HL Deb 12 February 1959 vol 214 cc237-57

6.24 p.m.

Order of the Day for the Second Reading read.

LORD MESTON

My Lords, I beg to move the Second Reading of this Bill. Your Lordships may remember that in July of last year there was a Bill before your Lordships' House which amended the law of domicile. Among other matters, it created a presumption and also altered the burden of proof. The Session came to an end, and so did the Bill. I may say at once that in many important respects the present Bill is not the same as the former Bill. The present Bill merely establishes the existing law of domicile, subject to some important amendments.

As your Lordships know by this time, a person's domicile is the country in which he has his home and intends to live permanently. The law regards every person as having a domicile, whether it be the domicile of origin, which the law confers on him at his birth, or the domicile of choice, which he may subsequently acquire. If a person, having acquired a domicile of choice, abandons it without acquiring a fresh one the law regards his domicile of origin as having been revived until a fresh domicile of choice is acquired, even though in fact he may never have returned to his domicile of origin. This Bill abolishes the revival of the domicile of origin in those circumstances.

Clause 2 of the Bill provides: A person's domicile in any country continues until he acquires a domicile in another country (hut no longer). That clause, as I have already indicated, abolishes the revival of the doctrine of the domicile of origin. Furthermore, let me say at once that the word "person" includes male, as well as female, and married women, as well as single women. Therefore, under this Bill, a married woman, if she so wishes, is enabled to acquire a domicile different from that of her husband. Clause 3 provides: A person of or over the age of sixteen acquires a domicile in a country by residing in that country with the settled intention of making it his permanent home. That merely establishes the present law, subject to one amendment. Previously, a person had to be twenty-one years of age before he could acquire a domicile. Now the age is reduced to sixteen.

Clause 4 deals with the domicile of children. A child's domicile is normally that of the person entitled to his custody. However, Clause 4, subsection (2), deals with the position which may arise when each or two persons domiciled in different countries is equally entitled to the custody of a person under the age of sixteen. In those circumstances, the child's domicile is in that one of those countries with which he is more closely connected. Clause 4, subsection (3), requires a little more explanation. It provides that the domicile of a child in the custody of an authority shall be the country whose law governs the constitution of that authority. This applies to children in the custody of foreign authorities, as well as to those in the custody of United Kingdom authorities. In England, there are three ways in which children may, by Statute, be in the custody of an authority. First, an order may be made committing a child to the care of a fit person; secondly, an order may be made committing a child to an approved school; thirdly, a local authority may in certain circumstances assume parental rights over a child by passing the required resolution.

I now pass on to Clause 5, which deals with matrimonial proceedings in the case of a wife's separate domicile. I must say that Clause 5 is most important. It reserves, very properly, to the courts of this country the right to decide what determines domicile according to the laws of this country. I do not wish to say anything defamatory about the systems of other States, but were it not for Clause 5 we might have a position where a certain State said that a married woman had acquired a domicile in that State by virtue of the fact that she had been resident there for six weeks. That would not do at all so far as the jurisprudence of this country is concerned. Clause 5 is going to be explained in a few minutes by the greatest expert on the subject in this country, who will tell your Lordships exactly why it is essential that the courts of this country should retain the right to decide what is meant by "domicile".

Clause 6 (3) safeguards the position of certain pensioners of the former Indian Services. Under the Pensions (India, Pakistan and Burma) Act, 1955, as amended by the Pensions (Increase) Act, 1956, increases of pensions may be granted to members of the former Indian Services who, in the opinion of the Secretary of State, were outside Asia at the date when the Service became discontinued. A number of such pensioners have been granted increased pensions, and applications for increases will be made from time to time as these people reach retiring age. Clearly, it would be wrong for the Bill to disturb the principle applied by the Secretary of State in determining this question, and Clause 6 (3) deals with that point. Clause 8 repeals the Domicile Act, 1861, which is a dead letter in any event, and goes on to say that the Act extends to Northern Ireland.

In conclusion, I may say once more that this Bill merely establishes the existing law as to domicile, subject to some important amendments. It does not alter the burden of proof in any way, and therefore there is no necessity for any sort of anxiety whatsoever on the part of anyone. I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2a.—(Lord Meston.)

