SUCCESSION (SCOTLAND) BILL

HL Deb 14 April 1964 vol 257 cc352-92

2.43 p.m.

THE MINISTER OF STATE, SCOTTISH OFFICE (LORD CRAIGTON)

My Lords, I beg to move that the Report be now received.

Moved, That the Report be now received.—(Lord Craigton.)

LORD SALTOUN rose to move, as an Amendment to the Motion, to leave out all words after "That" and insert Clause 8 of the Bill be re-committed to a Committee of the Whole House.

The noble Lord said: My Lords, I beg to move the Amendment that stands in my name upon the Order Paper. The last time we discussed this matter I think the noble Lord, Lord Craigton, was a little piqued because I said that he had been repeatedly saying what his colleagues had been repeatedly saying, that in order to avoid the disadvantages of this Bill one should make a will. I am sorry if I accusd him wrongly. But there is one thing of which I can remind him, and which I think he will admit, and that is that whenever we get into difficulty in this Bill he always appeals to Mackintosh. He says, "Mackintosh says this" and "Mackintosh says that."

I think we want to get this matter in proportion. In the first place, we must remember that Mackintosh quite realised that his proposals would not suit very well the countryside and the country populations of Scotland, and took elaborate precautions to try to adapt them. The Government have thrown all those proposals overboard, and they are now no longer part of the measure that is proposed to your Lordships. In the second place, in order to get this matter properly in proportion I should like to remind your Lordships of a piece of not very ancient history. In the year 1936 there was published a Report called the Fleming Report, and everybody said, "Ah, here is a most wonderful Report. Let us see that its recommendations are implemented. This is a wonderful piece of legislation for the future, and a great Report"—just the same as they did with Mackintosh a little later. Then the voice of criticism arose and considerable criticism was made of the Fleming Report. The authorities thereupon dropped it and it ceased to be discussed, just the same as with the Mackintosh Report.

About a dozen years later the Government of the day, which was the Socialist Government after the war, framed a Bill as precisely as it could upon the lines of the Fleming Report and introduced it as a non-contentious measure. Several Scottish noble Lords on that occasion pointed out that it was not a non-contentious measure; that it was very questionable whether the Bill was suited to Scotland, and they opposed it—very much the same, your Lordships will notice, as in the case of the Mackintosh Report. We were then sent to see the then Lord Advocate (the present Lord Wheatley), and he took a very firm line with us and would not have anything to say to us. He said that we had to accept the Bill and that was all there was to it. I think the noble Lord, Lord Craigton, will remember sending me to the Lord Advocate. I fared with the Lord Advocate in very much the same way as we fared with Lord Wheatley on that occasion. Then, as our opposition was still undiminished, they got two acknowledged experts, people we all knew to be experts on the matter of the Bill, sent down from Scotland to convince us. I was present on that occasion and I give you my word, my Lords, that those two gentlemen—and they were experts—did their level best to convince us that the Bill was all right. But we still, I am afraid, remained unconvinced.

Thereupon, the Bill got into Committee and we moved to send it upstairs; and it was then that the difference began. We moved to send it upstairs and the noble and learned Viscount, Lord Simon, got up and said, "What is this Bill? I want to know more about it." The noble Lord, Lord Thankerton, whose son played such a splendid part in criticising the Mackintosh Report to the W.S. Society, got up and said, "What is this?" The noble and learned Lord, Lord Reid, who was fully with us at that time, got up and said, "What is this?" Then the Government did something for which I have always respected them. The Lord Chancellor of the time came to the Box and said, "We thought that this Bill was in the interests of Scotland. We thought it was a good Bill, but you continually tell us it is not. I will tell you what we will do. We will not send the Bill upstairs, as that will not put you in any better position. If you will accept it, we will name a Committee under Lord Macmillan and they can go into it and we will abide by their finding." That was a generous and noble offer, and of course we accepted it with both hands.

There is one thing that is perhaps a digression, but it is a little relevant. I should like to tell your Lordships that the principal witnesses examined by Lord Macmillan were the experts who were sent to convince us, and on their sworn evidence (because when on oath they were no longer liable to support the policy of the Department) the noble and learned Lord, Lord Macmillan, tore the whole centre out of the Bill. The first lines were the same and the last lines were the same, but the whole centre of the Bill was different and there was enacted a piece of legislation which was very useful in Scotland. I ask your Lordships to consider: was that not a wise and statesmanlike procedure? Was it not much better than to keep on saying to us, "Fleming", "Fleming", "Fleming"—like Miss Fennell's macaw, which at Boodles was thought to have something to say? That, I say, was a very statesmanlike way of proceeding, and had it been adopted in the present case, it would have served Scotland very well. I contrast that with the attitude of Her Majesty's Government over this Bill.

Now I should like to turn to Clause 8 itself, and I would remind your Lordships that throughout the passage of this Bill I have said that I am fighting the battle of the small man. I do not mean that I consider him small, but in normal parlance these people would be considered small: I am talking about the owner-occupiers of farms who want to leave them within their families—and, of course, some of them have been there for many generations. I know one not far from me, whose family has been in occupation since the time of Charles II, and of another family that has been there for fourteen generations, which is an amusing calculation for your Lordships. These are the people for whom I am really fighting. Your Lordships will remember that Clause 8 has had no Committee stage. That is why I am moving to give it a Committee stage now. Clause 8 was introduced in Committee, and we have never had time to consider its terms and to try to improve it, as one can in Committee. It has simply been presented to us with the attitude, "Take it, or leave it", and we have had to take it.

The first part of Clause 8 reads: Where a person dies intestate leaving a spouse, and the intestate estate includes a relevant interest in a dwelling house to which this section applies, the surviving spouse shall be entitled to receive out of the intestate estate … the relevant interest … My Lords, it is worthwhile considering what the relevant interest is. I think most of the great estates of Scotland are now in the "form of estate companies. I have not myself a great estate, but my property is in the form of an estate company. Consider what I have in my house. I have a tenancy at will. If I die intestate, my widow will receive a tenancy at will, which is no tenancy at all. She could be asked to remove the day after the funeral. And that is what will happen in a great many cases.

When we come to the owner-occupier farmer, who has not an estate company, we find a very different position. In such a case the wife is to receive the value of the estate, up to £15,000. If we take a farm of 150 acres, in my part of the world that would be just about £15,000. Here I should like to remind your Lordships of one thing: it is a matter which has often been denied to me by the Department of Agriculture for Scotland, but it is none the less true, and must be known to everyone of your Lordships who knows anything about agricultural matters in Scotland. I refer to the fact that to-day, and for a long time past, farms have passed from hand to hand at the price, or practically at the price, at which the buildings upon the farms are valued. The land goes for nothing; it is the buildings that matter. However fertile the land is, there are very few cases where the price of the farm exceeds the value of the buildings. That means that in a case such as that which I am discussing the widow will go away with the whole value of the farm, leaving nothing to the heirs.

My Lords, I maintain that that is contrary to public policy. You may call these people small men, but I am perfectly certain that the owner-occupier farmer, whose family has been in a property for many generations, has a larger effect on public opinion, and is a more useful member of society, than a great many people whose position in the world shines much more brightly to people who do not understand these things. The Government attitude on this matter has been, "We are very sorry, but we do not mind if the family is turned out so long as the agriculture of the country goes on." In the first place, the agriculture will go on, but it will not be as good as it was before. In the second place, it will give a shock to public feeling which will not, I think, increase the respect that ordinary, decent-feeling people have for a Government.

There is a third point about this Clause 8 that I want to make to your Lordships, and it is an important one. I am going to say quite frankly that it depends on which spouse it is, but in the case that I am arguing the spouse is a woman and not a man. I say that because, although I have a great respect for women, I think that, however in love an old lady may be with a young husband, if she makes a will she always takes care to put it into the bank. She is never what I may call besotted to the extent that she does not put it away in a safe place, in the bank.

We have been arguing this Bill on the basis of pictures. The case the Government are really arguing is that of two spouses who have lived long together, and one has died and left a widow or widower. But that is not always the case. In these days a wife may be the third wife of a fourth husband, or the numbers may be almost anything. The case that is going to arise in many instances is that of an old man and a young wife. One has known a good many such cases. I do not know if the law has been changed since I was last informed about it, but remarriage, second marriage, always invalidates wills made beforehand. Therefore, the old gentleman has to make a new will, and he may keep it in the house.

