Lords Sitting of 12 March 1964

Preamble
The House met at three of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Liverpool

BIRTH OF A SON TO HER MAJESTY
3.5 p.m.
THE MINISTER WITHOUT PORTFOLIO (LORD CARRINGTON): My Lords, I beg to move:
"That an humble Address be presented to Her Majesty, to congratulate Her Majesty and His Royal Highness the Prince Philip Duke of Edinburgh, on the birth of a Son; and to assure Her Majesty that every addition to Her Majesty's happiness affords the highest satisfaction to the House of Lords."
It is my agreeable duty this afternoon to ask your Lordships to agree to send to Her Majesty the humble Address which I have just read to you. In all families there is great joy at the birth of a baby, not only in the immediate family circle but also among the more distant cousins and friends; but there can be no family whose happiness is shared by so many people as that of Her Majesty the Queen and Prince Philip.
Both Her Majesty and the Duke of Edinburgh are known to many millions of people all over the world through the countless tours which both of them have undertaken and because of the photographs, news-reels and television appearances that they have made. Here in Britain, and also in New Britain far away in the Bismarck Archipelago, in the Falkland Islands, Hong Kong, the West Indies, all over the world where English is spoken and, indeed, where it is not, countless millions of people will be sharing in the happiness which the birth of a son has brought to the Queen and Prince Philip.
We, my Lords, as well as congratulating Her Majesty, should also congratulate ourselves that we are fortunate enough to have as Queen and Consort
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two people who set great store by their family and are obviously happy with them. The baby Prince is warmly welcome and will be assured of the effection and loyalty which your Lordships will always show to Her Majesty and her Family. I beg to move.
Moved, That an humble Address be presented to Her Majesty, to congratulate Her Majesty and his Royal Highness the Prince Philip Duke of Edinburgh, on the birth of a Son; and to assure Her Majesty that every addition to Her Majesty's happiness affords the highest satisfaction to the House of Lords.—(Lord Carrington.)
3.8 p.m.
EARL ALEXANDER OF HILLSBOROUGH: My Lords, I have very great pleasure indeed in rising to associate myself and all the Members of the House who support me with the Motion which has been moved by the noble Lord the Leader of the House, and with the terms in which he has moved it. The reference that he has made to family life is vastly important. In this country, in spite of all the changes that have taken place in the century, family life is still held in very great reverence, and the way in which families of the ordinary people look to the Palace for the news they get of the family of the highest Lady in the land is a proof of that position.
We are very happy indeed to have a constitutional Monarch who is so loved and so popular in this country, and our pleasure extends to the fact that Her Consort, Prince Philip Duke of Edinburgh, has endeared himself to the country in other ways as well. He has taken an interest in the general life of the nation, in industry, education, the training of youth, and the like, which has been of very great value—probably in something of the way of the late Prince Consort, Prince Albert, with Queen Victoria. I admire the fact that we have this very great interest in our country from the Prince Consort.
We are very happy indeed to have the news from the medical staff attending Her Majesty in the Palace that both Her Majesty and the baby are doing well. We should like to send her our deep congratulations and our best wishes for the whole of the Family.
3.10 p.m.
LORD REA: My Lords, it is my great pleasure from these Benches to support what has been said by the noble Lord the Leader of the House and the noble Earl the Leader of the Opposition. In the middle of strife and anger in so many parts of the world, in the middle of disputes and cold warfare and hot-tempered antagonism, both at home and abroad, about matters which we all know will dissolve unimportantly in history, we are to-day brought up suddenly by an intimate personal pleasure and delight: another baby—one of hundreds born every day—has come with love into a loving family; and in this country we have another little Royal Prince whom we welcome and who carries with him, as has been said, the benevolence and good will, not only of this nation but of all the world, in his innocence and his day-old entry into human life.
I join gratefully in the congratulations to Her Majesty and to His Royal Highness Prince Philip on this happy and human occasion, because we are glad for them as well as for ourselves; and, like the noble Earl, Lord Alexander of Hillsborough, I add our thankfulness that Her Majesty, as we are told, is in good health.
The Royal Family, in this democratic Monarchy of ours, well earn our admiration and our gratitude for their great public work. In their private lives we rejoice in their pleasure, and we love to realise that they share with us all the intimate delights of perfectly ordinary family life. This little boy, this Royal Prince, is one of us. We sincerely wish him all health and all happiness.
3.12 p.m.
THE LORD ARCHBISHOP OF CANTERBURY: My Lords, there are happenings which strike a universal chord in the minds of our people, and the birth of a Prince two days ago is one of them. We thank God for the happiness which has come to our Queen and to her husband and for the happiness of the family in which the baby Prince will find himself a member as he begins to know his surroundings. At a time when, alas! not all the homes in our land are happy and united, it means much that there is around the Throne of our country a Christian family united and happy, setting to all an example of what
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the words "home" and "family" most truly mean.
Nor can we help looking ahead as we think of the world in which the newly born Prince will be living. He will still be young, as we measure human life, when a new century begins. May it he a century in which the nations have learnt to be wiser, a century of peace! But, come what may, the children whom our Queen has borne will be setting an example in the happiness of home and in the service of humanity, and our prayers for them will not cease, nor our prayers that the world they will know will be a world wiser and better.
On Question, Motion agreed to, nemine dissentiente: the said Address to be presented to Her Majesty by the Lords with White Staves.

PROPOSED CLOSURES AND RAILWAYS BOARD'S FIGURES
3.15 p.m.
LORD STONHAM: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether, in view of the statement by Lord Cameron, Chairman of the Highland Panel, that "there was very good reason for saying that the figures given by British Railways, in support of their plans, did not present either the whole or an accurate picture of the true accounting position in relation to the passenger services", they will now instruct the Railways Board to supply accurate profit and loss figures in respect to each proposed closure; and whether, pending production of this information, they will suspend action on closures on which transport users' consultative committees have made recommendations based on the incomplete and misleading figures supplied to them.]
THE PARLIAMENTARY SECRETARY, MINISTRY OF TRANSPORT (LORD CHESHAM): My Lords, I am sorry that both parts of the noble Lord's Question are founded on misconception and therefore the answer to them is "No". The transport users' consultative committees do not make recommendations at

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all on closure proposals, nor do they base their reports on financial figures. They report to my right honourable friend, the Minister of Transport, on any hardship a proposed rail passenger closure may cause, and, if they wish, make proposals for alleviating it.
By agreement, the Railways Board supply the committees with certain financial data as background information, and to help them avoid abortive work in investigating alternative services in detail, if they would clearly cost more than the existing rail service. The validity and appropriateness of these figures was considered by Sir William Carrington, an independent accountant appointed by my right honourable friend, after consulting the President of the Institute of Chartered Accountants, to investigate the matter. Sir William reported that the figures currently supplied by the Railways Board were appropriate for the purposes of the consultative committees. He also found that the bases used in the calculations were well founded and sound in principle.
LORD STONHAM: My Lords, is the noble Lord aware that, after first saying that both parts of my Question were not relevant and therefore the answer was "No", he then proceeded to prove that they were relevant? Is he aware that if figures are supplied to a transport users' consultative committee for the purpose he indicated and they are told a line is losing £100,000, they may recommend a certain alternative which they would not, or might not, recommend if there were no loss at all? Therefore, obviously they make recommendations, as he is well aware. May I ask the noble Lord also whether the Government propose to disregard completely this statement by this highly responsible Government advisory panel?
LORD CHESHAM: My Lords, to answer the second part of the question first, the Government certainly do not intend to disregard the work of the Highland Panel, if that is what the noble Lord meant by his question. The Chairman of the Highland Panel, who made the statement on which the noble Lord based his question is perfectly free to make that statement if he so chooses, just as the noble Lord is, and has done. But that does not mean either that it is right or that the Government agree with it; and
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that has, in fact, already been said elsewhere. Reverting to the other half of the question, I would say that the noble Lord is quite entitled to his opinion on that, too, but, as I have already explained in my Answer, we do not share his view on that either.
LORD HOBSON: My Lords, while not disputing the arithmetical calculations of the noble Lord's right honourable friend, in view of the fact that the only effective means of communication in that part of Great Britain is the railways and that there is no effective alternative means of communication, will he give instructions to his right honourable friend to keep the railways open as a social service?
LORD CHESHAM: My Lords, I have frequently said in this House, and it has been said frequently elsewhere, that every case is considered fully on its merits.
LORD MORRISON OF LAMBETH: My Lords, did I understand the noble Lord to say that the transport users' consultative committees do not make recommendations to the Minister? If that is so, is it not rather anomalous that, after they have heard the arguments for, and also, presumably, against, the proposals of the Board, they should not be able to make recommendations? And did not the Minister say, towards the end of his first reply, that in fact they can draw attention to hardship that may be caused or to the adequacy or otherwise of the substituted transport? Does not this amount to making recommendations? Would it not be a farce if, having gone through these hearings, the transport users' consultative committees were not to be able to advise the Minister on what, in their opinion, is the course he should take?
LORD CHESHAM: My Lords, the noble Lord knows perfectly well what are the statutory duties of transport users' consultative committees under the Act: they are to report on hardship and on suggested means of alleviating it by alternative services, if they so wish. I was perfectly right in saying what I did about "recommendations" in the sense in which the noble Lord, Lord Stonham, used the word in his Question. That is not the function of the Committee, which is to report on hardship, and I do not think there is any possible doubt on that matter.
LORD WILMOT OF SELMESTON: My Lords, may I ask the noble Lord whether he will shed a little more light upon these arithmetical calculations which he mentioned? Do they take account of not only the cost of providing alternative transport, but also the cost of improving the roads in order to allow that transport to be provided?
LORD CHESHAM: My Lords, I think I must resist the tendency for supplementaries on this Question to develop into a debate on the Beeching Report, and I think that the noble Lord should put down a Question. I have answered the Question on the Order Paper, which is whether certain action would be taken in relation to a certain statement, and I have said "No", and why.
LORD STONHAM: My Lords, will not the noble Lord confirm that transport users' consultative committees, in reporting to the Minister on hardship, do in many cases recommend that there shall be alternative transport provided in order to alleviate that hardship? Secondly, will he ask his right honourable friend to have an investigation into the allegation made by the Highland Panel that the financial information did not present a true picture of the situation of the alleged financial saving for the railways through closure? Is it not highly desirable that that vital statement should be fully and properly investigated, and the facts then reported?
LORD CHESHAM: My Lords, I am not going to indulge in an exercise in semantics with the noble Lord as to the exact meaning of the word "recommendations". I have tried to answer his Question as straight as I can, and I have tried to interpret the words which he used as honestly as I am able to. If he insists that the suggested alternatives they may wish to put forward are classifiable as "recommendations", then he must have it, but that is not the sense in which I have read that word in his Question. So far as this statement is concerned, I do not feel like recommending or suggesting to my right honourable friend that he should have such an investigation, because he is satisfied as to the position already.

BULAWAYO FAIR
3.22 p.m.
LORD ALPORT: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what action has been taken to encourage British firms to participate in the Bulawayo Fair.]
THE MINISTER OF STATE, BOARD OF TRADE (LORD DRUMALBYN): My Lords, the Board of Trade does not press firms to participate in any particular fair. Decisions on when and where to exhibit are left to industry, who are aware of the facilities and assistance which the Board of Trade can provide in appropriate circumstances.
LORD ALPORT: My Lords, may I ask my noble friend whether it is the policy of his Department to encourage British firms to take part in fairs for the promotion of British trade in areas where the market is of importance to British trade?
LORD DRUMALBYN: My Lords, where there is a fair prospect of exhibiting rendering good results in terms of trade, and where the Trade Commissioner so recommends, then it is possible for the Board of Trade to approach the representative body, such as the Cotton Board, which did exhibit last year, in order to arrange for an exhibition of a prestige character in the pavilion which has been set up by the Commonwealth Relations Office over there since 1960. There will be another such pavilion this year.

UNIVERSITY OF RHODESIA AND NYASALAND
3.25 p.m.
LORD ALPORT: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether any decision has been reached with regard to the financial provision to be made by the United Kingdom to the University of Rhodesia and Nyasaland.]
THE MINISTER OF STATE FOR COMMONWEALTH RELATIONS AND FOR THE COLONIES (THE DUKE OF DEVONSHIRE): My Lords, I have nothing to add to what I told my noble friend on January 30 of this year, pending talks with the Southern Rhodesia Government which are taking place early in April.
LORD ALPORT: My Lords, may I ask my noble friend whether at those talks special provision is going to be considered for the medical school, in view of the great importance of the development of medical teaching in Central Africa for the better improvement of the health services in that part of the world?
THE DUKE OF DEVONSHIRE: My Lords, I am quite sure that at these forthcoming talks the matter which my noble friend has drawn attention to will be given due consideration.
EARL ALEXANDER OF HILLSBOROUGH: My Lords, can the noble Duke give us any idea when these talks are going to conclude? Is it the intention of the Government to have the main question with regard to Rhodesia settled before the General Election?
THE DUKE OF DEVONSHIRE: My Lords, I should be most unwise to make any comment on the General Election, but I hope I shall not be giving away any State or Government secrets if I say that it is anticipated that these talks will last about one week.
THE EARL OF SWINTON: My Lords, will my noble friend give us an assurance that, irrespective of all electoral or political considerations, the Government will continue to give all the help they possibly can to this great inter-racial university?
THE DUKE OF DEVONSHIRE: My Lords, I think I should be most unwise to add anything to what I have said. I think we must await the results of these talks which are due to take place in the relatively near future.
LORD WALSTON: My Lords, would the noble Duke not agree that it would be even more unwise, if not of him of the Government, if they were to allow this great experimental and valuable university to languish through lack of
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certainty about its future and the future of those people who are going to come as students and go out from it as trained academics?
THE DUKE OF DEVONSHIRE: My Lords, I am quite sure that those who are taking part in these talks are fully aware of the importance of the issues at stake, and that all that the noble Lord has said will be given due consideration. But, at the risk of being thought unforthcoming, I think it would be unwise of me to say anything further pending the talks that are about to take place.

NEED FOR U.N. PERMANENT FORCE
3.27 p.m.
LORD OGMORE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what steps they have taken, since the debate in this House on February 20, 1963, on the Motion calling attention "to the need for a separate and permanent naval, military and air force, together with the necessary military government or civil affairs component, created, controlled and paid by, and owing sole allegiance to the United Nations, with its own command, structure and staff", to urge upon the Security Council and the Assembly of the United Nations that such a permanent force be set up without further delay.]
LORD CARRINGTON: My Lords, my right honourable friend the Prime Minister, when replying to the debate on the noble Lord's Motion last year made clear why Her Majesty's Government regard the creation of a permanent United Nations force of the kind envisaged in the Motion to be impracticable at the present time. The situation has not changed since that debate.
LORD OGMORE: My Lords, has the attention of the noble Lord the Leader of the House been drawn to the concluding words of the Prime Minister (he was then, of course, Foreign Secretary) in this debate when he said [OFFICIAL REPORT, Vol. 246, col. 1433]:
"I think the practical step is that the Secretary-General, in the light of the experience

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of the different operations which the United Nations has undertaken, should review his headquarters, in both the military and the administrative fields, so that when another operation comes along, as it surely will … the United Nations forces can operate to the best possible advantage"?
In view of that statement, have the Government pressed the United Nations to take the steps which the Prime Minister indicated should be taken? Had that been done, should we not be in a better position than we are in Cyprus?
LORD CARRINGTON: My Lords, the answer to the noble Lord's first question, is: Yes, we are encouraging the Secretary-General to build up his headquarters staff, to digest the experience of the peace-keeping operations to date and to draw on the expertise of national forces enough to plan ahead. During his recent visit to New York, my right honourable friend the Foreign Secretary discussed with the Secretary-General the progress of these plans.

THE EASTER RECESS
EARL ST. ALDWYN: My Lords, subject to the progress of Business, it is proposed that the House should rise for the Easter Recess on Thursday, March 26, until Tuesday, April 7.
MOTHERWELL AND WISHAW BURGH EXTENSION ETC. ORDER CONFIRMATION BILL
Considered on Report (according to Order).

SECRETARY OF STATE FOR EDUCATION AND SCIENCE ORDER, 1964
3.30 p.m.
THE CHANCELLOR OF THE DUCHY OF LANCASTER (VISCOUNT BLAKENHAM): My Lords, I beg to move the Motion standing in my name on the Order Paper. I would first say that this Order establishes the new Secretaryship of State and the federal structure of his Department; and secondly, that it transfers to him the functions of the other Department. These are the functions relating to universities, the functions of
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the Education Department; and finally the function of the Office of the Minister for Science. I know that this is a fairly complicated Order, and I should like to give an explanation in some detail. By doing this I hope it will help your Lordships in your consideration of the matter.
Article 2 (1) provides for all functions of the Minister of Education and of the Minister for Science to be transferred to the new Secretary of State. The Order deals only with ministerial functions as they are assigned at present. It takes no account of the changes recommended by the Trend Committee which, in general, the Government have decided to implement, as was announced on February 6. Article 2 (1) also provides for the Ministry of Education and the Office of the Minister for Science to be dissolved. Article 2 (3) of the Order is needed to transfer to the Secretary of State two minor functions of the Lord President in relation to agricultural research. These were not taken account of when the Lord President's other scientific and research functions were transferred to the Minister for Science in 1959.
Article 2 (4) is consequential upon the transfer of functions. It provides for the transfer to the Secretary of State of all the property rights and liabilities to which the Minister of Education and the Minister for Science were entitled. Article 3 and the Schedule provide for the amendment, repeal and adaptation of enactments and instruments. This will enable references to the Secretary of State to be substituted for references to the Minister of Education and to the Minister for Science.
Article 4 (1) and (2) provide a saving both for legal proceedings pending when the order comes into operation and for acts such as appointments or directions by the Minister for Science before the Order comes into operation. Article 4 (3) refers to the Charities Act, 1960, because under that Act the Charity Commissioners are responsible to the Secretary of State for Home Affairs in some matters. That is some of the detail which is contained within the Order, but, of course, the main point of principle behind this was touched upon by the noble Lords, Lord Shackleton and

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Lord Taylor, among others, in yesterday's debate.
I should like to say something on the principle behind all this. I think we all agree that the question of what is the best organisation for dealing with schools, the universities, scientific research and advanced development work is a difficult one. None would deny this. The Leader of the Opposition himself in another place said in November that there is probably no perfect solution. As we know, three solutions are possible. First, we can put higher education and scientific research and development under one Minister and then the schools under another. The second solution is that we can put higher education and school education under one Minister and scientific research under another. Or, finally, we could make (as we are doing now) one Minister responsible for the whole, with two Ministers of State and two Permanent Secretaries dealing with school education, on the one hand, and higher education and research, on the other.
The first is the solution recommended by the Robbins Report, and certainly there is much to be said for it as well as against it. The Robbins Report stressed (to use its words) that
"the organic connection of the universities with other forms of organised research is even closer than their connection with the work of the schools".
We fully accept the close connection between research and higher education, but we conclude—and I think the noble Lords opposite agree—that the arguments against dividing responsibility for education should not be disregarded.
The second is the solution which the Opposition Party favour. There are strong arguments against their solution. The universities are not only great teaching institutions; they are also the points at which knowledge is preserved and the frontiers of learning extended. We believe that it is essential for teaching and research to be handled together, whether at universities or in Whitehall. And we are strongly supported in this by both the Robbins Committee and the Trend Committee as well as by other learned opinion.
I submit that there would also be a danger that financing of research
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would become unbalanced since two Ministers would be responsible for it. One Minister would be responsible for the University Grants Committee which provides the bulk of the funds for research in the universities. Another Minister would be responsible for the Research Councils which provide grants for specific researches in the universities—and they are doing this on an increasing scale—and also facilities for costly research which can be used in common by the universities. Recent experience has shown that there is a real need to establish harmony between these two sources of finance.
Therefore, I would say that the third solution is the right one. The only objection that might be raised against it is that one Minister becomes responsible for a very wide range of activities. This is worrying, and certainly was the burden of what the noble Lord, Lord Shackleton, and I think the noble Lord, Lord Silkin, have said. But the research Councils and the Atomic Energy Authority have a large measure of autonomy in the conduct of their affairs. The Secretary of State will be responsible for general supervision, but not detailed control. He will finance all the authorities, but he will not take their scientific decisions.
I would say that there is no reason at all why the Minister of State who will be in charge of higher education should not have reasonable time and opportunity to fulfil the ministerial functions in respect to atomic energy and industrial technology, as was envisaged for the Minister in the Trend Report itself. I think that it is universally agreed that the Research Stations and the Atomic Energy Authority could make, and ought to make, a bigger contribution to teaching and particularly post-graduate training in the universities. I should have thought your Lordships would agree with me that this is far more likely to come about if one Minister has the general supervision of the University Grants Committee and the research organisations.
I think that it is also true that on the education side the load should not be too heavy. Most of the administration which we are discussing is indirect: the schools are run by the local education authorities; the universities get their

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money through the U.G.C.; and the Research Councils are practically autonomous. So administration is in one degree removed and thus shelters the Ministers responsible from undue strain—which is the chief worry in the minds of noble Lords opposite. Finally, I should say that the whole range of functions is met by the decision to have a Minister of State over each of the two units, thus enabling the load to be spread.
We believe, therefore, that the case for dealing with universities and research in the same ministerial set-up is overwhelmingly strong. We think it is right that the same Minister should control civil science as well, so that in dealing with scientific priorities and allocations this Minister can see the picture as a whole; and that is what this Order is designed to bring about. My Lords, I beg to move.
Moved, That an humble Address be presented to Her Majesty praying that the Secretary of State for Education and Science Order, 1964, be made in the form of the draft laid before the House on the 4th of March, 1964—(Viscount Blakenham.)
3.40 p.m.
LORD SILKIN: My Lords, I had hoped that we should not be forced to take this Order this afternoon. It is rather short notice and it is a very important Order. It was dealt with last night by another place—I think they divided at a time which is not recorded in the Hansard which has been circulated this morning. The Special Orders Committee looked at the Order only yesterday and reported that it needed very special attention. For all these reasons, I should have hoped it would be possible to postpone it. There is one other reason, and that is that, frankly, I have not myself had time to give it the study it deserves. But I am persuaded that there is an element of urgency about it, and the noble Viscount himself has explained the Order with such care and such lucidity that I feel a little less embarrassed in dealing with it this afternoon.
Let me say at once that we on this side absolutely agree with the Government's decision that there should be one Minister responsible for education. We
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have no quarrel about that at all. In so far as we disagree with the Government's decision, it is on the extent of the functions which are to be transferred to him. We think they are far too wide. The noble Viscount, in explaining the Order, told us that a number of the functions to be transferred to the Minister are of so indirect a character that he will have very little to do. But, of course, as he knows perfectly well, a Minister who is responsible for a service cannot divorce himself from taking a very close interest in it. At any time something may arise, he may be asked a Question in the House, some problem may come up, and for a Minister to say, "I am only indirectly interested in this" would be no answer to this place or another place, and would be very unsatisfactory. He is either responsible or he is not. If he is responsible it does not matter whether he is directly responsible or indirectly responsible.
We think that the Order goes too far in giving responsibility to the Secretary of State—not for research in the universities; we accept that. We accept the argument that research in the universities is closely allied to the work of teaching in the universities and should not be dissociated. But this Order goes very much further than that. It gives industrial research to the Secretary of State, together with responsibility for the Atomic Energy Authority and—this is debatable—also for the University Grants Committee and its functions. I myself feel that this is going to be too much for the Secretary of State for Education.
We all know the great capacity for work of the present Secretary of State. We have had many examples of it, and we do not question at all that he personally might be capable of handling all this. However, I am not sure whether he is still responsible for unemployment in the North-East of England, and whether he might have to break off occasionally from his educational work to visit the North-East; or whether he is still interested in sport and a variety of other things that have been "wished" on to him. But if he is still interested in them he will be a veritable Pooh-Bah. He will be much more than a Secretary of State for Education; he will be a Secretary of State for an enormous variety of subjects which are quite outside the function of education.

