coercion in order to compel 1340 his wife to make her property his or to use it as he should direct. It was invented for that and for no other purpose whatever. That that is so appears plainly from this case. Suppose that a man settled his property, or part of his property, upon his daughter, then unmarried, but with the common provision that during coverture she should be restrained from anticipation. So long as she was a spinster she could do what she would with it. If she married but was later divorced, or divorced her husband, she could do what she would with it. But if she married again, the restraint, like a jack-in-the-box, would be imposed again. But if she became a widow the restraint would be gone.
It is therefore abundantly clear—and if I may respectfully say so the matter really does not bear any argument—that it was not in order to avoid this supposed influence of a husband that the restraint was imposed. It is inconceivable to me—and I could not understand my noble and learned friend when he suggested it—that a father, considering that his daughter needed protection, would attempt to provide that protection in this way. He would adopt one of the familiar ways of providing protection—namely, by a discretionary trust.
§ VISCOUNT SIMON
If I said "for the purpose of protecting his daughter" in this connection—although I do not think I did—I am glad to be corrected. But I must be allowed to say that, whatever may have been the origin of this, it is quite certain that a great many fathers in the last thirty or forty years have made a provision in this form on advice, because they wanted to make sure that their girl who was going to be married should, during the whole of her married life, have a regular income. The proposal now being made destroys that provision.
§ LORD SIMONDS
I was coming to that. I have reached the stage in my argument that in its origin this restraint was due to nothing else than the desire to mitigate the rigour of the Common Law in this respect. As your Lordships know, the Common Law was pretty harsh to married women, and it was for that and no other reason that the restraint was imposed. Is it necessary, in 1949, to say that that is regarded as an utterly outmoded manner of providing for the protection of a married woman? Surely it 1341 is not, because the Act of Parliament of 1935 has, by its terms, made it absolutely clear that it is so regarded. Therefore, from 1936 onwards, this restraint upon anticipation cannot be imposed. Why cannot it be imposed? Because it is thought to be wholly out of keeping with the ideas of the middle of the twentieth century. If so, something has to be done, as my noble and learned friend has so dramatically said. The question is: What is to be done? I understand that the first objection, with which I sympathise, is that in some measure this may be described as retrospective legislation—in the sense, and in this sense only, that it will in a certain respect upset a disposition previously made.
If the noble Marquess who leads the Opposition will forgive my referring in the most general way to what has passed between us in private, I know that that is a consideration of principle which weighs with him. But I would assure the noble Marquess that I am no more a revolutionary than he is. I am not an iconoclast in the temple of the law, and I would do myself no greater honour than to associate myself with him in saying that neither of us is in the least like a revolutionary. Having said that, I am not to be deterred from endeavouring to find the best remedy for what I conceive to be to-day, in present conditions, a real injustice.
Now this question of the principle of retrospective legislation demands, I think, a moment's consideration of the history of the matter. As your Lordships have been told, this doctrine was born towards the end of the eighteenth century; and by the third part of the nineteenth century it had become such common form that, irrespective of the character and propensities of the lady, restraint upon anticipation was always imposed upon her interest. Whether it was done by a testator's will, providing for a number of his daughters simultaneously and settling their shares, or whether by marriage settlement, it was absolutely common form; and it formed a precedent. The status of married women generally was receiving some consideration by that time, and I think my noble and learned friend, who sat at the feet of John Morley (it is strange to find in him a champion of restraint upon married women's interests !) will remember that this trend towards equalisation of the status of 1342 women began to find its way towards the latter part of the nineteenth century; and in fact it was felt, in regard to the matter which your Lordships now have under consideration, that a restraint that was meant to protect remained to injure.
Accordingly, in 1881 a breach was made in this principle, for by the Conveyancing Act of 1881 married women were enabled to apply to the court, and the court could, if it thought fit and that it was to her benefit, "lift," as it is sometimes called, or remove the restraint upon anticipation. Now, here was a breach. Here was a settlor, a father who, anxious to provide for his daughter, was determined that whatever befell she should get until the end of her life the whole income from her fortune. Yet she could go to the court, and for the will of the testator the court substituted the judgment—
§ LORD SIMONDS
Of course, I have said it was a particular case and for her benefit. There is something rather Olympian about the court. But, whatever happens, you have substituted for the will and the resolution of the testator the will and resolution of an old gentleman sitting in the Strand—that and nothing else. The testator would say, in effect, "This is my will my money, my daughter; and I want her to have this interest up to the end of her life." But the court could upset the settlor's intention, which would be defeated. There is a particular case of retrospective legislation. That could apply to any settlement that is in existence.
