§ 6.26 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, I beg to move that this Bill be now read a second time. I am sorry to bring the House back from the entrancing subject of railways to what is a mere question of common humanity. This is a law reform Bill, and the field with which it deals is the economic position of a wife after the death of her husband.
At present the law in this field is covered by three Acts or groups of Acts. There is, first of all, the Matrimonial Causes Act 1965, which did not produce new law because it was a consolidating
§ House to support the Bill, in view of the fact that there is evidence from over 200 authorities in support of the Bill. I believe, too, that there is evidence that certain members of the Committees are also dissatisfied with the present procedure.
§ 6.22 p.m.
§ On Question, Whether the Bill shall be now read 2a?
§ Their Lordships divided: Contents, 11; Not-Contents, 38.199
|Addison, V.||Ferrier, L.||Somers, L.|
|Audley, B.||Gridley. L.||Strange of Knokin, B.|
|Balerno, L.||Kinnoull, E. [Teller.]||Stuart of Findhorn, V.|
|Burton, L. [Teller]||Lambert, V.|
|Archibald, L.||Hilton of Upton, L.||Segal, L.|
|Attlee, E.||Leatherland, L.||Shepherd, L.|
|Beswick, L.||Lindgren, L.||Silkin, L.|
|Brockway, L.||Lloyd of Hampstead, L.||Snow, L.|
|Campbell of Eskan, L.||Longford, E. (L. Privy Seal.)||Sorensen, L. [Teller.]|
|Champion, L.||Mitchison, L.||Southwark, Bp.|
|Darwen, L.||Morrison, L.||Stow Hill, L.|
|Denning, L.||Peddie, L.||Summerskill, B.|
|Gardiner, L. (L. Chancellor.)||Phillips, B. [Teller.]||Taylor, L.|
|Granville-West, L.||Rhodes, L.||Teynham. L.|
|Greenway, L.||Royle, L.||Wakefield, Bp.|
|Hall, V.||Sainsbury, L.||Williamson, L.|
|Henderson, L.||Samuel, V.|
§ Act. Section 25 of that Act provides that where, unhappily, the parties to a marriage separate and there is a separation agreement the maintenance under which is to last after the death of the husband, as on a husband's death the circumstances may be quite different from those originally envisaged, the wife may on her husband's death apply to the court to vary the maintenance agreement. Section 26 of the same Act deals with the case where there has been a divorce, the wife does not re-marry and the husband dies. It gives the court power to award maintenance to the former wife out of her husband's estate. The second group of Acts comprises the Administration of Estates Act 1925 and the Intestates' Estates Act 1952, which together answer the question as to what the wife is to get if her husband dies without leaving a will.
§ The third group comes under the Inheritance (Family Provision) Act 1938. 201 Your Lordships may remember that Parliament was very hesitant about this Act. If a husband has cut his wife out of a will, that Act entitles the court nevertheless to order maintenance to be given to her out of his estate. On the one hand, it was said that it cannot be right that if a woman has been a good wife to a man for many years, and has perhaps borne him several children, she should have to live on National Assistance, just because at the end he either falls for some young woman or has a quarrel, as old people sometimes do, and goes to a solicitor and cuts his wife out of the will. It is only right that in such a case a court should have power to provide some reasonable maintenance for her. On the other side, it was said that this was an interference with the sacred rights of property and the sacred right of a man to do what he likes with his own money. The former view prevailed, but Parliament hedged round the powers of the court and limited them a good deal because there had been this difference of opinion and because, after all, they were giving the court a power which it had never had before.
§ I move the Second Reading of this Bill, which deals with a number of anomalies that have arisen in this field over the years. Something happens which Parliament had not thought of, or a judge construes the section to produce the result which Parliament had not intended, or—what has become an old friend; or perhaps I should say an old enemy—a sum of money, which was intended in an Act to achieve a given result, can no longer achieve that result, due to the fall in the value of money. So that the Bill consists of a number of quite unrelated points. With that, I think I can come at once to the clauses.
§ Clause 1 deals with the Administration of Estates Act, as amended by the Intestates' Estates Act 1952. The law as it now stands is that if someone domiciled in England or Wales dies and leaves no will then, first, if there are no children, parent, brother or sister or their issue surviving, the surviving spouse—ordinarily, of course, the wife—takes the whole of the residuary estate. Secondly, if there are children, or a child, the surviving spouse takes all the personal chattels, the furniture, and in addition is entitled to a charge of £5,000, free of duty, 202 on the residuary estate, and to a life interest in half the rest. If there are no children but there is a parent, brother or sister or their issue surviving, then the surviving spouse takes the personal chattels, and in addition is entitled to a charge of £20,000, free of duty, on the residuary estate, and to an absolute interest in half the rest.