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It was for that reason that we sought to criticise this Order and we still do, and that is why the other place voted against it. The noble Viscount can take comfort in the fact that it is not our practice to divide the House in these matters, and we just have to sit quietly and accept the position. But we wish to protest against this very wide extension of the functions of a Secretary of State, and we wish it had been possible to limit his functions to what we regard as pure education.
There is only one other thing that I should like to say. When we last discussed this matter I expressed the hope that it might be possible, before we finally came to a decision, for the Government to issue a White Paper which we could discuss without commitment on either side, when we might stand a chance, each of us, of convincing the other of our point of view. I always think it is well worth while to do this in a matter of this kind, which ought not to arouse strong political controversy. We have general agreement to a very great extent, and if the Government had seen their way to accept my advice—I think the noble Viscount said that he would see that it was considered, but I never had any indication that it was; I presume it was—it would have been very much better for the House as a whole. We could then have exchanged our views without feeling that we had to accept the position whether we liked it or not, and I think both sides would have been the better for that. But, in the circumstances, as I have said, we have no alternative but to accept the Order as it stands.
BARONESS BURTON OF COVENTRY: My Lords, may I ask the noble Viscount, Lord Blakenham, a question? If I should know the answer I apologise, but I do not. I think I read that Mr. Quintin Hogg, as well as being Secretary of State for Education, was to continue the duties of Lord President of the Council. I am not quite clear in what capacity Lord Hailsham, as he then was, was given responsibility for the North-East, but I am quite certain that he was given responsibility for sport in his capacity as Lord President of the Council. All who are interested in this subject of sport, both inside the two Houses of Parliament and outside, are rather concerned as to whether the Minister,
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with all this additional work under him, will still carry responsibility for sport. I am wondering whether the noble Viscount could give me an answer to that question.
LORD CHORLEY: Is the noble Viscount going to answer the questions in his speech in reply?
VISCOUNT BLAKENHAM: With your Lordships' permission, I was going to do so.
3.49 p.m.
LORD CHORLEY: My Lords, before the noble Lord makes his final reply, I should like to speak in my capacity as a university teacher, as an officer of the University Teachers' Association and as a Member on these Benches. I do not want to repeat what I have said on more than one occasion in the debates which we have had on the Robbins Report. The university teachers, who are obviously very much concerned in these matters, were by an overwhelming majority at their last council meeting in support of the proposals in the Robbins Report, and very much opposed to what I call "the Eccles view". The noble Viscount, Lord Eccles, is not here and I hope he will not mind my talking about "the Eccles view". The university teachers' attitude on this matter was put up to the Prime Minister, and I would say that it is quite obvious that the present scheme has received a great deal of thought and we cannot complain that our views have not been taken into account.
I think that the present scheme is certainly a great improvement on what I call "the Eccles view". At the same time it is a complicated scheme and, obviously, a great deal is to be said against it from a number of points of view, particularly, as my noble friend Lord Silkin has indicated this afternoon, from the point of view of research. As your Lordships know, we had yesterday in this House a most interesting and valuable debate on these problems. It was made clear by more than one noble Lord who speaks with great authority on these questions that the Robbins suggestions were much better, from the point of view of the general research work in science over the country, than the Government's proposals.

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It seems to me that the noble Lord, Lord Silkin, was absolutely right when he said that these matters are of such very great importance, and that to get the subject on a proper balance is so vital to the future of this country, that it is not good enough, important as speed is—and certainly speed is of the essence of the contract here, because we must get ahead quickly—that a complicated and difficult solution to the problem should, to to speak, be pushed on to the universities, on to industry and on to the country as a whole, with no real chance being given either to the community or to those of us who work in the universities to have a proper look at it, put forward our views, and make such criticisms as may occur to us. I feel that this measure ought not to be allowed to go through without this being said on behalf of the universities—and, indeed, on behalf of education in this country.
LORD SHACKLETON: My Lords, is the noble Viscount not going to reply?
VISCOUNT BLAKENHAM: Certainly. With your Lordships' permission, I should like to comment on one or two questions which have been raised. First of all, so far as the noble Lord, Lord Silkin, is concerned, I can assure him I was not trying to make out that the Secretary of State was going to have nothing to do. I was merely trying to show that his burden would not be as intolerable as many noble Lords opposite think. Of course, the Secretary of State alone will be the spokesman in Parliament over the whole range of his responsibilities. He will be responsible for questions relating to the present Ministry of Education and to the present office of Minister for Science, and he will assume the responsibilities relating to the University Grants Committee which were formerly discharged by the Treasury. He will be entirely responsible to Parliament for all these matters. Both the Ministers of State will be responsible to the Secretary of State, and will report to him, but he is the head.
Now I said in my opening remarks—and I am grateful to the noble Lord for the way he took it—that I realised that some noble Lords felt that they had not had quite enough time to examine this rather complicated Order. I am grateful
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to the noble Lord, Lord Silkin, and to the noble Lord, Lord Chorley, for having recognised that I have tried my best to explain the details of the instrument, and for saying that, in view of the circumstances, they do not wish to divide the House.
The noble Baroness, Lady Burton of Coventry, asked me about the office of Lord President, and whether or not Mr. Hogg would be responsible for sport. At the moment, he is responsible for sport. I am not saying that there may not be further consideration of this, but at present his responsibilities for sport remain. So far as his responsibilities for the North-East are concerned, these have been absorbed in the new set-up under the Secretary of State for Trade, Industry and Regional Development. Responsibility for the North-East, therefore, is no longer the Lord President's; it is within the purview of the Secretary of State for Trade.
BARONESS BURTON OF COVENTRY: My Lords, am I in order, with the permission of the House, in asking a question on that particular matter? Might I just ask the noble Viscount whether he realises that one of the reasons, as I understood it, why the Government felt that the noble Viscount, Lord Hailsham, should co-ordinate sporting activities and assume responsibilities for it was because he was not a Departmental Minister? Is the noble Viscount aware that this would seem to be an entirely different concept; and do I understand that it is at the moment decided by the Government that after April 1, Mr. Hogg will be responsible for sport? I know he is responsible at the moment, of course; but do I understand that he will be after April 1?
VISCOUNT BLAKENHAM: No, my Lords. I think I said fairly clearly that at the moment he is responsible, and no decision has yet been taken as to whether after April 1 new arrangements will be made; but there is time for this matter to be considered.
LORD HAWKE: My Lords, may I interrupt my noble friend? It is rather important, I believe—I may have missed some Paper or statement—that we should know precisely what responsibilities the Minister of Sport in this

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country has. Is there any White Paper which lays down his responsibilities and duties? It could be a rather wide-ranging responsibility.
BARONESS BURTON OF COVENTRY: We have not got a Minister for Sport.
VISCOUNT BLAKENHAM: The noble Lady has, I think, given the answer, My right honourable friend is responsible for matters of sport, but he is not a Minister for Sport.
My Lords, I have endeavoured to try and answer the questions which were put to me, and I am grateful to your Lordships for giving me the chance to speak again.
3.57 p.m.
LORD SHACKLETON: My Lords, this really is—I do not know how to describe it—a "dog's dinner". We do not disapprove of the idea of a federal Minister, but the fact is that the Secretary of State for Education will be responsible for scrapie disease in sheep and for rubber spool potato graders. If one looks through the list of subjects which will now fall to the Secretary of State for Education, one sees it contains vegetable and pig research and stress-grading of timber. He is also going to be responsible for shipbuilding research. Mr. Hogg, when he was the noble Viscount, Lord Hailsham, was responsible for injecting some necessary research and, indeed, energy into industry; and in fact he is going to be Minister for Industrial Development, because the Industrial Research and Development Association is also going to belong to him.
My Lords, this really is fantastic. We know that there were certain difficulties in the Government at the time they were choosing a Prime Minister, and we also know that Mr. Hogg is a man of great and, indeed, exceptional ability; but you do not have to give him the whole of the Government as a compensation prize—and this is really what it is becoming. Why not give him the Board of Trade and Regional Planning as well? There is a very strong argument for doing so, and it obviously fits in with schools. The noble Lord, Lord Newton, I understand, is going to be one of the Ministers of State. I am surprised we were not told about his job; it is rather interesting. We have an important new Minister in
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this House—I do not know where he is—and I should have thought he would be interested. Perhaps the noble Lord, Lord Newton, will tell us how he fits in with scrapie disease.
The Secretary of State is going to be responsible for natural resources, ecology and hydrology. I see there is some connection between these subjects—all human activity is connected in some degree—but I think the Government have got themselves into an absolutely impossible position. Driven, on the one hand, by views such as the views of my noble friend Lord Chorley, and, on the other hand, pressed a bit by my noble friend Lady Burton of Coventry on sport, they have completely mucked up the Government machine.
The Lord President of the Council was a most useful individual, particularly in the days when my noble friend Lord Morrison of Lambeth was Lord President of the Council. A number of jobs that did not clearly fit into any pre-defined Ministerial structure were given to the Lord President of the Council; and the one that was peculiarly well adapted to this was, of course, responsibility for science. My Lords, I do not believe that the majority of the Government like this solution. This is a political compromise which will not last for long. It has been rushed through, even though the Special Orders Committee said that in their opinion the provision of the Order raised important questions of policy or principle. But I do not think we can hold it up long. My Lords, this Government have done some astonishing things in their time, but this is one of the most astonishing.
3.59 p.m.
LORD MORRISON OF LAMBETH: My Lords, my noble friend Lord Shackleton having mentioned me and my former office of Lord President of the Council, I cannot resist saying a few words about this Order. I must say that the more I hear about it the less I think this is a decision on the merits of the machinery of government as against the merits or the demerits of Mr. Hogg.
And, by the way, there is a new Minister at the Ministry of Education (if this is to be called the Ministry of Education, and not the Office of Education): that is, the noble Lord, Lord Newton, to whom we offer congratulations. But

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I think it is his duty to be here and not to, hide himself at the end of the Episcopal Bench. Really he ought to be on the Government Front Bench—he is not a Bishop. I do not understand this business of an Order affecting the Secretary of State for Education and the other Ministers, of whose number the noble Lord. Lord Newton, is one; and then he goes and hides himself as far as he possibly can at the end of that Bench. He would have been far wiser to stay outside altogether; then we should not have seen him—but then we should have complained about that. But he ought to be here, winding up this debate.
My Lords, what is the real story behind this. The former Leader of this House, the former Lord Hailsham, gave up his Peerage in the hope of becoming Prime Minister. There was a problem about the formation of a Government under the present Prime Minister—and I am not making this a matter of personal abuse. I should not think of doing it. But everybody knows—it is common talk—that there was a bargain between the present Prime Minister and the former Lord Hailsham. There was a sort of discussion as to whether or not he would join the Government; and there was something like discussion as to what position he would join the Government in; and something like a bargain, in the end.
THE EARL OF SWINTON: My Lords, is the noble Lord acting as an honest broker in this matter?
LORD MORRISON OF LAMBETH: My Lords, I am acting as an honest noble Lord. The noble Earl, Lord Swinton, is always available to come to the rescue of the Government when they are in a tight corner; and I pay him my compliments. I believe he renders a valuable service to the Government in being its apologist, though he is no longer the Deputy Leader of this House or a Minister of the Crown. But long may he continue in this unpaid and honorary activity as the main supporter of the Government when they are in difficulty! What I am saying I am saying not as an honest broker, but as an honest noble Lord who believes what he has to say.
I do not like it—the idea that this business of offices under the Crown and
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the machinery of government should be subordinate to the personal ambitions of a particularly pushful Minister. That is what is happening. Here is the position. He has got the whole of education; he is the Secretary of State. He is two Ministers of State; and he is still the Lord President of the Council. Why is it essential for him to be Lord President of the Council? Nobody has said a word on that. The noble Viscount, the Chairman of the Conservative Party organisation, who introduced this Motion, has not told us why the former Lord Hailsham has to remain as Lord President of the Council. I think we ought to know the reason. There is no necessary tie-up between the two; therefore I think that this is wrong. Now the Secretary of State for Education, as proposed, is to be Secretary of State for Education, Lord President of the Council, supervisor of Sport. I do not complain about the sport. That will not take a great deal of his time; although I am sure my noble friend behind me will hope that it will take up a lot of his time. But I think it will not; though my noble friend will "push" him now and again to get an answer across the Floor. So he will do that job.
My noble friend Lord Shackleton is right. The scientific work of the Government was going on quite well under the Lord President of the Council. I do not think there was a need for a Ministry for Science, although I admit that my people have flirted with the idea, and earlier on invented quite a number of possible new Ministries. I did not wholly agree with them. I did not think there was any need; it was obviously a political move which we all understand. But the Lord President was in the position that he was otherwise pretty well a non-departmental Minister; because the duties of the Lord President of the Council, as such, take little time. It means a visit to the Palace for Privy Council meetings from time to time, or possibly to other Royal places. But he has plenty of time; and it is not as if the Minister for Science or the Lord President must be an actual scientist himself.
My noble friend Lord Attlee held the office; so did the noble Marquess, Lord Salisbury; so did I. I would say that, as the office has to deal with science, it

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would probably be a bad thing that the Minister concerned should himself be a scientist because scientists are specialists, and they quite naturally favour their own branch of science. It is desirable that the Minister should be impartial and above that battle; but he should be interested in science. He should inspire the work of the scientists, give them leadership and some guidance, and listen to them and see that research is done on an active scale. And there is another point: we are not taking much notice of the fact that the results of scientific research must be applied in industry, and I guarantee that nearly half the results of research are not yet being applied to British industry as they ought to be. That is part of it.
I should have thought the best thing would have been to keep scientific research under the Lord President of the Council, where it was done quite well in the past, with a limited but able staff, and with three Research Councils, plus the Nature Conservancy in action as well. And what about the university matters? Responsibility for these lay under the Treasury. I admit that that was illogical, because it was a spending body under the body that has to safeguard the spending of money. On the other hand, it was not very harmful; but if this responsibility had to go elsewhere, and if it had to be tied up with scientific research—for which there is something to be said—that also could have come under the Lord President. Instead of that, we are involved in this new empire, built up to please the personal ego of the proposed Secretary of State for Education. That is what is happening, and I do not like it. I do not believe that it is good machinery of government, and I do not believe that it will be good for education.
It was a great point in the debate on the Robbins Report, and rightly made, that the independence of the universities should be maintained. I think we all agree in principle about that. It is not improper for a Government to inspire the universities with branches of learning on which the nation may be short; but the universities should be academically independent, and I think we are all agreed about that. They could have been left where they were, or been placed under the Lord President
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of the Council. But I do not object, in principle, to their being under the Minister of Education, although I say that it is not essential. But scientific research could have stayed where it was. As things are, we are in danger of building up too large an edifice for the pleasing of a man who is energetic and, as we all know, ambitious. I do not believe that it is good from the point of view of the proper organisation of the machinery of the Government and, although we do not in this House divide on these Orders, I must say I do not think any of us is particularly enthusiastic about what has been done.
THE EARL OF SANDWICH: My Lords, I was brought up to believe that people in glass houses do not throw stones. I have been noting down some of the capacities of the noble Lord, Lord Morrison of Lambeth, not so very long ago. From 1945 for a number of years he was Lord President of the Council; he was the Leader of the House of Commons; he was boss of the Socialist Party; he was the nationaliser of coal and transport and of electricity and gas; he was the reformer of Parliamentary procedure; he was the Great Panjandrum himself in politics. And compared to the noble Lord, Lord Morrison of Lambeth, so far as office goes, Mr. Quintin Hogg is a comparative cipher.
LORD MORRISON OF LAMBETH: My Lords, may I interrupt—
THE EARL OF SANDWICH: If the noble Lord will allow me to finish my sentence, I should prefer to continue. Then the noble Lord, if it is allowed by the Rules of the House, can make another speech. As I was saying, so far as office goes, Mr. Quintin Hogg is a cipher compared to the noble Lord, Lord Morrison of Lambeth. But I am glad to say that, compared to the noble Lord, Lord Morrison of Lambeth, Mr. Quintin Hogg's intellectual capacity puts him in the nature of a giant.
LORD MORRISON OF LAMBETH: My Lords, I merely wanted to ask the noble Earl, before he sits down (I know how he enjoys "having a go" at me when he can, and I do not resent it) what Offices of State he has ever held? Is not the answer, "None"? And is he not now having great difficulty in

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finding even a Parliamentary constituency for which he can stand?
On Question, Motion agreed to: the said Address to be presented to Her Majesty by the Lords with White Staves.

