§ 4.30 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 Hughes.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD AIREDALE in the Chair.]
§ Clause 1 agreed to.850
§ Clause 2 [Certain earnings payable by the Crown to be arrestable in execution]:
§ THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR SCOTLAND (LORD HUGHES)
This is merely a drafting Amendment. In line 20 of page 2, Clause 2(1), there is mention of "the following proviso" being substituted. As the earlier part of the clause indicates, what is in fact being substituted is a paragraph of a proviso. The Amendment puts this right. I beg to move.
Page 2, line 20, leave out ("proviso") and insert ("paragraph").—(Lord Hughes.)
§ On Question, Amendment agreed to.
§ Clause 2, as amended, agreed to.
§ LORD HUGHES moved, after Clause 2, to insert the following new clause:
§ Power to vary amount of wages excepted from arrestment
§ ".—(1) If at any time after the commencement of this Act it appears to Her Majesty in Council that the sum of four pounds specified in section 2 of the Wages Arrestment Limitation (Scotland) Act 1870 (limitation of liability of wages to arrestment) (whether by 851 virtue of the said Act as amended by any other Act or as previously amended under this section) should be further varied, Her Majesty may by Order in Council direct that the said section shall he further amended so as to substitute, for the sum specified in that section, such other sum as may be specified in the Order.
§ (2) No recommendation shall be made to Her Majesty to make an Order in Council under the last preceding subsection unless a draft of the Order has been laid before Parliament and approved by a resolution of each House of Parliament.
§ (3) Any Order in Council made under this section may be revoked by a subsequent Order in Council under this section which substitutes another sum for the sum specified in the Order which is thereby revoked.
§ (4) An Order in Council made under this section shall come into force on the expiration of a period of one month beginning with the date on which it is made."
§ The noble Lord said: I indicated to your Lordships on Second Reading that I proposed to bring forward a new clause providing for variation of the amount of wages which would be protected from arrestment. This is a point upon which the noble Marquess, Lord Lothian, also spoke during Second Reading. Amendment No. 2 is the result, and I would suggest to your Lordships that as Amendments Nos. 9 and 10 are consequential it might be for your Lordships' convenience if I spoke to all three Amendments at the present time.
§ The Wages Arrestment Limitation (Scotland) Act 1870, as amended, protects part of a worker's wages from arrestment for debt. The figure was 20s. per week in the 1870 Act and was raised to 35s. per week by the Small Debt (Scotland) Act 1924. The McKechnie Committee on Diligence in 1958 suggested a more flexible rule, which is the current law under the Wages Arrestment Limitation (Scotland) Act 1960. This provides protection of the first £4 of weekly wages plus half the remainder. The McKechnie Committee took note that the figure had only once been changed since 1870, and they proposed that power should be taken to vary it by statutory instrument. The 1960 Act did not do so, but I would remind your Lordships that this was an Act proposed by a private Member in another place and in fact it limited itself to the introduction of the £4 plus half the remainder rule.
§ The proposed new clause provides for variation of the figure by Order in Council, subject to Affirmative Resolution by 852 both Houses of Parliament. The extent of limitation on arrestment has long been laid down by Act of Parliament, and may be an important matter for those concerned. The Government accordingly think it right that any future change should be on the positive decision of Parliament and this the Affirmative Resolution procedure secures. Provision is made for a month's interval between the making of the Order in Council and its coming into force, in order to give ample opportunity for those concerned to take account of the new limits. This follows the precedent of the Wages Arrestment Limitation (Amendment) (Scotland) Act 1960, which came into effect one month after enactment.
§ The two associated Amendments, Nos. 9 and 10, are drafting. Amendment No. 9 is consequential on the new clause. The new Clause 10(1) as it stands provides that any reference to an enactment shall be construed as a reference to that enactment as amended by any other enactment. The Amendment, adding the words "including this Act", is required to ensure that the reference to the Wages Arrestment Limitation (Scotland) Act 1870 in Clause 2(6) extends to that Act, as amended by the new clause providing for variation by Order in Council of the amount of wages excepted from arrestment. Amendment 10 extends the Long Title of the Bill to provide for the new clause. I beg to move.
After Clause 2, insert the said new clause.—(Lord Hughes.)
