Lords Sitting of 30 June 1958

Preamble
The House met at four of the clock, The LORD CHANCELLOR On the Woolsack.
Prayers

THE LEBANON
4.5 p.m.
VISCOUNT STANSGATE: My Lords, I beg to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether, since the Lebanese question is presently before the United Nations, independent national action can be justified; and what is meant by the words used on May 19 by Her Majesty's Government "the established rules of International Law"; and, further, whether Her Majesty's Government have considered the proposal to extend the Lebanese President's term of office.]
THE SECRETARY OF STATE FOR COMMONWEALTH RELATIONS (THE EARL OF HOME): My Lords, the Lebanese President's term of office is a matter for the Lebanon. It is true that the Security Council have passed a resolution authorising the urgent despatch of an observation group to proceed to the Lebanon, so as to ensure that there is no illegal infiltration of personnel or supply of arms or other material across the Lebanese border, and some observers are now in position. It is Her Majesty's Government's policy to do everything within their power to see that effective Action is taken to implement this resolution.
Her Majesty's Government have stated that they will not intervene contrary to the Charter or the established rules of International Law. Exactly what rules would be applicable would depend on the circumstances, and I cannot answer in detail questions on hypothetical situations. Therefore, I would ask the noble Viscount to be satisfied with this reply. I repeat that this matter now rests with the United Nations, and the Government believe that all efforts and attention
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should be concentrated on making the United Nations operation succeed in its declared purpose.
VISCOUNT STANSGATE: My Lords, I am very grateful for the noble Earl's reply. The pressure of public opinion has undoubtedly changed the policy of the parties in this matter, so I make no apology for putting down this Question. As to the first part of the Answer, it is true that the election of the Lebanese President is a matter for the Lebanon, and if the demand for a second term is the cause of the trouble, clearly outsiders have no right to interfere. That is the relevance of that part of the Question, and therefore I could have wished that the Government could have given your Lordships their opinion about it.
So far as the words "the established rules of International Law", are concerned, what I should like to know is, who judges these rules and whether they are established? If, having weighed all of the facts, through their observers, the Security Council give a decision which does not please Her Majesty's Government, can we be assured that Her Majesty's Government will not then bring into parade what they call the "established rules of International Law" and shatter the machinery of peace of the United Nations?
THE EARL OF HOME: My Lords, as I have said in my Answer, we have set ourselves certain standards, and we shall stick to them and judge the situation in the light of them as it arises. What the noble Viscount has asked me is a whole series of further hypothetical questions, and I am afraid that in the present situation I cannot go beyond the Answer that I have given him.
LORD HENDERSON: My Lords, may I ask the noble Earl whether Her Majesty's Government in Canada have made any representations to Her Majesty's Government here concerning the declaration of policy made by the Foreign Secretary in another place as regards Article 51 and the established rules of International Law?
THE EARL OF HOME: My Lords, I should need notice of that question. Of course, we are constantly in touch with all Commonwealth Governments on this matter and on all matters concerning our

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policy in the Middle East. As to specific communications between Governments, it is not our usual practice to disclose them. I should need notice if the noble Lord has any specific question in mind.
VISCOUNT STANSGATE: My Lords, it is very convenient that the noble Earl is Secretary of State for Commonwealth Relations. Did he consult Dr. Nkrumah, who was lately in Cairo, as to what he thought about such an expedition?
THE EARL OF HOME: My Lords, I am in close touch with Dr. Nkrumah, as I am with all the Prime Ministers and Ministers in the Commonwealth Governments, but it is not the practice to disclose the intimate conversations and consultations which we have with them, as they would lose a great real of their value if they were made public.
VISCOUNT ALEXANDER OF HILLSBOROUGH: My Lords, I am obliged to the noble Earl the Leader of the House for the Answer he has given. Is the noble Earl aware that the type of Question on the Order Paper to-day is educed from a good deal of fear and anxiety in the nation? On the other hand, is he aware that many of us are pleased with the announcement on the wireless last night about the measure of agreement between the Prime Minister and the leader in France in refraining from any special entry into the Lebanon?
THE EARL OF HOME: My Lords, I am obliged to the noble Viscount. Naturally people are anxious about this question; it gives us all a great deal of anxiety. I think the great thing is that all nations who support the United Nations in their determination to maintain the independence of this country should try to make the United Nations operations a success and support the advice given by Mr. Harrimarskjoeld, the Secretary-General.
VISCOUNT STANSGATE: My Lords, my noble Leader made a statement which I had not heard until he told me. Is it the fact that the Government have issued a communiqué saying that, in harmony
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with the United States, they have abandoned any suggestion they might have made for another military intervention?
VISCOUNT ALEXANDER OF HILLSBOROUGH: My Lords, I think that here I ought to say that I merely remember what was said on the sound radio last evening, to the effect that General de Gaulle and our Prime Minister were in agreement that now was not the time for an expedition to enter the Lebanon.

COSTS OF LEASES BILL
Brought from the Commons; read 1a, and to be printed.
DISTRIBUTION OF INDUSTRY (INDUSTRIAL FINANCE) BILL
Brought from the Commons, endorsed with the certificate of the Speaker that the Bill is a Money Bill, within the meaning of the Parliament Act, 1911; read 1a., and to be printed.
BRITISH TRANSPORT COMMISSION ORDER CONFIRMATION (No. 2) BILL
Brought from the Commons; read la, and (pursuant to the Private Legislation Procedure (Scotland) Act, 1936), deemed to have been read 2a, and reported from the Committee.

NEW GOVERNMENT CHIEF WHIP
VISCOUNT ALEXANDER OF HILLSBOROUGH: My Lords, we did not greet with cheers the last two Motions, but may we offer our congratulations from the Opposition on the new appointment of the noble Earl, Lord St. Aldwyn? We look forward to pleasant, if sometimes controversial, relations.
LORD REA: My Lords, I should like to support the noble Viscount in his statement.