SUCCESSION (SCOTLAND) BILL
4.11 p.m.
Order of the Day for the Second Reading read.
THE MINISTER OF STATE, SCOTTISH OFFICE (LORD CRAIGTON): My Lords, this Bill deals with five aspects of the law in Scotland. Part I deals with intestacy: Part II with legal rights: Part III with administration and winding-up of estates: Part IV with the succession rights of adopted persons, and Part V with financial provision for the innocent spouse in a divorce. The changes made in these major issues, together with some miscellaneous clauses, make this the most important measure for the reform of the law of Scotland that has been laid before your Lordships for a considerable time.
For many years there has been concern about these branches of Scots law and this concern culminated in the appointment in 1949 of the Mackintosh Committee who reported in 1951. Since then, as your Lordships know, there has been an almost constant discussion about the Mackintosh recommendations and growing pressure for a change. This Bill, as introduced in another place, reflected both the original recommendations and the changes in thought since they were made. The Bill now before your Lordships has again been considerably changed in another place to meet the valid criticisms and constructive proposals made from both sides of the House. I am sure that your Lordships would not wish me at this stage to refer even briefly to the Bill clause by clause, so I shall confine myself to the most important provisions in each part of the Bill.
First, Part I. As the Mackintosh Report points out, our present law of heritable succession belongs to the Middle Ages, when its rules of primogeniture and male preference were admirably suited to the feudal state of society in which they were evolved. Such rules were at that time a common feature of many foreign systems. But when the Mackintosh Committee started
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their inquiry they found that most foreign countries in Europe and America had already reverted to the principles of the earlier Roman Law whereby all the possessions of the deceased were massed together and, failing a will, devolved on the deceased's heirs equally without any privilege of primogeniture or of male preference. England and Wales made the change in 1922—that is, almost 44 years ago. Since then, as I have stated, responsible opinion in Scotland has stigmatised our Scottish provisions as quite unsuited to the state of society in which the overwhelming majority of our people now live. It was quite clear that rules intended to avoid a subdivision of feudal holdings are inappropriate to a world in which the feudal obligation is no longer a factor and in which the most usual holding of heritable property is a bungalow, a flat or a semi-detached house.
In making their recommendations on this point, the Mackintosh Committee were not breaking new ground. They were merely restating in authoritative terms a conclusion that had been reached more than 30 years before by responsible legal opinion. Part I of the Bill accordingly provides that the whole of an intestate estate, heritable and moveable property alike, shall devolve according to the same rules. These are broadly those which at present govern the devolution of moveable property, but there are some differences. The first is that the surviving spouse of the intestate is for the first time given a place in the line of succession. The second is that where both parents enter the succession the father and mother share equally. Under the present law the mother takes only if the father is already dead. Thirdly, where uncles and aunts enter the succession they do so without distinction between those on the father's side and those on the mother's side of the family.
I must emphasise that Part I of the Bill is concerned only with intestate property and does not affect in any way property that has been disposed of by will. If, therefore, anyone considers that the rules of succession set out in Part I of the Bill would produce results that are not to his liking, his remedy is to dispose of all his property by

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will, and if he does that then, so far as he is concerned, Part I of the Bill is of no effect. But it happens, for various reasons, that many people do, in fact, die intestate, and the task of Part I is to make for these people, so far as is humanly possible, the sort of arrangements that they might themselves have made had they left wills. It is very difficult, indeed impossible, to do this with accuracy in every case. The best one can hope for is a scheme which will approximate to the likely wishes of the deceased in a majority of cases.
It is a help to know as accurately as possible how many and what sort of people die intestate. The Mackintosh Committee said, for example, that large estates, and even small landed estates, seldom fall into intestacy, and the results of a survey that we have just completed, not on a sample basis, but for the whole of Scotland, confirm the view expressed by Mackintosh and suggest very powerfully that the Bill is on the right lines. We analysed for the complete year 1961 the figures of confirmations granted in all the sheriff courts in Scotland. I shall quote these figures only once in detail. Of 26,943 estates which passed through the sheriff courts in 1961, 17,273 were testate—that is, 64 per cent.—and 9,670 were intestate; that is to say, in 36 per cent. of the cases in which confirmation was granted the estate was intestate. This underlines the importance of ensuring that the rules of law which govern intestate succession are adequate for the purpose and well adapted to the social and economic conditions of our times.
Furthermore, we learn from the figures that intestacy is far more common among persons of small means than it is among the wealthier sections of our society. During the year which we examined, 9,670 intestacies were recorded, and only 32 of these, or just one-third of 1 per cent., were estates of which the gross value, heritable and moveable, exceeded £25,000. Moreover, there were only five cases—that is, about 1 in 2,000—in which the heritable portion of the intestate estate exceeded £10,000 in value. Your Lordships may agree that the correct inference from these figures is that intestacy is very common among people of small means, that it is rather rare among people who have substantial gross fortunes,
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and very rare indeed among those who own land or other heritable property exceeding the value of a modern eight apartment house or a very modest farm. I make this point with some emphasis because I have heard it argued in good faith that Part I of the Bill may lead to the subdivision of country estates and farms. With respect, I suggest that, in the light of the figures I have just given, Part I of the Bill is most unlikely to have any effect on such properties. Part I deals only with intestate succession and we know that estates with heritable property value over £10,000 must very rarely fall into intestacy. In one whole year, out of 9,600 intestacies there were five.
I turn now to Part II of the Bill, which contains the clauses that make certain changes in our system of legal rights. The first important change is the abolition of the legal rights of courtesy and terce. We have done this because legal rights that take the form of liferents are very difficult to administer and are, under the Bill as it now stands, a quite unnecessary burden on heritable estate. I believe that the abolition of courtesy and terce will be welcomed by your Lordships, that it is generally welcomed by the legal profession, and that it will simplify the winding up of estates at little cost to surviving spouses.
I now come to the surviving spouse's second legal right, which, I understand, is always denoted by the Latin term jus relictae. There is indeed no exact equivalent in English. Unlike courtesy and terce, which are liferents only, jus relictae is a right of a capital nature by which the surviving spouse can claim one-third of the deceased's moveable estate if the deceased is also survived by a child, and one-half of the moveables if there is no child. Your Lordships will observe that jus relictae does not extend to heritable property and that in this respect no change is made by the Bill. The only change, and it is a very minor one, is that in future jus relictae will amount to one-half of the moveables only in those cases where the deceased leaves no issue at all, because under the Bill in future the issue of a predeceasing child may claim the legitim which their parent could have claimed had he survived the deceased.

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I now turn to Clause 8 which affects intestacy and which is, in my opinion, one of the most important provisions of the Bill, especially because of the almost complete predominance of small intestate estates. Under our present law, the spouse of a person who dies intestate can claim a share of the moveable estate by way of jus relictae, but has no claim to the ownership of the heritable estate. The significance of this emerges when one remembers that in the vast majority of cases where there is any heritable estate at all it consists solely of the family dwelling-house. The unfortunate widow has now in fact no right to the house in which she has lived, possibly for many years and, unless she can make some arrangement with her husband's relatives, she may, quite literally, find herself out on the street. This cannot have been the normal husband's intention and the present state of affairs does no credit to the law of Scotland.
The normal husband of the sort who dies intestate, if he has a house, has only a small property valued at less than £10,000. In talking to his lawyer about his will he will want his wife to have the house in the knowledge that she in her turn will probably pass on her possessions to her children or to the child who needs them most. The owner of more valuable property normally makes a will and might well leave his widow the liferent of the house. But that is not the average type of spouse for whom this Bill must provide. Clause 8 is intended to reflect what a testate owner of small property normally does in his will, by giving the surviving spouse of an intestate a right to the deceased's interest in any dwellinghouse in which she was ordinarily resident at the time of death and to the furniture and plenishings to a maximum value of £5,000—all free of death duty if the estate can stand it.
There are, of course, circumstances in which it would not be appropriate for the spouse to receive the dwelling-house itself—for example, where it is a farmhouse which is required for the running of the farm—and in such circumstances subsection (4) provides that the surviving spouse shall take, not the house itself but the value thereof. Your
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Lordships will observe that paragraph (c) as it stands brings a dwellinghouse within the scope of this subsection where there are special circumstances of a historical nature connected with the house which make it proper that the surviving spouse should take the value instead of the house itself. The need to include some provision of this kind in Clause 8 can readily be appreciated.
But we are not satisfied that this part of the clause tackles the problem in the right way, and I should like to give notice that at the appropriate time I shall be proposing Amendments which will leave out the present paragraph (c) and will extend to the dwellinghouse of the intestate passed to the surviving spouse the device of a limit of value which has already been applied to the furniture and plenishings. An Amendment on these lines was put down on Report stage in another place and then withdrawn by the Government for further consideration of the figure proposed.
Clause 9 also deals with rights that arise only on intestacy. Under this clause the surviving spouse is entitled to £2,500 out of the intestate estate if the intestate has left issue, and to £5,000 if he has left no issue. This claim to a sum of money comes after any claims to furniture and plenishings and the dwellinghouse have been satisfied under Clause 8, but before the executor proceeds to the calculation of the amounts that may be claimed by the spouse by way of jus relictae and by the issue by way of legitim. The claim to £5,000 where there is no issue is already available under an Act of 1959, but the claim to £2,500 where there is issue is new. Finally, may I again remind your Lordships that the provision made for the surviving spouse by this clause and by Clause 8 can be claimed only out of property that the deceased has not disposed of by will. There is no question, for example, of the widow claiming the family dwellinghouse under Clause 8 if the deceased has left it by will to someone else.
The only other clause in Part II to which I should refer is Clause 12. By this clause it will no longer be possible to extinguish by an ante-nuptial contract the right to legitim of a child yet unborn. The fact that this could be done

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was severely criticised by Mackintosh in paragraph 22 of the Report. Under the new provision the child has the right, as it should have, to choose between the benefit under the contract made before it was born and its legal rights. So many changes of circumstance can have taken place since the parents contemplated marriage that we cannot with justice do less. This Bill is rightly full of compromises to meet all conflicting needs so far as practicable. But here we can find no answer to the pertinent question: Why should certain children, unable to speak for themselves, be denied a legal right to which all other children, born and yet unborn, are entitled?
The clauses in Part III of the Bill are almost entirely concerned with the procedural steps that have to be taken for the administration and winding up of an estate. Changes in these procedures are required for two reasons. In the first place, as the Mackintosh Committee recommended, we abandon the present rules that require heritable and moveable estate to be dealt with in different ways. At present the moveables only are included in the confirmation, while the heritable property is dealt with by an entirely separate procedure. The Bill provides that in future the whole estate, heritable and moveable alike, will vest in the executor and will be administered and wound up under the same procedure. This is a worthwhile reform that should simplify the administration of estates in Scotland.
In the second place, some changes in procedure are required because of the disappearance of the heir-at-law: that is to say, the single male heir who has normally taken the heritable property of an intestate. Under the agricultural Statutes, and also under the Common Law, the heir-at-law of a tenant has had a special position in relation to the un-expired portion of the tenant's lease, and since the heir-at-law is disappearing it has been necessary to make new arrangements in Clause 16 for the transmission of leases.
I now come to Part IV of the Bill, which deals with the succession rights of adopted persons. The clauses in this part are based on a Mackintosh recommendation endorsed four years later by the Hurst Committee on the Adoption
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of Children. Briefly, the recommendation was that for purposes of succession, and for purposes of claims to legal rights, adopted children should be placed in the same position as children of the adopter born of the adopter and his spouse in lawful wedlock. This has been the law of England since 1949. It may be asked why Scotland and England have not moved in step in this matter. The answer was given by the Mackintosh Committee who noted that one of the reasons for their appointment was the difficulty of reconciling the rights proposed for the adopted child with the principle of primogeniture.
I should perhaps make one or two points about these adoption clauses. The first is that they are in no sense retrospective; they do not apply to any succession arising from a death that occurred, or to any deed executed before, the Bill comes into force. Secondly, they apply only to adoptions made under a statutory adoption order. Thirdly, the clauses do not affect deeds executed before the relative adoption order had been made. There is one exception, however, to the rule that the adoption order must come first. This flows from the normal rule that a will takes effect, not when it is executed, but on the death of the testator. Thus, if a person makes a will after the Act comes into force, leaving his property to his children, and subsequently adopts another child, then the adopted child is included among the children entitled to succeed under the will.
I now turn to the last group of clauses in Part V of the Bill that deal with the financial provisions to be made for the innocent spouse when a marriage is ended by divorce. This Part of the Bill implements recommendations that were made in the first instance by the Mackintosh Committee and were later endorsed and extended by the Royal Commission on Marriage and Divorce.
At present, when a divorce takes place in Scotland, the innocent spouse can claim from the guilty party's estate legal rights which are, broadly speaking, the legal rights that he or she could have claimed under the law of succession if the other spouse had died. This is the only financial remedy open to the innocent spouse, and it proceeds on the legal fiction that the guilty spouse has

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died. Both the Mackintosh Committee and the Royal Commission recommended that instead of this claim to legal rights the innocent party to the divorce should have a right to apply to the court, and the court should have power to order such financial provision as appears to it appropriate at the time in all the circumstances of the case. Clause 25 therefore abolishes the existing legal rights on divorce, while Clause 26 introduces the new financial provision at the discretion of the court.
My Lords, these are the main features of the Bill for which I now seek a Second Reading. It is not an easy Bill, and I am grateful for the patience with which your Lordships have heard my necessary explanations. I believe, however, that in spite of its complexities it is a thoroughly sound measure which will bring our law in a number of its aspects more closely into line with the needs of a modern society. I beg to move.
Moved, That the Bill be now read 2a,—(Lord Craigton.)
4.35 p.m.
LORD GREENHILL: My Lords, I have listened with considerable interest and a little bewilderment to the noble Lord who has just explained this very complicated Bill. I should be deceiving myself if I pretended to have any kind of knowledge of the legal implications of the Bill, or of the legal changes that have been made. Since, however, this is the Second Reading of the Bill, on which details of value can be discussed, it fortunately does not fall to me to do the explaining; and I am rather encouraged by the fact that, included in the speakers on this Second Reading, are three or four outstanding representatives of your Lordships' House who will, I hope, enlighten me in my own ignorance of the law, while I confine myself to what appears to me to be the social implications, and indeed the economic implications, too, of the changes in this Bill.
It is a very complicated Bill. I have read with a good deal of interest, and even a little understanding, what took place in another place. I was pleasantly surprised at the detail in which they examined the clauses of this Bill and
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their anxiety to improve conditions from what they were. What occurs to me is this. While it is true that we are dealing here with succession, and while it is also true that we are dealing, in the main, with intestate estates, nevertheless one has to remember that, in spite of the very thorough examination of the Mackintosh Report and their rather revolutionary recommendations compared with what existed previously, even since the time that this Report was issued there have been a number of changes which have, if anything, increased the necessity for some kind of change in the hitherto law of succession.
In order to refresh my own mind and bring to the notice of noble Lords the kind of revolutionary changes which the Mackintosh Report made, may I read from Part III of the Report? They say:
"(1) That for the purpose of intestate succession, heritable and moveable property should be blended and form one estate.
(2) That the law of primogeniture should be abolished".
That is a kind of built-in part of the Scottish law, a fact that one would think should give a considerable amount of hesitation to any Government before proposing its abolition. The Report goes on:
"(4) That there should be succession through the mother as well as through the father"—
another great change in the traditional beliefs of Scotland.
"(5) That in any alteration of the law the principle of legal rights should be retained, though these would require re-adjustment consequent on the abolition of primogeniture and the blending of heritable and moveable estate."
This background to the whole of the Mackintosh Report is based on a very careful examination of what occurs both in foreign countries and, to some extent, in England, too. What appear to be the views of foreign systems of law in intestate successions are given, and they bear out what the Mackintosh Committee recommend.
As I say, I do not pretend to know a great deal about the operation of the law of succession, but in reading the criticisms and observations of both my honourable friends and my equally honourable opponents in another place, I was pleasantly surprised at the amount of agreement which appeared to exist, in spite of the mild differences that were fought out, and the improvements that were embodied

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in the final draft of the Bill before it came here, so that on the whole agreement between the two sides was reached. Therefore, one is glad to think that, however complicated the provisions of this measure may be—and one has to admire the ability of the legal mind to be able to sort out this jumble of material in order to put it into some kind of order, under separate headings and to find answers for each of these problems—they have tackled them in so able a manner. That is one reason why I do not even voice the criticism that was made in another place about the time taken in order to carry out as well as they can the Mackintosh recommendations, plus such minor alterations as the Government, on the one side, and the Opposition, on the other, were able to agree upon formerly in another place.
I think that the figures the noble Lord has given to us to-day put into even better perspective than was obtainable in the other place the magnitude of the problem with which we are dealing; and one rather hopes that these figures, presumably official, will allay any kind of anxiety that appears in the minds, either of noble Lords or of Members of another place, to prevent any kind of obstructionist opposition to a measure of this kind by reason, even since the Report of Mackintosh, of the social and economic changes which one recognises have taken place for what we might call the less affluent sections of the Scottish people. I, for one, regard it as a matter of regret that not more people nowadays—in former times it was not perhaps possible—have overcome their fear of entering a lawyer's office in order to get put into proper form the future division of their possessions so that, in the case of death, there is no quarrel or dispute and so that the whole business is arranged beforehand and it is not left even to an all-embracing Act to determine how whatever substance they have left is to be divided up. If they did so, I think it would be a very great advance on conditions as we find them to-day.
If one may dare venture a piece of advice to that section of the community which I have mostly in mind, I would say this. Of recent years municipalities have increasingly adopted the practice of having available to the citizens within their areas bureaux of advice on all matters. It would appear to me to
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be of enormous help, and it would overcome a good deal of hesitation, if local authorities made known to the people of their cities that these bureaux could give advice on matters of this kind to those people who had any little amount of property to preserve or protect, and that they would take upon themselves responsibility for either providing staff to draw up wills or advising them to go to lawyers whom the local authority could recommend, in order that these intestacy difficulties could be overcome and any apprehensions the people might feel about the little they possess would be done away with. That, generally, I think, would make this Bill, which seems to me to be an almost revolutionary advance on what has hitherto obtained, acceptable to the people of Scotland as a whole.
4.45 p.m.
LORD SALTOUN LORD SALTOUN rose to move, as an Amendment to the Motion for the Second Reading, to leave out all words after "that" and to insert: "this House declines to give a Second Reading to a Bill which while suitable to the circumstances of the population of the burghs, is contrary to the normal life and feeling of the country population, is menacing to the harmony of family life, makes if difficult for families to continue in quite small properties where they have been for centuries and procures intestacy where none need exist." The noble Lord said: My Lords, I recently put down this reasoned Amendment and, therefore, I have to give your Lordships reasons for it. But before proceeding to that task I should like to congratulate the noble Lord, Lord Craigton, upon the very able and clear way in which he has presented this Bill to your Lordships. I should also like to ask him to examine a point in Part III which occurred to me while he was explaining it. It is a small point but it might be very vital.
The point is this—and my noble friend Lord Reid may correct me. If you are a heritable superior of a burgh you can succeed to the feu duties without necessarily being served heir. But if the occasion occurs that you irritate a feu and confiscate the subject for non-payment of feu duty, and then you feu or sell the subject again to somebody else, who erects a building on it,

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you may be caught because, not having been served heir, the old owners may expunge it by the payment of back feu duties and you may be had up for essential error, and subjected to shocking damages, for having parted with it to somebody else. I have not been through Part III carefully, but I know that the noble Lord wants to make this Bill as good as possible, and this is a point he must look into. Because if the Government are going to cut out the process of serving an heir it may land the superior in trouble that way.
The noble Lord practically quoted what the Secretary of State for Scotland said in introducing this Bill to the Scottish Grand Committee in another place, but as I want to get the point exact I should like, if I may, to quote to the House his exact words. He talked about framing these rules for intestacy and said that, in framing them, he had
"kept in mind the principle that when a man dies intestate the law should try to provide, so far as it possibly can, for the disposition of his estate in the manner in which he would most likely have chosen himself if he had left a will".
That is a principle which I think we all accept—the noble Lord has practically accepted it—and it is in the light of that principle that I should like to examine from my point of view the Bill before your Lordships this afternoon.
We are told that the Law Society of Scotland is in favour of this Bill. That may be so, although those members of the Law Society of Scotland who have practices in the country have not been quite so laudatory. But I think it might be worth while considering for a moment how we come to have this Bill at all. I am told that the mixture of Roman Law and feudal law which at present forms the Common Law of Scotland came to us some 890 years ago, and has operated, with various changes, since then. But it did not operate in the burghs that had their own customary law which governed succession, which worked very well, and which was quite different from the Common Law of the land. It was only 90 years ago that that situation was changed. I suspect that what happened was that things went very wrong: great difficulties arose in the Royal Burghs—difficulties that would not have happened in the regality
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burghs, which were generally better run—and the lawyers came to the conclusion that it was better to apply the Common Law of Scotland to the burghs indiscriminately. From that moment until this that has caused a grievance and has led to difficulties. It has been entirely contrary to the feeling in the burghs and it has led in the end, after 90 years, to this Bill.
I should like your Lordships to consider very carefully whether, in our anxiety to remedy a mistake that is 90 years old, we may not make an equally great error. There is a certain amount of reason in what I say; because this Bill started in one form, and was introduced; was withdrawn and completely redrafted; and great portions of it were put in to try and make it workable in the rural areas. It was then found, as we all agree, that those provisions were completely unworkable. So they were torn out, and the Bill was left to get along without them. My argument today is that the Bill, though well suited and a very good Bill for the towns, is not such a good Bill for the country; and I have to show that to your Lordships.
The first clause of the Bill abolishes all distinction in an intestate succession between heritable and moveable estate; that is, between real and personal estate. That works very well in the towns. After all (and the noble Lord, Lord Craigton, practically gave me this point), nobody worries about changing a house in the town; people change their houses in a town with far more ease and far less reluctance than they change their bank or their lawyer. It is perfectly right that should take place in the towns. But when we come to the country, matters are a little different; and if the Government are seriously going to try to make a provision such as the intestate would make, had he left a will, then I think it is proper to consider a little the character of the people. Here, I speak with a certain amount of diffidence; your Lordships all know Scotland just as well as I do, and many of you, probably, better. But I put forward what I think to be the principal characteristic of the Scottish people—and it has in fact been common ground in all our discussions on the Bill: that the people in Scotland, in the towns and in the country, have a tremendous