§ The figure of £5,000 was originally, in 1925, £1,000. By 1952, owing to the change in the value of money, its effect was, of course, quite different. The original intention of the £1,000 was to enable the widow to buy the matrimonial home, but by 1952 a quarter of a century had passed and two things had happened: the value of money had fallen, and even greater than the fall in the value of money had been the rise in the price of houses. The situation was considered by a Committee, of which my noble and learned friend Lord Morton of Henryton was Chairman, and they pointed out that the object was to enable the widow to buy the house. They said that £1,000 for this purpose was no use in 1952, and that the proper equivalent, judged in terms of the increase in the price of houses, was £5,000.
§ Now another fourteen years have gone by, and again what was a proper sum of money in 1952 is no longer appropriate to-day. Since 1952 the value of money has fallen by 50 per cent., but the increase in the price of houses has risen still more. Of course, it varies according to the size of the house and in different parts of the country but, by and large, the increase in the cost of housing has been somewhere between 60 and 80 per cent., and it is thought that, in relation to the sort of house most usually in question, 75 per cent. would represent about the right amount. So that all Clause 1 does is to increase this £5,000 by 75 per cent. When we come to the £20,000. as that is only related to the value of money and not to the price of houses, the Bill increases that figure to £30,000; that is to say, by 50 per cent. But then the clause also does what your Lordships have agreed to on several recent occasions. We do not want to go on for ever having these sums of money in Acts of Parliament which, with the continual fall in the value of money, are always becoming unrealistic, and which we then have to wait years and years 203 to get altered, because of the pressure of legislation. It allows the sum of money to be changed by an Order made by the Lord Chancellor, subject to the Negative Resolution procedure.
§ Clause 2 concerns quite a different point. Originally, under the Inheritance (Family Provision) Act, the court could not award more than two-thirds of the income of the estate. Naturally enough, there was a proviso which said that if the testator had disposed of part of his property by will, and had left the wife something, then if he had left her two-thirds she could not make an application. This was consistent, because if the court could not award more than two-thirds and she already had two-thirds, then there would be no point in her making the application. But as time went by, and it was found that the judges did not award widows very much—and, if anything, I think that some of us thought that in some cases, perhaps, they awarded the widow too little—there was no need for the limitation which had been placed on the power of the court in 1938. So the 1952 Act removed the limitation that a judge could not award her more than two-thirds.
§ In the case of a very small estate where, merely because he has had a sudden row with his wife, a husband goes and leaves everything to the cats' home, and where the income brings in very little, there is sometimes, of course, a case for awarding her the whole of the annual income from the estate. But although the 1952 Act removed this limit on the court's power, it left the proviso standing, so that it was still the case that if the wife was left two-thirds by her husband the court could not order any more. I do not know whether this was simply a slip in 1952, but of course a serious anomaly has arisen as a result.
§ If a man who has had a row with his wife now goes to his solicitor and says, "I have decided to cut my wife out of my will. I have read in the papers that the judges have some powers, even if I do that, to give her something. Is this right?", the solicitor then has to say, "If you leave her nothing a judge can award her the whole of the income. But if you leave her two-thirds then he cannot do anything. So if you want to do her down, the sen- 204 sible thing to do is to give her two-thirds." There have been cases in which a spiteful husband has actually done that. So the object of Clause 2 is to remove the proviso and, therefore, to stop that anomaly.
§ Clause 3 is retrospective legislation. We have once or twice in this House discussed retrospective legislation, so may I wave a large red flag and say that this is retrospective legislation. What has happened here is a little more complicated, but if I may put it shortly the position is this. From time to time the judges have said, "In this case what the widow ought to have of this perhaps not very large estate is half whatever the income is for the time being" or "three-quarters" or "the whole"; and orders of that kind have been made ever since 1952. I think it goes back earlier, but certainly that has been done since 1952.
§ In January of this year, the Court of Appeal looked closely at the section of the Act in question, and they said, "All these orders have been ultra vires, because on our construction of the section all a judge can do is to ascertain what, at the date when the application comes before him, is the actual income which is being produced from the estate, and to give her a specific sum of money." The judge cannot say that it is to be whatever the income for the future may be, or a fraction of it. He can deal only with the then income, and he must fix a sum of money.
§ An actual case before the court is perhaps a clear illustration. This was a case in which a man's estate was in rent-controlled leaseholds, and produced an income of £500 a year. In later years they became decontrolled, and the rents thereupon increased to £1,000 a year. But the court said that, at the time when the order was made, the judge could deal only with the £500 a year. I do not doubt that this was the right construction of the clause as a matter of law. It arose because the definition of "annual income" was a somewhat complicated one. I do not think I need trouble your Lordships, on a Second Reading, with the details of it, and I am not questioning that it was right as a matter of law, but this means that many orders which have been made in 205 the last 25 years have now been held to be ultra vires.