DOMICILE BILL
4.13 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.—(Lord Meston.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD TERR1NGTON in the Chair]
Clauses 1 to 4 agreed to.
Clause 5:
Domicile of married woman
5. The domicile of a married woman is that of her husband unless there is in force an order of a court by virtue of which she is not bound to cohabit with him.
LORD SILKIN LORD SILKIN moved to leave out all words after "woman" and to insert instead:
" shall be determined on the same grounds as if she were a feme sole."
The noble Lord said: I beg to move the Amendment standing in my name and that of other distinguished noble Lords. I should like to say at the outset that, although the majority of noble Lords whose name is down to this Amendment sit on this side of the Committee, this Amendment is in no sense a political one; I have not the slightest idea of what my noble friends think about it and they are entirely free, so far as I am concerned, to take whatever view they please. I hope therefore that noble Lords on all sides will feel themselves able to consider this Amendment on its merits.
THE LORD CHANCELLOR (VISCOUNT KILMUIR): Perhaps the noble Lord will allow me to interrupt. My noble and learned friend Lord Keith of Avonholm has an Amendment down which is not the same as this but is on the same subject matter. I do not know whether he would think it convenient that we should have a general discussion on the matter, and then he can make up his mind whether he wants to move his Amendment.
LORD KEITH or AVONHOLM: I think that would be a convenient course. I intended to speak on the Amendment that is being moved by the noble Lord, Lord Silkin, and, as I shall show later,
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to support it. My Amendment is something in the shape of a second line of defence.
LORD SILKIN: I am happy to hear that, and perhaps we might exchange views later as to which of the two Amendments we should press. Whichever it is, the purpose of the Amendment is perfectly simple: that in this Bill we should now provide that married women should be entitled to be treated as having a domicile as if they were single women; that is to say, that they should no longer be tied to the domicile of their husbands. On Second Reading this matter was fairly fully discussed and the case for this Amendment was put with great force by the noble and learned Lord, Lord Denning; and the fact that he has put forward the case in that way saves me from having to repeat it in detail. I should like to say, however, that it is based upon two points. The importance of domicile is, first, that it often governs the place where divorce or other matrimonial proceedings can be taken, which may be a matter of some importance to a wife: and secondly, that it involves questions of devolution of property—and it may make all the difference in the world as to whether the property devolves in accordance with British law or in accordance with the law of some other country in which the married woman may be deemed to be domiciled.
The noble and learned Lord. Lord Denning, quoted a number of extremely hard cases showing how married women have suffered as a result of the law of domicile both as related to matrimonial affairs and as related to the devolution of property; and I do not propose to repeat those. I base the case on the fact that this is one of the last of the sex disabilities from which women suffer at the present time; and I put forward this Amendment in the interests of justice and the removal of hardship. There is a good deal of support for this principle both from other countries and in our own country. We have recently had the report of the Royal Commission on Marriage and Divorce, and one of their unanimous recommendations was that the law should be altered to provide that a woman should have her own domicile. The Royal Commission were not, of course, in a position to deal with the question of property, which was outside their

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terms of reference; but so far as matrimonial proceedings are concerned, they were quite unanimous that the law should be altered in the terms of the Amendment that I am now moving. As the noble and learned Lord, Lord Denning, explained, it is the law in the United States of America, on the Continent of Europe and in New Zealand. So we are not venturing into unexplored territory.
The noble and learned Viscount the Lord Chancellor, in speaking on the Second Reading, invited further discussion on this point in Committee, without, of course, committing himself; and this Amendment now appears on the Marshalled List, not necessarily because he invited it (I can assure him that it would have appeared, in any case), but we are glad that he approves of this discussion. In the course of his remarks he drew attention to the Report of the (I think it was) Committee on Private International Law, which referred to the experience of the United States. It would appear that in their view the experience in the United States has given rise to many complications and difficulties, and that, for that reason, the Committee were not in favour of making the change. I do not know what these difficulties are—no doubt they will emerge in the course of the discussion—but in any case I do not think your Lordships' House ought to be deterred from remedying a wrong and putting right a grievance merely because there are difficulties of administration or procedure standing in the way. Whatever complications may arise, I think that somehow we have got to meet them.
After all, as many of your Lordships will know, complications and difficulties can arise even from the simplest of provisions. I think I am right in saying that one provision which has given rise to more legal decisions than any other is the simple expression, an accident "arising out of and in the course of employment." One would have thought that there should not be any difficulty about that. Nothing could be easier, and yet the amount of money that has been spent, and the amount of time taken up by the courts, in getting legal decisions has been colossal. Nevertheless, no one would suggest that that clause should have been deleted from the Workmen's Compensation Act. Whatever difficulties
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arose they had to be met. So I hope that the complexity of the matter will not be prayed in aid as a reason for not accepting this Amendment, or an Amendment similar to it. Nor can it be said that this is not the time, that this is not the place, and that this is not the Bill. This is a Domicile Bill. It deals with this very point, and if we do not get this Amendment now we may have to wait many many years before this wrong is put right. I doubt whether anybody can suggest that it is not a wrong and not an injustice.
Finally, I want to make this point. We have recently passed the Life Peers Act, and in due course, possibly, we may see Life Peeresses on the Benches. It would be a great pity if this last remaining sex disability were not put right before they came; otherwise we shall probably hear a good deal about it later on. I hope that we shall clear up our House before they come and introduce this simple Amendment into the Bill, thus removing any cause for grievance on the ground of sex disability which women may have. I beg to move.
Amendment moved—
Page 2. line 6. leave out from (" woman ") to end of line 8 and insert the said new words.— (Lord Silkin.)
4.24 p.m.
LORD PETHICK-LAWRENCE: I
should like to say a few words in support of this Amendment moved by my noble friend Lord Silkin. He said, quite rightly, that this is a matter of an injustice which ought to be removed. I should have thought that when it was decided that women should get back their right to have a separate nationality from their husbands it would have followed as a corollary that they also obtain separate domicile—though, of course, I would not suggest that the matters are entirely the same: they are subject to different considerations. Nevertheless, I should have thought that one would have been the corollary of the other. My noble friend also said that the present situation is a flagrant injustice. While this Amendment is supported by the women's societies, who have been pressing for a long time past for the removal of the present presumption at Common Law, I should like to make it perfectly clear that they do not do so merely with a desire to have equality for the sake of equality, or

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merely from any sense of pride or anything of that kind. It is because of the practical disadvantages of the present state of affairs.
Much has been said by my noble friend, and I am sure that many other points will be made by the noble and learned Lord, Lord Denning, who has put his name to this Amendment, but I should like to point out what the present law really involves. I should point out that we are not dealing here with the usual case. The usual case, of course, is that a man and his wife live in the same place and have the same domicile, so no such question arises. But we are dealing with those exceptional cases where the divergence does arise. I will put a typical case—it is not a question of unhappy marriages: this sort of case may perfectly well arise, and does arise, where the marriage is a perfectly happy one and there is no breach of confidence, love or friendship between the parties concerned.
An Englishwoman marries a man—it does not make any difference, for the purpose of this Bill, whether he is an Englishman or a foreigner—and lives happily with him in this country for several years, very likely bears children by him and sets up a home in this country where she resides with her children. It not infrequently happens that a man finds it necessary to go overseas. It may be by his choice or by the necessity of his business, and quite frequently he stays away a considerable part of every year and occasionally, at any rate, stays away for years on end. It may suit his purpose or his business, or whatever it is, that he acquires a domicile in another country. It may be in the British Commonwealth; it my be in another foreign country in Europe; it may be in South America, or some entirely different part of the world. That is by no means an uncommon thing, and, it does not at all imply that the marriage has broken down.
There comes a time when the husband has been away for some little time. He may not even be a good correspondent, and his wife may not know exactly where he is. There comes a time when, in all good faith, she makes a will, and the lawyers of this country prepare a will for her on the assumption that the law which will decide the working out of the
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testamentary dispositions will be English law. Unknown to the woman, her husband has acquired a domicile in some other part of the world, and when she dies the will is not interpreted according to English law. The people who have to deal with the will find out that at her death her husband was domiciled in this foreign land, and the will is interpreted according to the law of that foreign land.
That situation is really fantastic, because it does not enable the wishes of the woman to be carried out. It is very unfair to the beneficiaries and, as the noble and learned Lord, Lord Denning, pointed out during the Second Reading debate, it may work unfairly to possible petitioners under the will. I can see no reason for that absurdity. The simple fact is that the woman, as an Englishwoman, has retained her nationality. Her husband has gone away and been domiciled in a foreign country, and when it conies to her property she makes a normal English will which is construed, not in terms of English law but in terms of the law of the country where her husband resided and had a domicile. She may know very little about that country and may never have set foot in it in the whole of her life. I venture to think that that is an absurd position. As other speakers will be dealing with other aspects, I will confine myself to that one point, and beg your Lordships to carry this Amendment.
4.30 p.m.
LORD DENNING: I said my say on the Second Reading. The noble and learned Viscount, the Lord Chancellor said he was troubled by the United States' experience—the Private International Law Committee had said they were not encouraged to recommend this because of the experience in the United States—and he invited me to look into the matter. I have done so, and it seems to me that the Committee were under a complete misapprehension. The law of the United States as to the domicile of a married woman has from the very beginning, for over a hundred years, been that a married woman is capable of having a domicile separate from that of her husband. They started the law there to remedy the same injustice which occurs here and elsewhere, that if a woman is domiciled in one State, or a husband and wife are domiciled in one State and the husband goes off to a far distant State,