6.33 p.m.

THE LORD CHANCELLOR

My Lords, time and again the noble Lord, Lord Meston, has put us in his debt by bringing forward measures of law reform where it has been difficult for Her Majesty's Government to find Government time therefore. The occupant of the Woolsack naturally has a particular responsibility and interest in all proposals for the improvement of "lawyers' law". The difficulty about this is that I have by now run through all the various methods known to me of expressing gratitude to the noble Lord, Lord Meston, but as one who after forty years remembers with great interest and gratitude hearing the noble Lord's father talk in India, and whose father, like the noble Lord's, came from Aberdeen, if my family history is correct, I have a particular reason for saying shortly, but none the less sincerely, "Thank you", once again.

One of the earlier occasions upon which I expressed my thanks to the noble Lord was in June of last year, on the Second Reading of an earlier and, I think, better version of this Bill. In welcoming the earlier Domicile Bill, I took the opportunity to praise the work of the Lord Chancellor's Committee on Private International Law, on whose recommendations it was based. If I now say, as I do, that I am sure the noble Lord, Lord Meston, has made the right decision in reintroducing this Bill in a very different form, I take back nothing that I said last Session. I still think that the proposals of the Committee, which were designed to render the ascertainment of a person's domicile easier and more certain, would have made an improvement in our law. On the other hand, though I am frankly sorry to see these proposals dropped from the Bill, for reasons that have nothing to do with law reform, there is no doubt in my mind that the hard facts of the economic position of this country should be given greater weight.

We are all agreed that the maintenance of a favourable balance of payments position is essential to this island, and it is well known that an important factor in maintaining it is the willingness of businessmen from overseas to come and work in this country, to open branches of their businesses here and to bring their investments with them. It is a fact that Clause 3 of the Bill that passed through your Lordships' House in the last Session gave rise to serious anxiety among the Commonwealth and American business communities working in this country. As my noble friend Lord Hawke put it, when he voiced their fears during the debate on the Third Reading on July 24 last [OFFICIAL REPORT, Vol. 211, col. 208.]: Our tax law is to them foreign. Our tax-gatherers are foreigners, and they definitely fear having to prove their future intentions to a foreign revenue collector. They fear that, if they failed to satisfy him, they would be taxed on their world income instead of simply, as now, on their income arising in or remitted to this country. Many of them would be unwilling to face taxation of their income arising from property at home, not only by their own taxgatherers, but also, at higher rates, by ours. There is a real danger that we should lose their services and the business and capital that goes with them.

Whether their fears of the effect of Clause 3 of the last Bill were justified or not is a matter which I need not deal with now. I have already expressed my views in the Third Reading debate last July, and, as I say, I retract nothing that I said on that occasion. The important thing to realise is that these fears are widely and sincerely held and have received support from the opinions of lawyers of high standing. It would be invidious to mention names, but I think that they are well known to those interested in the Bill and I do not think that anyone would question my descrip- tion that they were lawyers of high standing. After giving a good deal of anxious thought to this matter I have come to the conclusion that it would be wrong to disregard these fears and that my noble friend Lord Meston is right in dropping Clause 3 of last Session's Bill. But I am sure that he shares my reluctance in taking the step, although I agree with the basis and background.

I should like to underline what my noble friend Lord Meston has already made clear: that it would be quite wrong to think that the Bill in its new form does not effect an important change in the law. It gives married women the capacity to acquire separate domiciles from those of their husbands. That is a change which has already had your Lordships' approval; in fact, after the enthusiasm and vigour with which that was supported by the noble Lord, Lord Pethick-Lawrence—in a sense it swamped the other parts of the Bill—it became a most important principle, which the whole House unanimously supported noble Lords on that Bench in putting into the Bill.

There are other improvements which my noble friend Lord Meston has mentioned, such as the abolition by Clause 2 of the doctrine of the revival of the domicile of origin, and the codification in Clause 4 of the law relating to the domicile of children. I think everyone will agree that it is all to the good that the age at which a person can first acquire an independent domicile should be the same North and South of the Tweed. I am glad to see some noble Lords from Scotland here, and they will be pleased to know that England is now bringing itself into line with our native land.