§ THE MARQUESS OF LOTHIAN
I should just like to thank the noble Lord for explaining the purposes of this Amendment. We entirely agree with it. We think it is right that Her Majesty's Government should have the power to vary the amount, and we are very delighted to accept it.
§ On Question, Amendment agreed to.
§ Clauses 3 and 4 agreed to.
§ After Clause 4 [Adopted person to be treated as child of natural parents for purposes of succession in certain circumstances]:
§ 4.36 p.m.
LORD INGLEWOOD moved, after Clause 4, to insert the following new clause:
. In section 7 of the Marriage Notice (Scotland) Act 1878 and in section 2(1)(a) of
the Marriage (Scotland) Act 1939 for the words ' fifteen days' there shall be substituted the words 'sixty days' ".
§ The noble Lord said: I beg to move the new clause standing in my name. I think the intention of this Amendment is clear, even without the publicity which has been given to it. What I should like to see is the end of the misuse by people other than Scots, who are not intended to be affected by this Amendment, of certain provisions in Scottish marriage law; who come to Scotland, in order to get married as it were under a flag of convenience.
§ This has created a serious social problem, and the trend, particularly among very young couples from the Continent, is probably on the increase. Many come over, too, in ignorance of the present law, with its fifteen days residence qualification, and they think that if they come they can put everything right over the weekend. It may be that many such young couples have found happiness as a result of their marriage in Scotland, rather than in their own country, where parents' consent is necessary. But there are many others who have not found that happiness, and they are my concern to-day.
§ There are—and it is understandable—no relevant statistics to show what has been the result of these marriages, since the couples are dispersed all over Europe, and it is probable that many of them do not find in this form of marriage the real foundation of happiness in married life. I have tried to find a simple way of ending this without having any bearing on any basic principle of Scots law and without affecting any Scotsmen living in Scotland or previously domiciled in Scotland. I think my Amendment does so; but if it does not, I think it can be amended in order to achieve this.
§ I do not wish to exaggerate the problem, nor to present the case as having any element of England v. Scotland. That is very far from my intention. This is not a Scottish problem or an English problem: it is a problem for which we share responsibility. I think it has been recognised for a long time that there has been need for some reform, and it is a pity that nothing has been done before. The noble Lord, Lord Hughes, will know as well as I do that the Church on both sides of the Border, the local authorities 854 on both sides of the Border, the National Assistance Board, the police, moral welfare organisations on both sides of the Border, and German welfare authorities here in London, would all like to see some change. I have even heard it said—I admit that it is hearsay—that the Registrar at Gretna would like to see some change. There are undoubtedly some who would like to see the position stay as it is, probably because they make money out of it; and there is undoubtedly some Press interest, particularly when some frustrated millionaire's kids are chasing around the country, followed by reporters and cameras. But I do not think that ought to deter us this afternoon.
§ This problem has its origins in the romances of the eighteenth century runaway marriages, before the days of any requirement of residence, and when couples, having reached Scotland just ahead of irate parents, made appropriate affirmations before the first convenient Scotsman, who often happened to be the Gretna blacksmith; but there is no particular magic in Gretna, and as the noble Lord knows Dundee would have done, and still would do, just as well, except that the railway fare or travelling time is that much heavier. This marriage without parents' consent was made use of even by Members of your Lordships' House.
§ There is one famous case where a Member of your Lordships' House went to Gretna as fast as his horses could carry him, with the daughter and heiress of the great Robert Child, the banker; and after a pitched battle just South of the Border he did marry his bride in Scotland. But he did not gain all that he had hoped for, any more than some of the couples do to-day, because the father-in-law, who was a rich man, made sure that no shilling of his fortune—and the great House in Osterley was part of his fortune—descended to his son-in-law, or to any male heir of his son-in-law's body.