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there is no reason why she should have to follow him to his domicile in order to get a divorce. So they laid down that a wife could have her separate domicile. The Supreme Court affirmed that in 1869 and United States law affirms it to-day. Dean Griswold of the Harvard Law school, when speaking at our Australian Conference a few years ago, said that the rule was sound and right. Why has the Committee said the contrary? It is not because of any trouble with the married woman's domicile, but because some States., like Nevada, find domicile when they ought not to.
Let me give an illustration of the sort of case which has caused some of the divorce muddle in the United States. A man and woman live in North Carolina on the eastern seaboard, each being married to somebody else. Those two people cross the United States some thousands of miles to Nevada. They live in Nevada six weeks and they each bring divorce proceedings in Nevada. The man says his domicile is there and the woman says her domicile is there. They get divorced in Nevada, marry in Nevada, and then recross the United States to North Carolina. North Carolina says, "We do not like these Nevada divorces. We will prosecute them for bigamy ". Then it is claimed that the Constitution of the United States says that every State must give full faith and credit to the decisions of another State. North Carolina says. "We do not mind about that; we are going to prosecute for bigamy". That was upheld by the Supreme Court of the United States. So you had one State, Nevada, saying that these people were domiciled there, and the other State, North Carolina, saying that they were not domiciled in Nevada. It is the method in which one or two States in the United States find domicile which is the trouble.
May I remind your Lordships that sixty years ago your Lordships' House were concerned with a similar case, because the noble Earl of those days, Lord Russell, went across to Nevada, stayed there the requisite time and obtained his divorce there. He said he was domiciled there, and he married another woman there. Coming back here, he was indicted for bigamy, claimed to be tried by your Lordships' House and was tried here; 160 of your Lordships
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attended and tried him. He pleaded that bigamy outside this country cannot be tried here, but your Lordships overruled it. When that legal plea was disposed of he pleaded guilty and was sentenced to three months' imprisonment in the First Division.
The trouble is not a question of the married woman's domicile at all; the trouble is that the law of one or two States of the United States of America allow domicile to be found simply on six weeks' residence. If this Amendment is brought in and passed, there is no fear that there will be any such mischief here. Our courts would not recognise a domicile which was not fully and fairly found by a court having jurisdiction over it. So the reasoning behind the report of the Private International Law Cornmittee is unfounded. I may say on that point that I have made inquiries of experts on the other side of the Atlantic Ocean, not only Dean Griswold of Halyard but Dean Read of Canada, Dr. John Morris of Oxford and Professor R. H. Graveson of London. The weight of that authority is all one way: that the fears of the Private International Law Committee on this point are unfounded.
That being disposed of, what do we find? The present law as to a married woman's domicile is indefensible. The married woman, by our English law at the moment, takes her husband's domicile, no matter that they have lived separate and apart for twenty or thirty years, no matter that they are judicially separated. If he goes off to a far country, in point of law she has to follow him there to get a divorce. If she dies here after living here twenty years, her property descends according to the law of the far off country. Everybody recognises that it is indefensible. The Commission under my noble and learned friend, Lord Morton of Henryton, unanimously recommended that it should be changed for divorce. So far as the Private International Law Committee is concerned, they recommended that it should be changed so as to permit a married woman to have her separate domicile after a court order for separation. That does not meet the facts of the case. There ought to be a remedy now to put the law in line with law in the great majority of other countries and to do simple justice.
4.38 p.m.
LORD KEITH OF AVONHOLM: I am prepared to support the principle of this Amendment, but in case it might be thought to go too far I have put down another Amendment which is perhaps not quite so extreme. As I was not able to speak in your Lordships' House on the Second Reading of the Bill, may I say now that I think the clause, as proposed in the Bill, is much too limited in effect, and the Amendment now proposed is, I think, sound in principle.
Perhaps at the outset I may make just one criticism. This Bill, I understand, is a United Kingdom Bill: it will apply to Scotland as well as to England—in fact, it would be very unfortunate if it did not.Perhaps I might remind the noble and learned Lords who have spoken on this
Amendment that in Scotland Scottish lawyers do not speak Norman French, and I think that there would have to be some slight alteration made to indicate what exactly the effect of this Amendment is. I do not say that Scottish lawyers do not fully understand what it means in the context, though I am not sure whether, in English law, the expression " feme sole" has not perhaps wider repercussions than the Scottish conception might have in Scotland. That is not a matter on which I am able to express an opinion, but clearly I do not think feme sole will do for a United Kingdom Bill without some addition in an interpretation clause or otherwise.
The criticism of this Amendment, as I understand it, is that it suggests disunity in marriage. In a sense, that is true. But it is a clause which I think will work perfectly well. At present, the wife's domicile is supposed automatically to follow that of the husband. Under the present clause the result will be that the wife has the same domicile as her husband, not because her domicile will follow that of her husband but because she chooses to live with him. In the same way, I suppose, it may be said that the husband's domicile is where his wife lives if he chooses to live with her. Thereby you will, I think, establish the principle of the equality of the sexes.
There is one matter upon which I am not quite lear—namely, how this Amendment will fit in with the presumptions on Clause 3 of the Bill. I think there will be no difficulty with regard to subsection (1) of the clause, which reads:
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" Subject to the following provisions of this section, a person who has a home in a country is presumed to intend to live permanently in that country."
Therefore, a wife who is living with her husband, I suppose, may be assumed to have her home in that country, and her domicile will be in that country it this Amendment is passed. I am not quite so clear about subsection (2), which reads:
" If a person has a home in more than one country he is presumed, subject to the next following subsection, to intend to live permanently in that one of them with which he is most closely connected."
It may well be that a Scottish woman may marry an Englishman; she may have a house in Scotland and lie may have a house in England, and they may shuffle backwards and forwards in perfect amity, both living together in Scotland for part of the year and both living in England for the rest of the year. It may be difficult, I think, to say that this Amendment will not result in a different domicile being given to the husband and wife in that situation, because the wife may say, "My home is in Scotland", and the husband may say, "My home is in England." Under this clause the result will be different domiciles. Thereby it would introduce what I suppose would be regarded by some people as a disunity in marriage. It does not mean that they are not going to live perfectly amicably together, but they are certainly going to have a different domicile. I do not know that that is a very serious objection, although it may give rise to certain difficulties.
There is, perhaps, one point here—namely, that nothing is said in this Bill about domicile of origin. If, say, a Scotswoman who has married an Englishman is to be treated as a feme sole, she may say, "I wish to retain my domicile of origin." That would certainly result in a rather curious position. She may intend to live with her husband all her life and to die when in the husband's home. At the same time, she may say, "I was originally a Scotswoman and I wish to retain my domicile of origin; therefore I hope to die a domiciled Scotswoman." I do not know how the courts would look at that case, because then the situation might arise that arose in the case that was referred to on Second Reading—that of Ramsay v. The Liverpool Hospital. One of the suggested reasons why this particular Bill