The Bill sets out to deal comprehensively with the law of domicile, and it would be strange indeed if a measure of this kind were to fail to deal with the method by which a domicile of choice is acquired. Therefore I feel that I must say a word or two about Clause 3. As I say, I think it is essential that the Bill as produced by my noble friend Lord Meston should have dealt with the method by which a domicile of choice is acquired; that is a fundamental matter for which the Bill can hardly fail to make provision. It does this by giving statutory form to the existing law as that was laid down in the leading case of Winans v. the Attorney General; and the words "the settled intention of making it his permanent home" are an echo, which all lawyers will surely recognise, of Lord Macnaghten's celebrated judgment in that case. In effect, our concept of domicile, which differs in many ways from the sense given to that term in Continental systems of law, will remain essentially unchanged.

For those of my noble friends who have been approached with difficulties about the clause in this Bill, I should like to repeat what I have just said: that the clause is based on the judgment of Lord Macnaghten in Winans' case, and it is from the majority in Winans' case that the noble Lord has taken the contents of this clause. As I see it, Clause 3 really re-states the existing law governing the acquisition of a new domicile and, as my noble friend Lord Meston said, the burden of proving that one has in fact been acquired still rests on the person who asserts that it has. For these reasons, my present view is that Clause 3 should find a place in the Bill and is a satisfactory re-statement of essentials of the present law.

It is not often that a Private Member's Bill which is concerned with technical questions in the general law arouses so much interest and controversy as the Domicile Bill has done in its rather unusual career. Such Bills necessarily run an unpredictable and rather perilous course before they reach the Statute Book. For myself, I can only say that I wish to this Bill a safe arrival at its journey's end.

6.47 p.m.

LORD SILKIN

My Lords, I should like first of all to join with the noble and learned Viscount on the Woolsack in thanking the noble Lord, Lord Meston, for introducing this Bill, and for the clear explanation he gave not only of the Bill but of the changes that have been made. A similar Bill was before the House last Session and was brought to an untimely end by the close of the Session. I wonder whether the noble and learned Viscount the Lord Chancellor could give us any information as to whether this Bill is likely to be brought to an untimely end in similar circumstances. It would be most important for us to know that. I know that the Lord Chancellor referred to certain contingencies which might arise, and which would prevent this Bill coming into law, but he did not say what they were.

This Bill, as has been said, is different from the previous Bill in a number of respects. The previous Bill was based upon the Report of the Private International Law Committee which reported in February, 1954, and at the end of five years we find ourselves in the position of purporting to implement that Report. But in fact this Bill does nothing of the kind. In so far as the main provisions are concerned, as I understand them—and the noble and learned Viscount on the Woolsack will know that I am no authority on the law of domicile—we are now going back to the law as it was before. Possibly there may be some minor amendments, as the noble Lord, Lord Meston, explained; but, broadly speaking, the law will be as it was before, based upon a decision of the courts. Consequently, from that point of view there is no need for this Bill at all. If it is merely to re-enact the law, there is no point in introducing a Bill and purporting to be implementing the Report of the Law Reform Committee.

The only provision of the Bill which has not been recommended by the Committee is that contained in Clause 5, the principle of which was unanimously approved by this House previously. Clause 5 gives to a married woman the same rights as regards domicile as those of her husband, and generally puts women in the same position as men. From my own point of view (and it was I who moved the Amendment which brought this matter before the House), and even more from the point of view of my noble friend Lord Pethick-Lawrence, this Bill is worth while, if only for Clause 5. I imagine that if the rest of the Bill is merely enacting the existing law you can keep it and merely enact Clause 5. I hope that we shall get this Bill through, whatever the rest of the provisions may be, but it seems to me an extraordinary thing that we should, presumably under pressure from people living abroad, set aside the Report of this important Committee which we intended a few months ago to implement. That is a very dangerous doctrine and a dangerous way in which to introduce legislation. Are we really to be subject to outside pressure in the legislation that we introduce into this House? Pressure from this country we can understand, but pressure from abroad is a very different thing. When you have actually gone as far as to introduce a Bill implementing a unanimous Report, and then, under pressure, you take it back to introduce a different Bill it is rather an alarming situation. Therefore, while I hope that this Bill may go through, especially because of Clause 5, I must confess to being somewhat disturbed at the circumstances which the noble and learned Viscount, with his usual candour, has explained to the House.