§ While most of us realise that this has changed, it is still widely believed in England, and more so on the Continent, particularly in Germany, that once you have arrived in Scotland you can marry "on the nod", and therefore it does not matter what sort of mistakes you make: that if, for instance, at the age of sixteen or seventeen you put your 855 fiancée in the family way, all you have to do is to get to Gretna, make an honest woman of her, and all will be well in the end. That, of course, is not the position as it stands: it takes longer. Foreigners sometimes come over, with that purpose, misled by the residence qualification, only to find on arrival that they cannot achieve all they want over the weekend. They have to wait fifteen days or more, and they decide to "sweat it out". And "sweating it out" is not marriage on the cheap, because there are lodgings to pay for. Although things are better since 1960, thanks to the efforts of the local authority, such people still can find that their money does not suffice, when they may have to take to tents or caravans. If a young man sees his girl both hungry and shivering with cold, he is tempted to resort to petty crime, as the police will bear out. Many, as a result of this, over-stay their leave and then lose their jobs, and become a charge on National Assistance.
§ Some, admittedly, are wiser; and they get to know the ropes. One of the North Country newspapers the other day carried a picture of a young private soldier in the German Army who had come over here for the second time in two years. I have here a picture of him with his second bride. I did not intend to mention a particular case, but I thought it had some bearing on my argument. Having mentioned it, I apologise to him; and wish him and his bride every happiness.
§ As to the numbers concerned, I do not think it is generally known how many of these marriages are, in fact, celebrated all over Scotland. In the Gretna district alone in 1964 there was 461 civil marriages, and not all the parties were from the local inhabitants of that small place. Of the 461, 188 couples were English; 154 couples were German; 192 couples were under the age of 21, and in 49 of those marriages, I understand, one of the parties was only 16.
It is a considerable trade, and it was said by a most responsible Scotsman the other day that
only a small proportion of these marriages are of Scots people; many are far too young to be married at all, usually without their parents' consent and probably without the love of their parents. In many cases they are
impecunious. This is no way to begin married life. I draw attention to this only because it is a trend which I regard as undesirable. The Scots marriage law is being brought into disrepute. This is something which we Parliamentarians might bear in mind".
Those are the words of the honourable Member who at present represents Dumfries-shire in another place. It could hardly be more strongly or clearly put.
§ No one contends that the position to-day is satisfactory, or has been satisfactory for quite a long time. One Member of Parliament, a Scot whom I knew, now dead, was working hard some years ago to try to get something done, and was disappointed at the lack of sympathy she found in high places in Edinburgh. I am going to suggest that my Amendment is a practical, simple Amendment which should commend itself to the Committee. Here I should like to try to anticipate some of the comments or criticisms which may be voiced. It could be said that the figure of 60 days which I suggest should be inserted in the Statutes, in place of the present 15 days, is too long a time. If the noble Lord puts that to me, I will say that I am quite willing to accept any better figure that he may suggest. It could be said that under my drafting, although it is not my intention, some Scotsmen living out of Scotland might be affected. If that is so, I am quite willing to accept any Amendment to my Amendment which would ensure that all Scotsmen were excluded. Knowing the ingenuity of all Departments in drafting, even at a high speed, I am sure that this is not beyond the resources of the noble Lord's Department.
§ I believe that, if this Amendment is accepted by your Lordships, consequential Amendments may be necessary, including one to the Long Title of the Bill. That is not difficult. Lastly, it could be said that it is too long to make even a small administrative change in the marriage laws without full discussion between civil and ecclesiastical authorities. On major issues I would agree. But if that argument were applied to my Amendment, I would say that it had little force beyond being delaying tactics. After all, we are concerned here with the happiness and lives of young couples, rather than with the tidier processes of the most generous of bureaucrats or ecclesiastical lawyers.857
The honourable Member, if I may quote his words again, said that:
the Scots marriage law is being dragged into disrepute. This is something which we Parliamentarians might bear in mind.
So I am going to suggest that we should now take this opportunity of doing something which ought to have been done a long time ago. Let us take such action as is in our power to clear away the misunderstandings and the deception. If we do, we shall be earning the thanks of many parents, but, what is more important than that, we shall be helping often desperate young couples not to rush into ill-thought-out precipitate unions; and helping them to honour marriage as a sacrament rather than to treat it as a gimmick of the tourist trade.
§ In a peculiar way this is our special responsibility, because the other place, under their Standing Orders, cannot amend this Bill in this way. It is impossible for us here just to accept the principle that something should be done and arrange for the effective action to follow in another place.