The difference between what may be normally expected to be in a man's will and Clause 8 is so very great that the Government are deliberately putting a premium on the action of the wife if she destroys a will to which she has access. I am told that to destroy a will is a very great crime, and no doubt it is. At least, I will admit that it is a very great crime if it is done for one's own interest. But the point is that most people who destroy a will in their own interest can never be found out. Everybody may know that the old gentleman has made a new will, but they cannot know that he has not destroyed it; they cannot know that he has not sent for it and asked his wife to destroy it in his presence. By the very severe terms of Clause 8, a premium is put on the kind of action I have described, and I think that it is a dangerous thing to legislate in such a way as to make crime pay.

For all those reasons, my Lords, I think it would be proper to have a further Committee stage on this clause. If we do not have a re-committal of this clause, if the Bill is reported this afternoon, then whatever faults the Government find in Clause 8 as it at present stands they will be able to bring them up only on Third Reading, and I think it is contrary to public policy to make really major alterations in any clause on Third Reading. For all those reasons, my Lords, I think we ought to recommit this clause, and I therefore beg to move.

Moved, as an Amendment to the Motion, to leave out all words after "That" and insert "Clause 8 of the Bill be re-committed to a Committee of the Whole House."—(Lord Saltoun.)

THE EARL OF CROMARTIE

My Lords, I wish to support my noble friend Lord Saltoun in pressing for the Amendment; and I will be brief. Before giving your Lordships my reasons, I wish, with respect, to dispose of a sentimental red herring which was produced by two noble Lords opposite during the Committee stage of this Bill. They found that these Amendments indicated the cruel and harsh way the Scottish treated their womenfolk, and indeed they said that we regarded them as chattels. I suggest to the noble Lords a short course of study of Scottish history. They will discover that because the old Celtic laws were so good, they modified considerably the feudal laws that succeeded them. So that up to the present day the lot of the women in Scotland has been far superior in law to that of their English cousins.

We have been told by my noble friend Lord Craigton that this Bill has been strongly recommended by Scottish lawyers. Since I was last in your Lordships' House I have taken some trouble to investigate this statement, and I find, as I suspected, that this legal support is mainly centred in the great cities, and especially Glasgow. But the country lawyers—in my part of the world at any rate—have not been consulted at any stage and are utterly opposed to this Bill. Indeed, some stages will be quite unworkable in the country. We have also been told that this Bill will bring us into line with the law of England, the procedure carried out in England, and that there it has not done any harm. I consider it has done a certain amount of harm, for it has helped to dispossess the farmer and to replace the true farmer with the "cheque book farmer" who, in England since the war, has appeared in large numbers, often for the purpose of tax avoidance and sometimes in an endeavour to get the status of a country gentleman. Although in certain cases this individual brought needed capital into the farming industry, he is not always the most welcome addition to the country scene.

We have also been told that great complications would arise if a farm is situated on borough boundaries. This is the sheerest nonsense. The Land Court which deals with crofts has very wisely had nothing to do with this Bill—and what is a croft but a small farm? Many of these are on boundaries; and it does not appear that the Land Court anticipates any complications. I strongly urge the adoption of this Amendment. It would at least go some way towards mitigating the danger caused by this entirely unnecessary Bill, which has been foisted on to the country through the usual ignorance of country conditions and customs and the unfortunate belief, so marked in the recent railway closures debate, that there is no Scotland other than Edinburgh or Glasgow.

BARONESS SUMMERSKILL

My Lords, the House will forgive me for taking part in this debate, but as it concerns the economic conditions of the poorer widows of Scotland whose husbands have failed to make a will, I feel that perhaps a woman's voice should be raised on their behalf, and I am anxious to oppose the Amendment of the noble Lord. It is quite clear from the course of the debate on this Bill that the point we are discussing now is the one which concerns those who are opposed to this Bill. May I just quote the noble Lord, Lord Guest, who simply said, and in a very crude form, during the Second Reading debate [OFFICIAL REPORT, Vol. 256 (No. 49), col. 580]: …in a small estate where there is little cash and the house and furniture are the main assets, the widow scoops the pool,… The noble Lord, Lord Reid, asked: "Why should she have more?".

This, I think, pinpoints the whole issue, and I must confess that this attitude towards the modern wife in the home is absolutely incomprehensible to me and completely unrealistic in this century. The noble Lord, Lord Saltoun, when he moved this Amendment, sought to focus attention on the farms; but this is special pleading. This does not concern only the farmer's wife, We have been told over and over again that this concerns the widow in the smaller income groups; though I agree that the two speeches that have just been heard—both of which devoted themselves to the farmers' lot—may appeal to noble Lords here who, as are we all, are interested in land.

LORD SALTOUN

My Lords, may I interrupt the noble Baroness? I think she will do me justice if she also pointed out that we have all along said that this Bill is all right for the towns and not right for the country. It was therefore quite within my brief to discuss the position of owner-occupied farms and not widows in the towns. We quite accept this for the towns.

BARONESS SUMMERSKILL

But I must remind the noble Lord that as Parliamentarians we must realise that the Government cannot make two laws—one for the country and one for the towns. This suggestion is absolutely impracticable; and, as it is, this measure will concern the poorer widow—and I want to emphasise this—in the town and in the country whose husband fails to make a will. The better-off widows will not be touched by it because their husbands, who own land and large houses, have usually already made their wills.

I want to emphasise that when I was listening to the noble Lord just now, he seemed to me to be completely remote from the lives of the ordinary people and from the lives of the housewives in this country who will be affected by this Bill. To-day, women, even in wealthy homes—and certainly in the ones we are talking about to-day—do not sit idly in drawing rooms, waited upon by maids. The wife cooks, cleans, washes and nurses; and the better-off among them take the children to school in the car and very often do secretarial work for their husbands. The wife provides the conditions without which her husband could not earn his income. Furthermore, she provides services which to-day command a high price in the domestic market.

Noble Lords may think that I am being subjective; that I am adopting a feminist approach and cannot see the thing in the proper light. Well, I have the most powerful support. Only last month Sir Jocelyn Simon, the President of the Probate Divorce and Admiralty Division, speaking on a fair share for the wife, said: The wife should have equal rights to participate in the proceedings of the husband's world. After, all, the cock-bird can feather the nest only because he is not required to spend most of the time sitting on it. He said that men can earn their income and accumulate capital only by virtue of a division of labour between themselves and their wives. He said: The law must have regard to the functional division of labour between husband and wife, which frees the husband for the acquisition and accumulation of goods. It ought to permit the wife to participate in this on an equal basis. Apart from the service which a woman gives in the home, I would remind your Lordships that there are some who have to endure the husband's bad temper, domineering behaviour and his moods. This is not a little thing: but she does it in order to maintain harmony in the home for the sake of her children. How few women leave their homes because they find that their husbands are intolerable bores or bad-tempered men! They will look at their children and say, "I cannot leave them to him." This is not an exaggeration. It is part of marriage; it is the price which many women have to pay.

When a woman knows that her unremitting service has helped her husband to buy the house which we are discussing, and which may well have increased in value (many houses have increased in value in London, and I have no doubt that this is happening also in Scotland), why should she not benefit from it when her husband dies, whatever its value in the market? Why should she not have the right in her old age to sell the house and move into a modern flat, say, in Edinburgh, where she could manage alone? The noble Lord suggests some alternative. But, at a time when it is impossible to get any domestic help, to tie a woman in her old age to a fairly large house and not allow her to move to a flat, is a brutal suggestion.

I have observed that no noble Lord has dared to suggest that the average Scottish housewife is a spendthrift, unfitted to handle money. I think that Scottish housewives are among the most self-denying in the world. And the noble Lord need not worry about the mother changing after the husband has died. A good mother's nature does not change, and she transfers her love to her grandchildren. Why do noble Lords make this mean little attempt to cheat the poor Scottish housewife after the death of her husband? The noble and learned Lord, Lord Guest, put it plainly on Second Reading, when he expressed the fear of remarriage by a young widow, and said [OFFICIAL REPORT, Vol. 256 (No. 49), col. 580]: she can sell her house and turn out the children the next day. The noble Lord who moved this Amendment went even further this afternoon, when he conjured up a picture of a man marrying a third or fourth wife. Listening to him this afternoon, I wondered whether I was listening to a debate in some Islamic capital! Surely it is not proposed to frame a law to protect the tiny minority of men who marry for a second or third time an irresponsible young woman. We must not sacrifice the great majority of Scottish mothers for the sake of these men. I would say to the noble Lord, in all gentleness: Who knows? This measure as it stands may act as a deterrent, because it may make these men think more carefully before they plunge into marriage again.