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should be passed is to remedy such a situation. Unless something is done to solve that problem in the case of the wife who wishes to retain her domicile of origin, I think similar difficulties may arise.
I believe that the only way in which it could be made perfectly clear would be to introduce into the Bill something that will deal with domicile of origin in such a case, and to say that if the wife has taken up a home with her husband she must be presumed to have abandoned her domicile of origin. On the other hand, that would entirely meet the situation where she has a home in Scotland and he has a home in England and they both live together from time to time, sometimes in Scotland and sometimes in England. That is just one of the difficulties that might arise under this particular Amendment. I think that this change will have one most important result, because it will extend jurisdiction in divorce decrees. One of the results, I believe, will be to promote, greater recognition of divorce decrees among different countries—in other words, we shall be more likely to accord recognition to divorce decrees in any country where wives are allowed to acquire a separate domicile, and, simiarly, courts of other countries will, I think, be more inclined to grant recognition to decrees granted in this country to a wife who has acquired a separate domicile under this proposed Amendment.
On Second Reading references were made, as my noble and learned friend Lord Denning, has just reminded us, to the difficulties that have arisen, or are supposed to have arisen, in the United States. I entirely agree with his estimate of the position there. The difficulties there I think have nothing whatever to do with the right of the wife to acquire a separate domicile; they are due entirely to a misapplication of the law of domicile, and that misapplication can, and did, arise just as much in the case of the husband as in the case of the wife. It does not matter one whit in the United States, so far as I can see, whether the wife has a separate domicile or whether the husband has a domicile, as he is: entitled to have. The situation that arose in the United States in certain cases which have already been referred to was due entirely to what I see to have been a misapplication of the law of domicile
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I do not think that there is more that I need say. I am prepared to support this Amendment; but, as I have said, in case it might be thought that it goes too far I have put down an Amendment in my own name. I do not know that I need raise that Amendment at the moment. I can bring it forward if the Committee feel that the present Amendment goes too wide and too far.
4.49 p.m.
THE LORD CHANCELLOR: May I first say how grateful I am to everyone in the House who has tried so well to help with this difficult point? I said that I had a perfectly open mind on the matter, and undoubtedly the swing and play of debate have shown an overwhelming desire to make this Amendment. May I say at once to the noble Lord, Lord Silkin, that, following upon what my noble and learned friend Lord Keith of Avonholm, said about the drafting, I shall have something to say on that before I sit down? But, as in all our discussions, that is a minor matter compared with the question of principle. If the Committee will bear with me, I should like to sum up the position as I see it at the present time.
The Committee have heard the strong arguments adduced on Second Reading and during to-day's debate. In dealing with the arguments in favour of this change I should like to enlarge slightly on three points that have been mentioned. The first is the position of New Zealand, which I think the noble Lord, Lord Silkin, mentioned. In the provisional comments on the First Report of the Private International Law Committee sent by the Government of New Zealand on March 30, 1955, it was said:
" If any alteration of the existing law should be made, the New Zealand authorities incline towards the view that a married woman should be given the capacity to retain and acquire her own domicile in exactly the same way as an unmarried woman. This development would be an extension of a longstanding trend in New Zealand legislation of departing from the principle of unity of domicile. The present common law rule is considered to give rise to many injustices without compensating advantages."
Then (a point made by the noble Lord, Lord Silkin) the statement went on:
" New Zealand law concerning jurisdiction in divorce and matrimonial matters already has abandoned the principle of unity of domicile, although there are still exceptions and gaps."

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From Canada we have received the views of Dean Read of the University of Dalhousie, Halifax—which I understand are not necessarily the views of the Canadian Government. Dr. Read says this:
" From my rather extended observation of the operation of this branch of the law in the United States I have seen no more practical difficulties arising from their permitting a married woman to acquire a separate domicile, when the fact is that the married pair are no longer making their home together, than arise from the present English and Canadian rule that insists on the maintenance of legal unity of domicile in the absence of a common home in fact. The Committee is in error if it believes that the power of a married woman to acquire a separate domicile under Section 28 "
that is, of the American Restatement of Conflict of Laws—
" is a significant contributing factor to the so-called ' divorce muddle ' ".
It is important that I should state the third point in which there has been a great deal of interest. That is the view expressed by Dr. Morris, of which I have been furnished with a copy, in which he says that the American difficulties are due not to the rule of separate domicile but to conflicting decisions by States which the Supreme Court has to try to resolve. And I think it is important that those who are considering this matter should read the article by Dr. Morris in Volume 29 of the British Year Book of International Law (page 290), in which he sets out his position. I will not go through that article to-day, because my noble and learned friend Lord Denning has summarised it; but, as I indicated on Second Reading, this was a point which worried me, and his arguments appeared to be strong in attributing the divorce muddle in the United States to quite another reason.
Undoubtedly a very strong case has been developed, but I feel that one ought to note the position of the Royal Commission. No doubt my noble and learned friend Lord Keith of Avonholm will correct me if I state it wrongly. That is certainly not my intention. They consider this question in paragraph 796, and again in paragraphs 819 to 826 of their Report; and, on the basis that their recommendation that a wife living apart from her husband should be able to claim a separate domicile for the purpose of divorce proceedings would be imple
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mented—which I understand was the basis of their further remarks—they think that for other purposes a wife who has not obtained a separation order against her husband should retain her husband's domicile until the marriage had been finally dissolved. In paragraph 820 they adduce two arguments in support of this: first, that the organisation of separate permanent homes is inconsistent with the concept of the lifelong duty of the spouses to cohabit; and secondly, that in practice an element of uncertainty would be introduced into the legal relations of husband and wife by the competition 'of conflicting systems of law. The Commission said:
" Under the doctrine of unity of domicile a wife may suffer hardship since her husband may capriciously impose a new domicile on her and thus subject the marriage to a matrimonial law that is distasteful to her and at variance with her reasonable expectations. But to allow the wife to acquire a separate domicile would only add to the difficulties. The husband's rights would then become subject in certain respects to the law of his wife's new domicile. At the same time the husband would still be free to exercise rights against his wife based on the law of his domicile."
They concluded therefore that husband and wife should continue to share a common domicile.
I hope that I have put fairly the arguments each way and, if your Lordships will bear with me, they can be summarised as follows. In favour of the complete abandonment of the unity of the domicile there are these arguments. First, to retain the principle of unity at a time when foreign systems which take the law of domicile as the personal law are tending to make married women capable of acquiring a separate domicile would be unwise. The result might well be that our concept of domicile would differ from theirs increasingly. Secondly, it would be of some advantage that jurisdiction in all matrimonial suits should be able to be based on domicile and no longer on residence or on the place of celebration of the marriage. There is no danger that our Courts would tend to recognise Reno (Nevada) divorces more readily since the "domicile" which would have to be sufficient to ensure recognition of them would have to be domicile in our sense of the word.
Thirdly, those who support women's rights are likely to continue to resent this dependence of married women in this