Observe again, my Lords: suppose you vote for this Amendment, what happens to a senior who has settled his property, the settlement being made after 1881, upon the footing that the daughter or whoever it may be will be restrained from anticipation—knowing nevertheless, we will assume (though truly it is a fantastic admission) that an application may be made to the court to remove restraint and that if the court thinks it for her benefit it will remove the restraint? That disposition was made in the belief that the daughter would benefit, and it is upset because the court thinks it to remove the restraint for her benefit in the sense that it is for the benefit of a collateral. Once 1343 more, the settlement is upset. Surely this principle is getting a little frayed at the edges already. This, surely, is not a case where you need fear that as an instance of restrospective legislation it will let loose the floodgates upon established rights.
I fear I have taken up too much of your Lordships' time, but in considering the two remedies I have, I am afraid, dealt only with the remedy which the Bill itself proposes and have paid little attention to the remedy proposed by the Amendment. I may have been somewhat out of order in that respect. But now I want to consider the remedy and to face the realities of the situation—forgive me if I put it in that way. I have been, as my noble and learned friend has not, through many years face to face with this sort of case, and therefore, though my judgment, Heaven knows, may be wrong, I speak out of practical experience. I want to take a normal case of a lady who is in distress through no fault of her own. I do not fix my eyes on great fortunes and special circumstances, such as were present in the Mountbatten case. That clearly, upon its own merits, was a Bill that deserved to become an Act; and it was a strange thing to me that some spirit of egalitarianism found an unaccustomed resting place in the breasts of those who opposed it—apparently on the ground that all married women should be treated alike. That is not the sort of case that I have in mind.
I have in mind the case of a married woman who has a small settled fortune, let us say a sum of £10,000, bringing in, being invested in trustee securities, say some £300 a year, subject to tax. She has a husband who earns a modest salary, and she has a family. Upon her descends one of the many misfortunes that befall mankind: illness, or her husband being out of a job, or something of that kind. Or she may desire to provide a better education for her children, or perhaps to get one of them out of trouble, or whatever it may be, and she wants to raise a modest sum of, say, £500 or £1,000. But she cannot do it, and she is in distress. Now what does this Amendment tell her to do? It says, "Go to the court." But, my Lords, going to the court is not like going to the Post Office and buying a stamp. Going to the court means going to a tribunal which exercises a dis- 1344 cretionary jurisdiction, and it will want to be well assured on the facts before it exercises that discretion in favour of the applicant.
So this distressed lady will go to her solicitor; and her solicitor, I expect, will say "Well, this is not the sort of matter that comes the way of solicitors every day: I must take the opinion of counsel." They go to counsel versed in these matters, and they put before him all the facts. In the meantime, time passes and expenses mount for this distressed lady. And what is counsel going to say? If counsel gives advice as counsel, he will say, "This is not a matter of law; this is a matter of discretionary jurisdiction, and where it is a matter of discretionary jurisdiction it will depend upon the idiosyncrasies of the particular judge." No counsel will advise that you are certain to succeed. Particularly, he will tell you that you are not certain to succeed when he looks at the Amendment which the noble and learned Viscount has put forward. What then happens? She says: "May I perhaps succeed?" He says: "You have a fair chance of success." Then she asks, "And how much will it cost?" I do not know quite what the answer would be, but I feel sure that I am well within the margin if I say that he would be bound to reply:" It will cost you at least £50." Then she would say: "How can I find £50 when I am already in this distress? I cannot make the application." Therefore, in the normal case for which I speak, distress will mount upon distress and this Amendment would provide no remedy.