§ What is proposed now is not only to put that right, so that a court will in future be able to say, "The widow ought to have half whatever the income is", but also to deal with orders which have already been made. It is thought that, in these particular circumstances, this is a proper case for validating these orders—because, if we do not validate them, what will happen? Other interested parties will appeal if the time for appeal has not expired; if the time for appeal has expired they will ask the Court of Appeal to extend the time (whether they would do so or not, I do not know); and, at the end of the day, a court will want to make a new order of exactly the same nature as the orders now declared to be ultra vires, so a great deal of unnecessary costs will have been occasioned. As to the past, in the case of an old order, if the Court of Appeal were to extend the time for appeal and had to rule that these old orders were ultra vires, the widow would find herself liable to pay back sums of money which she would not now obviously have, and would probably have nothing left on which to live. It is therefore submitted that this is a proper case for retrospective legislation to that extent.
§ Perhaps I should say that this decision was given only in January. We are now in June. Your Lordships may remember that when we were discussing another Bill only a day or two ago the noble Lord, Lord Lloyd of Hampstead, pointed out that the Law Commission has got what they call an immediate remedial department which is intended to spot anomalies as soon as they arise, so that if legislative occasion can be found they can be dealt with at once, instead of being left to fester for years, producing injustices. In relation to this Bill, I have throughout been much assisted by the Law Commission and their draftsmen because your Lordships may remember that their first programme specifically includes family law, and they are considering the whole question of property rights between spouses. It seemed to me desirable therefore, that they should express views on this Bill to make sure that nothing in it was going to conflict with the task which they have undertaken in this field; and I should like to acknow- 206 ledge my indebtedness to them and their draftsmen in relation to the whole of this Bill. But it is getting very close, I think, when an anomaly arising only in January can be put right in June.
§ Clause 4 is partly an anomaly and partly a question of the value of money. On any application for maintenance it would give the court power to order a lump sum, either out of the estate of a deceased parent or spouse under the Inheritance (Family Provision) Act or out of the estate of a deceased former spouse under Section 26 of the Matrimonial Causes Act 1965, without any restriction as to the value of the estate in question. Under the current law no such order can be made if the value of the estate in question exceeds £5,000. Now here is another case in which an obvious alteration ought to be made because of the fall in the value of money.
§ But we asked ourselves, "Is this really a case in which there ought to be any limit at all?" There are, under the other powers to which I have referred, cases in which lump sums can be ordered instead of an annual sum, and in some circumstances this has been found to be obviously the sensible thing to do. As it could be done under other Acts, it seemed desirable to preserve consistency between them, and there seemed no particular reason for a limit. This clause, therefore, in the main, merely gives to the court the power, where it thinks right, to order a lump sum instead of an annual figure.
§ My Lords, Clause 5 deals with the question of time limits. There are three Acts under which the times for making applications are slightly different. I need not go into the details, but those Acts are worded differently. One is a day different from another, and in the case of another it is rather doubtful from what point of time the limit runs. So it is proposed that under all three Acts the time limit should be the same. But then we get into the difficulty that, under the Inheritance (Family Provision) Act, you must make your application within six months, and the court has power to extend the time in only three cases: first of all, if a will or codicil is discovered; secondly, if a question has been determined as to somebody's having an interest in the estate which had not been determined when representation was first taken out; or, 207 thirdly, in consequence of some other circumstances affecting the administration or distribution of the estate.
§ I am sorry to say that there have been a number of cases in which the application has not been made in time because the solicitors have overlooked the time limit. Of course, where a solicitor does that, nobody would doubt that it is negligent on his part to do so, because lawyers are supposed to know the law, and time limits in particular. Therefore the applicant would have a right of action for damages for negligence against her solicitor. But if the solicitor said, "Very well, I was negligent; I will pay", they have then both to try to guess what order the court would have made, if any, if the application had been made. If no party has suffered damage by the delay, it would seem much more satisfactory to give the court power to extend the time. At the moment, however, a court says, "The words, 'in consequence of some other circumstances affecting the administration or distribution of the estate' cannot include the negligence of a solicitor" and therefore if a solicitor is a day late in his application the court has at present no power to extend the time at all. There was another case in which the application was made 48 hours too late because there had been a "Go-slow" at the Post Office. It seems very much more sensible, your Lordships may think, to give a court power to extend the period of six months if, in all the circumstances, it is the fair thing to do. So that is really what Clause 5 does: it makes consistent what at the moment are different time limits for making applications, and it gives the court power to extend the period of six months in whatever circumstances the court may think it fit to do so.