3.15 p.m.

LORD CRAIGTON

My Lords, on the technicalities of the noble Lord's Amendment, I put it to your Lordships that this clause has already been fully debated in Committee. The debate lasted an hour and a quarter, eleven noble Lords spoke and there was a Division on one point, in which 83 noble Lords voted. The new Clause 8, as accepted by the Committee, contains no surprises. There is no question of noble Lords being told, "Take it or leave it!", because on Second Reading I gave notice of the change and explained that there was only one change, other than drafting; and I gave the reasons for it. Nothing was sprung on your Lordships in Committee. Your Lordships had the old clause before them in the Bill and the revised clause which your Lordships accepted, was on the Paper.

The Government have no Amendments to propose to Clause 8. The noble Lord himself, who wants to re-commit the clause, has only one Amendment and that is down for consideration on Report. No other noble Lords have any Amendments to make. Therefore, I suggest to your Lordships that proper and adequate Committee consideration has already been given and that we can move on to the Report stage without detriment to the clause. To some extent, this might be said to be almost a wrecking Amendment, because, as those who would like to see this Bill on the Statute Book appreciate, if your Lordships agree to re-committal of the clause, then, of course, the Report stage cannot be taken at all to-day.

I could stop there, but I imagine that those noble Lords who have spoken would like me to reply briefly to points raised. The noble Earl, Lord Cromartie, said that some of his legal friends objected strongly to the Bill. He may have forgotten that the Law Society of Scotland represent all solicitors, including those in the country areas—because all practising solicitors must be members. The Law Society strongly support the Bill, and the Council of the Society includes representatives of those areas to which the noble Earl referred. I am grateful to the noble Baroness, Lady Summerskill, for putting the case for the housewife. When printed, I shall show it to my wife: it will cheer her up.

The noble Lord, Lord Saltoun, says that he is in battle for the small man, and he makes a sincere case for the owner-occupier farmer, who, I understand from the information I can get, normally does make a will. As the noble Baroness said, what we are trying to do is to make wills for the 9,595 cases out of 9,600 in the course of a year, where a man dies intestate and the heritable property left is under £10,000. Only five out of 9,600 intestate estates in the year 1961 had a value of over £10,000 of heritage. What is our duty? Surely it is to make the sort of will that that sort of man would have made, if he had the opportunity or the sense to make a will. I am quite certain that what he would have done would have been to leave his house to his spouse; and that is what Clause 8 does. I beg your Lordships not to accept this Amendment.

3.19 p.m.

THE EARL OF PERTH

My Lords, I am a little distressed that my noble friend Lord Craigton finds that this is a wrecking Amendment. I do not believe that my noble friend Lord Saltoun wants it to be that. I have great sympthy with him in the suggestion that we have not had a great deal of time to think over this whole question. In Committee stage we were able to make considerable improvement on this clause, but undoubtedly there is considerable anxiety about it and I should have a great deal of sympathy with our trying to look at it further.

However, we have to weigh these things up on balance. We have to try to judge whether what we have obtained so far is sufficient, or whether if we delay this Bill we may lose the whole of it as a result. That is something which I have no doubt my noble friend will consider before he decides what to do.

I would make only one other point. I have listened with interest to the noble Baroness, Lady Summerskill, speaking for Scottish women. Of course, the clause as it is is not for either the man or the woman, but for the spouse whoever that may be. When I was listening to her I got the impression that she had the belief that we in Scotland treated our womenfolk badly. I would only say to the noble Baroness that, as I understand the law of Scotland—and we rejoice in this—it treats the womenfolk very much better than does the law of England. Perhaps all her enthusiasm on this question might be better devoted to England rather than to Scotland.

LORD SHACKLETON

My Lords, may I ask the noble Lord, Lord Craigton, in the absence of the Leader of the House, what are the precedents in regard to re-committal? Without going into the merits, those of us who have listened to the argument appreciate that occasionally we do re-commit a clause. It may be that this would be unusual in this particular instance. I think it would be helpful to know whether that would be so. I may say that I am not discussing the merits of this matter, although I was slightly tempted to join issue with my noble friend Lady Summerskill on the rôle of the man in the house.

LORD CRAIGTON

My Lords, as I understand it, the noble Lord, Lord Saltoun, is perfectly in order to suggest to your Lordships that you should recommit the Bill, either in whole or in part, and if he succeeds in having it re-committed, then the Report stage is put back for another day, because we cannot take Committee and Report on the same day.

LORD SALTOUN

My Lords, if I may reply to the noble Lord, Lord Shackleton, first, it has always been the practice of this House to insist on the right of this House, if it is not satisfied with a Committee stage, either to re-commit a Bill or to re-commit part of it. It has always been assented to in this House with great reluctance by every Government, and they have gone to great lengths to avoid doing it. That is really the position to-day. I did this on purpose, partly to bring up this matter and partly because I wanted to get a general discussion on Clause 8.

I am extremely grateful to the noble Baroness, Lady Summerskill. She seems to have the same admiration for women that I have had all my life. I was tempted to think that she must be a man in disguise. From her lips the perfect Scottish woman is sometimes mated with a husband no better than he should be. It may interest the noble Baroness if I tell her that all my life I have been fighting as well as I could in recommending that the sheriffs of Scotland, who have more to do with farm servants than any other officers of the Crown, should never forget that the cottar wife is just as important in earning the money as the ploughman or the farm servant himself. I am sorry to say that in the past this has been very much neglected. If the noble Baroness is really enthusiastic in the cause of women, I hope she will devote a little attention to that, because it is something which needs doing, and I should be very glad to give her all the help in my power.

I am grateful to the noble Earl, Lord Perth. I know that he does not want me to press this Amendment to a Division. I do not think, in spite of what the noble Lord, Lord Craigton, has said, that we have considered all the implications of Clause 8 sufficiently. After all, what did the noble Baroness, for whose speech I am so grateful, do? She merely drew another set of pictures: Nicholas Hilliard pictures, if you like; but that is only pictures. That is how this clause has been discussed ad nauseam. Everybody draws a different picture, but all the pictures belong to life and you have to try to make a law which suits everybody. I do not think this does. However, I have made my protest, and, with your Lordships' permission, I will withdraw the Amendment.

THE EARL OF SWINTON

My Lords, I wish to speak only for a moment, and not to resist the withdrawal of the Amendment. I intervene, not because I wish in the least to become involved with Scottish ladies, or even Scottish lawyers—I have quite enough to do with both in my own country, where we have managed these things very well—but because of one observation which fell from my noble friend Lord Saltoun about the practice of the House in agreeing to the re-committal of a clause. I really must challenge it in the interests of the general procedure of this House, which I think it is important to preserve, because, after all, we are all jealous of the procedure of this House, where we do not have a Speaker who can keep us in order.

I am quite clear—and I think those on the other side of the House who have been concerned with the conduct of this House will bear this out—that it is not at all a question of its being the practice of a Government to resist re-committal on principle. The principle that has always been followed is this. Recommittal is a very unusual procedure, and as a rule the only occasion on which it is agreed to (it is very often proposed; I have proposed it often myself in leading the House) is where a promise has been given that a particular clause shall be reconsidered. Our Rules on Report are rather strict. A Member can speak only once. A new Amendment can then be put down to meet the general sense of what is wanted by the House and it may be an Amendment upon which a good deal of discussion has to take place in the to and fro and interchange of ideas. In order that we may not be fettered by having only the right to speak once, and so that we may get that interchange of opinion and views that we get in Committee, it has then been the practice of the House in a case like that to agree that a particular clause should be recommitted.

But certainly the Scots have had a full run for their money on this clause—more than the ten-elevenths or eleven-tenths, or whatever it was, they always used to get in their favour in finance when I was a member of the Government. Whether it is in the right form or not, I would not presume to say; but I should think every Scottish Peer, and a few English Peers, have spoken several times on this clause. It certainly has been most fully considered, and it would be quite contrary to the practice of the House to re-commit the Bill for this purpose.

LORD SALTOUN

My Lords, if I may, with your Lordships' leave, correct the noble Earl, speaking entirely to the matter and within Standing Orders, I should like to ask him to look back through the debates of the last thirty years to see how often a re-committal has been asked for and how rarely it has been granted. I think I could number the times it has been granted on the fingers of one hand. But it has been asked for very often.