6.52 p.m.

LORD MERRIMAN

My Lords, I do not intend to follow the noble and learned Viscount on the Woolsack into the question of the economic reasons for the change of the structure of this Bill. I propose to confine myself to Clause 5 of the Bill which is headed Matrimonial proceedings in case of Wife's separate domicile. I do so because that, I suppose, may be taken to be my special province in this matter. I take leave to say at once that I do not agree with the noble Lord, Lord Silkin, that there was no need for this Bill. Nor do I agree with him that Clause 5 does nothing to help a wife who acquires a separate domicile.

LORD SILKIN

My Lords, the noble and learned Lord has completely misunderstood me.

LORD MERRIMAN

Then I am afraid I misheard the noble Lord.

LORD SILKIN

Completely. What I intended to say—no doubt I did not say it, but I should like to say it now, in order to make it quite clear—is that I think this Bill is worth while because of Clause 5 alone. I am glad Clause 5 is there, and I welcome it.

LORD MERRIMAN

I am obliged to the noble Lord. I must have misheard him. Be that as it may, having regard to the importance of Clause 5, it may be helpful if I try to say why I think it is so important.

As will have been perfectly plain from what the noble Lord, Lord Meston, has said in the course of his admirable synopsis of the Bill, there were embedded firmly in the English law two principles: first, that a wife takes the domicile of her husband; and secondly, that all matrimonial proceedings are founded on the pure doctrine of domicile. There is one further matter arising out of that to which I should like to call attention, and that is the attitude of our courts to foreign decrees. I will do so, if I may, by reading one short sentence from a recent judgment of a member of the Court of Appeal. He said: Since a case decided in the Privy Council as long ago as 1895 English Courts have not recognised a decree of a foreign Court unless the parties were at the time of the proceedings domiciled in the jurisdiction of the foreign court, or if domiciled elsewhere such decree would be recognised by the law of the domicile. To the pure law of domicile there have been two important encroachments made by recent Acts of Parliament. I venture to mention them in detail because they bring me to the point where I think this Bill is so important from the point of view of the married woman with a separate domicile.

First of all, a wife who has been deserted by her husband, or whose husband has been deported as an undesirable alien and was domiciled in this country at the time of the desertion or the time of the deportation, is able, on that former domicile, to bring proceedings in this country, though by the time the proceedings are taken the husband had changed his domicile. That is a serious change, and has been regarded as such. But your Lordships will perceive it expressly recognises the overriding principle of the domicile.

The other encroachment is rather different. A wife who has been ordinarily resident for three years in this country can bring proceedings in the Divorce Court even though her husband is not domiciled anywhere in the United Kingdom. Those are two marked encroachments, and they have been fully accepted and have had some rather remarkable developments. It is to the developments that I wish to call attention.

By what has been called the doctrine of reciprocity or, I think, more accurately, the doctrine of comity between two nations, the courts of the country have now recognised a decree pronounced by any court in a foreign country which itself has a law to that effect. For example, there was a case from New South Wales. I need not trouble about the decision on the domicile upon which the Court of Appeal were divided, but they were all agreed about this: that as there was in New South Wales an Act of Parliament which was on the same lines about the encroachment on the pure law of domicile as the one in this country, we should recognise the decree of the New South Wales court, although in fact it was not based on that particular basis. Similarly, the same thing would apply undoubtedly as regards a deserted wife.

Plainly, in my opinion, one can be dogmatic about this—though I try to avoid being dogmatic about anything connected with the law of domicile—that we should certainly recognise the decree of a foreign court in the case of any wife who had acquired a separate domicile in the foreign country judged by our own law of domicile, as modified by this Bill. But with regard to anyone who has acquired a separate domicile in that country, we should recognise the decree of divorce pronounced by that country even though they have not based their decree solely on the question of domicile. In other words, our courts would be prepared to inquire into the question of whether the wife who is asserting that she has acquired domicile in a foreign country, and seeking to use a decree in that country, truly had acquired a separate domicile in this country. If so, I think there is no doubt that we should be prepared to give effect to that.