I am aware, as everybody must be aware, that there may be cases in which the settlor, testator or such person as the noble and learned Viscount in moving this Amendment has envisaged, solemnly sits down and says to himself: "My daughter needs protection. She does not need it when she is a spinster; she will need it when she is married. She will not need it if she is divorced, and she will not need it if she is a widow." It is suggested that he then says, "What I will do is to settle her property subject to restraint." I do not believe that there was ever such a man in this world. If he thought that his daughter needed protection, he would adopt the perfectly familiar practice of having what is called a "discretionary trust," which would put the funds in the 1345 hands of trustees and provide her with an income until such time as she might become, say, bankrupt, and then with trusts over to the benefit of the beneficiary's family. If any of your Lordships says that as a father he sat down and considered the matter in the former way and deliberately adopted that method of protecting his daughter, I should believe him, but I should regard him as a very strange father. In my long experience, I do not think. I ever came across such a case.
No, the remedy which the noble and learned Viscount suggests in his Amendment just will not work. If it will not work, what are you going to do? I suggest that now, in this Year of Grace, you should take your courage in both hands and abolish this outmoded relic of an ancient day. Will your Lordships not say that the dead hand of a testator shall no longer press down upon living necessity? Will your Lordships not allow a man and a woman who are married and have to meet their common problems together to plan their own lives and to deal as they think best with their own fortunes? You are not dealing with children; you are dealing with men and married women. Will your Lordships not allow them to plan their own lives? Will not your Lordships, at least those who sit on the Opposition Benches, listen to them when they say: "Surely the planners plan enough for us in our lives. Save us at least from the planners who plan for us from their graves." I feel I have detained your Lordships too long, but, with reference to what I read in the Second Reading debate, I think that if I have felt and spoken strongly, at least I have not spoken warmly. I hope that this Amendment will be rejected.
§ 5.34 p.m.
§ THE MARQUESS OF SALISBURY
My Lords, a layman with no legal knowledge who intervenes in a debate of this technical character, it will be agreed, shows courage of no mean order. I must confess I feel rather like Daniel entering the lion's den, after listening to a rather prolonged bout of roaring and gnashing of teeth. But I must say a few words with regard to the Amendment which has been moved by the noble and learned Viscount, Lord Simon. Stripped of its legal trimmings, what is the purpose for which 1346 this Bill is being introduced? As I understand it—I speak entirely as a layman—it is to deal with certain cases in which, say, a man has made a settlement on a woman—his daughter, grand-daughter or whomsoever it may be—in a period before the year 1935 (I think that is correct), being at the time of sound mind and probably having taken skilled legal advice, and has included in the settlement a particular provision to limit the power of this lady to control her capital during the period of her married life. I agree with the noble and learned Lord, Lord Simonds, that it is important to emphasise that point. A man may have done this, not to protect his daughter or granddaughter from the consequences of her own extravagance but to protect her from the danger that, she having married some young mail who might be either disreputable or merely extravagant, he might make away with her fortune; alternatively, the parent or grandparent may have done so for the reason which was mentioned by the noble and learned Viscount, Lord Simon" in order to provide her with an assured income for the remainder of her married life.
As I see it, the settlor may have been wise or unwise to adopt this special procedure of restrain upon anticipation. The noble and learned Lord, Lord Simonds, seemed to think him not only unwise but presumably almost mad to do such a thing. He said that it was inconceivable that a man should do such a thing now. I do not think it is at all inconceivable that a man should try to give a protection to his daughter against possible extravagances on the part of her husband. I have no daughter but, speaking as a father, I should have thought it quite a natural thing to do. If I may say so with all deference, I do not think it right for the noble and learned Lord or anybody else to say with such certainty what a settlor would have done in present circumstances, since the settor may have made this settlement fifteen or twenty years ago. The real fact remains that we are assuming quite deliberately in these cases that a sailor did use that method, and that he had a perfect right to do so at the time. As was said by the distinguished solicitor in the letter which was read out by the noble and learned Viscount Lord Simon, very likely the 1347 man would not have made that settlement at all without a provision of that kind.