§ Clause 6 arises in this way. When the Inheritance (Family Provision) Act started in 1938—and, as I have reminded your Lordships, Parliament was a bit nervous about it—somebody said, "We are going to give this power to the High Court, but some of these estates might be quite small estates. Why do we not let them apply to the county court?" The answer to that was, "We are giving judges power to interfere with what a man does when he leaves a will. This is something quite new, and we do not know how it is going to work. If it works all right, 208 then later on we can extend it so that the county courts can take the smaller cases, but we had better start off by leaving it simply to the High Court Judges"; and that was done.
§ But on March 17 (instant remedial action, indeed!; we are now at June 16, which is less than three months) a case came before Mr. Justice Ungoed-Thomas in the Chancery Division. under the Inheritance (Family Provision) Act, and he said, "This is a very small estate; look at the amount of the costs that are going to be taken away from the widow through having to bring it in the High Court instead of in the county court". Now that the judges have developed their policy over twenty or thirty years, there is no reason, I apprehend, why the county court should not deal with small cases; and, with the approval of the President of the Probate Division and the senior Chancery Judge, it is suggested in this clause that, in the case of estates of less than £5,000, the application can be made to the county court in lieu of the High Court. If, in spite of that, it started in the High Court, the High Court Judge will have power to remit the action to the county court. And again the clause provides that the Lord Chancellor may be entitled to vary this sum of money by an order which will be subject to the Negative Resolution procedure. May I just say that this is not a branch of the law that I know anything about, and I am relieved to see the noble and learned Lord the Master of the Rolls here, who can put right anything I say which may be wrong in regard to the law.
§ Now we come to Clause 7. This is an awful matter and I do not propose to go into it in detail. May I, however, just explain the point briefly? The point is that once upon a time there was a Mr. Keeling, who was a Member of Parliament and a barrister. He wrote a letter to the Prime Minister and he got some others to sign it, too. He said: "It is hard enough for us lawyers to understand some of these Bills, but it is very difficult for people who are not lawyers. When you get a Bill which makes a lot of amendments in an existing Act of Parliament, would it not be a good idea if you had a Schedule in the Bill which showed what the Act would look like if all the Amendments which were proposed in the Bill were 209 made to it? You can put in dots to show what has been left out, and put in bold type the changes that have been made."
§ This has sometimes been done since. On another Bill recently—I think it was the Criminal Justice Bill—the noble Viscount, Lord Colville of Culross, asked why we should not have a Keeling Schedule; and I might mention that, as is only fair, this kind of Schedule has since been known by the name of its inventor. I think I satisfied the noble Viscount that on that particular Bill it would not really have helped. However, I am always anxious to please, so in this Bill Schedule 2 is a Keeling Schedule which sets out what the Inheritance (Family Provision) Act will look like if the various changes proposed in this Bill are made. The point about Clause 7 is that, since the Inheritance (Family Provision) Act 1938, there have been other Acts which have said that, wherever else is said, "children" is to include adopted children; and if the contents of Clause 7 were not there, then, when you get to the Keeling Schedule, having regard to that point, the Keeling Schedule would not be in the right form. That is all it is. It is simply a clause to get the Keeling Schedule in the right form.
§ Clause 8 is purely a drafting point. I do not think, as it is a drafting point, I need deal with it. It cures a drafting defect in Section 47 of the Administration of Estates Act 1925, as amended by the Act of 1952. If any noble Lord has a passionate interest in this, then I will deal with it fully in my reply.
§ Clause 9 deals simply with the Short Title and the necessary repeals. The Bill is restricted in its application to England and Wales and it would come into force on the date to be appointed by the Lord Chancellor, except for Clause 3 which is the clause which validates the order which is held to be ultra vires and which would come into force at once. I put this Bill before your Lordships as a useful piece of law reform in a field which necessarily affects a great many women, and which will put our law in that field into a satisfactory state. I beg to move.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 6.55 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, in a Bill of the complexity that 210 this one enjoys I think the House will be particularly grateful to the noble and learned Lord who sits on the Woolsack for his very full explanation of its contents, because a considerable amount of research is necessary before one can get to grips with the subject matter at all. I do not think there is anything in this Bill to which the House will have any objection in principle. Indeed, many of the points which do raise some questions of principle are, I think, entirely to be welcomed; particularly, perhaps, the one which gives the noble and learned Lord the power to alter the various financial figures which appear in this Bill without having to come back with a new piece of legislation every time.
There is only one thing I should like to ask him in this connection. After the very full study in1952 by the Committee over which the noble and learned Lord, Lord Morton of Henryton, presided, the Government were in a position to fix very carefully the sums which appeared in the 1952 Act. Now the same thing, I have no doubt, was done for the purposes of this legislation. But I wonder what sort of machinery the noble and learned Lord is going to keep going in order that a check is at all times kept upon whether the figures remain correct or whether alterations should be made. I think he might tell the House whence he will get the information upon which he could act.
