§ 4.32 p.m.
§ Report received.
§ Clause 12 [Grant of certificate by trial judge]:
§
THE LORD CHANCELLOR (LORD GARDINER) moved Amendment No. 1:
Page 6, line 33, leave out ("trial").
§ The noble and learned Lord said: My Lords, I beg to move this Amendment standing in my name on the Order Paper. At the Committee stage of the Bill, your Lordships may remember that the noble and learned Viscount, Lord Dilhorne, raised two questions of terminology, and I promised when he withdrew these Amendments which he had put down that I would give them further consideration. The first question related to the use of the words "decision" and "judgment" in the Bill in the various places where they occur. I have carefully considered those and, for the reasons which I ventured to give at the Committee stage of the Bill, I am of the opinion that those words are there properly so used.
§ The second question the noble and learned Viscount raised was as to the expression "trial judge", and he pointed out that, as was agreed in Committee, it would be right that in rare cases this procedure should be available in relation to a decision of a judge in chambers on an interlocutory matter. The expression "trial judge" does not now seem to me to be right. Therefore, in the case of other Amendments I shall come to later, it is proposed that the word "trial" should be amended. I am grateful to the noble and learned Viscount for having drawn our attention to this point, and I beg to move.
§ On Question, Amendment agreed to.
§
THE LORD CHANCELLOR moved Amendment No. 2:
Page 6, line 37, leave out from ("that") to ("and") in line 38 and insert ("a sufficient
662
case for an appeal to the House of Lords under this Part of this Act has been made out to justify an application for leave to bring such an appeal").
§ The noble and learned Lord sail: My Lords, the purpose of this Amendment is to clarify one of the matters as to which the judge must be satisfied before he grants a certificate enabling an application to be made to the Appeal Committee for leave to appeal directly to the House of Lords. Clause 12(1), as amended in Committee, provides twat the judge may give a certificate where he is satisfied (a) that the relevant conditions are satisfied; (b) that it is expedient to enable an application to be made for leave to appeal directly to the House of Lords; and (c) that all parties to the proceedings consent to the grant of a certificate. Your Lordships may remember that at the Committee stage of the Bill the noble and learned Lord, Lord Morris of Borth-y-Gest, suggested that paragraph (b) left it doubtful whether or not the judge was required to form his own view as to the desirability of a direct appeal to the House of Lords. He might possibly think it expedient to enable the parties to apply to the House of Lords, simply because the relevant conditions were satisfied and the parties had agreed to the grant of a certificate.
§ It is not the intention that the judge should merely "rubber-stamp" the parties' application for a certificate, The object of paragraph (b) is that he should act as a filter and grant a certificate, only where he is satisfied that it is a proper case in which to allow the parties to apply for leave to appeal directly to your Lordships' House. In order to male this clear, the Amendment substitutes for paragraph (b) a provision that, before granting a certificate, the judge must be satisfied that a sufficient case for a direct appeal has been made out to justify an application for leave to bring such an appeal. The noble and learned Lord, Lord Morris of Borth-y-Gest, has told me that he is unable to be present to-day but he concurs in this Amendment. I beg to move.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR moved Amendments Nos. 3 to 20:
663§ Page 6, line 41, leave out ("trial")
§ Page 7, line 12, leave out ("trial")
§ Page 7, line 19, leave out ("trial")
§ Page 7, line 20, leave out ("trial")
§ Page 7, line 27, leave out ("trial")
§ Page 7, line 29, leave out ("trial")
§ Page 8, line 3, leave out ("trial")
§ Clause 13, page 8, line 8, leave out ("trial")
§ Clause 13, line 19, leave out ("trial")
§ Clause 13, line 37, leave out ("trial")
§ Clause 15, page 9, line 16, leave out ("trial")
§ Clause 15, line 20, leave out ("trial")
§ Clause 15, line 22, leave out ("trial")
§ Clause 15, line 29, leave out ("trial")
§ Clause 15, line 33, leave out ("trial")
§ Clause 15, line 34, leave out ("that") and insert ("the")
§ Clause 15, line 36, leave out ("trial")
§ Clause 15, line 40, leave out ("trial")
§
The noble and learned Lord said: My Lords, if no noble Lord objects, I would venture to move Amendments Nos. 3 to 20 inclusive together. As your Lordships will see, with one excepion they all consist solely in the omission of the word "trial" in the several places specified in the Marshalled List of Amendments, and the one exception is really consequential. The exception is this. On page 9, Clause 15(3) begins:
Where by virtue of any enactment, apart from the provisions of this Part of this Act, no appeal would lie to the Court of Appeal from the decision of the trial judge except with the leave of that judge…".
If we are to omit the word "trial", then the words "that judge" should I think plainly be "the judge". Therefore, if none of your Lordships object, I will venture to move together Amendments Nos. 3 to 20. I beg to move.
§ On Question, Amendments agreed to.
§ Clause 18 [Supplementary provisions as to wills executed under s. 103(1)(dd)]:
§ 4.39 p.m.