It is no good talking about the dead hand. It is not a question of a dead hand. It is a question of a man who made a settlement, which he had a perfect right to make; he put in whatever provision he liked and he put in this particular provison, which he intended to be there. It is perfectly true that at a later date Parliament passed a law, as I understand it, making that particular clause inoperative in any future settlement, but it did not make that law retrospective. In view of what the noble and learned Lord, Lord Simonds, has said, that was presumably because Parliament felt at that time—and I think rightly felt—that it had no right to interfere with settlements already made, or to embark upon anything of that kind, which would be embarking upon a very slippery slope indeed. But, contrary to what was done by Parliament at that time, this Bill has the effect of removing all such protection as we have in mind, protection which was given after careful thought by the settlors.
As I understand it, the argument is that such a novel step is justified by the change in conditions which has occurred in this country since those settlements were made. Of course it is perfectly true—and all of us would recognise it—that there have been very great changes, due to increases of taxation and so on—unpleasant facts with which we are all too painfully familiar. But I cannot feel that that justifies Parliament in entirely removing a protection which the settlor himself so carefully and so intentionally provided. Yet that is what the Bill does. It does not replace this original protection by some other form of protection—by discretionary trust or whatever it may be; it simply washes out the protection altogether, and that, as I see it, is entirely contrary to what was intended by the man who settled the money. That seems to me to constitute a most dangerous precedent. Once Parliament approves the nullification of settlements legally arrived at for a definite purpose, I do not know where that process is going to stop.
I am not so confident about this as the noble Lord, Lord Simonds, was. I think that it is an extremely slippery road on which we are treading if we pass the Bill 1348 in this form. What is undoubtedly true, the times having changed in the way they have, is that there is good ground for arguing that the court to whom the appeal is made to deal with a settlement should have a greater discretion in revising its terms. I think everybody would agree with that. That would still protect a lady who benefits under a settlement against the danger which is anticipated by the settlor, but it would make allowances for unforeseen changes in our situation which the court might very properly wish to take into account. As I understand it, that is the purpose of this Amendment and I believe it to be the right and only way of dealing with this problem. The noble and learned Lord, Lord Simonds, said that it would be much too expensive, and that in the case of smaller fortunes a considerable proportion would be swallowed up by legal fees, and that therefore the intentions of a settlor would to some extent be defeated.
§ LORD SIMONDS
If I may just intervene, I said merely words to the effect that the expense would be a deterrent.
§ THE MARQUESS OF SALISBURY
Well, that it would be a deterrent. I do not know whether that is correct; the noble and learned Viscount, Lord Simon, might not entirely share that view. But I do not wish to come down on one side or the other—indeed, I am not in a position to do so. However, in any case, if it is true that the right thing cannot be done by reason of mere machinery and expense it is a dreadful commentary on legal procedure. I should have thought, if that were the case, the right remedy was to make the procedure less expensive, not to scrap the right method of dealing with it. It would be quite wrong for Parliament to reject the right solution, a solution which they knew to be right, and remove any protection for reasons such as that. Lord Simonds also said that he and Lord Simon had the same aim—they both want to use surgery, but, as I understood it, his surgery would be rather more drastic than Lord Simon's. If I may say so with all deference, I prefer Lord Simon's surgery to that of Lord Simonds, because Lord Simon proposes merely to remove the appendix when a patient is complaining of discomfort, whereas Lord Simonds seeks to remove every appendix, whether it is diseased or 1349 not I cannot help feeling, whatever be the noble and learned Lord's protestations, that that is rather a revolutionary procedure.
I am not here to give advice to the Committee; I think this is eminently a case where the Amendment should go to a free vote. It is, I think, an issue about which people should be competent individually to judge for themselves. Some may take a different view from others, but for the reasons which I have stated, and in spite of the very cogent arguments which have been produced by Lord Simonds, I think this Amendment is a right and proper way in which to deal with this very complicated problem. Feeling as I do, I shall have no option but to go into the Lobby in support of it.
§ 5.46 p.m.
