HL Deb 05 July 1977 vol 385 cc266-83

7.49 p.m.

Lord RITCHIE-CALDER

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee.—(Lord Ritchie-Calder.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord Champion in the Chair.]

Clause 1 agreed to.

Clause 2 [Decree in action of declarator and determination of incidental questions in other proceedings].

The Earl of SELKIRK moved Amendment No. 1:

Page 3, line 18, at end insert— (4) A decree in an action of declarator shall have no effect in relation to the liability of the insurer under a policy of life assurance effected on the life of the missing person unless it is granted in terms of subsection (1)(a) above and the action has been served upon or intimated to the insurer, but any person having an interest in such a policy may at any time raise a further action of declarator in which the Court may grant decree in terms of subsection (1)(a) above.

The noble Earl said: I wish to say a word or two about the only part of the Bill which has caused anxiety—namely, the part which deals with the insurance companies. I should like to speak generally on Clause 2 if it is agreeable to noble Lords because this is really the crux of the Bill. The Law Commission considered for a time whether life insurance should be excluded altogether. They decided that it could not be excluded. However, they said, and I should like confirmation of this, that they would be free to write their policies as they liked. I hope that this is correct. I take that to mean—I do not know—that they could put in a clause saying that in the event of the Bill being applied in certain cases their insurance policy would not apply. I should like to know whether that is, in fact, the situation.

They are worried about two matters in Clause 2 which have to be dealt with. The first is that the court has to be satisfied on the balance of probabilities that somebody has died. That is relatively easy—it requires positive proof. The second matter that they have to prove is a negative—namely, that somebody has not been known to be alive. The noble and learned Lord, Lord McCluskey, the Solicitor-General for Scotland, knows that it is not easy to prove at the best of times what is a negative. Whether you prove it depends entirely on what evidence is put before the court. My Amendment, which I appreciate is not an easy one and I wish to examine it, takes the insurance company out of Clause 2(1)(b). This may well be going too far and I appreciate that that may be the case.

However, I should like to know what assurance we have that adequate examination and inquiry has been made. Frankly, this is not a point which is emphasised very much in the Bill. There is no standard set as to what the inquiry should be. There are no very definite instructions as to who is responsible for this. If one looks at Clause 5 one sees that anyone is asked to give information if they know about it, and Government Departments are expected to co-operate. This depends, of course, on whether the question is put to the right person. There are all sorts of people who may know about it, provided they are aware or have some idea that a query has arisen. Among the questions which I particularly wish to ask is this: can any party, who is perhaps examining this, raise the question of whether the inquiries have been adequate or whether they have gone far enough? This is the point which an insurance company may well want to know: have adequate investigations been made as to the possibility of someone being alive? I do not know whether in view of the wording this is possible. I do not know about being satisfied on the balance of probabilities. That depends on what is before the court. Let us suppose that the insurance company says, "We are not satisfied that the matter has been sufficiently penetrated". Could it raise this as a point and ask for further examination of the matter?

I should like to say a little about Clause 9 which makes an act of sederunt and lays down the inquiries which are to be carried out. It seems to me difficult to be quite certain how those inquiries should be carried out until the action has actually been raised, because the type of inquiries you should make are quite different in different cases. They do not bear any relation to each other. The man may have gone to the Argentine, Australia, Canada or where you will and the inquiries should be directed to different parts.

I am merely asking at this stage whether the Government would consider taking insurance companies out of Clause 2(1)(b) or whether they can say anything about the standard or the peremptory requirements for making adequate search for the person in question. All we are asking is whether he is known to be alive. There are 50 million people in this country. It may be within your Lordships' knowledge that a man was burnt to death in a car before the war and he was never identified. It is quite likely that there are a number of people who have not been identified today. Social security people will co-operate no doubt, but names can be changed—maybe numbers can be changed. It may be that the social security people are not the only Department. The Department of the Civil Service, for instance, may even have him in their employ.

I raise this question to find out what are the standards of this fundamental question of proving the negative that the man has not been known to be alive. I am asking this purely as a probing question. I think that it is an important one to which we must have an answer. I formally beg to move the first Amendment.

Lord CAMPBELL of CROY

I have also put my name to the Amendment which my noble friend Lord Selkirk tabled a few hours before I was intending to do so. He has made an inquiry which the noble Lord, Lord Ritchie-Calder, for the Government, will be able to answer, I hope, later in the debate. I should like to add a few words to point out that this is a matter of considerable concern to the life insurance companies in Scotland whose views have been represented through the Associated Scottish Life Offices.

I think that the intention of the Scottish Law Reform Commission may not be precisely reflected at present in the Bill due to a misunderstanding on technical insurance matters. The first three clauses of the Bill provide for action on the presumption of death on a certain date to be seven years after the person was last known to be alive. Those clauses attempt to co-ordinate consequent actions.

We all agreed on the Second Reading of the Bill that a reform of this nature was required. In Clause 4 we come to the situation where the person presumed dead reappears, whether it is by mistake or deliberate fraud. Here the provisions are drafted with an attempt to be fair to everyone affected. Courts are given discretion to order repayments, including sums which insurance companies may have paid out under policies on the assumption that a person is dead. I think that it is right that discretion should be given to a court to consider in the individual case what should be done, rather than try to legislate too precisely in the Bill.

Next, there is the extraordinary exemption that certain capital sums paid in life insurance should be exempted from the discretion of the courts so that they will not be able to consider that kind of insurance payment at all. The vehicle which is to be used to try to rectify the situation when a person presumed dead reappears is the "variation order". The Bill, as it now reads, expressly excludes capital sums which have been distributed by way of an annuity or other periodical payments.