I want to say one other word about Clause 5, and only one other word. It takes the place of an earlier version of the revised Bill which I thought was inclined to trespass on the passage which I have read from the judgment of the Court of Appeal about non-recognition of foreign decrees which did not recognise the proper principle of domicile. As it is now expressed, it is perfectly plain that it is confined to the United Kingdom, putting it generally. It does, however, mean this, at least: that a Scottish woman who formerly would have been unable to bring proceedings in Scotland if her husband was domiciled in England, will now be able to bring proceedings in Scotland and attract the domicile of the husband to Scotland.

The Bill says that the case is to be decided on the basis that they are both domiciled within the jurisdiction of that court of the United Kingdom in which the proceedings are started. There is one catch there which ought to be recognised by Scotsmen, if they are interested in the topic; and it is this. The law governing the case as it proceeds in the court will be the law of that part of the United Kingdom in which the proceedings are brought. So in the case I have suggested, the simple case of the Scotswoman bringing a divorce action although her husband is domiciled in England, it is the Scottish law which will be applied to the case. I need scarcely say there is no difference in Scottish law with regard to the offence of adultery; nor is there any difference in the law, as your Lordships have recently held, in regard to cruelty. But there is equally no doubt that in respect of the offence of desertion the law of Scotland differs very considerably from the law in England; and vice versa.

There is another point as regards the subsequent proceedings, the maintenance of the wife and so forth. The Scottish courts do not provide in the same way as we do for the maintenance of the wife, and if a wife brought her action in Scotland she would have to suffer that particular loss. But the point I am trying to make—and I hope I have succeeded in making it—is this: that this is a very important addition to the rights of a wife in connection with the acquisition of a separate domicile.

7.3 p.m.

LORD CRAIGMYLE

My Lords, seeing my name on this particular list of speakers, I must confess I felt like a minnow among the tritons. I am not learned in the law, neither in the law of England nor in that of Scotland, and certainly not in the law of domicile. I have, however, taken the precaution of asking the noble and learned Viscount on the Woolsack one or two questions in correspondence, and I am grateful to him for the guidance which he has given me. Like every noble Lord who has spoken so far, I welcome this Bill for its principal and obvious intention. I hope that I may, in fact, have misunderstood some of the legal points, and I must crave your Lordships' indulgence if I have, but, so far as I can see, I cannot quite go the whole way with the noble Lord, Lord Meston, when he says that no one need have any qualms about it at all. It seems to me that there is one thing which this Bill may do which it is not intended to do—at least, it may not be intended to do it; I speak subject to correction. It is intended to alter the law of domicile, which it does admirably, so far as I can see. It is not intended—I speak subject to correction—deliberately to alter the law of divorce. Yet I understand from what the noble and learned Lord, Lord Merriman, has said, that in certain circumstances it may in fact, in detail, do that.

May I specify what I am trying to say by an example? Like the noble Lord, Lord Meston, I will not be invidious about countries. I will say that there is an English husband married to a Ruritanian wife. If she goes back to Ruritania, deserting her husband, and lives there, obviously with no intention of coming back here, she is establishing a perfectly genuine domicile in her native Ruritania. She can go to the courts in Ruritania and obtain a divorce which I understand would then be recognised by the courts in this country, who would consider that the English husband was free to remarry. It seems to me that in either of two rather different sets of circumstances, that might be unfortunate. The one set of circumstances is that the husband might have thought the procedure was a very good idea; he might have wanted to be rid of the woman anyway, in which case the change in the law which this Bill is introducing has helped that couple to a collusive divorce.

The second set of circumstances, and one which one would rather contemplate, is that the husband may, in fact, be a devout man, may have married his wife in church and have every desire and intention by prayer and patience to get his wife back and to mend the marriage. Again, if I understand it correctly, before the passage of this Bill into law—that is, as the situation is now—he would have had three years to do that. I am not sure if that is correct. But after the passage of this Bill into law he may find his wife has obtained the Ruritanian divorce in a matter of months, so that his intention of mending the marriage has, thanks to the provisions of this Bill, been frustrated.