§ VISCOUNT MAUGHAM
May I add a few words on this? I shall endeavour to be as brief as possible, first because I expressed my opinion when the matter was before the House on the last occasion, and secondly because my noble and learned friend Lord Simonds, has expressed very clearly a good many of the views which I myself would have been glad to put before the Committee. There is one thing I should like to say by way of supplement to his observations—namely, that I cannot agree with my noble and learned friend Lord Simon as to the reasons for the restraint. Ever since I went to the Bar I have heard reasons given for the invention, in the year 1786, I think, of the method of putting a restraint on anticipation. The reasons have always been that it was to protect the wife against the improper tyranny of her husband. Although I have not brought any references here to that statement, Lord Davy, the greatest equity lawyer for many years, expressed that opinion quite clearly in the case of Hood-Barrs v. Cathcart. It could be only to protect the wife against the husband because, after the marriage settlement or the settlement by will has come into operation, the daughter whom it is said the testator or settlor is trying to protect has the simple method of executing a deed removing the restraint before she goes to the wedding. She is entitled to do it by a deed if she so pleases, and because before the marriage the property is hers she can do what she likes with it.
§ VISCOUNT SIMON
May I ask for information? My noble and learned friend speaks with great authority, but am I wrong in saying that a marriage settlement which contains a restraint is made in prospect of the marriage and usually contains a clause that if the marriage does not take place the property is to go elsewhere? I certainly do not understand—although I shall be corrected by those who know more about this than I do—that in the ordinary marriage settlement made in contemplation of marriage, the lady can do what she likes with this lump sum until the moment that she goes to church.
§ VISCOUNT MAUGHAM
She can do what she likes until the moment of marriage, and if the settlement is executed before marriage—and in probably ninety-nine cases out of a hundred it is made three or four days before the marriage—she is perfectly entitled to remove the restraint on anticipation, because at that moment she is not subject to the restraint. That my noble and learned friend will find if he cares to look into the cases.
So I start with the very strong opinion that the restraint has all along been imposed to protect the woman against her husband and his influence. That being so, I think it is fair enough to consider whether, in the circumstances that now exist, the restraint is or is not for her benefit. I am strongly of the opinion that if it can be shown that it is still for the interest of the great body of married women who were subject to restraint before the year 1936 that the restraint should remain, then this Bill is wrongly conceived, and the Amendments or some of them ought to be made. But for my part, having a long experience, I think that for the great body of married women who are concerned, it is in their interest that the restraint should be removed. Now it is asked: If it is for their benefit that it should be removed, why was it ever imposed?
The fact is that the position of married women since the end of the eighteenth century has been so greatly altered—and it is in the process of being altered now, as the years go by—that the arguments in favour of this restraint when it was invented and for many years after it continued to be in force, have now become almost worthless. The cases of which I am thinking are cases in which a married 1351 woman—I am considering only the interests of a woman during marriage—has found that the income which was settled upon her by her father or some other relation or friend is about half now what it was when the deed was executed. It is not only taxation which has brought that about. The cost of living has greatly increased, and it is very likely that in a number of cases the woman concerned can no longer exist on the footing of the income of the settled property; and it may be that her husband is unable to help her.
In those cases, as I know from practical experience, the common desire of the married woman is to be allowed to work. At present, the effect of the restraint upon anticipation is that she cannot work in the management of a small or large business or trade, because she does not possess the necessary capital to start and carry on until such time as her enterprise is on a proper footing. In such a case, while the restraint exists, there is the greatest difficulty in doing anything of the sort, and the Committee which sat under the chairmanship, I believe, of my noble and learned friend Lord Wright, observed in somewhat caustic language that it was rather improper, or that it approached impropriety, for a married woman whose whole property was restrained from anticipation to start in trade. That is the sort of argument that has impressed me very much, and I venture to think that, on the whole, this measure is for the benefit of the general body of married women.
I wish to say just a few words on the subject of the Amendments. We have not had very much opportunity for discussing them. Subsection (2) of the proposed new clause reads:The Court may treat as being, for her benefit what it is satisfied would be for the benefit of a husband, child or collateral relation of a married woman whom she desires to assist.That is, to my mind, something exceedingly new, because the ordinary case where restraint is removed is a case in which the children are not any worse off than before. The restraint is removed so that the married woman can borrow money from an insurance company or some institution of that sort, and the insurance company is given a right against her income for a certain number of years and, of course, there is a policy of insurance against her death. That entails 1352 further economy by the married woman for a certain number of years—for seven years or ten years, it may be—but it does not do any harm to her children; they remain in absolutely the same position as regards their benefits under the will or settlement.