§ Since in this instance it cannot be done, so it is for us here to take action. It is in our power to give help where help is needed, or, like the priests and Levites in the parable, to pass by on the other side. I beg to move.
§ Amendment moved—
§ After Clause 4, insert the said new clause.—(Lord Inglewood.)
§ 4.48 p.m.
§ LORD HUGHES
The noble Lord, Lord Inglewood, described his Amendment as simple and practicable. So far as the first adjective is concerned, I cannot dispute it at all. So far as the second is concerned, I must entirely disagree with him. He anticipated some of the arguments which might be deployed against his Amendment. That is not entirely surprising, considering that we spent an hour yesterday morning in my office discussing the Amendment and the possible deficiencies that it held. I must say quite frankly that yesterday, as to-day, the noble Lord, Lord Inglewood, showed the greatest willingness to alter the Amendment so that it would accomplish his purpose of interfering with unwise, runaway marriages without causing any hardship in any other direction.
858 I would remind your Lordships that the occasion of these couples from outside Scotland coming across the Border to be married, whether they be English or German, does not arise from the residence period in Scotland, because the total period involved in waiting to be married in Scotland is almost identical with the period in England. In England it is a residential period of seven days, plus a period of notice thereafter of 21 days, making a total period which must be waited before marriage can take place of 28 days. In Scotland the residence period is 15 days with seven days thereafter for publication and two days' interval between the expiry of the residence period and the expiry of the publication period, which makes a total of 24 days. Between 28 days and 24 days there is virtually no difference.
The real reason why these couples come to Scotland is that there is nothing in the marriage law of Scotland which requires parental consent. They come to Scotland for that reason only. Therefore, it would be obvious that the logical Amendment to have been moved by Lord Inglewood, if the primary purpose which he is seeking were to be carried out, would be to require parental consent to be imported into the law of Scotland either for all marriages in Scotland or for certain marriages in Scotland. But as there has never at any time, so far as can be ascertained, been a requirement for parental consent in Scotland, it could not by any stretch of the imagination be suggested that such a proposal would be a simple or minor amendment of the Scottish marriage law.
I must congratulate the noble Lord in seeking to accomplish the purpose which would have been served by the need for parental consent by making the period of residence such that only the comparatively wealthy youngster could afford to come and stay for a period of sixty-plus days or forty-plus or thirty-plus, whatever was accepted as the figure, before marriage could take place. He readily agreed, in our discussions yesterday, that he had no desire to interfere with the freedom of Scots and he accepted that the effect of his Amendment, as it stood, would be quite wrong so far as Scots were concerned. In fact, when I tell your Lordships that as the Amendment stays it would mean that 859 no marriage could take place without sixty-nine days' residence plus notice—no marriage for anyone, neither scot nor foreigner—as against twenty-eight days in England, it would obviously be a condition which would be wholly unacceptable to the people of Scotland. I must risk the objection of the noble Lord, Lord Inglewood, if therefore I come back to the point that the real objection which he has is to the absence of parental consent in Scotland.
On the Second Reading of this Bill, he raised another matter altogether in connection with offences in England being taken into account when a man was being tried in Scotland. He put forward a plea, one which has often been made, as to the desirability of having as much uniformity as possible between the laws of England and of Scotland, a plea to which all of us would subscribe in principle. But it is by no means certain that, in this day and age, if uniformity in this matter of parental consent is achieved, it will necessarily be by means of parental consent being imported into the law of Scotland.
There is at least a movement, the strength of which I am not in position to gauge, to alter the law of England to remove the need for parental consent, at present up to the age of 21. It may be that that move would be for the abolition of parental consent entirely in England and Wales. It might be a substitution of eighteen or some other figure for twenty-one. One has heard proposals to reduce the voting age to eighteen. It rather envisages the possibility that if this were done in England and Wales, an eighteen-year-old could be allowed to vote only if he at the same time produced his parents' consent to vote in a particular way. I suggest to your Lordships that the motive behind Lord Inglewood's Amendment is one which would certainly commend itself to all of us, but I can commend to your Lordships' House no variation of the Amendment which I have looked at.