Your Lordships may say that all the Bill is doing is giving to the wife a right which the husband already has, and that that is simple justice and only slightly extends an already existing principle. I find myself unable to accept that view, for three reasons. In the first place, any extension of the means of obtaining a divorce is a matter of considerable importance which Parliament should deliberate most carefully, however slight that extension may be. The second reason is that, as the noble and learned Lord, Lord Merriman, has pointed out, the existing law is, in fact, Common Law, subject only to two major encroachments by Statute. The change which we are now contemplating is being made in a Bill which will become an Act of Parliament, a deliberate decision of the legislative will of the nation. That seems to me to put the matter on a different basis from the existing situation which affects only one sex. The third reason is that the numbers of people affected will not simply be doubled: so many wives and so many husbands. If one were to count up the married couples living in this country, one of whose partners is foreign, surely by far the greater number would be those where the foreign partner was the wife, and the couples where the foreign partner is the husband would be a comparatively small minority.

It seems, therefore, that the number of people who would be affected by this change is so much greater than might have been anticipated that it falls to be considered as a fresh matter rather than as a slight extension of an existing matter. I do not know whether it would be possible to make an addition to Clause 5 to cover that point. In view of what has been said about Clause 3, I hesitate to suggest that it might be possible to put in a few words establishing a time limit under that section. I have no doubt that this would be much easier said than done, but I feel that it may be worth considering on the Committee stage. Having said that, and having taken up rather a lot of time with that one rider, may I reaffirm that that is only a rider, and that my support to the basic principle of the Bill is wholehearted? I shall certainly be among those who murmur "Content" when the Motion is put.

7.11 p.m.

LORD DENNING

My Lords, may I say that to my mind this Bill improves the law greatly in this one respect: it gives the wife a separate domicile from her husband. It removes that last surviving relic of a wife's servitude. My noble friend Lord Craigmyle has said that it may make divorce easier; I suggest that it removes an existing injustice to the wife. There are many cases where an Englishwoman may marry a man domiciled abroad. He commits adultery and goes back to America, or whatever the other country may be. She has to follow him to his domicile to obtain a divorce there. Indeed, there is the converse case which my noble friend put, of the woman domiciled in America who has married an Engishman. It often happens that she, by virtue of the law as it stands in America, can now—for instance, in the courts of New York State—obtain a divorce there. In this country the divorce would not be recognised because by our law her domicile is the same as ours. You would have what is called a limping marriage. People would be divorced in New York and free, each of them, to marry again. They would be married in England, and if they married again would be guilty of bigamy; or if one person came back, he or she would be liable, although it is not likely, to be charged with bigamy. I suggest to your Lordships that in that respect this Bill remedies a longstanding injustice.

But the serious point which my noble friend Lord Silkin mentioned is that this Bill discloses a remarkable state of affairs. An expert Committee on domicile was appointed and they reported unanimously in favour of a reform in the law, putting the burden the other way from what it is now. That recommendation was carried out in the Bill which passed all its stages last Session. Then, owing, it is said, to other business interests from abroad, the recommendations of that Committee were thrown over—I repeat, owing to representations of those business interests. I would not myself say that the cause of law reform is to be rejected on the pressure of other business interests. Therefore I have looked into the matter with some care, and I suggest that the representations that have been made are right in this way, that those decisions of this House ought not to be overruled.

I would tell your Lordships something of them because this is the key point of the difference. The first and the most important was the case of Mr. Winans who was born in Baltimore in the United States and lived there for the first twenty-seven years of his life. For the last forty-seven years of his life he lived mainly in Europe, principally in England, and he died worth £2 million or £3 million sterling. The question was, was his estate liable for death duties on his American assets? That is the critical question. The position was that, although he had lived here for forty-seven years, he had lived in furnished houses and hotels; he was a most eccentric person.

Let me tell your Lordships what Lord Macnaghten said of him, because it is quite entertaining. He said that he had three main objects in life. The first was his health which he nursed and tended with wonderful devotion. He took his temperature regularly every hour. His second great object in life was to build a special fleet of ships of a spindle-like shape, or shaped like cigars, which would not pitch and toss when crossing the Atlantic, and with these ships he would gain command of the seas for America as against England. That was his second object in life. His third object in life was to build up a port for these ships in Baltimore in the United States, and that he would develop property there which he had acquired just before his death.