§
THE LORD CHANCELLOR moved Amendment No. 21:
Page 12, line 1, leave out from beginning to ("property") in line 10 and insert ("So much of subsection (3) of this section as provides for such a will to have effect as if the patient were capable of making a valid will—
§ The noble and learned Lord said: My Lords, this Amendment cures a drafting defect in the new Section 103A(4) of the Mental Health Act 1959. Section 103A is inserted in that Act by Clause 18 of the Bill and deals with the manner of execution and effect of a patient's will directed or authorised by the Court of Protection. Section 103A(4), as drafted, modifies in the case of mental patients domiciled outside England and Wales the provision in subsection (3) that a will made by the Court of Protection under Section 103(1)(dd) of the 1959 Act (inserted in the Act by Clause 17) is to have the same effect for all purposes as if the patient were capable of making a valid will. It prevents the Court from making a valid will for a patient domiciled outside England and Wales unless his testamentary capacity falls to be determined by English law. The purpose of subsection (4) is to avoid the possibility of conflicting wills (that is, different wills being upheld in respect of the same person by two courts) by preserving the existing rules of Private International Law concerning capacity to make a will. The Court of Protection's power should be exercisable only where, by these rules, the patient's capacity is governed by English law as the domiciliary law (in the case of movables) or lex situs (in the case of immovables). Although the present draft of Section 103A(4) deals with the case of a patient domiciled outside England and Wales, it does not cover the case of a patient domiciled in England and Wales who wishes to dispose of immovable property abroad.
§ The Amendment is designed to rectify this omission. The substance of Section 103A(4), as amended, is the same as before, but in addition it precludes the execution for a patient of a valid will disposing of immovable property outside England and Wales, irrespective of his domicile. It is important that this limitation should apply to patients domiciled in England and Wales, as well as those domiciled outside the jurisdiction, as, under the rules of Private International 665 Law, capacity to make a will of immovables is determined by the lex situs; that is, the law of the place where the land is situate, without reference to domicile. The Amendment is designed to avoid another possible situation of conflicting wills. It does not involve any new principle. I beg to move.
§ LORD WILBERFORCEMy Lords, I do not wish to make any observation on this Amendment except to say that it appears to be technically correct, and only to express mild regret that it has to be in such complicated language. It takes an exception out of an exception and then prefaces it with a negative and then another exception. I feel it is a great pity that in a matter which is intended to be understood it should be thought necessary to use such elaborate language. However, possibly it was unavoidable and I agree that it is an improvement.
§ THE LORD CHANCELLORMy Lords, if your Lordships will accept the Amendment, in view of what the noble and learned Lord, Lord Wilberforce, has said I will certainly see whether we can simplify the wording before the Third Reading of the Bill.
§ On Question, Amendment agreed to.
§ Clause 25 [Records of grants of probate and grants of administration]:
§ 4.43 p.m.
§ THE LORD CHANCELLOR moved Amendment No. 22:
§
Page 16, line 23, at end insert—
("(5) Where a calendar has been prepared under section 45 of the Sheriff Courts (Scotland) Act 1876 or under section 156 of the Judicature Act 1925 (as for the time being in force apart from this section), and a copy of that calendar is kept in the principal probate registry of the High Court of Justice in Northern Ireland, the Lord Chief Justice of Northern Ireland—
(6) Any direction under subsection (5) of this section may be given either in respect of a particular copy to which that subsection
666
is applicable or in respect of a class of such copies.
(7) In relation to copies of calendars prepared as mentioned in subsection (5) of this section which—
the Public Records Act (Northern Ireland) 1923 shall have effect as it has effect in relation to documents which are Northern Ireland records within the meaning of that Act and which have been removed to that Office in accordance with that Act.")
§ The noble and learned Lord said: My Lords, this is a slightly involved point. This Amendment enables the Lori Chief Justice of Northern Ireland to direct that copies of English and Scottish calendars be transferred from the Probate Registry in Belfast to the Public Record Office of Northern Ireland, and provides for such copies to be treated as Northern Irish public records.
§ When Cause 25 comes into force there will be in the Belfast Probate Library, first, copies of English calendars already sent there in pursuance of Section 156(3) of the Judicature Act 1925, and, second, copies of Scottish calendars sent there in pursuance of Section 45 of the Sheriff Courts (Scotland) Act 1876. The Belfast Probate Registry do not wish to be able to keep these calendars indefinitely, but would like to be able to transfer them to the Public Record Office of Northern Ireland where they could be kept or, if not required to be preserved, be disposed of in accordance with the Public Records Act (Northern Ireland) 1923. Alternatively, they would like to be able to return to Scotland such Scottish calendars as are no longer wanted and for which the Scottish authorities may find use.
§ Under the current law, copies of English calendars sent to the Belfast Probate Registry in pursuance of Section 156(3) are subject to any direction which the President of the Probate Division may give under Section 8(3) of the Public Records Act 1958. Such a direction was in fact given by Lord Merriman in March, 1961, whereby any such copy is transferred to the Public Record Office of Northern Ireland when the latest grant included in it was made over five years before. But, with the repeal of Section 667 8(3), that direction will cease to be effective and it is therefore necessary to replace it.