THE EARL OF SWINTON

Exactly. Nothing could bear out more closely what I have been putting to the House. Anybody who is a discontented minority of one is constantly asking for things—whether it is the Lord or the noble Baroness, both of whom are very vocal in minority cases, and whether it is Scottish widows or boxing—but the fact that over and over again, on the sort of case being put to it now, the House has refused to agree to a clause being recommitted is the most complete justification of the view I have expressed to the House.

Amendment, by leave, withdrawn.

On Question, Motion agreed to.

Clause 1 [Assimilation of heritage to moveables for purpose of devolution on intestacy]:

3.30 p.m.

LORD CRAIGTON

My Lords, with the approval of your Lordships, this Amendment should be discussed with Amendments Nos. 6, 7, 10, 16, 21, 23, 26, 27 and 28. This Amendment arises out of a speech made by my noble friend Lord Perth, so with your Lordships' approval I will move it formally in order to give him an opportunity to speak. I beg to move.

Amendment moved— Page 2, line 9, leave out from ("affect") to ("and") in line 13 and insert ("legal rights or the prior rights of a surviving spouse").—(Lord Craigton.)

THE EARL OF PERTH

My Lords, may I first of all take the opportunity of thanking my noble friend for his series of Amendments, because there was a problem here which worried both my noble friend Lord Colville of Culross and myself. I should also like to take this opportunity of saying how sorry my noble friend Lord Colville of Culross is that he cannot be here to-day because he has to be at court. He asked me to express his regret, and also his thanks for the various ways in which the Government have met points that he made on the Committee stage.

This is also an opportune moment for me to touch upon a more general matter which affects the whole of this Bill. I have particularly in mind the question of publicity. It may be recalled by your Lordships that when the noble Lord introduced this Bill he said that this was the most important measure for the reform of the law of Scotland that had been laid before your Lordships for a considerable time. I think your Lordships would all agree that this is the case. After all, the rule of primogeniture is no longer to hold sway in the case of an intestacy, and moveables and heritables are to be considered as one. Certainly it is a very important Bill and, of course, many of your Lordships stressed this again and again in the debate.

Many of us have shown our particular anxiety in this Bill—namely, for the small farmer—and we have tried in one way or another to safeguard the interests of the small farmer. Indeed, I have tried very hard over the last fortnight to introduce a new Amendment, but I was advised that if I tried to do this it would be a wrecking Amendment similar to that which was proposed in the Committee stage, so I have not proceeded with it. But the fact remains that this Bill has had and, I feel, will have, very little general publicity. I am not blaming the newspapers for that. In fact, I am not surprised. Legal reform is pretty bare bones and dull stuff, and is really only of interest to those who are affected, if they know they are affected—and I fear that many of them will not know it. I tried to introduce an Amendment to ensure that the Government should give full publicity to this Bill, and I recall that when my noble friend Lord Green-hill was speaking on the Second Reading—or it may have been on the Committee stage—he advocated that the local authorities, for example, should give publicity to the importance of making a will, which is of all the greater significance as a result of this Bill

But I was not able to introduce my Amendment, because I was advised that (if I have the terminology right) it would be a money matter; that money matters were matters which should in the first instance come up in the Commons; and that if I tried I might or might not succeed, but there would be a long debate and I should not achieve my purpose. Therefore, I feel I would rather talk on this question of publicity on this Amendment, as it affects the whole Bill, and ask my noble friend—and I warned him that I was going to ask about this—just what they have in mind in the way of publicity for the Bill.

I do not have to develop the importance of this matter, particularly to the farmer, but I would just say this. If we do not get satisfaction on this question of publicity, then, however unusual it may be, I think we ought to consider very seriously at the time of Third Reading whether we should try to force the Government's hand on the matter. So I hope your Lordships will judge most carefully what may be said by the Government with regard to publicity, and if you feel that what we have been given is not sufficient, then the Government are warned that we will look at it again.

LORD SALTOUN

My Lords, I should like to thank the noble Lord, Lord Craigton, for this Amendment. It is a point which I had noticed before the Committee stage, but I had thought it was so insignificant compared to other matters that I was not going to worry about it. As to what my noble friend Lord Perth said about publicity, so far as my own districts are concerned I think I can ensure that the farmers know all about it. The difficulty will be to get the country lawyers to find out about it, because they are all too busy and do not have much time. It concerns them very much, because it is going to mean a large increase in income to the country lawyer, as the noble Lord knows. They must keep their clients clear on the effects of this Bill, if they possibly can. I think that is the important point.

LORD STRATHEDEN AND CAMPBELL

My Lords, I entirely agree with what my noble friend Lord Perth said about the importance of publicity for this Bill when it becomes an Act. Whether the local authority is really the right channel from which to give publicity I am not quite sure. I speak here with an interest, being a convenor of a county, and I am not quite certain how we shall set about it. There are all the farming organisations and farming publications which are widely read. In spite of what the noble Lord, Lord Saltoun, said, I believe that the country lawyer and solicitor does get time to know what is going on. I have always found that he is well aware of all changes in the law concerning property at every level, and I think it could pretty safely be left to those two organisations.

THE DUKE OF ATHOLL

My Lords, I, too, should like to support my noble friend Lord Perth on this question of publicity. I raised it to a certain extent in the Committee stage. I gather that one of the means by which the Government intend to encourage publicity for this Bill is through the Scottish Landowners' Federation in their quarterly magazine, and through the N.F.U., who publish an excellent magazine of their own. The snag about this is that although the vast majority of farmers in Scotland are members of the N.F.U., the ones that are not are, I am afraid, the same ones who do not make wills—the dozen or so who leave the whole thing to chance, never see a solicitor in their lives, and never sign a bit of paper. I know a charming tenant farmer who says, "The one thing I have learned is never to sign a paper when I am in this condition"—but he is always in that condition, so he never signs anything in his life. It is these people who have to be "got at" and told that they must make a will.

Unless the Government are prepared to canvass all the farmers individually by post—possibly using this new service which has been introduced, whereby there is mass delivery in particular districts—I cannot see that their publicity will be effective to those who have not up to now made wills. It will undoubtedly be very effective for those who have already done their duty, but that is not the point. So I hope we shall have some concrete promises from my noble friend the Minister of State on how they are going to set about this question.

LORD CRAIGTON

My Lords, my noble friend Lord Perth did not put on the record anything about this formidable group of Amendments, which I think I should do because, as the noble Lord, Lord Saltoun, realises, they make a drafting change which it is well worth making. They make a change in nomenclature only, and do not affect in any way the distribution of estates. My noble friend Lord Perth pointed out that the Bill imported into the well-known definition of legal rights those prior rights available to the surviving spouse on intestacy in Clauses 8 and 9 of this Bill. We agreed with the noble Lord, and he will be glad to know that the Writers to the Signet also agree with him. We agree that it would be confusing not to confine the term "legal rights" to jus relicti and legitim, and so these changes add the nomenclature of prior rights of a surviving spouse. The substantial Amendments (and I am speaking to the whole matter now) are numbers 25 and 27. The rest are consequential. I am sincerely grateful to the noble Lord for raising this point.

On the question of publicity, it is true there have been a number of important changes and it is indeed important that the changes made by this Bill in this field of Scots law should be known and understood by all. We feel, and I think your Lordships feel, that the passing of this Bill is an opportunity not to be missed to remind everyone of the importance of making a will. This is how the matter lies at the present time.

The Scottish Landowners' Federation, on their own initiative, have already taken steps to urge owners of agricultural land to make wills, and the Federation's statement has been widely publicised both in the general and lay Press, and it is very welcome. There has already been considerable publicity in the legal journals and I am quite sure that there will be more when this Bill reaches the Statute Book. We have been in touch with the N.F.U. of Scotland, offering them help if they wish it, and they inform us that they intend to publish a statement about the Bill in their journal, which goes to all the Union's 20,000 members. We propose to include an article in the Department's Journal for Scottish Agriculture. This journal has a fairly wide circulation among the farming community and is to be found in libraries and similar places.

When the Bill becomes law there will be all the appropriate Press publicity directed at all sections of the community. This is something about which the Government must be careful to do the best they can. We hope to arrange for publicity through the television and radio authorities, and particularly for the B.B.C. to make some special mention in one of their farming news bulletins—so perhaps the noble Duke's charming farmer either looks in or listens at some time.

Finally, later in the year—and I know that my noble friends are particularly concerned about the farming community—we shall ourselves investigate, and ask the advice of the N.F.U., whether there is need for further publicity among the farming community, and if it is clear that there is such a need we can enclose an appropriate advice with the agricultural returns which are distributed to all farmers in early December. Therefore, I hope that this Amendment giving a separate nomenclature and definition to the new rights on intestacy conferred by Clauses 8 and 9 will be approved.