He told his solicitors a year or two before his death that he intended to go to Baltimore and live there and build up this property. In his will be described himself as a United States citizen, and in all the properties which he dealt with he described himself as a citizen of Baltimore. Is it not surprising that Lord Macnaghten said that Mr. Winans was a sojourner and stranger when he came to this country and a sojourner and stranger here when he died."? Was it not right that death duties should be payable on his English estates but not payable on his American assets? I would suggest that there was a lot of good sense in the majority decision of the House of Lords in that case in 1904, and I should not be averse to saying that that law should still stand and support the business interests which have made representations to that effect. I would not suggest that the law was wrong in that respect.

Take the other case, equally interesting, which it is suggested should be overruled. It is particularly interesting to those here who come from Scotland. It concerns a Mr. Bowie who was born in Glasgow and lived there for forty-seven years. He was a commercial traveller who did not like work. Lord Buckmaster said that he was "not a successful searcher after work." But when he was forty-seven he came to Liverpool. He was a bachelor and he stayed in lodgings, and also with his brother and sisters. He stayed on there for forty-seven years until he died there. But two or three months before he died he made a will. He had got some property and the left a great deal of it to hospitals and infirmaries in Glasgow. He made a special note in the will. He said, "These infirmary legacies—say they are anonymous; say they are from a Glasgow man." But he wrote the whole will out himself. in his own hand, and signed it himself without witnesses.

If he had died domiciled in Scotland the will would have been good, because one does not need witnesses to a will in Scotland. If he had died domiciled in England the will would have been bad, because here two witnesses are needed. The case came before the Scottish courts. I need hardly tell your Lordships that they upheld the will, so that the legacy should go to the Glasgow Infirmary, rather than to some remote next of kin of whom nobody, least of all Bowie, had ever heard. The case came to this House. There were four Law Lords sitting, three of them Scotsmen. The will was, naturally, upheld. Mr. Bowie had never made his home and had never intended to make his home in England. He, again, was a sojourner and a stranger here.

This expert Committee suggested that those two cases were wrong and that amendments should be made in the law overruling them. I should not be prepared to go so far. It seems to me that both cases were decided on good sense, domicile being read in relation to the actual problem in each case, the one of death duties, the other of a will. I suggest that it would be right, therefore, to acknowledge the justice of the representations that the burden of proof should remain where it is in the law. Those representations are right. But, equally, the Committee are right in this way: that in some of the speeches, as interpreted by some people, they went too far. It was said that domicile of origin could not be changed unless there was a fixed intention to abandon that domicile. That is going too far; but, on the other hand, the real principle was that if a man bad a settled intention of making his permanent home in a place then of course the did acquire a now domicile; and the only trouble in the law was in. stressing unduly the domicile of origin and giving an unnatural and strained effect to the word "permanent".

I suggest that with this new clause, as it is replacing the older rules of the Common Law, the courts and judges, whilst keeping the burden of proof as it is but by giving a reasonable interpretation to the word "permanent", can do all that is necessary, because "permanent" according to the Shorter Oxford Dictionary means simply: Designed to last indefinitely without change. A permanent home does not mean an everlasting home. One can have one's permanent home in a place even though one may have the lingering thought that some day one might go back at some time to one's birthplace.

So this Bill and this clause, I suggest to your Lordships, really draws the right middle path; and those interested, in the United States or elsewhere, cannot complain of such an interpretation of domicile. Perhaps I may read to your Lordships, from one of their leading textbooks, their definition of "permanent": It is not necessary that one must intend to make a place home for the remainder of his life in order to acquire a domicile there. It is sufficient if the intended stay is of sufficient permanence to make the place in question home although there may be a probability, or even a certainty, that the home will subsequently be changed. I do not suggest that our courts would go as far as that, but by enacting this Bill in its present form I suggest that it will effect a great and marked improvement in the law, by giving the wife a separate domicile; it will keep the burden of proof as it is, but will remove any difficulty arising through an undue weight and stress being given to the domicile of origin. I would therefore support the Bill wholeheartedly in its present form.