I do not know whether members here or in the other place will think it right that collateral relations should be given such a benefit, if the court considers the matter as being for the woman's benefit in the sense that it is satisfied that it would be for the benefit of collateral relations. I do not know how that is to be dealt with by the judge. There were a number of these cases when I was sitting in Chambers and had to deal with them. According to the Court of Appeal, discretion had to be exercised on the narrowest grounds and with the greatest care. Bearing in mind that injunction from the Court of Appeal, I doubt very much whether a court of first instance would be willing to exercise its discretion under subsection (2) as proposed.
Still less do I see how a court is to deal with the fourth subsection proposed. This reads:The power of the Court shall extend to removing a restraint altogether, if it thinks fit, as well as to binding her interest for the purposes of a particular transaction or transactions.On what grounds is the judge to exercise discretion of that sort? There are now, I think, five judges of the Chancery Division. There were six in my time. These judges sit separately and the discretion is to be exercised in Chambers. I cannot see that there is any likelihood of a general rule being laid down which would bind the various judges. The result, I think, would be that some of the judges would think that restraint upon anticipation should always be removed. They have not to consider whether it is for the benefit of the wife or not; they have to consider what they think fit. Some of the judges, on the other hand, would, I assume, take another view, rather like the view of my noble and learned friend, Lord Simon, and refuse to exercise their discretion.
§ VISCOUNT SIMON
May I be forgiven for asking my noble friend if he has before him the existing provision? This is merely proposed to be added to the existing provision. The existing provision requires that before a court exer- 1353 cises its discretion in the lady's favour, it should appear to be for her benefit. It follows, therefore, that the proposed subsection (4) is to be decided by reference to that consideration and is not to be treated as though it were not part of the existing section.
§ VISCOUNT MAUGHAM
My noble and learned friend is quite right. I had for the moment forgotten that there were these preliminary words which do not appear in the Amendment. But it does not greatly alter my argument. Some judges will think it is for the benefit of every married woman that the restraint should be removed, others will take the view that it is seldom or never for her benefit. Speaking from a large experience, I do not know of a single case where so wide a discretion has been given to the court in cases where the discretion is exercised in Chambers and generally does not come to the knowledge of the public at all.
These are my honest feelings as to the Amendment. I think that it is exceedingly ill-judged and would put the courts into a very great difficulty. I have always admitted that there is something to be said for the other side. There is some weight in the argument that this measure is of a retrospective character—all that I do not shirk at all—but I answer all those arguments by saying that, from my experience, which goes back far longer than I could wish, I think the measure before us without the Amendment is, on the whole, in the interests of married women. That is a sufficient reason for making retrospective this provision, which has been in existence for twelve years, and has not been proved to have resulted in any grievances whatever and has been accepted by the profession as reasonable. On these grounds, I support the Bill and object to the Amendment.
§ 6.1 p.m.
§ THE LORD CHANCELLOR
I can reply to this debate, I hope, briefly. I have known the noble and learned Viscount, Lord Simon, in many rôles and he has played them all with charm and distinction; but I must confess that if I had been asked to select an unlikely man to take the line he did, I should have chosen the noble and learned Viscount himself—and I mean to pay him a compliment. It seems to me that he is adopt- 1354 ing an attitude which has no relation to the facts of the day.
On the last occasion the noble Viscount, Lord Swinton, asked how it came about that this Bill was introduced; they had heard nothing about it in the Government programme. The explanation was quite simple. A Private Bill was introduced and following our practice was referred to the Personal Bills Committee. The Personal Bills Committee is the successor of what used to be the Estates Bills Committee, which had been functioning for hundreds of years. I have looked up the records so far as I can, and I am confident that I am right in saying that for the last hundred years the House of Commons have never questioned anything which that Committee have done. I believe I should be right in saying that is true for the last 200 years; indeed, the actual illustrations I found of the House of Commons querying what that Committee did are dated in Queen Elizabeth's time. The Personal Bills Committee is in a quasi-judicial position. Just as this House in its other capacity pronounces what the law is, so that Committee is a quasi-judicial body which deals with Bills on that footing.