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sense of family. The family nexus is far wider spread than it is in other places. And in nearly every case that family loyalty is connected with some place or other. I am not talking of the great houses and the great estates. I am talking of quite small families, quite small places, and of all time. I am talking of Cardnos, Cattos, Kings, Watsons—names that do not make any great appearance in history, but are, none the less, good Scots families whom we have to consider. I am not talking of great places: I am not talking only of to-day; I am talking of the past.
I would remind your Lordships of three cases which prove what I want to say, and I could make the list as long as my arm. Your Lordships who remember the history of Russia will remember that General Patrick Gordon was a General of Peter the Great, and he was always trying to get back to Scotland to his own property and his home at Auchleuchries; but Peter would never let him go, and he died in exile. Auchleuchries is only a small farm; it is not a great place. Many of your Lordships may remember that when that great Canadian Prime Minister, Mr. Mackenzie King, was over here some years ago, the one thing he wanted to do more than anything else was to go up to Scotland and see the place—it is only a small farm—where his ancestor had been born. He went up, and he saw the house. He saw the four-poster bed in which the ancestor had been born, and the old 18th century furniture, and he went away and never forgot the people who had done that for him.
Some five or six years ago when I was in Ayrshire, I met an American and his wife, and she told me that her ancestors on both sides had been sold as slaves by Oliver Cromwell. She said to me, "I am a Munro, and I want to see Foulis". Your Lordships all know that I could make that list as long as I liked. That shows your Lordships that family feeling in Scotland is nearly always connected with a place, and for that reason I think that Clause 1, while it is excellent for the towns, is unsuited to the country, and that the distinction between heritable arid moveable is still valid and valuable for the country. Later on in what I have to say, I shall come to the people who actually inhabit these small places but at this stage I wanted
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merely to establish my picture of the way people feel.
The second clause deals with intestate succession, with the method of succession, and I think that it is contrary to Scottish feeling in the country as I know it to-day. I do not think that the present law is perfect: it is very unsuited to a country in which women have always held property, always transacted their own affairs and in which, as your Lordships will remember, a woman never loses her maiden name, whatever other name she may take. Her maiden name is always put in on all family deeds which she executes. If a woman with land marries a man with land, and they have children, and die, and the children succeed and the heirship fails in the children and you have to seek back through the spouses for an heir, according to the law that I should like to see in Scotland you would seek back for the heir to the woman's land through the woman and the man's land through the man. As the law at present stands in Scotland, you seek back through the man for the heir to both lands. But, at any rate, by that system you do get somebody in possession of the lands.
Under the system proposed in this Bill, if you seek back and there are four grandparents or their representatives (because, of course, representation comes in here), you get the whole thing divided between that generation. If there is nobody there to represent the grandparents you go back, as the clause says, to the grandparents. There is a strong objection to that; namely, that it means the subdividing and the splitting up—what is called fragmentation—of the whole property, or it must be sold and divided, which I believe is not a good thing. In Scotland we always like old properties to be owned by somebody. My kinsmen the Calders failed, and the Campbells came in in their place a long time ago; but I would far rather that that happened, than that the whole property should be split up. There is a worse point, and that is the question of half-blood. The only heir might be a great-grandmother who had in a second marriage married a Greek or Turk, and the whole property would go away to some alien. That is, I think, contrary to Scottish feeling.
I come next to Clause 8, about which the noble Lord, Lord Craigton, was very eloquent, and what he said reminded me of many a conversation I have had with my friends in the Law Society on this subject. They all say that they feel it is very hard that, after many years of domestic felicity, when one of the spouses dies the surviving spouse should have to abandon the house. I quite understand that feeling, but, while it may suit the towns it does not very well suit the country. In the first place, it is a picture, and that is all; and there are a great many other pictures. For example, people do not always live a long life together and then, in due course, die. Very often a wife dies and a man marries again, or the reverse occurs. There are many cases, and I particularly do not want to point at anybody who will be recognised, but I will take the case of a small estate of a few acres—less than 100 acres. On the estate there is a house which incorporates a tower to which Sir John Ramsay retired for refuge after the defeat of William Wallace, and to which the ancestors of the owners came after the success of King Robert.
We in Scotland have few great collections of treasures, but every family has things that it values greatly. They may not be valuable. In the case I am thinking of there is a collection of pictures of members of the family from the reign of James VI onwards. They are not at all valuable pictures. They have no value in the market, but are just a collection in the family. The owner of that collection may marry a second time and then may die. The stepmother may not get on with her stepchildren, which is a common case—I can give your Lordships numerous instances of it—and the husband may die intestate. That may well happen if he does not make a will after his second marriage.
What happens if he dies intestate? The widow comes into the house. You may go to the sheriff and get the house declared an historic house. There are plenty of houses which are not in the least historic, but of which the family are just as fond. You cannot get any declaration about the pictures. The widow can take the house, she can take
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the pictures, she can marry again, and she can die and leave the whole of it to a stranger and the family be utterly dispossessed; or she can sell back to the family, at blackmailer's rates, the things they feel they must have. Murders have been done for less reason than feelings that would be roused by such a situation, and I think that this clause needs a great deal more consideration than that which the noble Lord, Lord Craigton, said he was going to give to it. It is ridiculous that any widow should carry away out of a family the house and valuable hereditary moveables belonging to that family.
I want now to turn to another subject—namely, Clause 12, which really bothers me more than any other. The ordinary Common Law provisions in respect of a man making a will are so drastic that, if they were enforced, small properties could not be passed on from father to son. I do not know what the situation is in other countries, but it certainly could not be done in our northern climate. For that reason, as your Lordships may know, it has been customary to provide against that by making an ante-nuptual contract in which the provision made for your widow, and also the provisions to be made for the younger children are limited. When you go to your lawyer to make such a provision he warns you that if you make a provision for the children which is illusory the court will interfere and greatly expand it, and therefore you have to make a proper provision. I am convinced that it is only through that practice that it has been possible to hand down property from father to son. I have worked out the figures for small properties, especially small farms, and I find that on the smaller property the effect of the Common Law provision for younger children is very drastic.
When I was an apprentice in estate management a long time ago, we always had to consider the cases of farmers coming to take farms and of the capital they could provide. It was our experience, which was proved again and again, that a farm cannot stand a diminution of more than 20 per cent., in the necessary capital without risking bankruptcy. By that I mean that in taking a farm worth perhaps £100 an acre to-day, stocking and other purposes could be

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done for perhaps another £100 an acre, and nothing would prevent a man who had capital less than the £80 an acre from going bankrupt. But if he had £80 an acre he could manage.
Many lawyers and those who favour this Bill have said to me, "Oh, but that is nonsense. We have known farmers heavily in debt, mortgaged to the hilt, but they have got away with it. They are rich men." That is perfectly true. You can bond your farm to its full amount; you can buy anything; you can expand in every direction, so long as the money that you borrow is used for expanding your productive capacity. The only thing that stops you is your own ability. I know many men who have done exactly that. I would hesitate to say whether they were millionaires or bankrupt. That is a different thing. If you bond your farm to buy jewellery for your wife or to pay the claims of your brothers and sisters, then 30 per cent. of unproductive debt is ruinous—you go bankrupt. At 20 per cent. you may manage. So the figure can be put between those two amounts.
As proof that I am not talking utter nonsense, I will remind your Lordships that the Inland Revenue have long recognised this fact and have reduced the estate duty on agricultural land. The effect on single farms is quite marked. On agricultural land itself the reduction is 45 per cent. When you work it out, with the necessary stocking of the farm it comes to a reduction of between 70 and 75 per cent. That is a considerable concession from the Inland Revenue. It indicates that what I am telling your Lordships is really the fact. The ordinary legitim fund on an ordinary farm and its capital greatly exceed that amount, and therefore, in the end, either the farmer will go bankrupt or they will have to sell.
We have had long discussions about this. We have discussed it with the Department, and they say they have no objection to farms coming on to the market, but they think that the well-known solidarity of the Scots family will induce the younger children not to press their claim, and that, in any case, they cannot tolerate the continuance of such an inequitable system. It is this inequitable system—and I think my noble friend Lord Greenhill also thinks of it in this way—which I want to tackle.
I agree that when there is a shortage of food, when there are famine conditions, it is right that one should divide equally. But the position of younger children is not quite the same. After all, Scotland is a democratic country and all the children of farm servants start at the bottom; many of the children of farmers start at the bottom; and, when I look back in history in my own family, I find that if the younger children did not start off at the bottom, they certainly started low down the scale. In the course of my practice I have had to read many a will written by citizens of Edinburgh. These wills commonly said, "Having given my children the best possible education, and having started them in life, I see no reason to make further provision for them". And, in general, the money was left to their wives.
When this Bill was first discussed, one of its framers asked me whether I believed in primogeniture. I said, "You must not ask me that question. My younger brothers are the people whom you must ask." I had not then seen the Bill, but I telephoned by youngest brother and said, "The Government have a Bill to abolish primogeniture. Would you agree with that?" The answer came back: "I would not agree with it".
I should like to mention some farming families. I have tried to find out what the younger members of those families think. They are all in the same story. They do not want the abolition of primogeniture. If we pass Clause 12 it is bound to be effective, because if one claims then they have all got to claim. The people who break the agreement are always the husbands of the daughters. If one looks at the Argentine, one finds that this takes place there and leads to fragmentation of farms and that sort of thing. One will not get fragmentation of farms in Scotland, as this is simply impossible; the holdings are just about as small as can economically survive. Under this clause farms will be forced on to the market.
On the question of equity, I should like to put this case before your Lordships. I live on a point of land, and if one drew a circle of fifty miles radius around my house, more than three-parts

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of that circle would be in the sea. Therefore, I have about one quarter of the neighbours most people have. Yet within five miles of my house there are at least four families who have been in their farms for centuries. They own their farms. My nearest neighbour had an ancestor at the Battle of Colloden. Another has been there since the reign of Charles II. I do not know how long the third has been there, but it is some long time. The fourth is a farmer occupying just over 100 acres, and he is the fourteenth generation to own the farm.
The younger children of these people do not want the abolition of primogeniture. They all get started in life by their parent, and get a better start than most people. Coming as they do from old and respected families such as these, they can command far more valuable jobs and can occupy positions of trust. They have no reason to wish for the abolition of primogeniture. They are very proud of their ancient families and would not ask for a law to change all that. If we pass Clause 12, I am afraid the end of that state of affairs will be very near.
I know that there is a demand for farms; I know that a great many people would be glad to see more agricultural land coming on to the market. Rich men who have made a lot of money in trade want to put their money away as an investment, and they buy farms; this happens every day. Some want to establish their sons in comfortable billets. They are all on the lookout for farms. I can understand the Government wishing to put more farm land on the market. But I strongly object to the passing of legislation which will force these ancient families, humble though they may be—families of long descent, much respected in the countryside, and a social asset—to put farms on to the market to supply that demand. That is what almost certainly would be the result if Clause 12 became the law of the land.
We pleaded with the authors of this Bill that it should be restricted to land under three acres. The answer I got rather astonished me. I was told, "No; they might be three acres in the centre of Edinburgh." I put aside the proposal
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that the three acres should be outside a burgh boundary, but the real meaning of the answer I received was: "We are going to get our way and you have got to bear it." If this is so, then we are very unfortunate. This Bill has in it many things of value, but so far as the ordinary country in Scotland is concerned it is not a good Bill.
With regard to what my noble friend Lord Craigton said about intestacy, cases of intestacy among wealthier people may be rare, but, on the other hand, they are not entirely unheard of. A man may make a will every day of this life and still die intestate; it can often happen. I sometimes wonder how many wills get lost before they are presented. My Lords, those are the reasons which induced me to put down this Amendment. I beg to move.
Moved, as an Amendment to the Motion for the Second Reading, to leave out all words after "that" and insert the said words.—(Lord Saltoun.)
5.18 p.m.
THE EARL OF PERTH: My Lords, I am not sure how I should proceed in the light of the Amendment; but I hope that it is in order for me to speak on the original Bill which is before your Lordships, bearing in mind the important and valuable contribution to the debate as a whole which has been made by the noble Lord, Lord Saltoun. I rise to speak with the greatest diffidence. We have heard a most clear exposition of the Bill from the noble Lord, Lord Craigton. We have heard the noble Lord, Lord Greenhill speaking, I think, for the first time for a long while from the Opposition Front Bench, and I am sure your Lordships welcomed his contribution. We have heard the noble Lord, Lord Saltoun (speaking with far greater knowledge on these matters than I possess) appealing in a way which I am sure impressed your Lordships. There is great substance in what he said, and I hope that it will be given great weight. And when I look at the list of speakers who are to come after me, when I see the legal talent that is arrayed, I wonder why I am up on my feet at all.
But the fact is, my Lords, that many friends of mine have over the last weeks shown great anxiety about this Bill.

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They have talked to me, and have pressed me to such a point that I felt I had to try and understand something about it; and the more I studied the Bill the more worried I became. I became worried, not because I think that the purpose behind the Bill is wrong, hut because I feel that the Bill in its present form does not give effect to many things that we want. Indeed, I would say that in its present form it is not a good Bill at all. When I say that, I am speaking only about Part I and Part II; the other Parts, and the Schedules, are, quite frankly, beyond me, and I only hope that not only the Government but others of your Lordships will give the necessary study to these. I hope to show your Lordships that, in Part I and Part II, there are things which ought not to be there at all and which make me fearful that the whole matter is being rushed too much.
We have heard from the noble Lord, Lord Craigton, that this is the most important measure on Scottish affairs for a considerable time. We also know that it involves radical changes in the principles on which we have worked for so many centuries. If your Lordships read the proceedings on the Report stage of the Bill in another place, you will find, I think, that my fears are confirmed on the way things have been rushed. I found such sentences as "undue haste and pressure to hurry up and get the Bill through", or "it was raced through the Scottish Committee" or that, "though altered it could have been better". All those seem to me to be signs that we have a very serious duty to perform. As I read the Report stage in another place, this House is once again being called upon to perform the function of a long-stop to catch out mistakes and try to make the Bill a better Bill. That is fine, and I am sure that we shall all do our best; but I do beg that, on such an important measure, we are not also pressured, for some reason which is not entirely clear to me, to get things done within the next several weeks.
It is no comfort to me to know that in a sense this Bill has been hatching for a very long time. We know that Lord Mackintosh's Committee made their Report as far back as 1949, and that various attempts have been made since then to bring in a Bill.
THE EARL OF HADDINGTON: It was 1951.
THE EARL OF PERTH: What I think we have to remember is that this Bill is not the result of many years of cogitation, but something which has come up in a short time. As other noble Lords have said, very important principles are at stake. Primogeniture is to be abolished. If it were abolished in all things, of course, most of your Lordships would not be here at all—but that is another question. Then we have heard that the differentiation between the sexes in these cases is also to be abolished. And I must be careful what I say by way of comment on that point. Then, again, we find that in cases of intestacy heritables and moveables are to count as one and the same thing. That, again, is an extremely important change. The noble Lord, Lord Craigton, said that the distinction was a relic of feudal times. I am not quite sure whether he is right, or whether if it is only a relic of feudal times the distinction should now be abolished.
I have been looking, as I am sure many of your Lordships have done, at the Mackintosh Report in this respect. In paragraph 8, when the Committee are talking about the question of the agricultural interests, they say:
"… the general law of succession above proposed might have far-reaching and unfortunate results on agricultural interests and on the social structure of our countryside generally."
Or, again, it says
"Such a result"—
that is, the merging of agricultural heritables and moveables—
"in our opinion would be socially and nationally undesirable and we think that in the interests of agriculture and of our national economy generally provision should be made to facilitate the acquisition of the family farm by one of the heirs from his co-heirs without the subjects having to be put up for public sale."
Your Lordships will see that they ask that some provision should be made. Can we find any such provisions in this Bill? We cannot. Some were tried and they were found to be too complicated. A series of endless legal fights were envisaged, and so those provisions were taken out. I am not saying it was not right to take out the Schedule as attempted, but if we had time I wonder

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whether it would not be possible to find some way of putting in the provisions which Lord Mackintosh felt in his Report were so necessary to avoid national harm. I think the actual word used was "disaster".
It is quite true that the noble Lord, Lord Craigton, has said, "Well, from the figures that we possess from 1961 it can be seen that the issue really affects very few people." I think the possible maximum was five. But I am not very happy, quite frankly, on the de minimis argument and I would ask that this matter should be looked at by all of us again, to see whether we can find some way of ensuring that agricultural land has not necessarily to be split up and sold. I know it could be argued, "Well, it has not got to be sold for certain." But I assure your Lordships that, from examining the matter very carefully, I suspect the cases when it is not sold will be very, very few.
Of course, it may be said, "The answer is to make a will." As the noble Lord, Lord Saltoun, has said, sometimes wills fail. But I should like to comment on the suggestion made by the noble Lord, Lord Greenhill, and say how much I feel with him that not only the Government but a public authority should make a special effort to encourage people to make wills. If this Bill goes through in even something approximating to its present form, and some of the damage which I think could occur without making a will still remains, then making wills will help very much.
Having dealt very briefly with the question of heritables and moveables, on which the noble Lord, Lord Saltoun, was so much more eloquent and spoke with so much greater knowledge, I should now like to take the question which I think is covered in Clauses 2, 8 and 9. I apologise for taking it in this way, but, as I have already said, I am a layman in these matters, and I cannot easily do these things in the proper order. I want to consider what happens in respect of the rights of a wife and the equality of the sexes, and see what is the result. I think in many cases the children are going to get little or nothing in an intestacy. Again, we have heard something about what is going to happen to
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the family treasures, and I would agree with the noble Lord, Lord Saltoun, that these very often have little, if any, value. They will be dispersed. Lastly, there is the problem of the wife or the husband's family getting a property, an agricultural property in particular, rather than the first cousins of the wife or the husband's family as the case may be. To me all of this adds up to a blow to family tradition and sentiment for Scotland, and we all know how strong those things are for Scotland. Perhaps, above all, it is a blow to the family ties in relation to land.
So far as family treasures are concerned, as I have said, their intrinsic value is little or none—but murder, as we have heard, has been done for less. What are they?—things like pictures, letters, medals which earlier generations may have won. All those may well be dispersed. I had thought there was a glimmer of hope that we might pursue a line similar to that which was envisaged for the historic house, but I heard just now that Clause 8(4)(c), which deals with that and puts forward that suggestion, is likely to come out in the course of the Committee stage. Of course, if something else is put in in its place, all well and good, if it is as good; but, none the less, I hope that, so far as family treasures are concerned, we shall find a method of avoiding their automatic, or almost automatic, dispersal.
Let me come now to the question of children getting little or nothing. If the wife has a child or children, let us first see what she gets. As the Bill stands at the moment, she gets a house, which may be very valuable indeed; she gets plenishings to the value of £5,000—and both of these are free of death duties—and then she gets £2,500. If we add all that up, on a relatively small estate—and it is perhaps the relatively small estates which one has to worry about—it is almost certain there will be nothing left, because, after taking out the value of the house, whatever it may be, the £5,000 plenishings and then the £2,500, the duty has to be paid from the balance. The wife gets all, and there is nothing for the children. Your Lordships may say that this does not matter too much because the wife will perhaps let the children have it later; but, of course, we have no certainty of that. She may marry again, she may have other children, and so