The other principle that runs through this Bill—and after the length of experience that the country has had in the administration of this type of jurisdiction by the courts I think we can but welcome it—is the principle of flexibility. The court is given wider powers still under this Bill to deal with matters on the justice of the case before it without the various statutory restrictions which previously fettered the way in which the court could deal with the case. Again I think that is good. On the other hand, while I can but congratulate the noble and learned Lord on the speed with which this legislation was brought forward, it appears that I should apologise for some of the defects of the legislation introduced by my Party in 1952; because I think there are at least three instances—which this Bill puts right—where considerable errors were made in that legislation. Perhaps I need not place all the blame on 211 the Party for whom I speak, because this is an extremely technical matter. In one instance, it was not until 1958, I think, that the matter finally came to the attention of the court. Nevertheless, it is a good thing that these matters are cleared up.
My Lords, if it were not for the fact that the 1952 Act had already abandoned the two-thirds limitation (which was all that at that stage the court could allow in the way of income from the estate to be distributed under the powers of the Act) I should have a feeling that there was some case for such limitation. In the early days of this particular jurisdiction, and before the 1952 Act was passed, there was a case called Liddington's case where there was an express provision in a will which dealt only with a quarter of the estate which was left untouched, because at that stage the court had no power to deal with more than two-thirds. Therefore it did not matter that there was an express provision of that nature. Now, of course, whatever you do in your will the whole matter can be reopened, and every single bequest you put in may be challenged afterwards by a member of the family; and it may well be that this would encourage litigation. But I think that the pass was sold on this in 1952. In consequence, Clauses 2 and 3 really only tidy up the matter.
I am a little concerned (perhaps it is only a drafting point) about Clause 3(2) which puts in a new subsection in Section 3 of the 1938 Act, because, if your Lordships will look at the most admirable Keeling Schedule, Schedule 2, it becomes clear at once that no order is made under Section 3 at all. That section deals merely with the effect of the form of the order. It therefore surprises me to find the new subsection (1A) starting off with:Any order under this section …This is really a substitution for Section 1(3) of the 1938 Act. I should have thought it would have been better to put it in Section 1 of the 1938 Act instead of in Section 3. But perhaps this is purely a drafting point.
My Lords, I do not think that I take any exception on this occasion to the retrospective nature of subsection (3). I thought that it was retrospective, and I am relieved to find that I have not been 212 mistaken in this, provided that in no circumstances will the noble and learned Lord use what I say on this occasion as indicating in any way that I ever approve in principle of retrospective legislation. I remember only too well that the noble and learned Lord trotted out example after example of when these things had been done before, and when either someone said that it was all right or nothing was said. Every single one, I am sure, must be justified, and I do not believe that there is any precedent in these matters which could be relied on on a future occasion.
On this particular occasion I think that it is entirely acceptable because of the mistake which has been found, but I hope that the noble and learned Lord will make quite certain that none of the orders which have been proved wrong dates back before 1951—I think that he was a little uncertain on this point, or so he said in his speech. If they do, this retrospection is not enough, because it only writes the provisions of Clause 3 into the group of Acts as if they had been put in by 1952—or so I understand it.
I would not wish to comment any further, except to welcome Clauses 4, 5, and 6 because I think they deal with the matter in a most sensible way. They were fully explained by the noble and learned Lord, and I would endorse what he has said, except perhaps for one point on Clause 6. Presumably, the information which the noble and learned Lord will use for the purposes of deciding whether the sum of £5,000 is a ceiling for county court jurisdiction may be based upon different information again from that he will use in connection with Clause 1. Here again I should be interested to know what are the types of change in the situation which he will look at and keep under scrutiny in order to exercise this particular jurisdiction.
I now understand Clause 7 to be purely a drafting matter. I had thought that it might be a change of substance, and if so, and in any event, I think that it raises what might be one important question of principle on this Bill, in which I think the noble Baroness, Lady Summerskill, is also interested, and perhaps she will say something about it. One of the major difficulties about the 213 question of intestacy in this country at the present time is the position of the illegitimate child. Your Lordships may remember that I have a certain interest in this matter, as President of the National Council for the Unmarried Mother and her Child. There is at present a Committee sitting to look into this matter, under the chairmanship of Lord Justice Russell, and I suppose that some people would say that we should not do anything about it until that Committee has reported. Nevertheless, there is no time like the present; legislation such as this type of Bill does not come before Parliament very often.