On Question, Amendment agreed to.

Clause 8 [Legal rights of surviving spouse, on intestacy, in dwelling house and furniture]:

LORD SALTOUN moved to add to subsection (2): (c) on the application of any person having a contingent interest in the estate the Court of Session or the Sheriff on being satisfied that there are special circumstances of an historical nature connected with the dwelling-house which make it proper that this subsection should apply to the case so orders:

The noble Lord said: My Lords, as your Lordships will see, this Amendment is merely to put back a provision which was in the Bill when it came to your Lordships' House. As it is, the sheriff is going to be asked to decide what an heirloom is, and I do not see why he should not be asked to decide what is an historic house. I am not especially interested in statistics of this matter, but we must recognise the fact that anybody may die intestate. As the noble Lord, Lord Craigton, very well knows, the late Lord Lovat himself died intestate, and it may well happen to anybody. Therefore, I think it would be wise to put back the question which the Government were quite prepared for the sheriff to ask when the Bill came into this House. I beg to move.

Amendment moved— Page 5, line 32, at end insert the said subsection.

LORD CRAIGTON

My Lords, the effect of this Amendment would be that where the intestate's estate included a dwelling-house valued at less than £15,000 and of an historic nature, the surviving spouse would get the value of the house and not the house itself. A similar provision relating to historic houses of any value was taken out of the Bill on Committee. Why? One of the main reasons was the extreme difficulty, as your Lordships know, of definition, and we solved the problem by placing a limit of £15,000 on the value of any house that goes to the widow. This limit would include most of our historic homes without specifically having to define them.

The noble Lord's Amendment poses the question whether, in the case of the smaller intestate estate, there is a real danger to Scotland's history in passing the small historic house to the widow, a danger sufficient to justify the expense of a court action. We have given this matter long and anxious thought in the light of the basic principles of the Bill, the widow's interest and Scotland's interest. It could be held that family connections alone justified the definition "historic". But it is a principle of the Bill that the widow should get the house if at all possible. It is a principle that there should be no preference among the children; nor does the noble Lord's provision give any preference. If the children cannot agree, or the widow has to be paid the money in lieu, the house may have to be disposed of, as he knows, in any case. If "historic" is to mean, as perhaps the noble Lord intends it to mean, that the house itself is of historic merit, then such a house up to that limit of value would almost certainly be the subject of some category of protective listing and so would be preserved for Scotland in any circumstance. That being so—and the same would apply if the house had been occupied by some historically famous person—there is no good reason why the widow, like others in the under £15,000 category, should not have the house and continue to live there should she so wish. So we take the view that we are doing right by the widow and saving her possible expensive litigation; doing right by the principle of the Bill; and doing no harm by Scotland in asking your Lordships to reject this Amendment.

LORD SALTOUN

My Lords, I do not want to press this Amendment, but I should like to correct the noble Lord, Lord Craigton, in the statement he has just made. I think he took the line that most historic houses in Scotland were worth more than £15,000.

BARONESS SUMMERSKILL

No.

LORD SALTOUN

Then I do not understand the noble Lord's argument. Would he make it a little clearer?

LORD CRAIGTON

The point was that if the house is valued at under £15,000, if it were of an historic nature, that is, architecturally historic, it would almost certainly be listed in some form of protective listing.

LORD SALTOUN

It may or it may not be. I live in an historic house. It is mentioned by Blind Harry. But when last valued its value was about £2,000. I do not agree with the noble Lord, but I am not willing to press this Amendment as the next Amendment is more important.

Amendment by leave, withdrawn.

Clause 11 [Representation in, and division of, legitim]:

3.49 p.m.

LORD SALTOUN moved to leave out subsection (3) and to insert instead: (3) Where any person is entitled to claim legitim out of the estate of a deceased person by virtue of subsection (1) of this section or otherwise, he shall be under a duty to collate any advances made by the deceased to him, and the proportion appropriate to him of the advances made by the deceased to him and the proportion appropriate to him of the advances so made to any person through whom he derives such entitlement and for the purposes of calculating the legitim fund only, all such advances must be added back to the moveable estate of the deceased.

The noble Lord said: This Amendment deserves a little explanation. Clause 11 is merely a reiteration of the Common Law of Scotland, which says that the younger children of the deceased are entitled between them to one-third of the deceased's moveables. It also says that if the deceased has made advances to his younger children during his lifetime, the younger children must bring these advances into account as between each other. The operation of that law in its full force will make it impossible for the ordinary owner-occupier to go on with his farm. This is not a question of intestacy; this is absolute law which affects a man whether he makes a hundred wills or does not make a will at all. This iron rule means that, of the moveable estate, so much is to go to younger children; and even if he has made advances to them for their education, and to establish them in life, that affects the children only as between themselves, and does not affect the estate at all.

To give a very simple case, let us take a farm of about 90 to 95 acres, which we may value at £9,000. The capital necessary to run that farm will be in the neighbourhood of £100 an acre; that will be another £9,000. You have there a moveable estate of £9,000, and under Clause 12, if it is passed, £3,000 of that £9,000 must go to the younger children, whatever advances their father may have made to them during his lifetime. He may have advanced £10,000, but that does not make any difference. Three thousand pounds must go to the younger children. Anybody who is really experienced in agriculture will know that to take out of the moveable capital of a farm as much as £3,000 is to make it practically impossible for the heir to go on with the farm, which will have to go into the market and be sold. My Amendment would make this alteration of the Common Law. I quite agree that this Common Law has been the law for about 900 years; but if the noble Lord, Lord Craigton, tries to defeat me by that argument, I would point out that the law that has been the law of Scotland for 900 years is now, by virtue of this Bill, going to be torn to shreds. So it is not a very good argument.

The point of my Amendment is this. Let us take the case I gave. Suppose the father has advanced to his younger children £3,000 in all—perhaps £1,000 to one, £1,500 to another and £500 to another—to establish them in life, and then those sums are brought into the estate for the computation of the legitim fund. Your Lordships will see that that will make the moveable estate for calculation purposes up to £12,000, of which the legitim fund will be £4,000, of which the younger children will already have got £3,000, leaving £1,000 to be divided. A farm of that size can bear that amount of unremunerative debt. A farmer can borrow to increase his earning capacity to a much greater extent. He cannot, in my experience, borrow for jewellery for his wife or for some payment for which, to a greater extent, he gets nothing.

I pointed out on the previous stage that it was perfectly simple for any careful father to get round this provision in Clauses 11 and 12 by making advances in the shape of loans. In that case, on his death the £3,000 that he has advanced would be brought into the estate as part of the estate; they will be debts from the younger children. It will have precisely the effect of my second calculation. The legitim fund would be £4,000, of which £3,000 has already been received and there is only £1,000 to divide. The result will be that when the estate comes to be wound up it may have to pay a rather higher rate of estate duty, and that higher rate of estate duty will fall on the younger children, who very naturally will resent it. I put the case as clearly as I can, and I hope I have made it clear to your Lordships. What I am seeking to do is what I think is perfectly fair. If the Common Law says that the younger children must collate their advances as between each other, why should they not collate them against the estate too? With that question to your Lordships, I beg to move.

Amendment moved— Page 9, line 1, leave out subsection (3) and insert the said new subsection.—(Lord Saltoun.)

LORD CRAIGTON

My Lords, as the noble Lord has explained, his proposal is, in a sentence, that any advance to one of the children should notionally be added back to the whole estate for the purpose of distributing the legitim fund, rather than to the legitim fund itself, thus giving more to whoever inherits the estate at the expense of those children who do not inherit and to whom advances may, or may not, have been made. So far as the object of the Amendment is to help a parent to favour one child at the expense of others or to enable a parent to make provision for one of his children that the child would not otherwise get, this can be done under existing law by arrangements made during the parent's lifetime.