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forth. Then, of course, that is not all that she gets. She also has, as we know, the jus relictae. I think we ought to examine most carefully whether the wife is not getting too much and the children too little.
On the third point, which is that of the wife's or the remaining spouse's family rather than first cousins, I was very much attracted, as a substitute for what is proposed, by the idea which was put out by the noble Lord, Lord Saltoun—namely, that, rather than saying first cousins as such, one should partition it to the husband's family or to the wife's family, and, in that way, going backwards, try to ensure that the property, whatever it may be, attaches to or remains with the family which has the particular interest in it. Of course, there may be many ways of achieving this. I only hope that we can examine it with the greatest care over the next weeks.
Now I come to Clause 12, about which we have heard a certain amount from the noble Lord, Lord Saltoun. As we know, ante-nuptial contracts are in a large degree to have little purpose if this clause becomes operative. The phrase "ante-nuptial contract" is something which frightens me, but it is very much the same as what I would call a marriage settlement. Perhaps that helps sonic of your Lordships to know what we are talking about. Marriage settlements often help to lessen the impact of legitim. It has been pointed out in the Mackintosh Report that this occasionally caused great hardship and abuse, and I, for one, should certainly want to see the possibilities of such hardship and abuse removed, as I am sure all your Lordships would.
In that connection I wonder why, for example, we cannot follow the English practice—an English practice which was introduced after the Mackintosh Report was written. I refer to the Fourth Schedule of the Intestates' Estates Act, 1952. In that, there was a provision to enable a person to go to the courts and get a reasonable provision for the children if they had not been properly treated under a will. I wonder whether we should not try to introduce some such thought as that in this instance. If we did, the courts could judge whether something was fair, but at the same
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time it would be clear that they were not being called upon to see that full legitim was being exercised. They would have a discretion.
So much for Clause 12 in general, but I want to draw your Lordships' attention to Clause 12(b) in particular. When I first read Clause 12(b) I thought I could not understand its meaning. I saw various of your Lordships, and I said, "If it means what I think it does, then this is one of the most obnoxious clauses I have ever come across, because it is introducing the principle of retrospective legislation". I said, "I do not believe I can be right, and I will come back to you after I have had an opportunity of asking those who are better informed and have had legal training whether it does mean that". I think your Lordships know the answer: it does imply, and is, retrospective legislation. I feel sure that when we come to the Committee stage your Lordships will support an Amendment which will get rid of that, because it will certainly not do.
VISCOUNT COLVILLE OF CULROSS: Hear, hear!
THE EARL OF PERTH: When I find something like that in this Bill, it makes me the more anxious that we should examine the Bill most carefully, and should be given plenty of time to study it and see that there are not similar, if not as obvious, faults, or other changes which it is necessary should be made. As I have said, I have sympathy with the objective. I am all for trying to devise a law of intestacy which will give effect to what the husband or the wife might have wanted, but I have tried, and others of your Lordships have also tried, to show that we have doubts whether this Bill is doing this at the present time, whether it be on the question of land, whether it be on the question of family treasures, whether it he on the question of what a spouse and her children should have or whether it be on the question of which relatives should inherit what—and lastly, of course, there is Clause 12 and its retrospective feature.
My Lords, I am sure we all want to help to get this Bill into good shape, but I would ask your Lordships to support those who feel as I feel when we

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ask that we should not be rushed too much: and if, for one reason or another, we must have a Committee stage fairly soon, and if we do not catch out all the things that should be caught out at that time, then we must go after them again at a later stage.
5.38 p.m.
LORD GUEST: My Lords, I, also, should like to add my word of congratulation to the noble Lord who presented this Bill upon the lucid way in which he dealt with it. Notwithstanding the criticisms of those speakers who have preceded me, I feel that the general provisions of this Bill—and I say advisedly "the general provisions"—will be welcomed by the majority of people in Scotland and by the Scots legal profession. As your Lordships have been told, the need for reform was recognised as early as 1924, and the Mackintosh Committee reported in 1950; so that certainly no Government can be congratulated on their expedition in carrying out this necessary reform.
I have no quarrel with the main provisions of this Bill, which assimilate heritage and moveables and direct that they should descend, roughly speaking, according to the present rule of moveable succession. It is a reform that is long overdue, and one that I feel sure will alleviate many hardships which have in the past been occasioned to widows. The noble Lord, Lord Craigton, will not welcome my approbation of his Bill: he will be anxious that I should come to my criticism, and I come at once to Clause 8, which has already been referred to, under which a widow, on an intestacy, receives a dwelling-house of her choice and furniture to the value of £5,000 free of estate duty. I do not know that that change has been sufficiently emphasised, and it is, I think, a very important aspect. It is necessary to state the present position, in order to see how the widow's rights have been enlarged.
At present she receives £5,000 in cash, as the result of a very recent Act. She also gets her legal rights which are one-third of the moveables, and she receives terce which is a liferent of a third of the heritage. Under the Bill, in addition to the dwelling-house and furniture
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up to £5,000, she receives, under Clause 9, £5,000 in cash if she is not survived by children, and £2,500 if there are children. In addition, she receives jus relictae, which is preserved, and that amounts to one-third of the moveables. Look, if you will, at what the children receive. They receive only the legitim fund, which is one-third of the moveables, and what is left, if anything, of the residue of the heritage and moveables as assimilated under Clause 21(1)(a). As a result, as I see it, in a small estate where there is little cash and the house and furniture are the main assets, the widow scoops the pool, and what is left will probably go towards paying the estate duty. With a larger estate the balance between the children and the widow will be even worse.
Noble Lords will observe, as has already been pointed out, that after the husband's death the widow can remarry; she can sell her house and turn out the children the next day. I ask, my Lords, is that fair? I suggest that this Bill gives far too generous a provision to the widow. She was undoubtedly unfairly treated before, but now your Lordships may think the pendulum has swung too far in the other direction. Under English law on intestacy the widow does not receive the dwelling-house. The Mackintosh Committee did not recommend that she should, and I am not aware—if I am in error I will be corrected—that any legal body has made such a recommendation; and the Faculty of Advocates recently reported against it.
The origin of this proposal is not uninteresting. I gather it was that some Member of another place said that in 95 per cent. of the cases he had come across where the house was owned by the husband, the husband wanted to "see his wife right"; but that expression is ambiguous. It may mean that the husband wanted to give the house outright; or it may mean he only meant her to have a liferent. As I read the proceedings in another place, this question as to whether it should be a life-rent or a fee was never properly discussed. I may not have been fortunate in the experience I have had, but I have never seen wills which give such generous treatment to the wife at the expense of the children.

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The aim of this Bill should be, as nearly as possible, to give the widow and children what they would have received if the man had made a will. I seriously suggest that, if this test is applied, what is likely is that the man would have given a liferent of the dwelling-house for as long as she occupied it, and the furniture, to the widow. This would normally be the result on testacy; it would avoid any question of estate duty and it would prevent any injustice to the widow. So I seriously suggest to my noble friend Lord Craigton that, before the Committee stage, he should give careful consideration to whether a liferent would not be a satisfactory provision for the widow.
I have two minor points on Clause 8. One is in regard to historical furniture, which has already been referred to. I think that if the historical mansion house should be accepted, the historical furniture should also be included. The other matter is merely a question of drafting in regard to Clause 8(4)(c), which deals with the dwelling-house which forms part of premises in which another occupation is carried on. I am not clear that it sufficiently covered the case of an owner-occupied farm. The noble Lord, Lord Craigton, said it did. It certainly should.
The only other point which I wish to raise is in regard to Clause 12, which has already been referred to. I am afraid that I part company with the noble Lord and the noble Earl who preceded me, because it seems to me that the general purpose of the clause is laudable and that is to prevent a child from being shut out of legitim by provision in ante-nuptial contract of marriage, which is illusory, which is made before the child was born, and may in fact amount to nothing. This has been described as unjust and monstrous, and it seems to me it deserves to be remedied. But on turning to Clause12(b) one sees that a very different situation arises. That is, as I understand it, retrospective legislation because it would mean that ante-nuptial contracts made years ago, taking effect after the Bill came into force, would be liable to be upset. I know there are strong objections to retrospective legislation, and this is particularly so when a man may have made his financial arrangements based on an ante-nuptial contract being valid. That ante-nuptial
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contract is going to be upset under the proposals of this Bill, and it seems to me that that is objectionable. I think—and I say this with diffidence—a misunderstanding arose on this matter when it was discussed in another place, because the answer was given by the noble Lady in charge of the Bill: "Well, if you do not like the ante-nuptial contract of marriage, you can make another one." You cannot very well make an ante-nuptial contract of marriage after you have been married. It may be that if that had been pointed out to her she would not have persisted in that clause. On the general provisions of this Bill I have no other comment; and I should certainly warmly support it. I hope the noble Lord will excuse me from waiting for his reply as I have another engagement.
House adjourned during pleasure.
House resumed.

ROYAL COMMISSION
6.0 p.m.
The following Bills received the Royal Assent:

International Development Association,

Plant Varieties and Seeds,

Defence (Transfer of Functions),

Industrial Training.

House adjourned during pleasure.
House resumed.

SUCCESSION (SCOTLAND) BILL
6.14 p.m.
Debate on Second Reading resumed.
THE DUKE OF BUCCLEUCH AND QUEENSBERRY: My Lords, the majority of the proposals in this Bill should be helpful: they are overdue, and there has been a demand for them. But it should also be acknowledged that there are features which have been very worrying to many people in Scotland. The Bill will have far-reaching effects, mainly beneficial, but in some cases

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adverse. I hope that we can look forward to the adverse effects being very few. I would thank my noble friend Lord Perth for the able way in which he has put before us all the essential points in this Bill, about which many of us in Scotland feel strongly. He has done it so well and thoroughly that there seems little need to say much more.
I should like to take part, very briefly, in this debate because of the uncertainty and anxiety, in case these are well-founded. Many of us have difficulty in understanding what will be the results of the Bill, and especially in foreseeing its effects much later. It is not easy to judge. I refer particularly to the changes and the effect in regard to heritage in land, in cases of intestacy, and the controversial views about the inclusion or otherwise of agricultural land. I feel rather between the representatives of the law in Scotland, who say that the proposals in this Bill are entirely sensible, and the Lord Lyon Court and others who forecast serious and inevitable effects—these effects being mainly on families who may have owned a farm or farms for many generations. Like the noble Lord, Lord Saltoun, I believe that we should think principally about the less well-off families. Most of those with bigger estates in land who are better off seem customarily to make wills, and should be able to make satisfactory arrangements for succession.
It might appear more natural for those of us who have a responsibility towards the well-being of others in land to be opposing the changes concerning heritage in land, and strong representations have been made during the last year or two. But as Members of one of the Houses of Parliament we have a wider responsibility, and it could be the other way. The observations from the noble Lord, Lord Craigton, are most important, and the facts and information given to us by him must influence our views on this problem. They bring some reassurance. His evidence is impressive, and there should be less cause for concern, certainly about most of those who have a heritage in land. But is there still reason for worry about a few? And how few are they; and how much concern? These are matters
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with which the noble Lord, Lord Saltoun dealt very thoroughly, and I would congratulate him upon a tremendous achievement. I do not know how far he is correct. I hope that the concern may be overstated, and I hope that we may have some good assurances about that.
The retrospective nature of the changes in Clause 12 is naturally unwelcome, as also could be the possibility that too much of Scottish heritage might go to persons overseas, instead of to nearer relations in Scotland, and I hope that this point will be referred to again later. In 1922 the late Lord Birkenhead introduced what he described as a very important Bill indeed—the Law of Property Act for England. I do not know how close is the similarity, or what comparisons can be made between that Act and the Bill we are discussing to-day. I am not sure whether that Act was a matter of bringing the situation up to date and in line with our law in Scotland, or whether it was going ahead of us. I do not know of complaints in England over the matters about which we are anxious now. I am very pleased to see here to-day my noble and very learned friend of long standing, Lord Reid. I think we were in the other place together a long time ago. In our anxieties in Scotland at the present time I hope that we may look to him, and also to the noble Lord, Lord Guest, who has already spoken, to do the best they can to allay some of these anxieties, and I am quite sure that this Bill will then leave this House as a very good one.
6.21 p.m.
THE EARL OF HADDINGTON: My Lords, the noble Lord, Lord Craigton, has presented this Bill with the courtesy and clarity which we have all come to expect of him, and while congratulating him on that, I am sorry to say that I can in no way share his enthusiasm for the Bill. My remarks will be very brief because I am going to associate myself very closely with everything that has already been said by the noble Lord, Lord Saltoun, and the noble Earl, Lord Perth. In the first place, I believe the Bill to be unnecessary. Who wants it? Who has asked for it? We have been told that the Legal Society in Scotland have wanted it; we have heard of

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great pressure of responsible opinion; but it has been thirteen years (a fifth of a man's normal lifetime) after the Report on the subject has been made by the Mackintosh Committee before a Bill has been presented to Parliament. It has been drafted and re-drafted and found to be unworkable, and now a Bill has been presented which I hope will be workable, but I am quite sure that it is going to do irreparable damage to family life in Scotland.
Its object, apparently, is to make a more just and more equitable distribution of estates in the event of intestacy. But I see little justice in forcing a family to sever what might be a long connection with a property, be it large or small; and that is what is bound to happen in many, indeed in most, cases by the provisions of this Bill. By assimilating heritable property, which from time immemorial has passed under the law of primogeniture, with moveable property and dividing it equally among the intestate's next of kin, you are striking at the very roots of Scottish traditions and undermining the whole fabric of Scottish family life, because it is quite plain that in the absence of outside resources the heritable property will have to be sold in all cases where it represents more of the estate than the share of each entitled next of kin.
It may include the whole family home, a farm, a garden, anything you please, into which, perhaps, some impersonal landlord may step in the form of a company or a combine quite foreign to the countryside and the working of the countryside, probably with no further interest in it than speculation or extracting as much as possible from the land itself. It seems clear, too, as the noble and learned Lord, Lord Guest, has pointed out, that the rights of the widow, under Clauses 8 and 9, to claim the value of the house and furnishings as well as £5,000 is going to aggravate the difficulty for whichever member of the family wishes to continue the property.
Do the Government really think they are abolishing an old feudal law for something better and more fitted to modern society? It may be feudal, but many feudal laws still exist to-day: they are still the best and we still retain them. The proposed change could affect every owner of heritable property,
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the largest and smallest, who dies intestate. Supporters of the measure say: "You have a simple remedy. If you do not like it, make a will and you need not bother any more." But people die intestate from a variety of causes. A man may come into a little property or some money. In these dangerous days he might be killed in an air accident or a motor crash the next day, before he has had time to make a will.
Many people wait before they make their will till later on in life when they have been able to find out and understand how their children are going to develop, how they are going to marry and what position they are going to be in at the date of their death. It is normal for people to delay making a will. Of course, the heir at law may not be the most suitable person to carry on a farm; we can quite appreciate that. He may not have the training and may not wish to do so. But at least under the present system an inheritance could be left intact and some amicable agreement might be made among the other members of the family to preserve it.
I have promised to be brief. I have almost finished, and I have no intention of making a detailed examination of the Bill to-day, but I hope I have made it clear that I challenge the whole principle of the Bill. I believe the basis of our civilisation is to ensure the continuance of the family, and that one of the basic instincts of family life is for a family to prefer to keep the family home in the family. Surely, if the law needs changing, it should try to provide so far as possible for the distribution of estates to be made in a way in which those dying intestate would have wished. How many of those dying intestate would have wished to dispose of them in the manner suggested in this Bill, by selling everything up and dividing it equally? Very few, I am sure, because that is absolutely contrary to human nature. The doctrine that the distribution of money is more important than the protection of the family and the inheritance is a very dangerous one indeed.
If the Government are determined on the principles which govern this Bill. I see little use in having a Division in the House this evening. I do not know what the noble Lord's intentions are,

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but I do hope that there will not be a Division. But I hope also that the Bill will be very seriously and drastically amended in Committee.
6.28 p.m.
LORD REID: My Lords, may I add my congratulations to my noble friend Lord Craigton upon the clarity of his exposition, more especially as the Bill is one which is extremely difficult to grasp without a great deal of study. I am bound to say that I found it necessary to read some of the provisions two or three times before I thought I understood what they meant. I hope that I now do understand, but I am not yet quite sure.
Most of the provisions I would agree to. Not only would I agree, but I think they are a great improvement. Some I am not very enthusiastic about, particularly those having the effect on agricultural land which has been so well explained by my noble and learned friend Lord Saltoun. But I am afraid it is rather difficult to deal with that situation in a satisfactory way. I have been thinking about an answer, and, to be honest, I have not been able to find one. And if we cannot find one, the next best thing, of course, is to try to bring home to everybody in Scotland that the law has now been so altered that, if they have any interest in agricultural land, it is essential they should make a will as soon as possible after they have succeeded. We should try to get into their heads that even a provisional will is necessary. A man may well say, "I see no reason why I should not live many years. My affairs will alter, and it seems absurd to start now putting down what is to regulate the distribution of my affairs, 10, 20, 30 years hence". I think that we must get into the heads of the agricultural owners and tenants that they must make a provisional will, even if they are not yet ready to make a final one, so as to avoid what would otherwise be the quite disastrous effect of the Provisions of this Bill in regard to intestacy.
I do not propose to pursue that matter, but there is one aspect of the provisions with regard to intestacy about which I feel very strongly. As has been said, particularly by the noble Earl, Lord Perth, the widow is getting far too much,
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in many cases at the expense of the children. I am not concerned with the very small estate, of up to £5,000, £7,000 or £8,000, because there, probably, if there is an intestacy, the proper thing is to give the widow the lot. I am not concerned with the large estates; I am not much concerned with the estate of £25,000, above which figure the noble Lord said there were only 32 intestacies in the one year—although 32 is not wholly negligible. And when we get up to the range of £50,000 estates, not much injustice will be done by these provisions. I am primarily concerned with the estates (and there must be many of these) of between, say, £15,000 and £25,000. And in regard to these, to my mind, the provisions of this Bill with regard to intestacy just will not do at all, and they must be altered. I very much hope that, when we come to Committee, if there is any difficulty some of my noble friends will divide the House, because I do not think the provisions can pass as they stand without all the protest we are able to bring to bear.
Let me say why. I will take as an example an estate of £20,000, a moderate estate, and let me see how this Bill, as it stands, will work. The first priorities are the claims of the widow under Clauses 8 and 9. I do not want to take any exceptional, unusual types of case, but it must be very usual for a man leaving £20,000 to own his own house, and I should have thought that £5,000 as the value of a house is a very moderate figure these days. I noted with interest that the noble Lord, Lord Craigton, was going to introduce some ceiling here—at least I understood him to say so. I do not know what he has in mind. In my criticism of a figure of £5,000 for the widow, as the value of the house, I am talking about a £20,000 estate. Over and above the £5,000 for the house the widow will get up to £5,000 for furniture and plenishings. It may well be that most men in that rank will not have furniture worth £5,000, but it is very common now for people to buy, as an investment, silver, books, pictures, minor collections of one kind and another; and all these are included in the definition of plenishings. So I take the case of a man who has put some of his money into pleasant things to adorn the house and afford himself a hobby. And I take

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another £5,000 as the value of the furniture and plenishings. That is half the estate gone already. That is not nearly the end. The widow then gets all this free of estate duty. And she gets two more things beyond that: she gets £2,500 in cash (I am assuming there are children), and she still gets her legal rights. Therefore, in a case such as I have imagined she will get £14,000 or £15,000, whereas the children will probably not get more than £4,000 between them.
My noble friend says that the object of the Bill is to reflect what the average Scotsman would do if he thought about it. Is it really to be thought that the ordinary Scotsman, leaving £20,000, would leave three-quarters to his widow and one-quarter to his children? And remember, the three-quarters has been left outright to the widow, so that she can do as she likes with it. I should have thought that was very far removed from what the ordinary man would do with an estate of that magnitude, and I should have thought we must somehow or other see to it that the children get more and the widow gets less. There are several ways in which that could be done. It could be done by reducing the widow's right to the house to a life-rent. I recognise that there are certain difficulties there. In the case of the smaller estates it would not make much difference, because the widow's right under the other provisions would probably take the house anyway, and it is only in the moderate-sized estates that it would make much difference. I should prefer that it should be reduced to life-rent, but if that is too difficult there are other things.
I should have preferred that it should be reduced to liferent partly because, as several noble Lords have said, there is a family, sentimental affection for the house, and it seems right that the children should be entitled to have the house when their turn comes. But, apart from that, observe how capricious this proposal is. If a man with a £20,000 estate happens to have been in receipt of a good salary, and does not want money to run his business, he has probably bought his house outright, and the whole value of the house therefore will go to the widow. If on the other hand, he is a man in business, and wants all the money he can lay hands on for that business, then he has either bonded the
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house up to the hilt or is living in a rented house, in which case the widow gets nothing except the right to live in it under conditions which she probably cannot finance. Is it sense that in order to benefit the widow there should be this grave difference, according to whether the man has chosen to put money into his house or into his business? Surely we must do something to make conditions more even for widows who are in a corresponding position but one of whose husbands happened to be a businessman and the other a professional man, or a man with a salary.
There are other possibilities. I should have thought that, in a case such as I have mentioned, £5,000 is much too much for furniture, because it will almost certainly be composed in part of things which are not really furniture at all but are more in the nature of a collection. I should have thought that only part of it would be suitable for the smaller estates—those up to, say, £30,000. There is another thing we could do. Why should the widow get all three of her provisions under Clauses 8 and 9 and get her legal rights in addition? I should have thought we could make some provision to reduce the disparity there. I should not greatly mind how this was done, provided that it is done somehow. As I say, the Bill may be all right for very small estates; it may be all right for very large estates. But I do not think it is all right for the moderate estates.
There is only one other matter that I would mention; it has been mentioned by other noble Lords. It will be apparent from looking at the Bill that, whereas on intestacy the widow is extremely well-off, if a will is made she may be quite badly off. She does not get the house, she does not get any of the other provisions; she gets no legal rights out of the heritage. If I understand the Bill aright, all she gets is legal rights out of the moveable part of the estate. That is not much. It is still for her to discharge her legal rights by a marriage contract. If she has discharged her legal rights while the family are comparatively poor and the husband makes a lot of money then she can be left virtually penniless by a rich husband who makes a will. Why this great disparity between the rights of a widow on intestacy,