I will indicate the sort of way in which we looked at possible variations of this Amendment. We thought in the first instance, as Lord Inglewood has suggested, of substituting for the period of 15 days something more than 15 but less than 60. The extent to which we would get near 15 days would frustrate his 860 object. The extent to which we would go towards 60 days would be unduly inconvenient to Scots generally. The second way we considered was to provide that the new period of residence should apply to only one party of the marriage, and that therefore where one of the parties was a Scot it would be quite simple; or to provide that the new period should not apply to persons who can show that they are normally resident in Scotland. In the case of each one of these variations the strongest arguments were brought against their being a workable part of the marriage law of Scotland.
Apart altogether from the civil law, we have the position—and this is not news to the noble Lord, Lord Inglewood—that there is Church law on this matter. The Church has strong powers in this connection. In Section 18 of the Marriage Notice (Scotland) Act, 1878 it is provided that nothing in statute law or custom shall prevent the Church of Scotland from altering the regulations governing the proclamation of banns, except that it is not competent for the Church to rule that the period of residence required of a person seeking the proclamation of banns shall be less than fifteen days. By an act of the General Assembly, dated June 1, 1932, the residence qualification was fixed at fifteen days, so that in this matter Church and State are at present in agreement.
If the new clause were enacted, or if it were enacted in some form substituting some higher figure for fifteen days, there would in this regard be a difference between Church marriages and civil marriages. I do not think that it would be long before those who were seeking to evade the absence of parental consent, whether in England or in Germany, would discover that they could still be married in Scotland without parental consent by having the banns proclaimed after a residence of fifteen days. We should therefore be in a position that, while the Church had been given full authority to determine what its period for proclaiming banns was going to be, provided that it was not less than fifteen days, it would be manœuvred—by accident, not by intention—into the position where it would have to make its law conform with the civil law, or accept the odium that only the Church was helping to carry out these runaway marriages.
861 As an elder of the Church of Scotland, I must declare an interest and say that I would not willingly place the Church in such an invidious position. The position of runaway marriages is something to which many Scots have given their attention in the past. I know of no one who has been prepared to say that nothing need be done on the matter; but, as in other very difficult situations, nothing has been done, for the simple reason that there is no easy solution to the problem. In all conscience, all I can advise your Lordships to do to-day is to accept an assurance that Her Majesty's Government are willing and anxious that this shall be one of the matters to be considered by all the authorities concerned in a review of Scottish marriage law, and that anything which Her Majesty's Government can do to expedite that general consideration will be done.
When I mention the fact that there are involved not only the various legal organisations and societies in Scotland, as well as the Church and the Registrar-General, but also the law of England, it is obvious that this is not a subject which can be disposed of by a simple Amendment in your Lordships' House, however well intentioned. I agree personally with the spirit behind the Amendment, and I hope that a solution will be possible. This is contrary to what I said in speaking to the Second Reading, when I pointed out that there were times when one ought to pick up a particular item where a speedy solution was possible rather than wait for the solution of the whole problem, which was the argument I deployed in favour of altering the appeal periods in connection with certain procedures at criminal appeals; but this is not a case, I think, where we can easily and correctly separate this subject from a reconsideration of the marriage laws as a whole.
It is not for me to suggest, either, what the Scottish Law Commission could do, but this may well be a point on which they will have something to say. However, I must hasten to remind your Lordships that what is intended here is not just a simple amendment of lawyers' law, and it must be a matter upon which the decision is finally taken by Parliament itself. This is an alteration of social conditions of very long standing in Scotland, and it cannot be done lightly or 862 hurriedly; and, if it is to meet with the approval of the people of Scotland, it cannot be done without the clearest evidence that the change has overwhelming support. For these reasons I must ask your Lordships not to accept the Amendment, and I cannot even, for the reasons I have stated, give to the noble Lord, Lord Inglewood, any hope that it will be possible at the next stage to substitute an alternative Amendment which would accomplish his purpose.
§ 5.3 p.m.
§ LORD CHORLEY
I very seldom have the effrontery to interfere in any Bill which is Scottish, but it seeems to me that this is a Bill which is of considerable importance outside Scotland, and that, no doubt, is the reason why the noble Lord, Lord Inglewood, is moving this Amendment. It is quite obvious from what he has said that there is a growing state of affairs which can only be described as a public scandal. Hundreds of these marriages of young people, who obviously are not fit to be married and who would not be allowed to be married in this country, are taking advantage of the unsatisfactory legal arrangements in Scotland to get married. As the noble Lord, Lord Inglewood, said, it is clear that a large number of these marriages are unfortunate and lead to a great deal of misery and despair.