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field, however little justification there may be in practice. Fourthly, it seems doubtful whether any real difficulties would arise, either in the sphere of matrimonial jurisdiction (we cannot tell if the number of "limping" marriages would be increased or diminished, but my own guess would be that instead of about twenty annually which come to light they would diminish to about ten) or in the sphere of property relationships; and the fears about disputes in succession being encouraged are conjectural only.
I have only stated the argument of the Commission the other way, and I would only point out to your Lordships that the solution proposed in Clause 5 of this Bill can be supported on three grounds. First, it has the merit of certainty and of ensuring that a married woman would be able to have a separate domicile only when it has been proved to the satisfaction of the Court that the marriage has broken down and when the relationship has been placed on a clear basis. Secondly, there is the danger that the complete abandonment of unity of domicile might encourage disputes about domicile in the field of succession when the propositus is dead. Thirdly, if the marriage is subsisting in a real sense there is no reason why a wife should have a separate domicile, and the Royal Commission point out that recognition of separate permanent homes is inconsistent with the concept of a lifelong union and the duty of spouses to cohabit.
With the greatest respect to my noble and learned friend Lord Keith of Avon-holm, who has not developed his own Amendment, I should say that it raises this difficulty. The words which he uses.
" the spouses are living separate and apart in circumstances from which it can reasonably be inferred that cohabitation between them is not likely to be resumed,"
go further than the present Bill and, where the marriage has broken down, are an attempt to recognise the realities of the situation more fully than does the present Bill. Against that, however, the Bill provides a simple test of the cessation of cohabitation, and my noble and learned friend's suggestion might involve the risk of litigation, involving an investigation of the spouses' matrimonial affairs, probably after the death of both or one of them. If the change is to be made, I myself would rather go the whole way
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than leave that difficult question of fact outstanding.
However, this is a Private Member's Bill, and I am sure that the noble Lord, Lord Meston, would agree with me that, when we have had such unity in debate on the side of the Amendment, he, As the sponsor of the Bill, and I, as representing Her Majesty's Government at this Dispatch Box, should be very hesitant not to accept the position. I do not think that that would be consistent with my duty to your Lordships' House. Therefore I feel that we ought to go further in this matter, and I now come to the point which has already been raised by my noble and learned friend Lord Keith of Avonholm—that is, as to the formalities of the Amendment.
May I say how the matter appears to me? I think it will probably be easier to achieve the result which Lord Silkin has in mind by leaving out Clause 5 altogether, with a consequential Amendment in Clause 2. Then I think we should have to consider the desirability of retaining subsection (3) of Clause 3 and subsection (2) (b) of Clause 4, because, if the unity of domicile of husband and wife is no longer to be preserved, the presumption contained in subsection (3) of Clause 3 ceases to be appropriate. I think that Lord Keith of Avonholm had that in mind. In addition, Clause 6 would need to be amended to make provision for the case in which two people domiciled in different countries are equally entitled to custody of the child. I do not know whether my noble and learned friend Lord Merriman has made a final consideration of this point; but I think he would agree with me that if a wife is to be able to acquire a separate domicile it will he necessary to consider whether any Amendment is desirable in Section 18, subsection (1), paragraph (b) of the Matrimonial Causes Act, 1950, which gives the court jurisdiction in the case of a wife who has been ordinarily resident in this country for three years immediately before commencement of proceedings. That provision was designed to mitigate the hardship caused to married women by the present rigidity of the rule, and the need is less clear where a married woman can acquire a domicile of her own.
I should like your Lordships' permission to work out these Amendments. I

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should also like to consult my right honourable friend the Attorney General upon them, but I should be very willing, before the Report stage comes, to meet, not only the noble Lord, Lord Meston, who is in charge of the Bill in this House, but also the noble Lord, Lord Silkin, and the noble and learned Lord, Lord Denning, having, I hope, had the advantage of discussing them with my noble and learned friend Lord Merriman before that stage. If that course commends itself to the House I would ask my noble and learned friend and the noble Lord, Lord Silkin, not to press the Amendment to-day, on the understanding that I, as representing the Government, have given: that I am not doing anything to discourage the inclusion of the Amendment in the Bill.
LORD SILKIN: I am very grateful indeed, as I am sure are all my noble friends who supported this Amendment, for the very clear and full explanation which the noble and learned Viscount has given. Of course we realise that this matter is not free from difficulty and that a case can be made, as generally it can, against the Amendment. As he rightly says, however, I am quite sure that, in these days, the prevailing opinion is in favour of giving married women a separate domicile; and the noble and learned Viscount, as I understand him, has accepted that principle and is prepared to go through the Bill to see what are the correct Amendments to be made to it. I accept the fact that the Amendment which is in my name may have been effective in raising the matter but that it is probably not entirely effective in carrying out our desires. In those circumstances, I beg leave to withdraw the Amendment.
LORD MESTON: I should like to raise a point as to what the noble and learned Viscount the Lord Chancellor said on one matter. Did the Lord Chancellor say that Clause 5 of the Bill should be omitted altogether? I understand the Common Law of this country at the present moment to be that a married woman automatically takes the domicile of her husband.
THE LORD CHANCELLOR: I think that is why we had to consider whether a statement of that principle
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should continue to be set out. I should like to go into the minutiæ of the drafting with the noble Lord, Lord Meston, and I will consider the point. That is certainly one of the points that I think needs consideration.
LORD MESTON: I thank the noble and learned Viscount.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Remaining clauses agreed to.
House resumed.

VARIATION OF TRUSTS BILL
5.9 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.—(Lord Cones ford.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD TERRINGTON in the Chair.]
Clause 1:
Jurisdiction of courts to vary trusts
1.—(l) Where property, whether real or personal, is held on trusts arising, whether before or after the passing of this Act, under any will, settlement or other disposition, the court may if it thinks fit by order approve on behalf of—

(a) any person having, directly or indirectly, an interest, whether vested or contingent, under the trusts who by reason of infancy or other incapacity is incapable of assenting, or

(b) any person who may become entitled directly or indirectly, to an interest under the trusts as being at a future date a person of any specified description or a member of any specified class of persons, so however that this paragraph shall not include any person who would be of that description, or a member of that class, as the case may be, if the said date had fallen at the date of the application to the court, or

(c) any person unborn,

any arrangement (by whomsoever proposed, and whether or not there is any other person beneficially interested who is capable of assenting thereto) varying or revoking all or any of the trusts, or enlarging the powers of the trustees of managing or administering any of the property subject to the trusts, being an arrangement such that the carrying out thereof would be for the benefit of that person.
(2) Where property is held on trusts being or including protective trusts, and the interest of the principal beneficiary has not failed or determined, the court shall have power under