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and her rights when a will is made? I should have thought there is room for some investigation there.
The only other point is about legitim. I can quite see that we are going a little too far in making this retrospective. On the other hand, I do not go all the way with my noble and learned friend in thinking that it is an entirely bad thing to make it retrospective at all. I would hope that we might be able to get some compromise, so that if a reasonable provision is made for the children otherwise, then they shall not be able to claim legal rights where the operation of the Act would be retrospective. I throw that out only as a possible suggestion, because if one has to choose between making it retrospective without any qualification and not making it retrospective at all, I think we really ought to make it retrospective without any qualification at all. Therefore, I hope that some solution can be found.
There are many other points of minor importance which may come out on the Committee stage. I would not propose to detain your Lordships with them at this late hour, and certainly I would not oppose this Bill as a whole. But what might happen on the Committee stage is a different story. I hope that my noble and learned friend Lord Craigton will excuse me if I do not remain for his reply, because I am afraid there are rather special reasons why I shall have to leave.
6.43 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, I would not propose to be in entire opposition to the main principles of this Bill, any more than other noble Lords who have spoken this afternoon have, with one or two exceptions, said that they would be. Indeed, I do not want to traverse again a great deal of the ground that has been gone over by previous speakers, although I would say that I most sincerely agree with a great deal of what has been said, and in particular with the speech of my noble friend Lord Perth.
I should like to take up one point, to start with, made by my noble friend Lord Haddington, who explained many of the circumstances in which intestacies
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can arise simply by failure to make a will in particularly understandable cases. I should like to add to that the fact that it is by no means impossible for a man who has gone to a great deal of trouble in making a will which he thought was suitable for the circumstances of the case, to find, either because of something which he himself has done, such as marrying again or having another child after the will was made, or else because of some slip on the part of the lawyer, that his will falls into intestacy after all, despite everything that he has sought to achieve.
If we are aiming to do as nearly as possible that which the testator would have done if he had made either a will or a valid will, then I think that where a will falls into intestacy it would be a serious test of this Bill to see how nearly its provisions carry out the reasonable proposals which the testator himself made although his will was invalid. If there is one thing that I am sure that he would try and do, if he possibly could, it is to keep land, heritage, in one piece.
There is now no provision in this Bill for the agricultural unit. It was found unworkable in another place and it was taken out. I am certain that one of the main principles that should underlie everything that your Lordships think and say on this Bill is that, if possible, none of its provisions should provide for an unnecessary split up of agricultural land, whether it be the large estate or the small one. They are equally important to the country and to the people who farm them and who live on them. There are many places in this Bill where this point comes to the fore.
Of course, it is most important when considering the table of ranking in Clause 2. It may be that this is the right thing to do now; but it is quite clear that by bringing in the brothers and sisters or the uncles and aunts, each to have his or her share of the whole of the intestate estate including the land, there will be much more opportunity to split up farms and other agricultural units than there has been before. This is something which is quite inevitable if this Bill goes through in its present form.
It is further to be noted that the same underlying principle is much in evidence in Clause 8. I do not much mind

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how Clause 8 is amended. I feel that the widow gets far too much, and it may be that a liferent on the house is the answer, although that does have the difficulty that there will be a continuing statutory trust of some sort to administer for some time after the intestacy. It may be that her £2,500 when she has children, or the £5,000 when she has not, could in some way be cut down. It may be that her jus relictae ought to be diminished or abolished; or it may be that the answer lies in the estate duty point.
I would ask my noble friend Lord Craigton, on the last point, whether he would look carefully at this, because on the figures that he has given to the House this afternoon it is quite clear that most of the estates with which this Bill will be, or is likely to be, concerned are small ones. If they are small estates, then to give the widow the house and plenishings free of estate duty is really going to achieve nothing at all, because there will be no estate duty at all. Whereas, if there should be the unfortunate case where it is a large estate that has to be administered and split up under this Bill, then to give the widow the house, even if there is a ceiling on its value, and the plenishings free of estate duty, is going to be even harder than ever on the children, who will have to find that estate duty out of the small part that is left to them.
There is another provision to which I would refer in talking about the widow being given the house, which I think underlies the danger in this Bill of splitting up agricultural units and farms. As I understand it, Clause 8(4)(b) will not allow the widow to take the farmhouse out of the farm as her own, but rather that she shall be given a proportion of the money, the value of it, as an equivalent. If it is a small farm, this in itself is inevitably going to mean, I should have thought, that the farm is split up and sold; because otherwise there will not be enough cash—particularly when there is taken into account the fact that the stock, the tractors and everything else are moveables—to satisfy the value of the house and to give it her as an outright cash payment. This seems to me another great danger that has to be faced. So I hope that, when we come to the next stage of this Bill, Clauses 8
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and 9, and possibly the inherent provision in regard to jus relictae, will be carefully examined and thought about again.
I need say little on Clause 12, except that I earnestly support the plea that has been made by other noble Lords to do away with the retrospective provision in paragraph (b) of that clause. This seems to me to be entirely unnecessary, and a really deplorable precedent in a Bill of this or, indeed, any kind.
Further than that, I question whether it is necessary to take the full step that is taken in this clause, even though the Mackintosh Report recommended it. After all, it is only the children's provision which is now being dealt with, even under this clause, and it will still be possible to defeat the wife's legal rights by means of an ante-nuptial contract, even if the Bill becomes law in its present form.
There are two arguments on this. First, it is said that it is unfair that the children should be done out of their legal rights by a contract made when they are yet unborn, particularly in circumstances when, as it turns out later, their father becomes very much richer than was ever contemplated before the ante-nuptial contract was made. If that is the argument, exactly the same applies to the wife. She did not envisage either that her husband was to become that much richer than expected, yet she is given no recourse under this or any other clause to be given more than that provided for her under the ante-nuptial contract.
In any event, as I understand the Mackintosh Report, it is the hardship to the children at which they were aiming. If that is so, some such suggestion as that put forward by my noble friend Lord Perth would seem to me entirely adequate to meet that danger, without doing away with one of the basic rights of any Scotsman, one of the freedoms left to him: to deal with his estate in the way he thinks fit rather than in a way imposed upon him by somebody else—by law, by Parliament, or by means of a provision like this. I shall be sorry to see even this small freedom taken away unless it is absolutely vital. I do not believe that it is so vital.
I should like now to draw attention to one clause which has not so far been mentioned this evening, Clause 14, other

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than by the Minister. I think I understood my noble friend Lord Craigton rightly when he said that this was purely an administrative clause and was not intended to affect the division under a will between heritage and moveables. In other words, I think my noble friend said that if a will is made it will still be possible for the testator to leave his entire heritage to whomsoever he thinks fit, whatever may be the effect of any of the subdivisions which will happen on intestacy. Now he will have even greater freedom, because his widow will not have any right of terce.
It is a pity that the rubric to the clause should refer to "assimilation". If I understand assimilation rightly, it means that the two sorts of property, heritages and moveables, are put together before any split-up is made. I understand that this is exactly what is not intended. Unless I have misunderstood the word "assimilation", I feel that it should not even be suggested in the side-note that this is going to happen. I should very much welcome an assurance by my noble friend that there is no suggestion under this clause that the administrator is to lump together all the property, both heritage and moveable, pay legal rights out of it and then deal with the testator's wishes under the will after that, If so, it is going to be a considerable limitation of his power to leave the heritage as he thinks fit.
The last point to which I wish to draw your Lordships' attention is one of great complication and one which I shall probably be unable to explain properly. It occurs in Clause 30 of the Bill. This is a reproduction, with some alterations, of a provision which came into English law by the Law of Property Act 1925, and it is Section 184 of that Act. It provides for certain presumptions for the purposes of inheritance where people die simultaneously or in circumstances where it is uncertain which died first. The present law of Scotland is that there is no such presumption one way or the other and that it is up to the person claiming under a will or intestacy to show that the person upon whom his claim depends was the one who survived.
This clause, as it now stands, will introduce two presumptions which will
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make such things unnecessary in most cases. It is interesting and perhaps significant that the clause has added the word "simultaneously" to the English provision and thereby blocked up another freedom on the part of the person claiming to get away from the presumption; because in England it was held that, in circumstances where it was more or less certain that the deaths were simultaneous, the presumption should not apply. That is the case of Hickman v. Peucey in 1945, A.C. 305.
The danger that I see is this, and it is another case where I foresee fragmentation of agricultural estates. It does not so much concern presumption (a) in Clause 30, but presumption (b) where it is presumed that the younger person survived the older. I should like to suggest an instance of the danger I have in mind in order to help my noble friend to understand the problem of which I am afraid. I foresee a situation where a man and wife have a son, and the man and his wife have brothers and sisters. The man has made a will leaving his estate to his son, whom failing to the son of his eldest brother—in fact the son's first cousin. The husband, wife and son are all killed simultaneously in a car accident.
As the law now stands, as I understand it, it would be perfectly possible for the nephew who was in the will as the substitute for the son to say that the son died either simultaneously or before the father and to claim in the way in which the father obviously intended under the will. If, however, the proposed law is adopted as set out in this Bill, if the son was young and intestate, instead of the nephew getting the estate, as was clearly intended by the father, it would go first to the son, who would then die intestate, and thence through him, under the provisions of this Bill, it would be split into several parts and given to his uncles and aunts—the brothers and sisters of his father and mother. And only through one of them would the nephew, who was originally intended to inherit, get a very small portion of the whole.
I do not believe that it is desirable to do this, for two reasons. First, it creates an unnecessary fragmentation of an estate which was well dealt with under a valid will. Secondly, it provides that

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there will be two death duties possible in those circumstances, although it may well be that they will be relieved by the quick succession relief, whatever that may be. I think it might be possible to deal with this in two ways: either to say that the presumption shall always be that the two persons concerned died simultaneously (and I do not think that would lead to any serious interference with people's rights); or, if that is not thought suitable, to insert some words into the Bill to provide that the presumption in paragraph (b) will not have the effect of passing property through the intestacy of the younger of the two who died together which would otherwise pass in accordance with the will of the elder. I hope that something of that nature can be inserted, because, although this is a clause of a technical nature and will not have effect very often, it is, in my opinion, a presumption which may have grave dangers and result in great unfairness.
My Lords, these will be matters which will have to be dealt with on the Committee stage. Apart from this, I wish to do nothing except to say that I give the Bill a limited welcome. I should like to see many and quite considerable changes in it, and will listen with great interest to what my noble friend Lord Craigton has to say when he comes to wind up.
7.0 p.m.
LORD CRAIGTON: My Lords, the noble Lord, Lord Greenhill, has asked me to apologise for his not being here. I echo the advice he and other noble Lords have given that people should make wills. I am grateful for the welcome given to many parts of this Bill and for the constructive suggestions made. Our discussion has hardened as it were, on to comparatively few major issues. There are no short answers in replying to a debate of this sort, and I will try to deal just with the few major issues. There are a number of other points that have been made. These will be carefully studied and I will write to the noble Lords concerned, but to answer them now as they should be answered would, I am sure, take longer than your Lordships would like me to take. I can answer quickly my noble friend Lord Colville of Culross. His reading of Clause 14 is, as usual, if I
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may say so, correct. There is no intention that heritage and moveables should be lumped together for legal rights. The present arrangement will continue under this Bill.
Let me deal first with the broad principle of the exclusion of agricultural land in some form or another from the provisions of the Bill. I feel that I should deal with this on its merits on the proposition that the new rules of intestate succession should not be applied to agricultural land or, alternatively, to land in excess of an arbitrarily fixed area such as three acres or some other figure. Your Lordships feel that property excluded in this way should descend on intestacy under the present rules of heritable succession. If we were excluding agricultural land, however defined, we should, broadly speaking, be enacting one law of intestate succession in the country and another in the town. Even in the country we might be enacting one law for the estate owner and another for the man who owned a house and garden or business premises. Certainly, such provisions could well lead to divided ownership and, therefore, to the break-up on intestacy of estates which are now viable units with both town and country property.
Artificial distinctions of this kind would be bound to lead in practice to difficulties and anomalies, apart altogether from the drafting difficulties, For example, the fortunes of the intestate relatives might be quite different according to whether certain valuable subjects descended according to the rules of primogeniture or according to the Clause 2 rules of the Bill. My own feeling is that the statistics of intestacy may convince many people that there is not enough, if any, agricultural land falling into intestacy for this to be a problem requiring any special legislative provision at all. But if any such legislation were found to be desirable, the problem would not be one merely of finding an acceptable definition of agricultural land, or of deciding the right acreage for exclusion; the real objection would be the complications and anomalies and the break-up of mixed estates that would undoubtedly arise from the existence of two different systems of succession applicable according to an artificial subdivision of

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heritable property that falls into intestacy.
I feel that I should deal in a little more detail with the various suggestions that have been made on this subject. If the proposal to exclude agricultural property as a whole were adopted, the result would be that heritable estates under the 1894 Act definition would go to the heir at law. Feu duties would go to the beneficiaries under Clause 2 of the Bill; so, probably, would the minerals—such minerals as are severed from the surface. Salmon fishings would also go to the beneficiaries under Clause 2, and they are as often as not one of the principal amenities, if not the main source of income, of the country estate itself.
If the proposal to exclude all land over three acres in extent were adopted—and I assume for this purpose that the proposal is that land of any kind exceeding three acres should be excluded—the result would be that the heir at law could succeed to a factory or hotel property covering more than three acres of land, but if the factory or hotel property covered less than three acres it would go to the heirs under the Bill. Again, a mansion house or other rural property of less than three acres would go to the heirs under the Bill, whereas if it happened to be just over three acres it would be succeeded to by the heir at law. And what is the position of feu duties? Are these, exigible from land over three acres in extent, to descend one way, while the remainder and probably far larger numbers go the other way? If there are several properties in an intestate estate, some under three acres and others covering more than that, is it proposed that the former should descend according to one set of rules and the latter according to another?
The third proposal is that all land outwith burgh boundaries should be excluded from the new rules. This, I think, might be even more difficult than the two suggestions I have mentioned. There are farms and other country properties within burgh boundaries, just as there are factories and many urban type dwellinghouses outwith burghs. There will be single estates partly within and Partly outwith burghs, and of course burgh boundaries have a habit of changing in certain places quite frequently. I
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believe, and I hope that your Lordships will agree, that we should not legislate in such a way as to result in this sort of thing happening. The confusion, both practical and legal, which would result would be really unlimited, and the Scots law of succession, which has some reputation for being sound in its intention and fair in its effect, would have become a code with little rhyme and little reason.
Almost parallel with that is the problem of the owner-occupied farm which, as many of your Lordships pointed out, is not passing according to Mackintosh's recommendation in paragraph 8 of his Report, although his recommendation, of course, was not that it should go to the heir at law but that it should go to one particular person. As your Lordships know, we tried in the first draft of the Bill to enact the Mackintosh recommendation that the farm should be offered in turn to the relatives, but it soon became clear that the procedure, to be fair to all, including the son in Australia, would he too expensive and lengthy to contemplate and the end result would most likely be no better than that achieved by common sense and good will. So we have taken the alternative course of treating the owner-occupied farm as normal heritable property on intestacy; a course approved by the Law Society and the Scottish Land Owners' Federation but not by the N.F.U.
What will be the result of this? Fragmentation which the noble Lord, Lord Saltoun, is worried about, is, I believe, unlikely, if only because new farmhouses and steadings would get no assistance under the Farm Improvements Scheme. The family may, and I am sure in many cases would, get together and hand over the farm to one member of the family on mutually agreed price and terms. This may happen.
THE EARL OF PERTH: It could happen.
LORD CRAIGTON: I say they may. If not, a farm may be sold to another farmer and the price divided among the heirs. This might be unfortunate for the family but not for national agriculture. But the most important consideration of all is: how many owner-occupied farms will this change of policy affect? Mackintosh was not to know precisely. We now know fairly

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accurately. I have given the figures before. Out of 9,600 intestate estates all but five had heritable property valued at under £10,000. There can be few, if any, farms that are valued at under £10,000 for confirmation that are viable units. There may be two or three farms among the five intestate heritable estates—I do not know. But if there were three, then three intestate farms a year not passing under the rules of primogeniture and preference for males but under more modern rules, cannot really be said to he an unbearable hardship on the families of the farmers or on farming generally. My Lords, if the facts tell us anything, they tell us that Scottish people with something substantial to leave do, in fact, make wills, and that that includes Scottish farmers.
Now I come to the point—and I am sorry the noble and learned Lords, Lord Reid and Lord Guest are not here: the question of the widow getting too much and the children too little. I must make it clear that Clauses 8 and 9 are not similar to the legal rights of jus relictae and legitim and jus relictae and legitim are not by this Bill extended to heritable property. The right to the house and a sum of money of £2,500, £5,000, are legal rights only on intestacy. The right to £5,000 on intestacy where there are no children is already the law under the Intestate Husband's Estates (Scotland) Acts, and the Bill extends this right to £2,500 where there is issue. That is the effect of Clause 9. Clause 8, as we hope to amend it, will give the spouse of the intestate the house, if it is worth less than £15,000, or £15,000 if it is worth more, plus the furniture and plenishings to a maximum value of £5,000, which they will seldom be worth in estates under £10,000 of total value.
My Lords, if the estate is a really large one—and we know that large estates must seldom fall into intestacy—it will be no real burden on the other heirs to give the widow her claims under Clauses 8 and 9, and especially if we place a limit of £15,000 on the value of the dwelling-house. I think that is agreed by your Lordships. If the total estate is around the £25,000 mark, then I believe it is unlikely that the house and furniture will be valued at anything like the maximum of £15,000 for the house, plus £5,000 for the furniture. The
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noble and learned Lord, Lord Reid, is mainly concerned about this limited class, and we shall have to study very carefully what he said. We hope that he may be able to help us. We are grateful to him for his suggestions. What really concerns me, and what I suggest to your Lordships must concern us, are the 1,999 cases out of every 2,000 where the intestate, if he leaves a house, leaves one valued under £10,000. In these cases do the provisions in Clauses 8 and 9, together with jus relictae, give the widow too much at the expense of the children? Here we have to exercise a nice blend of judgment between what the intestate would have been most likely to do, had he made a will, and what should be done to be as fair as possible in such cases to all parties concerned.
Let us look at these small intestate estates from the children's point of view. Whether the widow has the liferent or the ownership of a family house, their share of the legitim can be, at best only spending money, the price of a small car. If the widow has a liferent, the small house or their share of the proceeds, if it is sold, comes to them only when the widow dies. But while she is alive, as several noble Lords have pointed out, the small estate requires continuous administration and expenditure on behalf of the liferenter and those who will ultimately take. What is the widow's point of view? The house may be too large, or she may wish to move nearer her married children; but such a course might make difficulties for the executor who is to preserve the value of the heritage. The widow may wish to leave the house to an unmarried daughter who lives with her, or to one particular child or relative who is most deserving. She cannot do this. Is this, I must ask myself, what her husband would have wished? I do not believe so, in spite of what the noble and learned Lords have said. In all probability, he and his wife have worked and saved together to acquire the house: to some extent it is hers as well as his, and he would wish her to have it, and all the prestige and freedom which goes with it.
Of course, there is the other side. She may want to sell the house and live with her family. She may wish

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to marry again. Why should she not? It is her life, not her children's; and her married daughter may one day find herself in the same plight. As there are so many more widows than widowers, it is the women whom Clauses 8 and 9 protect, as a generality, in these small estates, at the slight expense of the men, who are better able to fend for themselves. And at what expense? The ownership or part ownership of a small house—it is no more—when the parent dies; and, at best, a smallish sum at some uncertain date in the future.
My Lords, there is no Government policy here other than to do what is best. I am convinced, for the reasons I have given, that the balance of justice and the average small intestate's intention falls on the side of giving the house to the widow, and I am fortified in this view by the inquiries I have made, both personally and officially, from those who prepare wills for people who leave heritable property valued under £10,000. These sources, without exception, tell me that the great majority leave the family house and furniture outright to the other spouse, and that few indeed are the liferents on property under £40,000 to £50,000 valuation. I would beg noble Lords, if they doubt if what I say is right, to ask similar solicitors who deal with small estates, and to find out for themselves what their views are. I shall, however, look at the estate duty point raised by noble Lords.
Several noble Lords talked quite strongly about the widow who could take the family pictures, and the possibility that, under Clause 8, the surviving spouse might take a family heirloom, such as pictures, and that these might pass out of the family. I have much sympathy with the noble Lords' point of view on this matter. The point is a difficult one, because, although we all know what is meant by an heirloom, this is something which I am told it is very difficult to define with precision, as is required in a Bill of this nature. However, I will consider most carefully the possibility of finding some way of distinguishing between furniture and plenishings in current use, which must clearly go to the widow, and heirlooms, which might better go to other heirs.
On Clause 12, I have listened with great care to the criticism made and to
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the views of the noble and learned Lord, Lord Reid. I readily agree that Clause 12 is, in effect, retrospective legislation, and that, as drafted, it might upset plans legally made at the time. One has to set this factor against the undoubted wrong of allowing certain children yet unborn to be deprived of legal rights available to all other children. On balance, my Lords, so far as I can see now, it seems right to say that what is done is done, but that it should not be done in the future. So in Committee I hope to move an Amendment restricting the application of Clause 12 to ante-nuptial contracts made after the Bill becomes law. If the clause is amended in this way, it will not disturb arrangements made in good faith under the existing law. I will also look carefully at the points made about giving the courts some discretion and about the position of the wife. My Lords, I have not mentioned everything, as the hour is late, but I will most carefully examine the constructive speeches, for which I thank your Lordships, and I look forward with keen anticipation to the Committee stage.
7.18 p.m.
LORD SALTOUN: My Lords, I have listened with very great interest to what the noble Lord, Lord Craigton, has said about my Amendment, and I do not want to take up much more of your Lordships' time on it. I will say only two things. The first is that he says that it would introduce terrible confusion if we now had one law for the burghs and one law for the rural areas. Let me remind your Lordships that it was just because of those arguments 90 years ago that the trouble which has caused this Bill to come into existence took place. Before that time there was no trouble at all.
The second thing I should like to say to my noble friend Lord Craigton is this. Every possible effort has been made to bring in agricultural land, without unfairness, but the debate to-day must show that it is impossible to do so. The noble Lord's own defence of the agricultural part of the Bill was very unconvincing, and he made one mistake which I will correct in a minute; but I should like to remind him that all the land under the Land Court is already taken out of the Bill, which gives him