It may very well be that the technical arguments against the Amendment are very strong, and, obviously, as is so often the case when Governments oppose the Amendments of Private Members, they have been ably set out by the Government spokesman. He said that there is no clear and easy solution to this problem, but, from what he said, this situation has been obvious for a very long time. I had not myself appreciated that that was so. But if it has been obvious for a very long time that this unsatisfactory state of the law existed, then surely it was the duty of the Government—the Scottish Office, in particular—to take steps to see that the remedy was produced. It seems very unsatisfactory for the Government spokesman to come forward at this late hour and say that they have no satisfactory solution.
I appreciate that it is difficult for the noble Lord to press his Amendment, in view of what has been said. But I hope 863 that he will persist in his endeavour to remove this very serious sore from the body politic, because it obviously is such. The opinion which he read of a very knowledgeable Member of Parliament, who has seen this trend developing until it almost looks as though it might become a runaway sore, was most impressive, and I hope that the noble Lord who replies for the Government will appreciate that this is not a matter which can be dealt with lightly.
The Law Commissions Bill provides that the appropriate authority may ask the Law Commission to look at something and to prepare a report, and I think it is implicit that it can be asked to do so very quickly. I should have thought that this ought to be done, and that the Law Commission ought to be asked to go into the whole matter and to put a report before Parliament very quickly; for, clearly, this is a matter for Parliament. It is a matter of very considerable social importance, but if the Law Commission for Scotland could propose something within the next few months, it might be possible during the next year to get the matter right. I certainly feel that very prompt and quick steps ought to be taken to deal with this problem.
The noble Lord, Lord Hughes, was very courteous in his reply to me this afternoon, even if not convincing on every point. I would also say that he was very courteous to me yesterday, when he said that he would use his best endeavours to look into some of the possible variations of this Amendment, to see whether it would be possible to adopt any of them. It is very disappointing to be told to-day that he does not think that that is going to be possible. However, I do not think that the Report stage is to be taken until the end of January, so he has a whole month to see whether he can think of something which we could include in this Bill. I can hardly believe that the difficulties are quite as big as the noble Lord suggested.
I have very great respect for him, and I should like to say that I hope that neither he nor I is going to be labelled as a "spoilsport" for discussing this Amendment, because that is not our 864 purpose at all. I am sorry that the noble Lord, Lord Hughes, suggested, early on in his speech, that the one and only solution was the question of parental consent. He seemed a little surprised that I had not embodied this in my Amendment. But, of course, if I had put an Amendment on the Order Paper based on parental consent, it would obviously have affected Scotsmen, and I said from the start that it was not my intention that any Scotsmen now living in Scotland, or who were ever domiciled in Scotland, should be affected. That is why I rejected it.
I was sorry that the noble Lord brought the question of wealth into this. Getting married is very rarely a cheap business, which I think is common knowledge. Furthermore, it is not marriage on the cheap when you come to Scotland from Germany and stay in lodgings, which can easily be expensive, for a fortnight or more. So I think his suggestion about my Amendment making marriage one law for the rich and one for the poor was hardly worthy of the rest of his speech. He referred several times to the Church, but I wish he had said, as an elder of the kirk, that the Church disapproves of what we all consider the squalid parts of this business. He did not say so.
Lastly, I agree entirely with the noble Lord, Lord Chorley, that this is not entirely a Scottish problem. I think the noble Lord on the Front Bench tried to represent that this was a Scottish problem, and that it solely concerned the decision and wish of the people of Scotland. Most of the people whom we have been discussing here this afternoon only go about a mile over the Border, and stay in Scotland for the minimum time. This is a problem which concerns England just as much as Scotland, and it is really a stain on the good administration of Great Britain as a whole. Much as I should like to press this Amendment, I do not think I should be helpful to do so; but the discussion has been valuable. I hope the noble Lord will use his good endeavours to find a solution to this problem, and will appreciate that it is not a Scottish problem alone but one that concerns the whole of Great Britain—and, in fact, people beyond our shores. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.865
§ Clause 5 [Amendment of section 5 of Trusts (Scotland) Act 1961]:
§ 5.10 p.m.