It may well be that at a subsequent stage in the progress of this Bill the House would like to consider whether something might be done to provide for the illegitimate child being able to inherit some, if not all, of what is equivalent to the legitimate child's rights under the legislation which is now being amended. I do not know whether the noble Baroness, Lady Summerskill, wishes to go further than that at this stage; it may be that she does, but I should certainly welcome an examination of this, if the House thought fit to do so.
The difficulty is exemplified, I think, in a case that I found in The Times on May 20 and I am, therefore, even more up to date than the noble and learned Lord. It was called In re T.B.—these things very often being done by initials—where again Mr. Justice Ungoed-Thomas sitting in the Court of Protection made a settlement, a revocable settlement, under Sections 102 and 103 of the Mental Health Act 1959, whereby a considerable sum of money belonging to the patient in a mental hospital was settled on his illegitimate son. The difficulty was that it was very unlikely that the father of this boy, or man as he had become, would ever be able to make a proper will and in the event of his never making one, and in the absence of such a will, the son, who had been brought up by his father, would be entirely unable to claim anything from his father's estate. Therefore, this particular settlement had to be made to get over the difficulty. These are just the sort of difficulties which arise in this matter, and here it may be that we have an opportunity to put it right.
214 My Lords, although I would not ask the noble and learned Lord to explain it, I am afraid that Clause 8 is an example of something which went seriously wrong in the 1952 Bill. The subsection concerned is, as is pointed out in this clause, only declaratory; but, although it seemed to be harmless at the time, in fact it was not declaratory at all. It was a muddling subsection because it transpired, when it was examined very carefully by Mr. Justice Harman (as he then was) in a case in 1958 called In re Lockwood, that it was almost impossible to construe. It certainly made a section of the Act much more obscure than if it had been left out, and it very nearly enabled the Crown to get away with a great deal of money as bona vacantia when it ought to have gone to some perfectly proper nephews and nieces of the old lady who had died. Therefore, I am very glad to see that this has now been taken out. I understand from what Mr. Justice Harman said in that case that in its absence there would be no difficulty at all about construing that section as it was put in the 1952 Act. My Lords, this Bill is a bit of a hotch-potch, but it seems to me that the principles and the details are entirely acceptable and I hope that your Lordships will give it a Second Reading this evening.
§ 7.8 p.m.
§ LORD DENNING
My Lords, I, too, should like to thank the noble and learned Lord the Lord Chancellor for this Bill. It is indeed an excellent example of the way in which Law reform should be done. We have heard in the last year or two, indeed in the last six months, cases in which defects have been disclosed in the previous legislation. Take, for instance, the six-months' period, which was incapable of extension, during which the widow had to apply under this Act. We had a case in the Court of Appeal in which, unfortunately, a widow's solicitor, just before the end of the six months, applied in a district registry in Wales, when the application ought to have been made in London. Because of that, it was held that her application was invalid: she was out of time, and she lost altogether. Now there will be a power in the court, if it thinks fit, to correct such matters as that and let her come, even at a later time. Another instance, in January 215 of this year in the Court of Appeal, disclosed that the earlier orders for twenty years had been given under a misapprehension, and were therefore presumably invalid. I would sincerly welcome retrospective legislation to correct them for the past.
My Lords, I would not say more, except to draw attention to a matter which has come under our notice in the last fortnight and which I would suggest could well be remedied in this legislation. Your Lordships will know that we are now concerned not only with widows but also with former wives after a divorce. They, too, can come to upset a will. But my point is that there is no power to make interim orders. I should like to give an illustration which is actually from a case that we had.
A wife with her husband had lived a happy married life for twenty years and had five children. After those twenty years the husband left her and went to live with a mistress. He found a matrimonial home for her and left her there. He was ordered to pay maintenance for her and the children. Within two years he died and left the whole of his property to his mistress. The former wife and the children had no further right to maintenance. They could not even get any arrears in maintenance from the estate after death. There was surely a strong case that that former wife should have had power to apply to the court for interim maintenance or for an interim order, pending the final decision of the matter.
The executor took the view that he could not make any payments. He was so advised and his lawyers accepted it. The building society was coming down on the house, to turn the widow out of the home which her former husband had provided. The instalments had to be paid to the building society to make them stay their hand. The executor was told that he had no power to pay the building society instalments. One judge ordered him to do so, but the Court of Appeal upheld that under the Act as it is there was no power to order the estate to pay instalments of that kind and no power to make an interim order. It might be a year or more before the application of the former wife can come to the courts.
216 As this Bill is so pertinent on the matter and as it is before your Lordships' House, I hope that consideration can be given to remedying this. I throw this suggestion out for consideration as one of those matters which appear in the course of the work of the courts and where a reform of the law is so welcome. I should like to thank the Law Reform Commission very much for what they have done. How much easier and pleasanter it is to find a whole Act as amended in the Schedule! I most warmly support this Bill, remedying a very important field of the law.