§ Copies of Scottish calendars were, until recently, also sent to the Belfast Registry under Section 45 of the Sheriff Courts (Scotland) Act 1876. However, by the Sheriff Courts and Legal Officers (Scotland) Act 1927 (Calendars of Confirmations and Inventories) Order 1968, made under Section 19 of the Sheriff Courts and Legal Officers (Scotland) Act 1927, the obligation to send such copies to England and Northern Ireland was terminated with effect from February 2, 1968. There is no power corresponding to Section 8(3) of the Public Record Act 1958 and applicable to Scottish calendars, so that the copies now in Belfast cannot be transferred to the Record Office: they (like their English counterparts) are neither "Northern Irish Records" nor "Imperial Records" within the meaning of Section 1(2) of the Act of 1923 and, in the absence of some express statutory provision, the Record Office has no power to receive them. It has been represented to the Scottish Office that public libraries in Scotland might well wish to receive copies of old Scottish calendars now in Belfast which are not wanted by the Probate Registry or the Record Office. The return to Scotland of these copies would be a matter for agreement between the authorities of the two countries.
§ The Amendment deals only with English and Scottish copies which have been sent to Belfast. It does so, first, by conferring on the Lord Chief Justice of Northern Ireland power to direct (i) that copies of English or Scottish calendars be transferred from the Probate Registry to the (Northern Ireland) Record Office, or (ii), with the consent of the Scottish authorities concerned, that copies of Scottish calendars be sent to Scotland instead of to the Record Office, and, secondly, by providing that copies of both English and Scottish calendars which are transferred to the Record Office are to be treated as Northern Irish records. This will enable such as are not required to be preserved to be disposed of in accordance with rules made under Section 8 of the Public Records Act (Northern Ireland) 1925.
§ The new subsection (5), inserted by the Amendment, confers the necessary 668 powers on the Lord Chief Justice of Northern Ireland. The new subsection (6) enables the Lord Chief Justice's directions to relate to specific copies or to a class of copies. Thus he could, as Lord Merriman did under Section 8(3) of the 1958 Act, direct that copies be transferred as and when they become five years old. The new subsection (7) provides for copies transferred to the Public Record Office of Northern Ireland to be treated as Northern Irish records, and it applies both to copies transferred to the Record Office in pursuance of a direction made by the Lord Chief Justice of Northern Ireland and to copies transferred before the commencement of Clause 25 under Section 8(3) of the Public Records Act.
§ As your Lordships will see, the matter is so involved that it is perhaps not surprising that this point had not been seen before, and it will now be rectified by this Amendment. I beg to move.
§ On Question, Amendment agreed to.
§ Clause 26 [Reduction of period of apprenticeship for public notaries in London]:
§
THE LORD CHANCELLOR moved Amendment No. 23:
Page 16, line 24, leave out from ("to") to ("section") in line 25 and insert ("clerks and apprentices to persons who are members of the Incorporated Company of Scriveners and have been admitted to practise as public notaries within the jurisdiction of that Company,")
§ The noble and learned Lord said: My Lords, this is an Amendment which was discussed by the noble Lord, Lord Goodman, at the Committee stage of the Bill. It ensures that only those members of the Incorporated Company of Scriveners who have qualified by apprenticeship in London will be able to be admitted to practice as public notaries after serving the five-year period of apprenticeship. Your Lordships will remember that the main object of this clause is that whereas public notaries outside London have to have a five-year apprenticeship those in London have to have a seven-year apprenticeship. The Society in question is of the opinion that the London rule should be brought into line with the provincial rule.
669§ The Amendment is promoted at the request of the Society of Public Notaries of London, who feared that the present clause could be interpreted as also qualifying members of the Scriveners Company who have served their apprenticeship elsewhere. Membership can be obtained not only by apprenticeship but also by patrimony; that is to say, the right of sons of members to apply for membership or "redemption", that is nomination, election and payment. A person who has served an apprenticeship outside London and happens to be a member by patrimony or redemption should not be qualified for practice as a notary public in London, because he could not have undergone the appropriate training. London apprentices are required to undergo courses and pass examinations in a wide range of legal subjects and in a foreign language, whereas provincial apprentices do not have any formal training or examinations. The concern of the Society of Public Notaries of London to have the clause amended in this way—a point referred to by the noble Lord, Lord Goodman, at the Committee stage—has been met by this Amendment which meets with their approval.
§ Before formally moving the Amendment, may I just say (probably out of order), with regard to Clause 27, to which there is no Amendment down, that the noble Lord, Lord Airedale, earlier expressed the hope that some shorter version of Clause 27 might be arrived at. We are still working on that. The difficulty is that this is a clause which puts a clause into the Superannuation Act, and therefore we have to see that it fits in with that Act. But I hope that on the Third Reading I shall be able to produce an Amendment by which that clause will be shortened, though I am not sure that it will be shortened by as much as both the noble Lord, Lord Airedale, and I should have liked. Meanwhile, I beg leave to move this Amendment.
§ On Question, Amendment agreed to.