LORD HUGHES moved to add to subsection (1):
and a direction to accumulate income during a period specified in paragraph (a) or paragraph (b) of this subsection shall not be void, nor shall the accumulation of the income by contrary to the said section 5, solely by reason of the fact that the period begins during the life of the grantor and ends after his death.
§ The noble Lord said: If I may, I will take this and the next Amendment together. As I indicated to your Lordships on Second Reading, the Scottish Law Commission suggested to the Government a possible improvement to clarify Clause 5. The first of these Amendments—that is, Amendment No. 4—is intended to implement the recommendation of the Commission. I am advised that before the Trusts (Scotland) Act, 1961, there was some doubt in Scotland (although apparently not in England) in relation to whether permitted accumulation under deeds having effect in the lifetime of the grantor could run only so long as the grantor was alive. The 1961 Act, in Section 5(4), made it clear that, so far as Scots law is concerned, the death of the grantor did not prevent such accumulations from being legal. As the two additional periods covered by Clause 5 are in the same category as the period referred to in Section 5(4) of the 1961 Act, the Government accept the Scottish Law Commission's view that it is advisable to amend Clause 5 to make it clear that the two periods added by the clause similarly are not affected by the death of the grantor of the settlement. This would be the effect of the proposed Amendment, which I now beg to move.
Page 3, line 37, at end insert the said words. —(Lord Hughes.)
§ LORD DRUMALBYN
I have been asked by the noble and learned Lord, Lord Guest, first of all to apologise on both his behalf and on behalf of the noble and learned Lord, Lord Reid, for their unavoidable absence this afternoon, and, secondly, to thank the noble Lord, Lord Hughes, for the steps he is taking to amend this clause in accordance with the recommendation of the Scottish Law Commission and also, I think, in accordance with the views put forward by the 866 noble and learned Lord, Lord Guest, himself at the last stage of this Bill. The noble and learned Lord asked me to thank the noble Lord on his behalf for amending the Bill in this way and also (and I say this now to avoid my having to speak on a later Amendment as well) in Clause 7.
§ On Question, Amendment agreed to.
LORD HUGHES moved, in subsection (2) to leave out:
in relation to a power to accumulate income whether or not there is a duty to exercise that power, and that they apply.
The noble Lord said: Amendments Nos. 5 and 6 go together, and, with permission, I will speak to both. Amendment No. 6 is consequential on No. 5. Your Lordships will recall that on Second Reading the noble and learned Lord, Lord Guest, expressed the view that the first half of Clause 5(2) was not in fact declaratory of the law of Scotland, and that he had particular misgivings about its effect on the administration of charitable trusts. My right honourable friend the Lord Advocate has reconsidered the clause with regard to the noble and learned Lord's observations, and the Government agree that the provision cannot safely be regarded as a declaratory one. The Government have had further consultations with the Law Society of Scotland, who in earlier consultations had agreed with the clause, and the Government have also been in touch with the Scottish Law Commission. In the light of these consultations, the Government consider that the right course would be to withdraw this provision from the Bill and to request the Scottish Law Commission to examine the matter on its merits. Amendment No. 5 deletes the provision from the Bill. Amendment No. 6, which alters the reference from "power to accumulate" to "direction to accumulate" is a drafting consequence of Amendment No. 5.
§ I should like to say that the Government and I are most grateful to the noble and learned Lords, Lord Reid and Lord Guest, for the ready way in which they accepted my invitation to consult with the Government on suitable Amendments to this clause and to Clause 7. The Amendments which are on the Marshalled List in respect of both these clauses are the result of that consultation and enable me to come forward, both on Clause 5 and on 867 Clause 7, and assure your Lordships that we have now evolved a form of words which commands such weighty Scottish legal support. I beg to move.
Page 3, line 39, leave out from ("apply") to ("whether") in line 41.—(Lord Hughes.)
§ LORD DRUMALBYN
Perhaps I ought to have said what I said on the last Amendment on the occasion of this Amendment. Nevertheless, I should like once again to thank the noble Lord, Lord Hughes, for bringing this Amendment forward.