The principle of the Bill is that all children should be treated equally in the absence of an expression of the parent's will to the contrary. That being so, the present rule of collation, which is aimed at securing; an equitable distribution of the legitim fund among the children, seems worth preserving. But in asking your Lordships to substitute a new subsection (3) for the one in the Bill, the noble Lord has sought the deletion, among other points, of the opening sentence, which is: Nothing in the last foregoing subsection shall be construed as altering any rule of law as to collation of advances … I do not know whether—I rather suspect it is—this change in the method of calculation is the limit of the noble Lord's intention. But I am advised that while the Bill preserves the existing rule of law of collation and merely extends it to cover cases of representation, the form of words used by the noble Lord could be held to set a new rule of collation altogether. Advances stipulated as not made towards legitim would have to be collated for the first time. So might advances for the child's aliment or education, or even advances made under an agreement discharging the child's right to legitim; and the child might even have to pay out of his own pocket into the legitim fund. I do not make this a case for opposing the Amendment, because it is not fair to oppose an Amendment on the drafting points of the noble Lord's clause, but it does give the facts.

The noble Lord made a persuasive case where one child should get more than under the present method of cal- culating the legitim fund, and because that child would get more there is an equally persuasive case for the unfortunate brother or sister who gets less. We are not legislating here for farms alone but for the Scottish people in all walks of life, and before we alter, either fundamentally or in the one respect I think the noble Lord intends, a Common Law rule of such antiquity, we must be sure there is a demand and need for such alteration. Neither the Mackintosh Committee, nor any recognised legal channels, nor any non-legal organisations, nor individuals, have asked for this change; neither has the skilled legal opinion available to me. We have no axe to grind. We want to do what is best for the people of Scotland, and here the balance of advice comes down heavily on the side of rejecting this Amendment.

LORD SALTOUN

My Lords, I left out the first sentence: Nothing in the last foregoing subsection shall be construed as altering any rule of law … because, having read it through very carefully, I judged that nothing in the foregoing subsection had altered any rule of law. That is the only reason why I left that out. My proposal, which, as the noble Lord says, is altering what has been Common Law for 900 years or so, would have the effect of making the children more equal between themselves. It would prevent the child who has received advances from getting very greatly in excess of his share. My proposal would work more equitably. But what I am particularly interested in is the noble Lord's declared intention of going as far as he can to divide up all the moveables of a farmer on his death in such a way as to make it quite impossible for that family to go on holding that land. That is what I have been fighting to prevent in this Bill, and that is the real issue between us.

While I am not going to press this Amendment, because, as I have told your Lordships, there is a perfectly simple way out, I consider the declaration of the Government's intention in this respect one that I greatly regret and one that I think people who have farms which they would like to hand down to the family ought to mark and note. I beg leave to withdraw the Amendment.

THE DUKE OF ATHOLL

My Lords, I wonder whether I could just say a word before my noble friend replies, in order to clear my mind? Am I right in thinking that in order to get round the provisions of this subsection one can loan the money to one's younger children, and that thereby it would be counted in; and that the snag of this is, as I understood my noble friend Lord Saltoun to say, that it would be aggregated for death duties? Was I correct in understanding my noble friend as saying that you could get a discharge by giving the money to one of your younger children, and that you could thereby get a discharge from him or her for his or her share of the legitim, up to that sum of money to which otherwise he or she would have been entitled? If this is so, it seems to me a fairly simple way round this problem. Otherwise, it seems basically unfair that you have either to suffer the penalties of this clause, if you wish to keep the rest of your money more or less together, or else risk paying additional death duties when you die.

LORD CRAIGTON

My Lords, this clause does not do anything new at all. It simply preserves the existing rule of the law as your Lordships understand it. All it does is to extend this rule to representation, because under the first part of Clause 11 a child can be represented for the first time. It does not make any new law at all. On the question of the noble Duke, I may say that an advance can be made under an agreement by which the child agrees that that discharges his right of legitim. Money advanced for education in this way is not chargeable and does not have to be collated. But this is a somewhat legal point on which he would do better to write to me.

LORD SALTOUN

My Lords, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 12 [Legitim not to be discharged by ante-nuptial marriage contract]:

LORD CRAIGTON

My Lords, this is a drafting Amendment. I beg to move.

Amendment moved— Page 9, line 17, leave out ("made") and insert ("executed").—(Lord Craigton.)

On Question, Amendment agreed to.

Clause 13 [Equitable compensation]:

LORD CRAIGTON

My Lords, your Lordships on Second Reading objected to the retrospective element in Clause 12, and I objected to the retrospective element of an Amendment proposed by my noble friend Lord Colville of Culross which is now Amendment No. 15. As was said in Committee his Amendment was based on Clause 13 which also has this retrospective effect. The correction proposed is therefore in the interests of consistency, and it meets the same objection as I had to Lord Colville of Culross's clause, that as it stands the testator may be dead and so be unable to take advantage of the year's grace. I beg to move.

Amendment moved— Page 9, line 25, leave out from ("disposition") to ("the") in line 26 and insert ("executed after").—(Lord Craigton.)

On Question, Amendment agreed to.

Clause 15 [Provisions as to transfer of heritage]:

LORD CRAIGTON

My Lords, this Amendment is consequential and was discussed with Amendment No. 1. I beg to move.

Amendment moved— Page 10, line 36, at end insert ("or the prior rights of a surviving spouse").—(Lord Craigton.)

On Question, Amendment agreed to.

Clause 16 [Provisions relating to leases]:

LORD CRAIGTON

My Lords, I beg to move this Amendment.

Amendment moved— Page 11, line 27, after ("rights") insert ("or the prior rights of a surviving spouse"). —(Lord Craigton.)

On Question, Amendment agreed to.

Clause 21 [Evidence as to holograph wills in commissary proceedings]:

LORD SALTOUN had given notice of his intention to move to leave out Clause 21. The noble Lord said: My Lords, I do not know whether I ought not to ask the noble Baroness, Lady Summerskill, to withdraw while I tell my story about this, because I am afraid she is going to be much shocked. Some 27 years ago a Bill pissed your Lordships' House. It came into your Lordships' House in one name and it went out in another. It was played to crowded Houses and I can never remember by which name it is called. I always think of it myself as the "New Wives for Old" Bill. Perhaps your Lordships will recognise it under that title. Soon after that measure became law the noble Lord, Lord Alness, on behalf of the Government brought in a Bill to make the law in Scotland more or less equal to that in England. On the Second Reading of that Bill, which I think was on a Thursday, I suggested that the legal rights of a spouse in Scotland—

LORD CRAIGTON

My Lords, is the noble Lord speaking to the Amendment in regard to holograph, or about divorce?

LORD SALTOUN

IS Clause 21 not about divorce?

LORD CRAIGTON

No; it is on holograph.

LORD SALTOUN

I beg your Lordships' pardon. This Amendment is not moved. I have answered that question.

Clause 23 [Adopted person to be treated for purposes of succession etc., as child of adopter]:

LORD CRAIGTON

My Lords, this Amendment is drafting. I beg to move.

Amendment moved— Page 16, line 18, leave out ("the") and insert ("and in the following provisions of this Part of this Act any")—(Lord Craigton.)

On Question, Amendment agreed to.

LORD CRAIGTON

My Lords, this Amendment is consequential; the point has been discussed. I beg to move.

Amendment moved— Page 16, line 21, after ("rights") insert ("or the prior rights of a surviving spouse").—(Lord Craigton.)

On Question, Amendment agreed to.

Clause 25 [Amendment of Law as to property rights arising on divorce]:

LORD SALTOUN moved to leave out Clause 25. The noble Lord said: My Lords, I must apologise to your Lordships. If you have not forgotten what I was saying earlier, I will go on. I suggested that the legal rights of a spouse in Scotland who had been married only a short time and where there was not an ante-nuptial contract were perhaps rather excessive, because sensible people who have property generally made an ante-nuptial contract. Where they did not, it was generally what I have described as a sort of trap marriage. I suggested that to go away with half a man's moveable property, half the man's personal property, and one half of his rents, was a rather heavy penalty to pay for cohabitation of a week or two.

That Second Reading was on a Thursday, and on the following Sunday the Sunday Post made me admire it enormously for its journalistic enterprise, because it came out with a great double page article on these marriages. Those concerned had, with extraordinary dexterity, sought out five or six ladies who had made use of the law of Scotland in this way. The one I remember best said, "Oh yes; I was in love with A, and we put our heads together and decided that we had not got enough money to make a happy marriage. B, who was pretty well off, had shown signs of looking after me, and so I set myself out to allure him, and I had A to make the running when he seemed to be falling off. In due course I married B, and I made his life such a hell for him that he divorced me and I went away with one half of his rents and one half of his moveables and married A—and I am very happy, thank you!".