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a precedent. The Land Court are not going to have any nonsense of this kind. The point where he mis-translated me was that he attributed to me a suggestion that small farms would suffer fragmentation as a result of this Bill. My Lords, I said exactly the contrary. I said that these farms must pass as a whole. I know far too much about it to fall into that trap.
LORD CRAIGTON: My Lords, I apologise to the noble Lord.
LORD SALTOUN: I said that the farm will have to be sold.
The noble Lord said that the agricultural country will not suffer: what matters the family? Many noble Lords who have great hereditary estates have had them for a long time. Ought we not to consider and think of the humble men who also have hereditary estates, small though they be? Why should they be forced into the market to supply the agricultural demand of these rich men who want to put money away? I hope that when I sit down the noble Lord will rise and correct his statement. It seemed a horrible doctrine. For the rest I want to thank those noble Lords who have spoken. Everyone contributed something which I value and which I will study. The noble Lord who has remained and who asked me to put down this reasoned Amendment, has asked me to withdraw it; and the other noble Lord who asked me to do so has departed. Therefore, I beg leave to withdraw this Amendment.
Amendment, by leave, withdrawn.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

BRITISH NATIONALITY BILL
7.22 p.m.
Order of the Day for the House to be put into Committee read.
Moved, That the House do now resolve itself into Committee.—(Lord Derwent.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD AILWYN in the Chair.]
Clause 1 [Resumption of citizenship]:
On Question, Whether Clause 1 shall stand part of the Bill?
LORD ALPORT: When I ventured to intervene during the Second Reading of this Bill my noble friend the Minister pointed out that I was barking up the wrong tree. After examination, I think he was right, and I think that I was barking up the wrong tree. But after further examination I found there was a cat in the tree and that it bore a very considerable similarity to the one that I happened to be chasing. I might explain shortly, in view of the lateness of the hour, the point that I am making.
As I understand it from the Minister's explanation, Clause 1(1)(b) refers back to the words earlier in the clause:
"shall be entitled to registration … as a citizen of the United Kingdom and Colonies …"
That is to say, if the man who has renounced citizenship has the qualifications set out in Clause 1(2) he is entitled, as of right, to be registered as a citizen of the United Kingdom and Colonies—provided, presumably, that he can show he renounced his citizenship originally in accordance with Clause 1(1)(a). In addition, as I understand it the Secretary of State may so register any person who would be entitled thereto if he had such a connection. I understand that to mean that he can, at his discretion, register as a United Kingdom citizen someone who does not, in fact, qualify under Clause 1(2). If that is the case, this is a fairly wide discretion; and, from such experience as I have had of nationality legislation, it seems to me that this is somewhat wider than has previously been the custom. It gives the Secretary of State fairly wide discretion in judging cases of hardship where the qualifications set out in this Bill do not apply. If that is the case, I welcome it.
I assume equally that this power will be administered, as has been the practice, by High Commissioners—acting on the advice of their experts on nationality legislation, who are the consular officers working under them—or, in certain cases, at a later stage, possibly Ambassadors. In these circumstances, presumably some instruction will be given by the Government with regard to the interpretation of this particular important provision in this Bill. I think that must be so, because it is not clear at present. I assume, for

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instance (and I do not want the Minister to give me a direct answer on this point, because he would probably not wish to give a decision on a particular and hypothetical case), that if a man has renounced his British citizenship and taken on the citizenship of another country, and then dies within a short time afterwards, any children that he leaves—possibly being educated in Britain and having every conceivable connection with the United Kingdom—will be eligible for registration. Because although they do not qualify under the Bill, as I understand it, they would in every sense of equity and reality be entitled to be considered for registration as United Kingdom citizens. In fact, it might be most important for them that they should do so.
If that is the sort of case that conies under this particular provision, may I ask the Minister whether he can give to the Committee some indication as to what interpretation the Government are putting on to this provision and what sort of instructions will go out to High Commissioners and, therefore, to their officers with regard to their consideration of cases brought before them? I would remind the Committee that there is no appeal to the court. Under the original Act of 1948 a man who has his application turned down by a High Commissioner or the Secretary of State or a Governor—as I think is the wording of Section 26 of the Act of 1948—has no appeal to the courts. Therefore, in fact, the High Commissioner himself is the sole judge in this matter, although I have no doubt that it might be raised with the Secretary of State subsequently.
In these circumstances, it seems to me most important that clear guidance should be given to the officers administering this, and that that guidance should express the spirit in which this particular legislation has been introduced. I would remind the Committee that the consequences of this piece of legislation, or rights established under it, may not be used by persons concerned for a passage of years—perhaps five or ten years, and perhaps much longer. By that time the spirit in which this legislation has been passed by both Houses of Parliament will have faded from the minds of those administering it; indeed, in dealing with applications they may be adducing quite
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different considerations from those intended by this House in passing this Bill.
It is perhaps inevitable (I am not making a criticism) that legislation of this sort should be very general and I think that adds to the difficulty. At the same time I am sure that the Committee would wish to be assured, before passing this clause, that the intention of this particular subsection is set out clearly by the Minister, so that when the instructions are issued to those who will have to interpret the provisions, at a distance of time and space, they will act in accordance with what was intended by the Committee on this occasion.
7.29 p.m.
LORD DERWENT: I am particularly grateful (because this is a very complicated subject) that my noble friend indicated beforehand the sort of question he was to raise on the Question, That the clause stand part of the Bill. It has been very helpful. We are talking about Clause I, subsection (1)(a), and subsection (1)(b) and there are two classes of people who will come under this clause and under those two subsections. There are, first of all, those people who qualify under (a) and under (b). They will, as of right, be entitled to claim resumption of their United Kingdom citizenship. These are the people for whom authority will be given to High Commissioners overseas to register for resumption of their nationality.
The second class are those who qualify under paragraph (a) but not under (b)—in other words, the marginal cases. It is the intention that these should be dealt with, not by the High Commissioners' staff overseas, but by the Home Office in London. This is not a matter of law but of discretion and it is of the utmost importance that they should all be dealt with so far as possible on the same lines, though each case will differ from the others. It is impossible to say in advance in what types of case resumption of nationality will be allowed. The essential thing is that applicants must have a strong connection with the United Kingdom. If I may, I would give one simple example. If a man's father or grandfather was born in this country, he would be entitled to resume his citizenship. But it may well be that a man's great-grandfather or great-great-grandfather was born in this country, but not his father

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or his grandfather and that he may still have strong connections with this country—business connections, or children at school here—and such a case would undoubtedly be viewed sympathetically. Speaking without tying anyone down for the future, I imagine that almost certainly such an applicant would be allowed to resume United Kingdom citizenship. I cannot go into more detail, because every case will be dealt with separately and specially in London.
The Home Secretary will be the final arbiter, but it is important to realise that everyone will be dealt with on the same lines. I can assure my noble friend that my right honourable friend the Home Secretary of to-day—and I am quite certain that. Home Secretaries in the future—will treat very sympathetically all applicants coming in these exceptional circumstances.
LORD BOOTHBY: My Lords, I do not dispute what the noble Lord has said, but will this not add a tremendous burden of work to the Home Office?
LORD DERWENT: I do not think that it will, be very large, because I think that the bulk of those affected will be entitled as of right.
On Question, Clause 1 agreed to.
Remaining clause agreed to.
House resumed.
Bill reported without Amendment: Report received.

SALMON AND FRESHWATER FISHERIES ACT 1923 (AMENDMENT) BILL
7.35 p.m.
Order of the Day for the Second Reading read.
VISCOUNT MASSEREENE AND FERRARD: My Lords, I realise that any legislation dealing with salmon usually arouses a great deal of anxiety in your Lordships' House, but I can assure your Lordships that no harm is intended to the king of game fish in this small Bill. As your Lordships know, the Bill has been through another place in the very capable hands of my honourable friend Mr. Percy Browne, the Member for Torrington.
In order to understand this Bill, I shall have to refer to the Salmon and
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Freshwater Fisheries Act of 1923, because, as your Lordships will see from Clause 1, the whole Bill revolves upon that Act. Perhaps your Lordships will allow me to quote the relevant section. Section 6(1) says:
"No person shall, in any fishery district, shoot or work any seine or draft net for salmon or migratory trout in any waters across more than three-fourths of the width thereof …"—
and here are the words relevant to this Bill—
"or within one hundred yards from the nearest point in the line of shot of any other seine or draft net worked in like manner and already shot or being worked in the waters, before such last-mentioned net is fully drawn in and landed."
In plain English, this means that the restrictions placed on fishermen since 1923 not to work their seine or draft nets within 100 yards of each other will be abolished, if this Bill becomes law.
No doubt your Lordships know the process of seine or draft net fishing. The boat is rowed out from the bank with a net in the stern that is unfurled as the boat goes out. The boat makes a wide sweep into the estuary or river and returns to the bank it has come from, when the net is hauled in. No trouble had been experienced with these regulations until a short time ago, but in 1961 some prosecutions took place on the Torridge Estuary because boats, after having made their draft or sweep, were less than 100 yards apart. Up to 1961, the bailiffs had turned a blind eye to this. They had agreed that, so long as the nets were 100 yards apart when they were unfurled from the boat on starting, it did not matter if they were a few yards nearer, 80 yards maybe, to the next boat on landing. But apparently in 1961 there were some prosecutions for what happened on the Torridge Estuary.
If I may return to the section from which I have just quoted, while the magistrates convicted on prosecutions, they decided that because the boats were less than 100 yards apart they were liable under that section. It says in Section 6 of the Act:
"… or within one hundred yards from the nearest point in the line of shot of any other seine or draft net and worked in like manner and already shot or being worked in the waters."
So the magistrates took the view that, even if on landing you were under

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100 yards to the nearest boat, you were liable. That was really unfair because you had the strength of the tide and the current, and sometimes there is a very strong tide or a squall, the boats are rowed, and you can often end up far closer than you really intend to the next fisherman.
In 1961 there was the Bledisloe Committee Report on Salmon and Freshwater Fisheries, and that Committee recommended that this regulation making fishermen shoot their nets 100 yards apart should be abolished. They agreed that in principle nets had to be controlled and limited, but they went on to say that the regulations about the use of nets were much less satisfactory. They said:
"They seem to us difficult to enforce, irritating to the fishermen and, in view of the other regulated powers we propose should be retained, unnecessary. We recommend that they be abolished as soon as river boards have had time to establish by-laws … such minimum restrictions to replace them as regulations suggest may be necessary".
So this Bill, by striking out the words from "or within" to the end of Section 6(1) of the Salmon and Freshwater Fisheries Act, implements the recommendation of the Bledisloe Committee. If this Bill is passed, it will make no difference to the fish, because you are not going to catch any more fish. No fisherman really likes having his net near to that of another fisherman because he does not want to get them tangled up.
The object of this Bill is to make the law more practical, and I understand that all the fishermen welcome it. If under an Act you break the law due to the action of the wind and tide, this brings the law into disrepute. I do not think I can add anything further, other than to say that it will be a great help to the fishing industry generally. I beg to move that the Bill be now read a second time.
Moved, That the Bill be now read 2a—(Viscount Massereene and Ferrard.)
7.46 p.m.
THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF AGRICULTURE, FISHERIES AND FOOD (LORD ST. OSWALD): My Lords, I am glad to be able to support this Bill. As my noble friend has explained, its
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provisions are in accordance with the recommendations of the Bledisloe Committee which recently reviewed the salmon and freshwater fisheries law in England and Wales. One of the main principles embodied in the findings was that greater discretion should be given to river boards to prescribe the most suitable measures for fisheries conservation. This is because river boards, who are charged with administering the fisheries law, know the actual local needs and circumstances. The Committee also made a particular recommendation with regard to restrictions in the present Act such as that which is now being considered, which lay down how fishermen shall use their nets. They recommended that such restrictions should be abolished as soon as river boards have had time to establish by by-law such restrictions to replace them as local conditions suggest may be necessary.
My right honourable friend has not yet been able to announce decisions on the Bledisloe Committee recommendations as a whole, but he is in full agreement with this particular recommendation. The river boards have an excellent record of fisheries administration, and it seems right that they should he given the discretion in this case, particularly when it is remembered that the present statutory restriction was embodied in the Act of 1923, long be-before river boards were created. The Bill will accomplish one recommendation of the Committee. The Act will not come into force until April 1, 1965, and the river boards who have no bylaw in operation at present and rely on the statutory restriction in the Act of 1923 will have time to make new bylaws to replace the statutory restriction, if they wish to do so.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

DIVORCE (SCOTLAND) BILL [H.L.]
7.49 p.m.
Bill read 3a (according to Order).
Clause 4 [Divorce for non-consummation or intolerable conduct]:
(2) In determining whether a defender has been guilty of intolerable conduct the court shall have regard to all the circumstances of

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the case, and except in any case where it is satisfied that the conduct complained of arose from the insanity of the defender shall not grant decree of divorce unless it appears to the court that the conduct complained of was inexcusable.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved, in subsection (2), to leave out "the conduct complained of was inexcusable", and to insert:
"there was no reasonable excuse for the conduct complained of."
The noble Viscount said: My Lords, this is really no more than a drafting Amendment, and I apologise for inflicting it upon your Lordships on Third Reading. However, it may be within the recollection of the House that the noble Lord, Lord Hughes, was concerned when the House was in Committee on this Bill with the juxtaposition of the word "intolerable" in the description of the intolerable conduct about which Clause 4(1)(b) is concerned, and the word "inexcusable" at the end of subsection (2) of that clause. He thought it was a pity to use the word "intolerable", which was defined with some care, and then finish up with the rather similar word "inexcusable" which was in no way defined. My noble and learned friend Lord Reid gave the House a fair indication of how he thought the courts would interpret this sort of wording when it came before them, and I did my best to explain to the House the sort of concept I had in mind in wording the clause in the way I had.
On the other hand, I see the point that the noble Lord, Lord Hughes, made, and I have thought of all the possible ways of which I was capable of thinking to put it right. I do not believe it is either necessary, desirable or possible to define the concept that is behind the word "inexcusable" in the Bill as it now stands, but I should like, if I can, to simplify the phraseology and to use a more ordinary form of words than this rather unusual epithet. I do not think there is any difference in the sense of the clause or the way in which it will be interpreted or used by the courts; but, nevertheless, I think it is right that this Amendment should be made. I beg to move.
Amendment moved—
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Page 2, line 29, leave out from ("that") to end of line 30, and insert the said new words.—(Viscount Colville of Culross.)
On Question, Amendment agreed to.
Bill passed, and sent to the Commons.

BRITISH WATERWAYS BOARD'S REPORT
7.52 p.m.
VISCOUNT ST. DAVIDS VISCOUNT ST. DAVIDS rose to ask Her Majesty's Government what action they intend to take on the British Waterways Board's Report. The noble Viscount said: My Lords, I feel quite sure that your Lordships do not want me to take very long on this Question, and I will not. But I must say a few things on this extremely complicated matter, and may I first of all start by giving a welcome to this Interim Report of the British Waterways Board? It is a good Report. Indeed, it might be said that it is the best thing that has happened to the waterways for 100 years. That is partly because it is a good Report, and also partly because so few good things have happened to the waterways in the last 100 years. In another way, the Report is a heavy blow, but this does not mean that we are particularly sorry about it. A man who had been in prison for 100 years would be very happy to suffer a heavy blow if it got him out of prison, and that is the position here.
The blow that it strikes is that it places upon the many waterways lovers, who so long fought for the preservation of these waterways, the necessity, apparently, of going on fighting and digging into their pockets in the future for the preservation of a great many more waterways. The waterways lovers of this country, out of their own pockets, have already raised over £200,000, and that is not counting any money from elsewhere. They are already committed to finding another £700,000 on various waterways repairs schemes that they have in hand or in mind. If they have now, furthermore, to try to support such major waterways as the Leeds and Liverpool Canal, and several others which are named in this Report, they are going to have a great deal to do.
Luckily, however, it does not appear as if the threat is immediate. In fact, on looking at the matter a second time

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I do not believe the threat will ever arise, because a great many things will have to be done before the closure of any further waterways is dealt with. There is, to begin with, the question of this engineering report. I am not sure myself how far an engineering report is necessary, but undoubtedly it would be of value if we knew more about the state of many of these waterways.
There is another matter about which I wish to speak more particularly later, and that is the question of fresh legislation. There will have to be fresh legislation before the waterways can be put properly on their feet. The Board hints at the matter more or less throughout this Report and, indeed, it shows up very clearly. So as not to take up too much time, I should like quickly to run through this Report, particularly with reference to the excellent maps in it, which show the various areas where are mainly concentrated the various purposes about which the Report speaks. It is, I find, far easier to do it with these maps than simply to refer to the text.
On commercial transport, there is a very good map but, unfortunately, it does not point out that all the heavy cargo carriage is in fact on the broad waterways. The map shows very clearly, of course, that there is little cargo at all on the narrow waterways. This is entirely due to the present state of narrow boat traffic. I must confess that a year or two ago I myself thought that narrow boat traffic was coming to an end. I have changed my mind. It is clear that, on the new licensing system, narrow boat traffic may well revive and, indeed, attain a considerable volume.
At this late hour, I will not prove to your Lordships' House that narrow boat-carrying pays. This is not the time to do it, but I promise here and now that I will raise this subject again at some other time, and with figures which will show that narrow boat-carrying is a profitable method for all concerned—for those whose cargo is carried and for those who carry the cargo—and that when it increases in volume it will make a considerable difference to the waterways. Those of your Lordships who have seen this map will have seen that, should narrow boat-carrying revive, the
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entire central area of these waterways, which now carries very little, will become completely altered in its purposes from those envisaged by this Report. Of course, we can only say that we must wait and see, and that must be the verdict on that. But if narrow boat-carrying revives, then the whole position on that map will be completely altered.
Now we come to water supply. If there is one thing which really can be carried with great efficiency by a waterway it is water, and the revenue from water supply from these waterways is going up steadily and can be raised to considerably greater heights. It is, however, thoroughly entangled in the business of fresh legislation. Since this is a major source of revenue for the waterways, the business of fresh legislation is of the utmost importance. The noble Earl, Lord Albemarle, who has been raising this matter in Questions in this House, is exactly on the point. It is most important that every consultation which the Waterways Board can have with various new water authorities should take place at the earliest possible moment. This water supply map is a confusing one, because, although it purports to give both where the water originates and where it is used, it fails to mark a single one of the 98 reservoirs which the British Waterways Board possess, and in many cases these reservoirs feed a considerable length of waterway.
A paper was contributed to the Institute of Civil Engineers by Mr. C. M. Marsh, who was, until his retirement last week, the Divisional Manager of the North West Division of the British Waterways. This paper was published on Tuesday, October 30, 1962, and in it Mr. Marsh gives a series of maps which show that the greater part of the canal system is supplied from more than one reservoir, and in different places, and that, in fact, the abstraction of water from almost any point on quite a large part of the central area of the waterways can be made good from any one of a number of reservoirs scattered over a considerable area. This means, in fact, that instead of the water supply map showing the sections of waterway which are valuable for water supply, the whole central area which is covered by this network of reservoirs ought to be