7.26 p.m.

LORD HAWKE

My Lords, I am very grateful to the noble Lord, Lord Meston, for bringing forward an altered Bill and to my noble and learned friend on the: Woolsack for his very clear statement on the tax issue. I hope that it will satisfy the overseas community living here, although I cannot say that for certain at the moment. We must recognise, of course, that any mention of domicile in legislation must create some degree of apprehension in their minds—apprehension that a delicate structure of tax law and tax practice which has been built up for so long might conceivably be in jeopardy; but it really would be absurd if we had to refrain from mentioning the word "domicile" in any legislation in order to allay any fear of jeopardy on that account. If, however, we have no intention at all of changing the burden of proof or the tax position, it is only right and fair that we should do our best to make our intentions absolutely plain and incapable of misunderstanding. I hope that this Bill, as re-drafted, will pass that test, and that the overseas communities will be satisfied with the very great trouble which has been taken by my noble and learned friend on the Woolsack and the noble Lord, Lord Meston, to meet their fears.

I might add that I believe the speech of the noble Lord, Lord Silkin, was based to some degree on a misunderstanding. So far as I am aware, there is no question of representations coming from overseas on this matter. It is merely people, Americans, Australians, and South Africans and others, who are—I will not use the word "domiciled"—working in this country and who felt that their position was in jeopardy. I believe that, as such, they were perfectly entitled to approach the Government of the day on the legislation in question; and if Her Majesty's Government think that by putting them in any fear or jeopardy, the interests of Britain are likely to be injured then it is perfectly right and proper for that Government to take the proper steps. I shall accordingly support this Bill.

7.28 p.m.

LORD MESTON

My Lords, I wonder whether I might mention a minor, almost trivial point. I said that Clause 7 of this Bill repealed the Domicile Act, 1861, and then went on to say that it was Clause 8, and not Clause 7, that repealed that Act. Not for the first time in my life I must have been muddleheaded, because in fact it is quite clear that it is Clause 7 of the Bill which repeals the Domicile Act, 1861.

My name is on this Bill and I must take responsibility for having dropped the previous Bill, on which my name also appeared. That Bill established a presumption that a person's domicile was the country in which he had his home and intended to live permanently. That was a presumption which had to be rebutted by the individual in question. In plain language, that individual might have had to have an expensive law case to rebut that presumption. That raised a good deal of opposition from people abroad who wished to come and live in this country for several years for the purpose of their business.

I have listened with great interest to what the noble Lord, Lord Silkin, said about the undesirability of being dictated to in these matters by extraneous circumstances of that description, but we have it on the authority of St. Paul that sometimes "it is expedient"; and assisted by St. Paul and by the noble and learned Viscount (and probably the latter is the more important of the two for the moment) I am going to take full responsibility for having dropped the presumption which appeared in the previous Bill and establishing the existing law as in the present Bill.

I should like to thank all the noble Lords who have spoken on the Bill. As for the noble Lord, Lord Craigmyle, I think your Lordships and I would like to congratulate him on the legal knowledge which he has obviously inherited from his grandfather, Lord Shaw of Dunfermline, who was, I suppose, one of the greatest lawyers we have ever had in Scotland, and who, as your Lordships know, was for many years a Law Lord in this country. I quite understand his fears about increasing the grounds of divorce. I must be corrected if I am wrong, but I think I am right in saying that the courts of this country have always taken up, and always will take up, a very strict view of what constitutes "domicile". Unfortunately, it cannot be helped that the grounds of divorce in other countries are not always the same as in this country. If the noble Lord, Lord Craigmyle, can tell me how we can get over that difficulty, no one will be more delighted than I shall, and I know that I shall have the best advice on the subject.

My Lords, in conclusion I should like to thank all the noble Lords who have taken part in this debate. In particular, without making any distinctions, may I thank the noble and learned Viscount the Lord Chancellor for the kind things which he has said. I can only hope that this Bill will receive a Second Reading without any grave difficulty.

On Question, Bill read 2a, and committed to a Committee of the Whole House.