§ 7.13 p.m.
§ BARONESS SUMMERSKILL
My Lords, I also would express my gratitude to my noble and learned friend the Lord Chancellor for the consideration and sympathy which he has shown to widows and dependent children by initiating this Bill. I should like to raise a question already touched on by the noble Viscount, Lord Colville of Culross. While the Bill clarifies the law about adopted children, there is no mention of the illegitimate child, who may have a claim considered as a dependant for the purpose of the Inheritance (Family Provision) Act 1938. The claim of the illegitimate child may be either on the estate of the mother in intestacy or on the estate of the father, where he has been paying an affiliation order or paying for the maintenance of the child under some private arrangement.
I know, of course, that a Committee of Inquiry, under the chairmanship of Lord Justice Russell, is now examining the law of succession in relation to illegitimate persons, but for so long it has "not been done" to mention illegitimacy, or it must he mentioned in a muted manner, that I think every opportunity should be taken to ventilate their needs. A Bill of this kind does not often come before Parliament, and therefore I should like to put the case for the illegitimate child, who is not always unwanted, but who has great difficulty in establishing his or her rights in the world. The illegitimate child has no pressure group. In view of the fact that the Russell Committee have not yet reported, perhaps it is effrontery to ask my noble and learned friend whether he will anticipate the Report and include illegitimate children in the provisions of this Bill.
217 There is no doubt that the attitude towards illegitimate children is becoming less prejudiced, and I think there is little desire to penalise illegitimate children because of the status of their mothers. A further extension of the rights of these children would be in keeping with the trend of past legislation, as expressed in the Legitimacy Acts of 1926 and 1959; but, of course, there are considerable residual legal disabilities for illegitimate children, compared with legitimate children, and it is important for us to remove these, so far as possible, in order to help these children to overcome the social handicap acquired at birth.
Under the Legitimacy Act 1926, the illegitimate child has a right to succession on an intestacy to the estate of his mother only if she leaves no legitimate children. We are accustomed in this House to pointing to legislation in other countries, and I would point here to the Scandinavian countries, where there have been signs of tremendous social progress. In Norway and Denmark the law makes no distinction between legitimate and illegitimate children, so far as inheritance is concerned. In France, though illegitimate children may be entitled to less than the legitimate, at least they are recognised. I think that in the past there has been a tendency to feel that the basis of family life and the sanctity of marriage would be threatened if the illegitimate child were given greater equality of legal rights, but it has always seemed to me that where paternity has been established, the family proves resilient. I would remind the House that one-third of the illegitimate children born every year are being brought up by both parents, living together in more or less stable union.
While I was at the Ministry of Food after the war, from 1945 to 1950, while we still had rationing, the Ministry were mystified by the number of ration books left unclaimed. This was traced to the reluctance of housewives, living apparently conventional lives with their families, to claim rations for illegitimate children, lest the local office discovered that there was no legal marriage. It was necessary for me to make it clear to these mothers that they could apply under any name and no inquiries would be made about their married status. The 218 Ministry had only to be satisfied that they were responsible for feeding a child.
Under the laws which we have been mentioning no provision is made for illegitimate children. The noble Viscount has already mentioned the National Council for the Unmarried Mother and her Child, who are investigating conditions both of mothers and of children. They have brought to my notice some cases which serve to illustrate my point. I would ask my noble and learned friend the Lord Chancellor not to make any statement on these cases now, but to study them afterwards.
The first case is of an illegitimate daughter who bought a house for her mother and the man she subsequently married. On their deaths, she discovered that, as no will was left, the house she had bought went to her legitimate half-brothers and sisters. The second case is that of a father and mother of an illegitimate child who cohabited for some years. The father was a man of some substance. He died without making a will, and his son was not able to inherit from the estate. The money went to a sister whom the father had not seen for twenty years. In the third case, the father and mother had cohabited for nine years, and the father was responsible for the school fees of his children. On his death nothing was available for them from the estate.
I realise that there are tremendous difficulties in injecting the illegitimate child into this Bill, because noble Lords will ask: "What about the inheritance of titles and their estates, and so on?" I think we have to recognise that there is only a small minority of people in that situation. I am appealing now for the large number of illegitimate children in this country. The figures for England and Wales indicate that the number has increased from 4.8 per cent. in1952 to 6.6 per cent. in 1962. The absolute figures for illegitimate live births are 32,549 in 1952, and 55,376 in 1962. I would remind the House that while the illegitimate child still suffers from some degree of social stigma it is important that he should be helped as much as possible by removing every economic and legal disadvantage that it is within our power to remove. My question to the 219 noble and learned Lord the Lord Chancellor is: Could we not contribute to this by amending the law relating to intestacy?
