FAMILY PROVISION BILL H.L. (Hansard, 27 June 1966)

§ THE LORD CHANCELLOR (LORD GARDINER)
This is a drafting Amendment which arises from a point made by the noble and learned Viscount, Lord Colville of Culross, on the Second Reading of the Bill, and I am grateful to him for drawing attention to it. He pointed out that the clause reads: any order under this section "… 540 In fact orders will not be made under Section 3, but under Section 1 or Section 4. This Amendment, and indeed the second Amendment, which is consequential, is designed to cure the defect to which the noble Viscount drew attention, and I am very grateful to him.

§ LORD DRUMALBYN
My noble friend Lord Colville of Culross has asked me to apologise to the noble and learned Lord on the Woolsack for not being able to be present to-day, and on his behalf I thank the Lord Chancellor for making this Amendment.

§ THE LORD CHANCELLOR
On the Question, "That Clause 3 shall stand part", since I always pay the greatest attention to observations made by noble Lords during the Second Reading of a Bill, I should perhaps say this. Your Lordships may remember that the noble Viscount, Lord Colville of Culross, asked whether it would not be right in Clause 3(3) to make the retrospective validation of orders made under the case of Re Gale, to which I referred on Second Reading, extend to orders made under the Act of 1938 before the amending legislation in 1952 came into force. The Government have carefully considered this point and have decided that this would be a mistake. Your Lordships will remember that in its original form the Act of 1938 applied the two-thirds rule, and this rule has remained effective in respect of orders made relating to the estates of persons dying before the 1952 amendments came into force.
As drafted, Clause 3(3) applies the whole of Clause 3 to post-1952 orders, with the effect that it removes all restrictions on the amounts that may be ordered by way of maintenance. It would clearly be wrong retrospectively to enlarge the powers of the court in respect of the estates of persons dying before the i952 Act to which the two-thirds rule has always applied. Moreover, any order made under the 1938 Act in its original form will now have been in force for at least fourteen years, and I apprehend 541 that it is most unlikely that the Court of Appeal would give leave to extend the time for appeal after as long a period as that.

§ LORD DRUMALBYN
I should like to thank the noble and learned Lord for the attention he has given to this point. I am sure that my noble friend Lord Colville of Culross will be perfectly satisfied with his explanation.

§ THE LORD CHANCELLOR
On the Question whether Clause 4 should stand part, may I say that I have considered a suggestion by the noble and learned Lord, Lord Denning, who asked whether the Bill could not provide for interim orders to be made by the court. This means consulting the Senior Registrar and the Chief Chancery Master, and it also involves drafting an Amendment. Time has not allowed that to be done before the Committee stage of the Bill. If the Government conclude that this suggestion is desirable, I am sure it is not the sort of Amendment which any of your Lordships would wish to oppose, and it may be possible to do this at some later stage of the Bill.

§ THE LORD CHANCELLOR
On Clause stand part, may I say that your Lordships may remember that both the noble Viscount, Lord Colville of Culross, and my noble friend Lady Summerskill invited me to consider extending the definition of "son" and "daughter" in the Act so as to bring in illegitimate children. The position, as I understand it, is that the Report of the Russell Committee is almost ready for publication, 542 but obviously it will have to receive the comments of those interested in it. The Government must have an opportunity of considering how far their Lordships could accept the recommendations, and a draft Amendment would not be altogether simple, because there is an eventual repercussion on the right of the Crown to take the goods of an intestate as bona vacantia. So this involves consulting the Treasury solicitor and possibly obtaining the Sovereign's consent. In those circumstances, I think it would be unlikely that it would be possible for the Government to deal in this Bill in your Lordships' House with any recommendations which they accept, but I have always thought that this Bill might well be a convenient opportunity to give effect to such recommendations of that Committee as the Government may accept. That, I think, on the time-table, would have to be done in another place.

§ THE EARL OF IDDESLEIGH
I am sure my noble friend whom I supported on this point will be glad at the words which have fallen from the noble and learned Lord. We are grateful to him for the consideration which he has given to this point.

§ LORD DRUMALBYN
Does the noble Lord think it likely that the recommendations would be available in time for them to be dealt with in another place? If so, presumably we shall then have this Bill back in due course, its having been duly amended in another place.

§ THE LORD CHANCELLOR
I hope that they will be available in time for the requisite comments to be made and for the Government to make up their minds in time to deal with it, if they think right, in another place.

§ THE LORD CHANCELLOR
This Amendment is entirely consequential on the amendment of Clause 3. I beg to move.