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the foregoing subsection to approve an arrangement on behalf of the owner of any discretionary interest without regard to the question whether the arrangement is for the benefit of the owner as such.
LORD COHEN LORD COHEN had given Notice of several Amendments, the first being in subsection (1) (b), after "person", where that word first occurs, to insert: "whether ascertained or not". The noble and learned Lord said: There are. I am afraid, a number of Amendments standing in my name, but with one exception they are all formal and are merely intended to prevent any misconception as to what the true meaning of the clause may be. This is a drafting Amendment to put it beyond doubt that paragraph (b) of subsection (1) of Clause 1 of the Bill covers unascertained persons. The purpose of paragraph (b) is to enable the Court to approve an arrangement on behalf of a beneficiary where the obtaining of his consent is prevented not by any disability but by uncertainty as to his identity. This may arise in one of two ways. Both are illustrated by the following example. Property is held upon trust for A for life, with remainder to his widow for life, with remainder to his children, and on failure of the earlier trusts with an ultimate remainder to the people who would be the settlor's next of kin were he to die on
the failure of the earlier trusts.
At the time when the arrangement falls to be made A is still a bachelor. The only way of binding the possible interest of a future wife is for the court to approve the arrangement as respects that interest; for the wife is so far unascertained in that A might marry anyone. Apart from persons unborn (who are dealt with by paragraph (c) of the subsection) the people who would be the settlor's next of kin if he died on the failure of the prior trusts are not in this sense unascertained as a class; but at the time of the application to the Court it is not possible to predicate which members of the class are relevant because it cannot be foreseen how many of them will have died by the time the prior trusts fail, if they do. I hope your Lordships will see your way to adopt the Amendment.
Amendment moved—
Page 1, line 13, after (" person ") insert (" whether ascertained or not.")—Lord Cohen.)
LORD CONESFORD: I welcome this Amendment which improves the language in the clause and puts the matter beyond doubt.
On Question, Amendment agreed to.
LORD COHEN: This Amendment is even more elementary, if may so put it: again it is a drafting Amendment. As the Bill stands, paragraph (b) of subsection (1) of Clause 1 refers to persons becoming entitled as beng "at a future date" either of a specified description or members of a specified class. While the words "at a future date" are apt to some of the contingencies which may be contemplated by settlements, other contingencies are better described as the happening of an event, rather than the falling of a, date. I beg to move.
Amendment moved—
Page 1, line 15, after (" date ") insert (" or on the happening of a future event ")—(Lord Cohen.)
LORD CONESFORD: I have much pleasure in accepting this Amendment.
On Question, Amendment agreed to.
LORD COHEN: This Amendment is purely consequential on the Amendment which the Committee have already adopted.
Amendment moved—
Page 1, line 19, after (" fallen ") insert (" or the said event had happened ")—(Lord Cohen.)
On Question, Amendment agreed to.
LORD COHEN LORD COHEN moved in subsection one, at the end of paragraph (c) to insert or
(d) any person in respect of any discretionary interest of his under protective trusts where the interest of the principal beneficiary has not failed or determined,".
The noble and learned Lord said: This Amendment is not purely a drafting Amendment but it is within the intention of the Report of the Committee over which Lord Justice Jenkins presided and it was always intended to be the basis of this Bill. The Amendment, together with the Amendments to page 2, line 5, page 2, line 8 and page 2, line 22, deal with potential beneficiaries under protective trusts—or rather the clause as drafted so does. These are trusts which give a life interest to a beneficiary but provide that in the event of anything such as bankruptcy happening, whereby

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apart from the protective trust the life interest would vest in somebody other than the beneficiary to whom it was given, it shall come to an end and be replaced by a discretion in the trustees to distribute the income among a class of people of whom the original beneficiary would normally be one, and his wife, children and relations would be the others.
The Amendments, like subsection (2) of Clause 1 of the Bill as it stands, deal only with the state of affairs where nothing has happened to determine the original life interest. Subsection (2) of the Bill provides that in these circumstances the Court, in exercising its powers under subsection (1), need not consider whether the proposed arrangement is for the benefit of the people who might be interested under the discretionary trust if the principal beneficiary's original life interest were brought to an end by bankruptcy, et cetera. But subsection (2) does not enable the Court otherwise to go outside the bounds of subsection (1). Thus if a person potentially interested under the discretionary trusts is ascertained and of full age, the Court, quite apart from any question whether the arrangement would be for his benefit, would have no power to approve the arrangement on his behalf; and it therefore could not be carried out unless he could be persuaded to give his consent.
The Bill as it stands, therefore, goes less far than the Law Reform Committee recommended in paragraph 19 of their Report. As they pointed out, where property is held on a protective trust—and I quote their words here:
" … very comprehensive classes of persons are commonly included as objects of the discretionary trusts on which the property is directed to be held in the event of the failure of the interest of the principal beneficiary. It has been the practice of the Court, in sanctioning modifications under its existing powers, to treat the objects of the discretionary trust as being interested in the property and therefore entitled to receive some benefit in return for exclusion from any of their potential future rights.… Where a discretionary trust has become exercisable it seems reasonable that all its objects should be treated in this way. But we think that where the trust has not yet become exercisable, the interests (if such they can be called) of potential objects of the trust may be of a nature too shadowy to deserve consideration; and that in these cases the Court should he free to consider only the benefit to the other persons interested in the trust
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property and should have a discretion to disregard entirely the interests of those who would be the potential objects of the trust if and when it ever becomes exercisable."
I would stress that the effect of these Amendments is to enact not only the letter but the spirit of what the Committee were recommending in paragraph 19. If the Amendments are made, it will not be possible for a potential beneficiary whose interest, as the Committee put it, may be of a nature too shadowy to deserve consideration, to obstruct from good or bad motives the carrying out of an arrangement which is for the benefit of everyone really concerned. It will be remembered that the Bill merely confers a discretionary power on the Court. In any case where it seemed that the interest of the potential beneficiary was a real one, it would be open to the Court to refuse to approve the arrangement on his behalf, with a view to his personal consent being required. In those circumstances I venture to recommend to your Lordships that this is a wise Amendment to adopt, and I beg to move.
Amendment moved
Page 1, line 21, at end insert the said paragraph.—(Lord Cohen.)
LORD CONESFORD: I advise the Committee to accept this Amendment. If it is embodied in the Bill it will more accurately carry out the intentions expressed by the Law Reform Committee.
On Question, Amendment agreed to.
LORD COHEN: This Amendment is purely consequential. I beg to move.
Amendment moved—
Page 2, line 5, leave out (" being an arrangement such that ") and insert—
("Provided that except by virtue of paragraph (d) of this subsection the court shall not approve an arrangement on behalf of any person unless ").—(Lord Cohen.)
On Question, Amendment agreed to.
LORD COHEN: This Amendment also is purely consequential. I beg to move.
Amendment moved—
Page 2, line 8, leave out subsection (1) and (2).—(Lord Cohen.)
On Question, Amendment agreed to.
LORD COHEN: This Amendment is also consequential. I beg to move.
Amendment moved—
Page 2, line 22, leave out "subsections (1) and t2)" and insert "subsection (1)".—(Lord Cohen.)
On Question, Amendment agreed to.
5.31 p.m.
VISCOUNT SIMONDS VISCOUNT SIMONDS moved to add to the clause:
"(8) It shall not be an objection to the exercise by the court of the jurisdiction conferred by this section that a main purpose or consequence of its exercise is or may be to avoid the exigibility of tax which would otherwise be exigible."
The noble Viscount said: In putting down the Amendment which stands in my name I have been animated by a motive which must appeal to anybody who has spent fifty years or more, if there be any besides myself in your Lordships' House, in the practice and the administration of the law that is to say, I deem it important that, so far as possible, there should be clarity in legislation and certainty in the law. We are very far from reaching either of these ideals.
The relevance of these principles in this matter is this. I think that everybody knows that one of the main reasons which have animated those who want a change in the law, so that a new and wide jurisdiction should be given to the Courts, was the desire to get through schemes or family arrangements which had as their object (and I do not use the word in any sinister sense) the avoidance of tax. I think there is no doubt about that. It is an object from which I, for one, do not dissent in any way. But could I say, as I read this Bill, that it was quite certain that everybody would take the view that
a scheme which had that object would commend itself to all the Judges of the Chancery Division before whom such schemes would come for sanction? I felt grave doubts about that, and accordingly I thought that it would be better, in the interests of certainty, that this should be made clear on the face of the Bill, so that it would be impossible that a scheme brought before Mr. Justice A should receive the sanction of the court and an exactly parallel scheme brought before Mr. Justice B should not receive sanction, because they took different views of the propriety of invoking the jurisdiction of the Court on tax avoidance or tax evasion schemes.
If that is the policy of Her Majesty's Government, if it is right that the jurisdiction of the Court should be exercised in this way, it seems to me right that that intention should be made clear on the face of the Bill. As I understand the answer to that point which was made in Second Reading, it was simply this: any
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body would know that jurisdiction would be exercised; no Judge in the Chancery Division would be so foolish as to do anything else. I wish that I could be satisfied of that. If I could, then I should be content, but I cannot be but aware that some people at least hold a different view about tax evasion schemes.
During the debate on Second Reading of the Bill I ventured to cite to your Lordships what the late Lord Simon, a man greatly honoured in the law and whose name will be remembered when our names are forgotten, had said upon what I deemed to be a parallel case. I was met as to that by my noble and learned friend Lord Conesford, and it was echoed by the noble and learned Viscount the Lord Chancellor, who said that it was a very different sort of thing he contemplated. I was not much convinced by that argument, because nobody can say whether it was a different scheme until we have one of these schemes brought before the Court for sanction: the schemes will be infinitely various, some simple, some exceedingly complicated. Therefore, that argument did not move me much. By coincidence (and this made a forcible impression upon me), at the very time this matter came before your Lordships for consideration I was engaged in hearing an appeal in the Judicial Committee of the Privy Council, in which we were considering the drastic provisions of Australian legislation, which had their counterpart in New Zealand legislation., which made all arrangements for avoidance of tax void as against the Commissioners of Taxes. Therefore, it was clear that in a large part of the world this sort of scheme of avoidance was not the sort of thing that universally commended itself. Accordingly, I could not but feel that it was not impossible that Chancery Judges would take the same view.
This further consideration moved me. I felt that when Personal Bills which had as an object, partly at least, tax avoidance, came before your Lordships' House, a very unfavourable impression was created. That moved me also to think that we cannot predicate that all Judges will take the same view. Lastly, there is this point—and I say it with the greatest deference to the noble and learned Viscount the Lord Chancellor. Maybe I did not understand him, or maybe I did not hear him very clearly, but certainly it seemed to me that, when