Her Majesty's Government, none the less, refused to make any alteration in the law. If the Sunday Post managed to hunt up five of these ladies in the short time which elapsed between airing the matter in Parliament and the Sunday, I think there must have been a case which deserved consideration. At any rate, if I am right, that practice has been going on for these last 27 years, with the full and beneficent assistance of Her Majesty's Government; and I should very much like to know what has occurred to change their minds on the subject. That is the only information I want, and if they will give me that I will refrain from pressing the Amendment.

Amendment moved— Leave out Clause 25.—(Lord Saltoun.)

LORD CRAIGTON

My Lords, I must agree with the noble Lord that in modern times legal rights are excessive, and we are fortified by the Mackintosh Committee and by the Royal Commission on Marriage and Divorce. That is why this clause is in the Bill.

LORD SALTOUN

With your Lordships' permission, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 26 [Orders for financial provision on divorce]:

LORD CRAIGTON

My Lords, Amendments Nos. 12 to 12D are all drafting, and all on the same point. I beg to move.

Amendments moved—

Page 18, line 22, leave out from ("or") to end of line 24 and insert ("a periodical allowance or both")

Page 18, line 38, leave out from ("of") to ("periodical") in line 39 and insert ("a")

Page 19, line 2, leave out from ("of") to ("periodical") and insert ("a")

Page 19, line 6, leave out from ("of") to ("periodical") and insert ("a")

Page 19, line 10, leave out from ("of") to ("periodical") in line 11 and insert ("a")—(Lord Craigton.)

On Question, Amendments agreed to.

Clause 27 [Orders relating to settlements and other dealings]:

LORD CRAIGTON

My Lords, this also is a drafting improvement. There is no change in substance. I beg to move.

Amendment moved— Page 19, line 35, leave out from ("the") to end of line 38 and insert ("defender from making any such settlement or disposition, or transferring out of the jurisdiction of the court, or otherwise dealing with, any property belonging to the defender").—(Lord Craigton.)

On Question, Amendment agreed to.

Clause 29 [Right of tenant to bequeath interest under lease]:

4.12 p.m.

THE DUKE OF ATHOLL moved to add to subsection (1): This subsection shall not apply to shooting or fishing leases. The noble Duke said: My Lords, this Amendment at least has the merit, which in my opinion the clause does not have, of being crystal clear in its meaning. I do not think it needs any explanation, but perhaps I ought to say a few words about what I understand the clause to mean. If I have it wrong, I hope that my noble friend will interrupt me and tell me so as quickly as possible.

So far as I can understand it, under Clause 29 a tenant is enabled to bequeath a lease in which he has an interest to anyone who might have had an interest in his estate had the tenant died intestate. It applies to anyone who could have had this interest and not necessarily only to the person who would have had this interest had he died intestate. The leases to which this particular provision relates are those which are not assignable at Common Law. It does not include urban leases; nor does it affect agricultural or crofting leases, which are both expressly excluded by subsection (2) of the clause. It does affect sporting leases, mineral leases, and I imagine that it could also affect rather special leases, such as fields leased to make a landing strip for an aeroplane, or something like that, which I do not think would be covered by an agricultural lease.

With non-shooting and fishing leases I think there can be no argument that this is a good thing, because in these cases the person who has taken out the lease for 14 or 21 years may have spent a large sum of money on developing mineral rights, or whatever it may be, and should therefore be entitled to pass on to his heirs and successors the benefits of this expenditure of money. But a sporting lease is in a slightly special category, in that it is a more personal thing: when one grants a shooting or fishing lease, it is granted expressly to that particular person, although one may not say so in the lease. In fact, in most cases it is not the usual practice to have a lease, but to sign on a letter over a sixpenny stamp. Therefore, I feel that shooting and fishing leases should not be subject to the provisions of this clause by which the person concerned is able to pass them on to anyone who might have been interested in his estate had he died intestate.

There are many reasons why one might lease shootings or fishings to a particular person—perhaps, for example, because he was known to be a keen sportsman, or because he fished only with a fly. Many people do stipulate that fishing may be done only with a fly, although I am afraid that, if one leased a bit of fishing to someone whom one knew fished only with a fly, one might easily leave that stipulation out of the lease. Or it might be that the person granted the lease had had the particular subject for many years; and the landlord, although he might want it for himself, might feel that, because he would always be invited to shoot or fish whenever he wanted to do so, he would not stand to lose much by it. Obviously, there are ways of getting round the clause, if I understand it correctly, either by making yearly lets (which is more trouble both to lessor and lessee and may possibly not be acceptable to the late lamented tenant), or by expressly excluding people from the lease, but this could cause annoyance to the late lamented tenant; or if you exclude them by name you might miss out someone simply because you did not know of his existence. I really cannot understand why it is necessary to alter the present position, which seems to work quite well. At any rate, I have come across no cases where it has given rise to difficulties.

I should like to point out that, on the whole—although I agree that there are exceptions—people who take a shooting or fishing lease do not spend large sums of capital on it; and the fact that they take a lease for several years at a time is usually for the sake of convenience, and so that they can plan ahead, rather than because they feel they will not get a return on the capital which they will have to spend. I was therefore wondering whether my noble friend could give some explanation, first as to whether I have correctly understood the meaning and effect of the clause, and, secondly, as to the ways of avoiding what I think is perhaps a rather undesirable facet of the clause in regard to sporting leases. I have drafted this Amendment myself, and should be surprised if it held water and did what I intended it to do. Although I have formally to move it, I intend to withdraw it.

Amendment moved— Page 20, line 16, at end insert the said words.—(The Duke of Atholl.)

LORD CRAIGTON

My Lords, the noble Duke's interpretation of the clause (though here it may be a question of the blind leading the blind) is tolerably accurate. I think I should say a word about the purpose of Clause 29. This clause deals, as the noble Duke says, with rural leases other than the leases of agricultural subjects. Under Scots law there is an implied condition that such a lease cannot be assigned to some other person by the tenant. If a tenant dies, the lease does not terminate on his death: the unexpired portion devolves on the heir at law. This happens whether or not the tenant has made a will. Even if he does make a will, he cannot bequeath the unexpired portion of the lease, which passes automatically to the heir at law. The heir at law is, however, abolished by the Bill.

Clause 16—not this clause—provides that in cases of intestacy the executor may transfer the lease to one of the persons entitled to share in the intestate estate. Thus the person chosen by the executor takes the place of the heir at law. Similarly, Clause 29, which we are discussing, provides that where a tenant makes a will a person chosen by him as provided for in the clause shall take the place of the heir at law. It would have been illogical to give the executor power to make this choice on intestacy, but not to allow the tenant to make the choice when he makes a will. The effect of my noble friend's Amendment would be that leases of shootings and fishings would fall into intestacy on the death of the tenant, whether or not he had made a will, and they would have been transferred in consequence by his executor under Clause 16. Of course, in future, as now, the landlord can ensure that the lease comes to an end on the death of the tenant by giving him a lease for a lifetime. That is probably the best solution to the noble Duke's problem.

THE DUKE OF ATHOLL

My Lords, I should like to thank my noble friend very much for his explanation. He is quite right in that my Amendment certainly would not achieve what I wished it to do. Therefore, I have much pleasure in asking your Lordships' leave to withdraw it.

Amendment, by leave, withdrawn.

4.22 p.m.

LORD CRAIGTON

My Lords, the purpose of this new clause is to ensure that a testator does not evacuate a special destination by oversight or inadvertence. The provision was proposed by my noble friend Lord Colville of Culross at Committee, and agreed to by your Lordships in principle. My noble friend withdrew his Amendment only because it contained an element of retrospection, and by arrangement with him I now move the new clause in its amended form.

Amendment moved— After Clause 29, insert the following new clause:

Effect of testamentary dispositions on special destinations

(". A testamentary disposition executed after the commencement of this Act shall not have effect so as to evaluate a special destination (being a destination which would competently be evacuated by the testamentary disposition) unless it contains a specific reference to the destination and a declared intention on the part of the testator to evacuate it.")—(Lord Craigton.)

THE EARL OF PERTH

My Lords, I would only say what I said earlier, when some of your Lordships may not have been here. My noble friend Lord Colville of Culross is unable to be here to-day. He expressed his regrets to your Lordships and wished me on his behalf to say "thank you" for what the Amendments contain following the representations he made at Committee stage.

On Question, Amendment agreed to.

Clause 30:

Presumption of survivorship in respect of claims to property

30. Where two persons have died in circumstances indicating that they died simultaneously or rendering it uncertain which, it either, of them survived the other, then, for all purposes affecting title or succession to property or claims for legal rights out of property—

(b) in any other case, it shall be presumed that the younger person survived the elder.