It was greatly to my surprise, as one who values tradition, to find that when the Mountbatten Estate Bill came before another place, it was proposed by a number of Members, for whom I have respect and regard, by a notice of Motion in terms which the noble and learned Viscount read out, that:This House declines to give a Second Reading to a Personal Bill produced to secure an amendment of the law which, if justifiable, should be made by Public Act.As to its justifiability—if there is such a word—that was proved conclusively by the fact that this judicial Committee had pronounced on it, and never before had there been any question of an action of that Committee. It was in those circumstances, finding that this Bill which had been passed by our Committee was objected to in another place, that I took such soundings as are usually taken on these occasions. I am not making any complaint, because in taking informal soundings, one can obtain only the best advice that the person sounded is able to give. I thought the best thing to do was to introduce this Public Bill. I had neither lot nor part in the fact that the 1355 Mountbatten Bill was withdrawn, because it was withdrawn on the terms of the notice of Motion. That is how the present Bill came along.
Let me consider the rights and wrongs of the position. I do not want to give a lecture on the law—I am afraid I did that on the previous occasion—but I should like to point out how fundamentally different this doctrine is from the doctrine of trusts. It has nothing whatever to do with trusts. Taking the illustration of discretionary trusts, the beneficiary is not the owner, the trustees are. The odd feature of restraint upon anticipation is that the woman is the absolute owner of the property. If one tried to say at one and the same time that a man was to be the owner of that property and to be restrained on what he was doing with his own property, one could not do it. It would be repugnant, This is how Lord Aylwin explains Lord Thurlow's reasoning:Reasoning thus, making her the owner of it and enabling her as a married woman to alienate it, might limit her power over it, but the case of a disposition to a man who, if he has the property, has the power of alienating it is quite different.Therefore, the first principle to make out is that this doctrine applies to a woman because she is a woman, and that it could not apply to a man. Secondly, that it applies to a woman only during the period of her coverture.
I agree with what the noble and learned Lord, Lord Simonds, says, that if a father were really apprehensive about his girl, believing she was wild and flighty, he would not impose restraint, which would operate only during her married life; he would subject her to a discretionary trust. If on the previous occasion I became a little heated, and I am afraid I did, I hereby make my apology in the fullest manner I can. The noble and learned Viscount was enunciating some doctrine such as this. For boys there is the discretionary trust; for girls there is restraint upon anticipation. If we remove this for girls and do nothing for the boys, then we are being unfair to the boys—another injustice to the men! Putting it shortly, I think that was the burden of his song. But the truth of the matter is that a discretionary trust applies equally to boys 1356 and girls, and has absolutely nothing to do with the doctrine of restraint upon anticipation which, in my belief, is now entirely out of date.
Your Lordships will remember what the Committee which considered this matter in 1935 said:We have come to these conclusions; (a) that however useful it"—that is, the doctrine of restraint—may have been over a century ago when it was invented and received the approval of the Court of Chancery, its continuance is no longer consistent with the present position of married women to whom alone it applies.It is not consistent with the position of married women.
§ THE LORD CHANCELLOR
Its continuance is no longer consistent with the position of married women. It is true that 1935 was only fourteen years ago, but therein I think lies the fallacy. During these fourteen years we have lived through a period during which change has gone on at a pace which makes it seem not fourteen years, but a hundred. If it were true in 1935, that the continuance of this doctrine was no longer consistent with the position of married women, how much more true is that today?
I claim not to be an iconoclast about the law. I claim to be one who wants to uphold the tradition and pillars of the law. I say, frankly, that I do not believe you render a service to the law by trying to uphold an anachronism. I claim that the policy which I am asking your Lordships to accept—namely, to put an end to this restraint by Statute straight away—is much more likely to be carrying out the wishes of testators than the policy which the noble and learned Viscount is advocating. It must have been imposed before 1935, because there could he none after that. If testators could have seen the conditions of to-day, I venture to think that in the vast majority of cases they would have said: "Had I realised what was going to happen, could I have foreseen the state of affairs in the Year of Grace 1949, I would never have dreamed of imposing a restraint." I claim, therefore, that I am carrying out the wishes of testators. But the noble and learned Viscount, who holds up his hands in horror at my 1357 alleged offence of interference with these wills and testaments and so on, is himself doing it by his Amendment. I do not think his Amendment is a very happy one. I feel there was a sufficient amount of obscurity and uncertainty in the law before, and I am bound to say that I think this Amendment would increase the obscurity. It seems to me that if this Amendment were accepted we should have a great deal of uncertainty about the position. It is easy to say that the law ought to be cheaper, and that sort of thing—I am appointing a Committee to try to make it cheaper—but there is no doubt that this method of applying to the court would cost a substantial amount of money, which in many cases can be ill-afforded.