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similarly marked as useful for water supply.
The only other thing one can say about this map is that it shows as not much use for water supply a large part of the Grand Union Canal which passes fairly close to the Bedford Sands, an area where water in the future may well be stored in very large quantities underground. Also, that part of the Canal is connected, again, to the great reservoir system I have already mentioned, and when agricultural irrigation really gets into its stride in this South-Eastern area where it is most valuable, an enormous amount of water is going to have to he fed into the area. The best possible way to do this is to feed it down the Grand Union Canal and store it in the Bedford Sands. This, of course, is all for the future.
Among the other purposes of these waterways which I must mention is pleasure cruising. The map shows that the greater part of the waterways is used for pleasure cruising. It may rather surprise the uninitiated to see that some canals are not for pleasure cruising. The fact is that the ones which are marked "not for pleasure cruising" are those which are closed for navigation. The reason, therefore, for their not being used is that they are not usable.
One thing I am very glad to see is that a number of waterways have reappeared upon the map. The Transport Commission, when dealing with waterways, had a very nasty habit. When a waterway was about to be closed, the first thing one knew of it was that it became, in Orwellian terms, an "un-fact" on the map—it vanished. The first one would know about the future closure of a waterway was that one would see a map of the waterways no longer showing such and such a canal, or such and such a branch. Now, under the new Waterways Board, I am glad to see that these "un-facts" are being "refacted" again, if that is the word. They are all reappearing—and we can only raise a cheer, in particular that the Stratford Canal has appeared on the British cruising map. Quite on what basis this has happened I do not know, because no pleasure craft has yet gone down it.
Here, again, this map is a little misleading, because it shows the pleasure
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craft going more or less everywhere, but it does not show the difficulties that pleasure craft are going to face in the future. Wherever they cruise on the centre of the area they cause no great trouble to anybody at the moment, because there is not very much commercial traffic. But wherever they enter this system it is, as one sees on comparing the British cruising map and the main cargo map, through an entry where there is considerable commercial traffic. If these pleasure craft are going to increase in numbers very much they are going to create a considerable number of bottlenecks. It is already the case in places like Brentford that, owing to the short hours of lockage now prevailing, the pleasure craft are getting pushed into the working hours of the working boats and are causing certain difficulties. If the numbers of these pleasure craft increase very much—and we know they are going to because that is the experience of America, where things generally seem to happen a little earlier than they do here—then the pleasure craft coming into the system are going to make considerable trouble for the commercial craft. The only rational method of dealing with this would be to have much longer lockage hours at some of the entry points, so that the pleasure craft can be kept "out of the hair" of the unfortunate cargo carriers.
It may be said that this would cost more money, but I think it should be possible to limit the sum. We certainly do not want to inflict more financial losses on the British Waterways Board. There are methods of limiting this expense. The easiest way would be to do what is done all over the up-country parts of the waterways already: that is, to let the pleasure craft users work their own locks, and simply have, if necessary, somebody on duty to supervise the matter and make sure that nothing too terrible is done. In general, pleasure craft operators are trusted to work the locks over the whole of the rest of the country and nothing too terrible comes of it, and I do not see why the same course should not be pursued at the main entry points where these craft are so liable to cause trouble to the commercial carriers.
There is one other point to mention in regard to pleasure cruising: the matter

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of moorings. I do not very much like the word "marinas" myself, but it is now in common use; there is no other word for it, so we had better use it. The mooring of these pleasure craft in marinas is a very profitable business for the marina owner. A pleasure craft on the inland waterways spends between £2 and £5 per annum on moorings for every £1 that it spends on licensing. Therefore, the provision of these marinas, which really are just somewhere to moor behind a locked gate, is a profitable undertaking for whoever does it and if it can be done by the British Waterways Board, that is all the better.
Furthermore, this is important because the shortage of moorings on the inland waterways is already starting to restrict the number of boats that can be put on them. It is a fact that marina owners opening new marinas on the inland waterways at the moment are finding that the people who apply for moorings are those who have not got boats. The shortage of moorings is such that they are booking the moorings before they are buying the boats, and if we let this situation continue we are going to slow up the entire development of pleasure cruising.
There is only one further map to which I should like to refer, and that is the map labelled "General recreation and amenity." I am afraid that I entirely fail to understand it. I think the man who made the map tried to mark those waterways which he considered the most beautiful; but in so doing he forgot quite a number of factors. First, almost all these waterways are of considerable amenity use, and, secondly, how do you measure amenity? Do you measure it purely on the beauty of the thing, or is there also beauty to a beholder?
If you mark merely the up-country canals, where an occasional pedestrian or hiker may walk along the towpath, this map may in many ways be accurate. But if you happen to pass along the waterways at the weekend, you will find far more users of canal for amenity—for fishing, strolling, picnicking—in the town areas. Opposite my own house in the middle of London there is invariably a long string of fishermen sitting far more close together than 100 yards
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apart, though of course on the inland waterways we do not suffer from these regulations. If you count amenity by the number of people who enjoy the amenity of these waterways, then this map must be completely altered. All the area in and around London and the big towns must be included; in fact they should be included more heavily than the up-country areas where there are fewer people. Amenity, however, is a very large subject; the evening is getting on, and I must not go further into it, much as I should wish to.
I should like, however, before leaving the question to others, to make a few points on the needs that we shall have some day for future legislation, because the whole of the future policy of the Board is entangled in this. To begin with, we must free canals of the impossible tangle of, I believe, some 200 old Canal Acts, most of them over 100 years old and some over 200 years old. These give enormous rights to riparian owners and others to do all sorts of things, free of charge or toll, and it is time that these rights were abolished. I never like saying that anybody's rights should be abolished, but here I am on strong ground because I am myself the holder of some rights of the kind which I am advocating should be wiped out. I am a riparian owner on the Regent's Canal. I have, of course, the right to fish on my bit of the bank; I also have the right to carry cargoes of manure free of toll. In my case, this is not a particularly serious right, although it is true that I am alongside the Zoo and I am told that very good manure for roses is obtainable from elephants. I am also told that one has to be careful about tiger—however, that is not a serious comment.
Apart from these rights, I also own the right to keep a pleasure craft, free of toll, on the canal, not going through locks; and this right is worth, to me, about £20 or £30 a year. If the riparian owner rights in this matter are seriously used—and they are going to be seriously used in future—it will mean quite a loss to the British Waterways Board, and I cannot see why these rights should persist. I know that the Transport Act included a clause which would have abolished these rights and the Minister himself removed it. I quite understand

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why it was removed: it was more sweeping than was intended, and would have done damage to certain particular cases which needed attention. But something should certainly be done to get rid of these ancient rights of riparian owners.
Also, before the Board can really get ahead it must sweep away a large number of antiquated contracts. There are a large number of contracts made in the early days of the canals, or in the days of the railway ownership of the canals, which nowadays are bad for the waterways and in many cases make no sense. There are several cases—some quoted in Mr. Marsh's paper, which I have already mentioned—of contracts which were made by the railway companies, when they owned canals, by which the canals supplied water for various factories, either free of charge or at a low charge, provided that the factory used the railway for the carriage of its goods. That, of course, made sense so long as the railway and canal were in the same ownership; but now that their ownership is divorced, and there are two separate bodies each with its own finances, the railway is getting the benefit and the poor old canal is having to supply water at less than its proper cost. This, I think, is a matter which should be put right. I do not know whether it would require legislation. It might be done by amicable agreement, hut something should be done about it.
There is another point. It is high time that something was done to give the canals a freer hand with riparian property. In the earlier days, the canals were very considerable property owners along their banks, and they used this property to provide wharves and industrial estates, where firms who wished to use the canal for transport could set up their businesses. In the course of the railway suppression of canals a great deal of this land was either sold off or leased off in such a manner that the businesses turned their backs on the canals. In fact, the position now is that large lengths of waterway (this is particularly true in the London area) are not approachable from the shore at all; the canal is running in a sterilised sheath and there is no conceivable method by which business can be brought back to it. Something must be done about that state of affairs,
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if the waterways are ever to be used I again as they should be.
There is another point which must be dealt with—I refer to certain aspects of the recent Transport Act. The recent Transport Act, as we said at the time, created an enormous amount of uncertainty among the users of the waterways by making them completely insecure in their businesses. They never knew from one moment to another when the waterway might be closed and their whole business swept away, and the Act created uncertainty as to what compensation would be paid if such a disaster occurred. Throughout this Report the Chairman, Sir John Hawton, says, very gently, that uncertainty must be removed from the waterways. The waterways users must be given certainty of tenure. I feel sure Sir John is not hitting at the Minister. Sir John is an extremely pleasant and able man, and I have every confidence in him. But I feel sure that he has in his mind something in the nature of an amendment to the Transport Act which will remove the far too great powers at present in the hands of the British Waterways Board, and so give greater security of tenure to the waterway users.
There is another smaller point that came up—the business of dry docks. During the passage of the Waterways Act there were various Amendments moved from this side of the House to give the British Waterways Board a power to use its dry docks for other people. These powers were denied by the Minister at that time on the grounds that it would be competing with private enterprise. It may be that that was true at that time; but unfortunately the private enterprise docks have now closed, the British Waterways Board have disposed of their boats, and we have the position that the pleasure craft passenger carriers in the London area have got boats which they are compelled by law to dry dock once a year, but they have no dry docks, and the British Waterways Board, who could dry dock their boats, have dry docks, are forbidden to use them and have no boats. Something should be done about this.
I will not keep your Lordships endlessly on this subject; one could talk about it for the rest of the night. The

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really important thing for these waterways is that they should rapidly get on to the making of fresh legislation. That could quite easily take place at the same time as an engineering report was produced. It is, therefore, of the utmost importance that every kind of consultation which is needed for that fresh legislation to be formulated should start at once. If we can get on with that, then I believe that all the high hopes which are stated in the financial chapters of the Report are perfectly able to be achieved; in fact, I believe this to be an understatement.
8.23 p.m.
LORD METHUEN: My Lords, I should like to associate myself with a great deal that the noble Viscount, Lord St. Davids, has just said, I cannot claim to speak with his authority on, or his knowledge of, this business. I am an amateur. I am a dry bob rather than a wet bob. But I feel most strongly that the Report is absolutely on the right lines. I am sorry that the noble Earl, Lord Albemarle, could not be with us this evening because what he says counts a great deal. I have great faith in him, and I am only too sorry that he has not been able to be present.
To my mind, the Report is a forthright, clear-sighted and well expressed document, and good to read. It comes after a long period of vexations and frustrations and of disappointments when we have had to watch, not entirely in silence, many of our canals slowly but surely deteriorating. However, the Report leaves no room for misunderstanding on this point when it says that
"The present policy of the moratorium in water policy will, as soon as possible, be succeeded by a planned adaptation of the future maintenance pattern of some more rationally foreseen and publicly desirable uses."
To me, the way the Report deals with each subject matter in turn makes it easier for the reader to grasp the essential difficulties and how the Board intend tackling them. For instance, the old method of classifying canals into three categories, as propounded by the Board of Survey, according to their financial viability, is abandoned in favour of an examination of individual waterways according to their respective and potential uses; and charts to illustrate this are given to make the meaning abundantly
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clear. The Report favours making our waterways pay as a whole and not piecemeal, which is a most important departure from previous ideas—namely, that our canals should be multi-users
"as likely to be found the best and most realistic approach to economic administration."
Other methods have been found to be wasteful and inefficient, or uncertain, with consequent deterioration.
Quite naturally, the Report keeps constantly to the fore the question of the cost of upkeep and of administration as well as the possibility of increased receipts. It touches lightly on receipts from fishing rights which we have always known to be merely nominal. It is doubtful if they could be advantageously increased. In any case, anglers are rather picturesque subjects and are certainly not an expense. The argument of licences versus tolls is, to my mind, well made out. This has already been referred to. It is interesting to note that the toll system, which many of us thought was as dead as could be, has been revived; but for the narrow boats the licensing way is preferred.
The figures given of the cost of maintaining canals are most valuable. We learn that the cost of maintaining a canal may vary from £1,500 to £8,000 a mile, but that for pleasure craft it is £700 to £1,100 a mile, which is an important factor to which I am coming in a moment. These facts have a sharp bearing on some of our canals that may be singled out for conservation as adapted largely for amenity purposes. I am glad to see that the Board are seriously considering providing what they term "the track" while possibly leaving to private enterprise the task of hiring out their craft. Your Lordships will know that there has been in the past considerable criticism of the atitude of the previous administration to the policy of running their own boats; and in this connection I notice that the Board intend to run down their own fleet of narrow boats in the South-East and North-West of their system.
There is a good deal of useful information on the sale of water; but it is not surprising that the Board, as the noble Viscount has already mentioned, find themselves having to give away quite a lot of water free. The amenity value of our canals is rightly stressed. There

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must be few people with any experience of our waterways who would not admit what a valuable national asset they still are, taken as a whole. If in the early days of canals, as Daniel Defoe points out in his Tour of Englund, they were a boon, if not a necessity, to timber merchants and ship builders, so to-day they can provide an easily accessible and valuable outlet to holiday makers, crowded out of their usual holiday resorts with the increase in leisure in paid holidays and with the more equitable distribution of wealth and therefore a greater spending capacity.
What could be more atractive than a quiet week or fortnight on one of our canals? After the fatigue and dangers of motoring any distance on any of our main roads, the canal would prove to be a positive rest cure. Speed and time would no longer dominate our thoughts. From its banks you would get a view of the surrounding landscape from an entirely novel angle. In addition, you have its lovely hump-back bridges—the terror of motorists and the bane of road authorities. You will find lovely aqueducts, such as Rennie built on the Kennet and Avon. Canal, to which I see the Report refers at some length. It says, in fact, that the restoration of this waterway would clearly produce a major improvement of the entire system, and that the possibility of designating the entire towpath as a long-distance recreational footpath is under consideration.
Quite excusably, some of the difficulties of restoring the Kennet and Avon Canal are mentioned. But may I say, without bias—as I have an interest in this, as your Lordships possibly know—that these difficulties must not be exaggerated. Only a few years ago barges were plying from Bristol to Reading; but neglect and deterioration did its work, and did it quickly. Only a careful engineering survey, as has been suggested, will disclose the extent of that damage and what it may be necessary to spend to get the two bad parts into proper order. The rest of the canal simply requires normal maintenance.
The Board have referred to the existence and promise of voluntary labour and to the extraordinary enthusiasm generally shown. I can assure the Board that they will get every possible help from our Trust members. The Devizes flight of locks must have
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been one of the major engineering achievements of its time and merits rehabilitation and scheduling as an historic monument; as well as the unique Claverton Ram just west of the Dundas Aqueduct. I should like to emphasise that this is a broad canal, which puts it in a different category from the narrow ones. While talking of the Devizes flight, I understand that there is a new invention which practically does away with long sets of locks like that by having an ascending and descending container for barges in a sort of endless chain. I was told before coming here to-day that this is undergoing experiment, and I hope shortly to get particulars. Perhaps the noble Lord who is to reply knows something about it. I think it might be the answer.
One cannot ignore the Board's lament that they should have to start their proceedings saddled with an enormous inherited debt of over £19 million on which they are expected to pay interest. As they say themselves
"It constitutes a grievous burden, hardly a stimulus to sound financial management."
Those of us who have watched the deterioration going on, knowing well that this meant incurring increased liabilities for the future, fully sympathise with this point of view.
Before sitting down, I wish to remind your Lordships of what we owe to the Inland Waterways Association, which body has borne the brunt of the fight to ensure the survival of our inland waterways, particularly the canals. We owe them an immense debt. I consider that the Report is the first instalment. This Report is like a whiff of clean air. It is a positive statement, full of hope and a stern desire to leave behind, we hope for ever, the negative attitude which we have had to put up with in the past. Difficulties come to be overcome: and that, I feel, sums up the outlook of the Board's excellent Report.
8.33 p.m.
LORD CHESHAM: My Lords, I was, of course, very pleased to hear from the noble Viscount, Lord St. Davids, and the noble Lord, Lord Methuen, that, if I may borrow the phrase, "this is a whiff of clean air". It is welcome to hear this, even if in certain respects there may be a qualification. I too, think that it is a very good job.

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Incidentally, the noble Earl, Lord Albemarle—and I, too, am sorry he cannot be here to give his views to the House—has taken the bull by the horns; and I am glad to inform your Lordships that he has given me a copy of his speech, which I have undertaken to look at in the Department and a copy of which I shall send to the British Waterways Board. So, despite his physical absence, his views will join the matters the British Waterways Board will no doubt be looking at, because I am perfectly certain they will be looking carefully at what is said in your Lordships' House this evening.
I would perhaps fall out a little with the noble Viscount only over the business of "re-fact and un-fact". I can only say that it is as well the noble Lord, Lord Conesford, was not in the House at the time. The Board is in existence with the sole task given to them by the Act of running waterways and seeing what they can do about the whole thing. The fact that they have been doing it for a little over a year is creditable, and they have done three important things. First of all, they have made a most remarkable improvement in the financial position of the whole undertaking. They estimate that, after allowing for the waterways share of the central charges of the British Transport Commission, the 1962 deficit was not far short of £2 million. But, after their first short year of office, they have indicated in paragraph 178 of the Report that the results for 1963 should be at least £300,000 better than in 1962; and, in fact, I am given to understand that when the fully made-up accounts for 1963 are available they will very likely show an even greater improvement. I would, of course, echo the noble Viscount's hope that further avoidable burdens will not be imposed on them in any way.
The second thing is that they are making important changes in the management structure which they inherited. These changes are phased over a two-year period, and began to take effect at the beginning of this month, and they are being carried out in close consultation with the staff. The Board estimate that the changes ought to result in a further saving of about £150,000 a year. So your Lordships will see that the Board are already getting on with their job
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of management and that this is producing in the early stages welcome financial results. Third, the Board have begun the review of their entire system required by the Act. They are doing this not only from the point of view of commercial transport, but also in the light of all the varied purposes which the inland waterways could or might be made to serve. The Interim Report of the Board, on which the whole question turns, is the first step in that review and sets out really no more than the Board's preliminary ideas. T must stress that the Report is interim.
The Board propose to go on to test their preliminary views in three ways. They first propose td test them by systematic financial investigation, not only of the course that seems at first sight to offer the best solution, but of the other courses open to them as well. Second, they are going to institute the special comprehensive engineering survey to which the noble Viscount referred. It seems to me a very necessary step for them to take, in order to make a proper and thorough job of the financial investigation. For me, it takes on a little more importance than I thought was attached to it by the noble Viscount. The third point—and this is happening now—is that they will seek and welcome the advice and co-operation of all other bodies and individuals interested in the future of the waterways.
The noble Lord, Lord Methuen, mentioned the question of the Kennet and Avon canal. As he pointed out, the Board propose to start discussions with the Kennet and Avon Canal Trust, and with other people who are potential helpers and who are interested in what might be a practical and reasonable scheme. Therefore, I think the noble Lord will forgive me if I say no more about it to-night than that I think we ought to await the outcome of the discussions.
LORD METHUEN: That I can understand, my Lords. I only wanted to mention that we are itching to get on with it.
LORD CHESHAM: That, I had thought, was the idea, and I am coming back to that point in a moment. I am sure, in fact, that the Board will take into account what the noble Lord himself has said this evening.

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My Lords, quite frankly, despite what the noble Viscount said, it is only when these three jobs have been completed that it will be possible for the real specific conclusions to be reached on future policy. The Board themselves emphasise this almost throughout the Report, and specifically at page 50, in paragraph 1 of the summary, where they use the words:
"We are not seeking specific approval to detailed proposals. We want to explain broadly what we have done, and what we think, so far."
This Report, as the noble Lord has been good enough to say to-night, has been well received here. It has been well received in another place, by the Press and by the public generally—and, I think, deservedly well received. It has been produced in a remarkably short time, and it is a most interesting and readable document. I think it is an achievement of which the Board can justly be proud, and I am sure your Lordships will wish to join me in congratulating them on it.
Now, my Lords, to the bone of the noble Viscount's Question: what action Her Majesty's Government intend to take on the Report. I think I have said enough to make it clear that, at the moment, the next steps are for the Board themselves; and I think the Chairman's covering letter to the Minister, which was published as a preface to the Report, makes it clear that they are aware of the urgency of the matter. They are already getting on with the next stage of the review, and have recently announced a number of special appointments designed to facilitate further studies which they want to do. I think
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the only action for Her Majesty's Government at this stage was, therefore, to agree the general lines of the next phase of the review; and this, my Lords, the Government have done without delay. When the further studies and consultations have been completed, it will be necessary for the Government and the Board to discuss things, and to reach conclusions on long-term policy and on the need for legislation to facilitate that policy. The noble Viscount told us that in his view legislation will be needed; and for all I know now, it may. But after completion of further studies and consultations will be the time to discuss exactly what. Meanwhile, as I say, the action of the Government must be, and indeed already has been, to say to the Board "Well started—go on".

HARWICH HARBOUR BILL [H.L.]
Reported, without amendment.
SAINT JOHN'S CHURCH, SMITH SQUARE BILL [H.L.]
CHESHIRE BRINE PUMPING (COMPENSATION FOR SUBSIDENCE) BILL [H.L.]
Reported, with Amendments.

BRITISH RAILWAYS BILL
Brought from the Commons; read 1a, and referred to the Examiners.
House adjourned at a quarter before nine o'clock.