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I asked him to say unequivocally that this was a form of scheme that would obtain the sanction of the court, he did not willingly reply that it was just what was wanted. I do not know—maybe I misunderstood him. If the noble and learned Viscount will now say that I am quite wrong, and that he knows that this is what is intended by the legislation, which I understand Her Majesty's Government support, and that in his view no Chancery Judge who knows his business would refuse sanction on the ground that the purpose of the scheme was tax avoidance, I shall be satisfied. Perhaps I am old-fashioned and wrong about this and that no Chancery Judge could take that view. I really feel that if we want this to get through and want to have justice administered equally and upon a certain important principle, it should be made clear upon the face of the Bill.
I venture to ask: why not? Why run this risk, if it can be averted by putting in a dozen words? If we do so, the risk will be averted; there will be equal justice to all. The principle of the Bill, as I understand it, will be accomplished by putting in a few words saying:
" It shall not be an objection to the exercise by the court of the jurisdiction conferred by this section that a main purpose or consequence of its exercise is or may be to avoid the exigibility of tax which would otherwise be exigible.
I am well aware of course that this matter has to some extent been dealt with in the Report of the learned Committee which dealt with the subject. If I may say so, with the greatest respect, it is dealt with in the least satisfactory part of the Report, because they seek an analogy in what was done by Parliament in removing what was called "restraint on anticipation". I think that it was the least satisfactory part of a Report which in many respects was admirable. Anyway, how can we predicate that a Judge to-day or to-morrow will have read that Report? I am quite sure that many of them have not, and I do not suppose that they will.
I would ask my noble friend Lord Conesford to consider this point: we are not legislating only for settlements made in the past; we are legislating for settlements made yesterday, to-day and to-morrow. Therefore, we are legislating for cases of a settlement, not where something unexpected happens, but where the
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settlor knows perfectly well that if his trusts are carried out according to his direction, then heavy duties will be paid. It seems to me that the Court might well then say: "Why should we alter this settlement when just that happens which the settlor, dealing with his own money, knew would happen?" That is a matter which the Court might take into consideration, and I should like to have it made plain on the face of the Bill. However, if the noble and learned Viscount, the Lord Chancellor, with all the authority of a member of the Government and as titular head of the Chancery Division, says that I am quite wrong and that no Chancery Judge who really knew his business would refuse on the ground that the main purpose of the exercise of the jurisdiction was to avoid the exigibility of tax, I shall be happy to withdraw the Amendment. I beg to move.
Amendment moved—
Page 2, line 44, at end insert the said subsection.(Viscount Simonds.)
5.31 p.m.
THE LORD CHANCELLOR: I am always anxious to try to help, and everyone in this Committee appreciates the authority and experience with which my noble and learned friend Lord Simonds speaks. I hope he will take what I say as from the heart. I am sorry that in the course of the Second Reading debate, when I was dealing with a number of aspects of the Bill, I did not reply to his point. The last thing I would intend would be not to reply to a point which my noble and learned friend raised. I assure him that I shall come as straightly as I can to that point. But I want to make it clear that I recognise that the subsection is couched in wide terms, and that if it becomes law the Court would have jurisdiction to sanction an arrangement notwithstanding that a main purpose or consequence of the scheme would be to avoid the exigibility of tax.
My noble and learned friend has emphasised the difficulty of applying to this situation a discretionary jurisdiction, and that there may be different results from different Judges; and he wishes to remove the risk of a difference of opinion by forbidding the Judges to consider the tax effect of the scheme. I am unable to support that solution, but I hope that a statement I shall make in a moment