§ 7.22 p.m.
§ THE EARL OF IDDESLEIGH
My Lords, I rise to give such general support as I can to the noble Baroness who has just spoken, and also to the plea of the noble and learned Viscount on behalf of the illegitimate child. The object of any discrimination against illegitimate children is, presumably, to safeguard the honour of marriage. That is an object which I am sure we all have at heart. But it does not seem to me that natural sanctions are either just or effective. The noble Baroness, Lady Summerskill, has mentioned the law in France. It is, indeed, a provision of the Code Napoleon, and therefore a part of the law in all the many countries which base their law on that great Code, that the illegitimate child should have some rights of succession. I understand that the general tendency of French legislation on this subject has been to increase the share that the illegitimate child takes.
I need not go into details, though I may mention one interesting provision of French law which I do not think could be enacted here but which is of some interest in itself and one with which I have some sympathy. In France they recognise two kinds of illegitimate child: the child who is conceived as the result of fornication, and has the rights over property which I have mentioned, and the child conceived by adultery or incest, who has only a right to alimentation, which corresponds roughly to maintenance. I do not think we could follow the French law in these provisions, as they would run contrary to recent legislation on the subject of illegitimacy and it would not be reasonable for us to do it. I nevertheless find it most interesting and important. The principle, however, that the illegitimate child should have some rights to succeed to property is one which I, for my part—and I speak only for myself—entirely support, and, like the noble Baroness, I trust that it may be possible to do something under this Bill.
§ 7.26 p.m.
§ THE LORD CHANCELLOR
My Lords, I am grateful to the House for the 220 reception given to this Bill, and I will deal shortly with the few points which have been raised. The noble Viscount, Lord Colville of Culross, asked me what my machinery was going to be for keeping these sums of money up to date, and where I was going to get the information from. Frankly, I have not yet settled a future policy. Wherever there is such a sum of money which can be altered by an order under an Act, it ought to be looked at once a year. Whether some other period would be better, I am not sure. Where you get the information from depends entirely, of course, on the nature of the sum of money. What has happened is that if it is a question of a fall in the value of money, I get the information from the Treasury, who know all about that; and if it is a question of the price of houses, there are various building societies which publish information as to what at different times are the prices of different sins of houses. It must depend on the kind of information.
I am grateful to the noble Viscount for his drafting point under Clause 3. My present impression is that he is right, but I will have this looked at. With regard to retrospection, the clause was intended to be retrospective only to 1952, the main reason for this being that orders before 1952, if there are any still in existence, would have been made under the 1938 Act, when the two-thirds limit was still there. I am grateful to the noble Viscount also for referring me to the subsequent case before Mr. Justice Ungoed-Thomas, and I will certainly look at that.
The noble and learned Lord, Lord Denning, raised a point with regard to there being no power to make interim orders. I will certainly consider that matter before the Committee stage, and I am grateful to the noble and learned Lord for his suggestion.
I think that leaves only the question of illegitimate children. My noble friend Lady Summerskill tends always to prod me on—and I do not complain of it, because it is a good thing. I think our views in this sort of field are usually very much alike. But this time she really is asking me to "jump the gun", because these questions as to illegitimate children and intestacy have been the subject of a 221 most careful inquiry by a Committee presided over by Lord Justice Russell. They have been sitting for some time. I know they have had evidence from the National Council of the Unmarried Mother and Her Child, and I should think that all the particular cases mentioned by the noble Baroness have probably been before them. As I understand it, their Report may be published in the fairly near future.
In those circumstances, while I am not dissenting from any of the views which have been expressed, I could not possibly say anything on behalf of the Government until the Report has been published and we have had an opportunity of seeing whether or not we accept what their recommendations may be. I suspect that we should not do that until the Press and other public bodies have had some opportunity of saying what they think of the recommendations, because this is a controversial subject, and I believe rather more so in Scotland than in England. While I am sympathetic to this, and I follow the point that if you are going to legislate on any recommendations of the Russell Committee this might be a good Bill in which to do it, I should think that on the timing it will be difficult to do it in this House. If one approved the recommendations, and one wanted to incorporate them in the Bill, I should suspect that it would be more likely to be done on Committee stage in another place rather than here. Beyond that I cannot commit the Government in any way until the Report has been published, and they have had an opportunity to see what the recommendations are, what public opinion is, and which recommendations they can accept and which they cannot. It is not that I am unsympathetic. It is simply that, obviously, after there has been an inquiry by that kind of high-powered Committee, no Government would be prepared to commit themselves until they had seen the Report, particularly if I am right in thinking that the Report will be published in the near future.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.