§ On Question, Amendment agreed to.
Page 3, line 41, leave out ("power") and insert ("direction").—(Lord Hughes.)
§ On Question, Amendment agreed to.
§ Clause 5, as amended, agreed to.
§ Clause 6 agreed to.
LORD HUGHES moved, in subsection (2) after "and" [and the sheriff], to insert
subject to the provisions of the next following subsection,".
§ The noble Lord said: With permission, I should like to discuss Amendments Nos. 7 and 8 together. These Amendments have been put down in accordance with an undertaking which I gave on Second Reading. Clause 7 in its present form has been subject to some criticism—criticism which was reinforced by noble Lords who contributed to the debate. In view of these misgivings, the Government have felt that the right course would be to amend the clause to limit the sheriff court's jurisdiction to cases where both parties desire it. Thus the case would be dealt with by the Court of Session at the wish of either party, but parties could go to the sheriff court if both of them feel it is more economical and generally convenient to do so.
§ Amendment No. 7 is merely a paving Amendment, making it clear that the application of subsection (2) is limited by 868 the requirement introduced by the new subsection, which is the subject of Amendment No. 8.
§ The general effect of the new subsection—that is, Amendment No. 8—is that in applications made to the sheriff court to vary orders made by the Court of Session concerning maintenance and custody of and access to children, the responding party may if he or she chooses have the application remitted to the Court of Session. He must exercise this right not later than the first calling of the application. I am advised that this is, broadly speaking, the stage at which the responding party would first appear in court and indicate whether he intended to oppose the application. The Amendment provides that on every application the sheriff clerk shall obtain the relevant process from the Court of Session. This was a point to which the noble Lord, Lord Drumalbyn, and the noble and learned Lord, Lord Guest, attached importance in the Second Reading debate.
§ The clause, as amended to require the agreement of both parties to the application, would thus enable any party to insist on the jurisdiction of the Court of Session in those cases which some of your Lordships felt were better dealt with in the Court of Session, and yet it will leave the advantages of the sheriff court procedure available where both parties desire them. The Government are confident that this will offer an acceptable and more convenient procedure for many of the people affected, while removing the misgivings which some of your Lordships felt, that a difficult issue which was appropriate to the Court of Session might be decided elsewhere, against the will of one of the parties. I should like to reiterate our acknowledgement of the debt which the Government feel for the counsel of the noble and learned Lords, Lord Guest and Lord Reid, who so kindly accepted my invitation to be consulted about the preparation of these Amendments. I beg to move.
Page 5, line 27, after ("and") insert ("subject to the provisions of the next following subsection.").—(Lord Hughes.)
§ LORD DRUMALBYN
I should like only to say that I regard these Amendments as a very considerable improvement to the Bill, and to welcome them from this side.
§ THE MARQUESS OF LOTHIAN
As one of those who criticised the principle of this clause, I should like just to add my thanks to the noble Lord. I am sure that these two Amendments, which have the blessing of the noble and learned Lords, Lord Guest and Lord Reid, will make the Bill much more practicable and more workable.
§ On Question, Amendment agreed to.
Page 5, line 28, at end insert—
("The application shall forthwith be intimated by the sheriff clerk to the Principal Clerk of Session, who shall transmit the process in the said action to the sheriff clerk.
( ) Where in any application under this section the other party, not later than the first calling of the application in court, requests that it be remitted to the Court of Session, the sheriff shall so remit, and the Court of Session shall deal with it accordingly.").—(Lord Hughes.)
§ On Question, Amendment agreed to.
§ Clause 7, as amended, agreed to.
§ Clauses 8 and 9 agreed to.
§ Clause 10 [Interpretation, repeals, citation and extent]:
Page 7, line 7, at end insert ("including this Act ").—(Lord Hughes.)
§ On Question, Amendment agreed to.
§ Clause 10, as amended, agreed to.
§ Schedule agreed to.
§ The Title:
Line 5, after ("Crown") insert ("and to provide for the variation from time to time of the amount of wages excepted from arrestment under the Wages Arrestment Limitation (Scotland) Act 1870.").—(Lord Hughes.)
§ On Question, Amendment agreed to.
§ House resumed: Bill reported with Amendments.