I am not here to protect the rich people. I concede at once that the fact that a man has rendered distinguished service to his country is no earthly reason why he should be treated in these matters differently from anyone else; nor why his wife should be treated differently. But I would ask this question: If it be right to pass the Mountbatten Estate Bill—do not forget that it was passed by this judicial committee, and by this House—what Bill of that nature are you going to refuse to sanction? That will be a precedent. Is it really to be said that everybody can now introduce a Bill, and the Bill will go through easily—although at great expense—but that we must not have one General Bill to achieve what we can certainly achieve by a number of Bills? That is the position, and I must say that it seems to me wholly lamentable. I ask your Lordships to say that it is about time this antiquated document was done away with; and that, in the circumstances of to-day, it is defeating and not carrying out the wishes of testators. I very much hope your Lordships will not insist upon carrying this Amendment in the form in which it has been moved.
§ 6.16 p.m.
§ VISCOUNT SIMON
We have had an interesting and lively debate, and I do not think it is necessary for me to say more than a few words now. I would like to assure the Lord Chancellor that I have listened with great care to what he has said, as I have also listened to what was said by my noble and learned friend Lord Simonds. But now we under 1358 stand the matter, the issue is this, and nothing more: there are some cases in which it would be right to give relief from the restraint on anticipation, and there are other cases in which it would not be right. Then which of two courses shall we pursue? Shall we do what this Bill proposes, and strike this clause out of every past document, whether it is justified or not? Or shall we make an improvement in the law which will enable the relief to be given in the cases in which it ought to be given? That is the whole issue.
What I have proposed, substantially, is not in the least contrary to the view taken in the Mountbatten Estate Bill. This would be the means by which that relief would be given—and, so far as I can see, ought to be given. I am quite confident, with all respect to those who have spoken the other way, that there are other cases in which it ought not to be given. Are we then going to strike it out in a hundred cases, when only a portion of those are cases in which it ought to be struck out? That is the whole issue. That being so, I am sorry, but I cannot see my way to withdraw the Amendment. My noble and learned friend the Lord Chancellor has given the fairest possible account of the origin of this business. I accept any correction as to my law, equity or anything else that anybody likes to administer. But I have the impression that in these matters we want a decision which is consistent with justice to everybody. It is justice in a great many cases to give this relief, and in other cases it is not justice. Therefore, we ought to discriminate. In conclusion, I would point out only that in 1935, when the Committee reported on this matter, and used the language which my noble and learned friend has just quoted, what they said was that the continuance of this particular restraint—which I agree is open to many criticisms—was no longer justified. What happened? They recommended that it should be declared in future not to be effective. Parliament accepted their recommendation, and passed an Act which said that in future it would not be effective. But as recently as 1935, so far as I can see without any dispute from anybody, they went on to say, what I would expect them to say: "Though we are altering this for the future, we are not attempting to tamper 1359 with contracts of the past." That is the issue, and I am afraid that I must ask your Lordships to divide.
§ Resolved in the affirmative and Amendment disagreed to accordingly.
§ Clause 1 agreed to.
§ Remaining Clause agreed to.
§ First Schedule agreed to.
§ Second Schedule [Enactments Repealed]:
§ THE LORD CHANCELLOR
This is a drafting Amendment. I beg to move—Page 4, line 9, leave out ("'from anticipation or'") and insert ("'is restrained from anticipation or from alienation' and the word 'or' where it occurs for the third time.")—(The Lord Chancellor.)
§ Second Schedule, as amended, agreed to.