LORD CRAIGTON

My Lords, I beg to move.

Amendment moved— Page 20, line 24, leave out from ("claims") to end of line 25 and insert ("to legal rights or the prior rights of a surviving spouse").—(Lord Craigton.)

On Question, Amendment agreed to.

LORD SALTOUN moved, in paragraph (b), to leave out "younger" and insert "elder". The noble Lord said: My Lords, this Amendment will not take very long. If I may, I will move Amendments 17 and 18 together, because they are both the same. The noble Viscount, Lord Colville of Culross, dealt with this matter to some extent on Committee stage. If two people die under such circumstances that it is not possible to decide which died first, the Bill as it stands at present suggests that the younger shall be deemed to have survived the elder. But in that case, in the commonest case of this kind which arises, you are procuring an artificial intestacy, because the general sort of case occurs when a father and son are killed in a motor accident or something like that.

We have been told, if not by the noble Lord, Lord Craigton, by the enthusiasts for the Bill, that the proper way to avoid the provisions of it that we do not like is to make a will. Here you have a man who may have made a perfectly good will, and who gets killed in a motor accident with his son. He has made a will in his young son's favour and the young son dies intestate. Possibly it would not even have been possible for him to make a will, as he might be under age. It seems to me to be reasonable that we should reverse that, and say that where two people died under such circumstances that it was impossible to tell which survived the other, the elder who is more likely to have made a will should be deemed to have survived the other. I am told that the present Bill imitates the law of England. That is all very well, but if the law of England can be improved let it be improved. Why should we have a bad law? Why, because the lion has lost its tail, should all the other animals lose their tails? I think I have said enough to your Lordships, and I beg to move this Amendment.

Amendment moved— Page 20, line 28, leave out ("younger") and insert ("elder").—(Lord Saltoun.)

LORD CRAIGTON

My Lords, I think the noble Lord's point is to some extent met by Amendment 20, which covers the point made by my noble friend Lord Colville of Culross to which the noble Lord, Lord Saltoun, has referred. The order of seniority in which deaths are presumed to have occurred is the order in which, if nature took its normal course, the parties would be expected to die. It is clearly in the interests of all concerned that some such presumption should be made.

At present we have no such presumption in Scotland. This has resulted, in one extreme case, in a person's estate falling to the Crown because, as the claimants could net prove the order in which the deceased died, no one could establish his claim. There is no advantage in presuming whether the elder survived the younger or vice versa, except order and logic which suggests the natural order of the older dying first. I can imagine cases where either order would give the advantage. But the decisive factor here is that the presumption now in the Bill has been the law in England for the last forty years and has, I am informed, worked well. Furthermore, the adoption of this presumption for Scotland has been recommended by the Scottish Law Reform Committee. So, my Lords, logic, precedent and legal opinion all seem to make the case for the Bill as it stands.

LORD SALTOUN

My Lords, I do not wish to press this Amendment, but I do not think that the noble Lord's logic is better than mine. With your Lordships' permission I will withdraw it.

Amendment, by leave, withdrawn.

LORD CRAIGTON

My Lords, may we discuss Amendments 19 and 20 together? These Amendments give effect to the intention of an Amendment moved in Committee by my noble friend Lord Colville of Culross, and withdrawn by him for re-drafting. The effect of the Amendment is that, where two persons have died together and the elder has left a will containing a provision for the younger, whom failing for a third person, and the younger dies intestate, then the elder will be presumed to have survived the younger so that the elder's property will go to the nominated third person. Without such a provision, in spite of the known wishes of the elder, his property so bequeathed would have passed to all those who take on the intestacy of the younger. I am grateful to my noble friend Lord Colville of Culross, who is not here, for putting this abstruse point into the law of Scotland.

Amendment moved— Page 20, line 29, at end insert ("unless the next following subsection applies").—(Lord Craigton.)

THE DUKE OF ATHOLL

My Lords, I wonder whether my noble friend could tell me why it is necessary for the younger person to die intestate. It seems to me an excellent solution, but I wish it had been rather more widely drawn so that, if the elder and the younger die together, the property should go to the person nominated by the elder and not, if the younger has left a will, to whomsoever the younger person has bequeathed it in his will.

LORD CRAIGTON

Yes, my Lords. But if the elder left his gold watch to the younger, whom failing someone else, and the younger had made a will, there would be no whom failing. I trust the noble Duke understands the point. It is only where he is intestate and therefore the wishes of the elder cannot be carried out.

LORD SALTOUN

My Lords, I should like to say to the noble Lord, Lord Craigton, that this Amendment goes a very long way to meet my point. I think that the noble Duke was on my side, and that my Amendment is preferable. I am not particularly in favour of imitating England, where they have bad laws. I should like to remind your Lordships that the very best English, the most pure English, by universal acknowledgement is spoken in the neighbourhood of Inverness, so even in speaking English the Scots have a little advantage.

THE DUKE OF ATHOLL

My Lords, I should like to ask my noble friend why the words, and the younger person has died intestate are necessary in this clause, if what he has previously said is correct.

LORD CRAIGTON

My Lords, this meets the point made by my noble friend Lord Colville of Culross. If the younger person did not die intestate, then his estate stands on its own feet: if he makes a will, his estate stands on its own feet. But if he dies intestate, and the elder has left something to the younger, whom failing to a third person, then the third person is being deprived of that wish, because the presumption is that the younger died first.

On Question, Amendment agreed to.

LORD CRAIGTON

My Lords, I beg to move Amendment No. 20.

Amendment moved— Page 20, line 29, at end insert— ("(2) If in a case to which paragraph (b) of the foregoing subsection would (apart from this subsection) apply the elder person has left a testamentary disposition containing a provision, however expressed, in favour of the younger if he survives the elder and, failing the younger, in favour of a third person, and the younger person has died intestate, then it shall be presumed for the purposes of that provision that the elder person survived the younger.").—(Lord Craigton.)

On Question, Amendment agreed to.

Clause 35 [Interpretation]:

LORD CRAIGTON

My Lords, I beg to move.

Amendment moved— Page 22, line 8, leave out from ("relictae") to end of line 9 and insert ("and legitim").—(Lord Craigton.)

On Question, Amendment agreed to.

LORD CRAIGTON

My Lords, I beg to move.

Amendment moved— Page 22, line 14, after first ("rights") insert ("the prior rights of a surviving spouse").—(Lord Craigton.)

On Question, Amendment agreed to.

LORD CRAIGTON

My Lords, I beg to move Amendment No. 23.

Amendment moved— Page 22, line 19, at end insert— (" 'prior rights', in relation to a surviving spouse, means the rights conferred by sections 8 and 9 of this Act").—(Lord Craigton.)

On Question, Amendment agreed to.

LORD CRAIGTON

My Lords, this is a drafting Amendment. I beg to move.

Amendment moved—

Page 22, line 39, leave out ("properly") and insert ("competently").—(Lord Craigton.)

On Question, Amendment agreed to.

LORD CRAIGTON

My Lords, this is another drafting Amendment. Clauses 12 and 13, and the new clause after Clause 29, all refer to wills executed after the commencement of the Act. The purpose of the Amendment is to ensure that such references are to be taken at the actual date of the making of the will, and not to the date of the testator's death. I beg to move.

Amendment moved— Page 23, line 7, at end insert— ("(3) Without prejudice to the proviso to section 23(2) of this Act, references in this Act to the date of execution of a testamentary disposition shall be construed as references to the date on which the disposition was actually executed and not to the date of death of the testator.").—(Lord Craigton.)

On Question, Amendment agreed to.

Clause 36 [Exclusion of certain matters from operation of Act]:

LORD CRAIGTON

My Lords, this Amendment is consequential and drafting. I beg to move.

Amendment moved— Page 23, line 28, leave out ("(including") and insert ("or terce or courtesy, or").—(Lord Craigton.)

On Question, Amendment agreed to.

Schedule 1 [Form of Docket]:

LORD CRAIGTON

My Lords, I beg to move the next Amendment.

Amendment moved— Page 25, line 7, at end insert— ("(a) in [part] satisfaction of his claim to prior rights, as a surviving spouse, on the death of the deceased").—(Lord Craigton.)

On Question, Amendment agreed to.

LORD CRAIGTON

My Lords, I beg to move the Amendment to the Title of the Bill.

Amendment moved— In the title, line 4, after ("legal") insert ("and other prior").—(Lord Craigton.)

On Question, Amendment agreed to.