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will be of some help to my noble and learned friend. I would remind the Committee that the Bill was introduced and passed in another place as being a Bill to give effect to the Sixth Report of the Law Reform Committee, presided over by Lord Justice Jenkins. That was a unanimous Report, and it dealt in paragraphs 15 and 16, as my noble and learned friend has pointed out, with the very point raised by this Amendment. If those of your Lordships who have the Report would look at it, you will see these words in paragraph 15:
' Nor is it likely that any Judge of the Chancery Division would give his sanction on behalf of infants or potential beneficiaries under a settlement to any scheme of a kind which, as a citizen and a taxpayer, he would not think it right to enter into with regard to his own property. The fact that some adults enter into 'tax avoidance ' schemes of questionable character is no ground for refusing the Court jurisdiction to sanction on behalf of infants dispositions of their property which are beneficial to them and are morally unobjectionable."
Then, paragraph 16 says:
"We would add that, so far as concerns those cases where the object of a variation is to lessen the impact of taxes or death duties, we can see no valid reason why the Court should not be able to do on behalf of persons who are not sui juris or are not ascertained what the law allows to be done by persons who are sui juris. It appears to us that the Legislature, while taking great care to prevent anyone from escaping the payment of taxes or duties by methods of which it disapproves, has shown no intention of adopting a policy of preventing the freer circulation of money and its division between the members of a family rather than its concentration in the hands of a few, so long as this is done by methods which are riot forbidden by Statute."
They then draw attention to remarks of my predecessor, the late Lord Jowitt, on the Married Women (Restraint upon Anticipation) Act, 1949. I hope my noble and learned friend will forgive me for quoting so much, but it leads to the point he mentioned as to the argument of the Committee. The late Lord Jowitt said:
" The effect of this Bill on the Exchequer is purely incidental. If a man or woman, not subject to restraint, spends or gives away half his or her property, there is, of course, less property to be taxed. The Commissioners of Inland Revenue cannot and do not complain of this; they continue on their way, taxing what they find and not taxing what is not there … To single out one particular class of married women and to restrain them from doing what they wish with their property, for the sole purpose of being able to tax it. Would
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be most unfair. That is not part of the policy of His Majesty's Government … "—
that was the Government of our predecessors, the Government that was in office from 1945 to 1950. The Report goes on:
"Similar words were used by the Attorney-General (Sir Hartley Shawcross, Q.C.) in the House of Commons. We see no justification for treating an infant more harshly than a married woman and no indication that the Legislature intended to do so."
They then say that they are fortified by the views expressed by the Royal Commission on Taxation of Profits and Income, which I read to your Lordships last time. They also quote two decisions in the Court of Appeal which they say support that view. Speaking as Lord Chancellor, with, I hope, a full sense of the responsible anxiety of my noble and learned friend Lord Simonds, I agree with the words of the Committee:
" We see no justification for treating an infant more harshly than a married woman and no indication that the Legislature intended to do so."
I can, therefore, see no objection to the Chancery Judges to-day applying the same reasoning to the cases covered by this Bill. In other words, the fact that the result was, or indeed that the purpose might be, to avoid exigibility of tax ought not to be a bar to their doing so. This must, however, be subject to the limitations which are included in paragraph 15 of the Report, which I have just read and which, indeed, has often been quoted. I hope that that, which is as straight a statement as I can make, will do something, it is stated, and its object is to assist the doubts of my noble and learned friend. I hope that in the circumstances I have made it as clear as I can and that he will not press his Amendment to-day.
VISCOUNT SIMONDS: I could have wished for something a little better, and, in particular, I could have wished that the noble and learned Viscount had not pursued the analogy of the Married Women (Restraint upon Anticipation) Act, 1949, because that was a bad analogy on the part of the Committee that sat on this matter. However, I cannot resist an appeal from the noble and learned Viscount, the Lord Chancellor—in fact, I never can resist an

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appeal from him—and I will not press the Amendment.
Amendment, by leave, withdrawn.
Clause 1, as amended, agreed to.
Remaining clauses agreed to.
House resumed.

PHYSICAL TRAINING AND RECREATION BILL
House in Committee (according to Order): Bill reported without amendment.
DEFENCE CONTRACTS BILL
House in Committee (according to Order): Bill reported without amendment.

LITTER BILL
5.44 p.m.
Order of the Day for the Third Reading read.
LORD TWEEDSMUIR: My Lords, I beg to move that this Bill be read a third time. I shall not adduce any further arguments to add to those so powerfully adduced by my noble friend Lord Waldegrave, but I will avail myself of the opportunity of congratulating him on behalf of his many friends, both inside and outside this House, on his promotion to the Government and also, if I may say so, on a totally remarkable Parliamentary feat of submitting a measure for the approval of your Lordships and the Government and piloting it through nearly all its stages, and now confronting your Lordships at the Dispatch Box to give it Government approval.
Moved, That the Bill be now read 3a.— (Lord Tweedsmuir.)
VISCOUNT ELIBANK: My Lords, may I intervene for a few moments? As one who had the good fortune when in the House of Commons to pilot three Private Member's Bills through Parliament, the Worn-Out Horses Exportation Bill, the Plumage Bill and the Coursing of Rabbits and Hares in Enclosed Spaces Bill, I know somewhat intimately the difficulties of passing a Private Member's
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Bill through the Legislature. It is therefore with all the greater warmth that I should like to congratulate to-day Mr. Rupert Speir and his associates in the House of Commons, and the noble Earl, Lord Waldegrave, for the success with which they have passed this Bill through its present stages up to Third Reading, which in effect means its passage into law. I earnestly hope that when the Bill becomes law it will be enforced rigorously and vigorously in order that we may get rid for all time of these abominable litter-mongers who have defaced the fair land of Britain for so many years.
There is one more thing I should like to say. A few years ago, the noble Lord, Lord Tweedsmuir, piloted through this House the Protection of Wild Birds Bill which had been initiated and admirably piloted through the House of Commons by his noble relative Lady Tweedsmuir. That Bill, though it did not contain the all-time protection for the kingfisher for which I pressed so vigorously, has been a most successful Act. I earnestly hope that this Bill, to which the noble Lord, Lord Tweedsmuir, has asked the House to give a Third Reading to-day, will be equally successful.
THE JOINT PARLIAMENTARY SECRETARY, MINISTRY of AGRICULTURE, FISHERIES AND FOOD (EARL WALDEGRAVE): My Lords, I am delighted that the House has welcomed this little Bill. I do not think it merits a normal Third Reading speech, but I should like to assure noble Lords who intervened on Committee stage out of, I will not say an excess of zeal, but out of great zeal, and who were concerned that no stone should be left unturned or avenue unexplored, or whatever the correct phrase is, to see that no one was left out and that it was going to be possible for anybody to prosecute who found litter being deposited, that the best advice we have been able to obtain is that it would be quite unnecessary to add any words, and that everybody is covered.
The only other thing I should like to say is that I never dreamt for a moment that we were going to have this position—I will not call it this back to front process —and that I was going to have two rôles in the passage of this Bill, as the noble Lord, Lord Tweedsmuir, said. I should like to mention that the noble Lord, Lord Hawke, raised a point in Committee

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which I did not answer. He was, of course, perfectly right: that if someone deposited a bedstead—I think it was that which was worrying him—in a pond from the highway he would be caught by this Bill, but if the person managed to crawl through the fence with the bedstead and go on to private land before depositing it in the pond he would not be caught by this Bill. I am advised that he would be caught by plenty of other legislation, and, therefore, I think the noble Lord's point is met.
On Question, Bill read 3a and passed.

DIVORCE (INSANITY AND DESERTION) BILL
5.49 p.m.
Order of the Day for the Third Reading read.
LORD MESTON: My Lords, I rise to say quite briefly that this Bill began in another place, and I think we should be grateful to Mr. Deedes for his work in having introduced and piloted the Bill through another place. I beg to move that this Bill be now read a third time.
Moved, that the Bill be now read 3a.—(Lord Meston.)
On Question, Bill read 3a, with the Amendments, and passed, and returned to the Commons.

MATRIMONIAL CAUSES (PROPERTY AND MAINTENANCE) BILL
Order of the Day for the Third Reading read.
LORD MESTON: My Lords, I should like to say quite shortly that this Bill began in another place, and I think we should be grateful to Sir Hugh LucasTooth for the work he did in explaining the Bill. I am sure he did it much better than I did. Without any further delay, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a.— (Lord Meston.)
On Question, Bill read 3a, and passed.

GLOUCESTER CORPORATION BILL
The Queen's consent signified, and Bill reported, with Amendments.
House adjourned at nine minutes before six o'clock.