Lord McCLUSKEY

May I ask the noble Lord, Lord Campbell of Croy, whether he would consider perhaps debating this matter with us when we come to the second and third Amendments which are, I think, specifically directed to the point to which he has now turned?

Lord CAMPBELL of CROY

I thought that it would be convenient to do it at this stage, because they are alternatives. If something on the lines of this Amendment were to be accepted, it might not be necessary to have the later Amendments. I do not necessarily expect the noble Lord to be able to answer straight away but I thought it right to put it at this stage into its general setting in the Bill in order to avoid having too many debates. My point is that capital sums which are payable at stated intervals following a death are to be exempted, but for no particular reason. The discretion which is allowed to the courts should surely cover this situation as well, and if Amendment No. 1 were accepted the difficulty would be removed. If the Promoter of the Bill and the Government cannot accept it, then there are alternative Amendments which my noble friend and I will try to move.

It seems to me that there could have been a misunderstanding when the Scottish Law Commission considered the matter. It is clear from paragraph 107 of their report that the Commission were thinking of an annuity in a certain sense and were regarding it as falling into a certain category. That may be the reason why the Bill is drafted in its present form. The provision that capital sums paid by instalments should be excluded from Clause 5(3)(b) of the Bill is not consistent with the intention of paragraph 107 of the Law Commission's Report. Therefore I think that there may have been a technical misunderstanding. I hope that at the appropriate point, on either this Amendment or the later ones, the noble Lord, Lord Ritchie-Calder, or the Government spokesman, the noble and learned Lord, Lord McCloskey, will be able to explain why this apparent anomaly has arisen and clarify why there should be this express exclusion from the discretion of the court when it is very sensibly being given discretion as regards other insurance payments.

8.2 p.m.

Lord RITCHIE-CALDER

I should like to thank the two noble Lords for their attitude and response to this clause. I hope that we shall separate the two. I think that I understand what we are speaking about in Clause 2 but, like the other noble Lords, I am not quite clear about the small print in the other.

I hope that the noble Earl, Lord Selkirk, will not press the Amendment. Indeed, I do not believe that he intends to do so. The intention of the Bill, which we all applaud, is to deal with a situation which badly needs clarification. We made that point very clearly on Second Reading. I suggest that if this Amendment is approved we shall create the anomalies which all of us are determined to remove. Insurance companies are made a separate issue.

Perhaps I should remind noble Lords that the Scottish Law Commission thoroughly considered this question. We appreciate the genuine concern of the insurance companies about the possibility of fraudulent claims that are contrived by "deaths". Nobody underestimates this possibility, although by any standards they have been very rare. It would be difficult for the insurance actuaries to find cases where they have had to pay out on a contrived, fraudulent "death". The Commission considered in particular fabricated claims or speculative actions. The main argument which persuaded the Commission to make no exception in the case of insurers—and I support absolutely the Commission over this—was that the degree of presumption of a person's death should be universal in its application and that it would be illogical to have any exclusions. The risk of fabricated claims is thought to be greatly diminished by reason of the fact that the question of the disappearance of a missing person—that is, proving the negative—not having been known to be alive for a period of years would have been thoroughly examined by a court of law, before which all the relevant facts would have been placed. I meet the noble Lord, Lord Campbell of Croy, on his point regarding the difficulty of proving the negative. Furthermore, there is the question of what would be the terms upon which a sheriff court or the Court of Session would be asking pertinent and probing questions.

I take assurance from the report of the Law Commission, which states that the questioning would be very thorough. This depends—as it will during the second leg of the debate on the capital and annuities question—on the President of the Court of Session and the rules that he will provide. I am sure that it was the intention of the Law Commission that these rules should provide the criteria upon which anybody would be presumed dead, including—and necessarily including —the possibility that this might be an insurance wangle. Of course I cannot give assurances because I do not know what the rules of the court will be, but I assume that the rules will include very searching questions about whether an insurance issue is involved. If it were, it is certain that the insurance companies would be involved in the discussions regarding presumption of death.

If I may reassure the insurance companies, there is in any event added protection for insurers in Clause 6, which provides that a policy of insurance should be effected in respect of any claim which may arise by virtue of an order under Clause 5(2) of the Bill—that is, where a decree of declarator has been varied or recalled and the court makes a further order respecting the rights to or in any property acquired as a result of the decree. This would cover cases where a missing person is later found to be alive. In a sense, this is a double insurance. However, my difficulty—and I think it is the difficulty, too, of my noble friend—is that while I regard Clause 2 as the clause which removes anomalies there is also the question of what the Lord President and the Rules Council will specify. In the light of what we know of the Lord President and the Rules Council and, indeed, of the Scottish Law Commission and the very substantial representations which were made by the association of insurance companies to the commission, that has all been taken into account.

What I oppose—and sensing the attitude of noble Lords opposite, I think that they also oppose—is the fact that a distinction made in the case of the insurers (that is, insisting upon their being excluded, which is what is proposed) or a specific request to be serviced in advance, would to some extent defeat the purpose of the Bill. It is impossible to provide in the Bill that a decree cannot be granted unless service is made of an insurer, because there may be no knowledge of an insurer and, secondly, because the postal services are probably the rule of the court—it will depend on the Lord President. But I think the people we are talking about think about these things on a sound basis and we can be assured that, however much it is the fact that the insurance companies have this misgiving, which I sympathise with and acknowledge their right to have, the misgiving is unreal and I would quite seriously ask the noble Earl, Lord Selkirk, in justice to the Bill and its intention, not to press this Amendment.

8.11 p.m.

Lord McCLUSKEY

As a supplement to that answer, I wonder whether I may offer some specific answers to specific points. First the noble Earl, Lord Selkirk, asked whether insurance companies would be free to write their policies in such terms as they chose. That, of course, was the recommendation of the Scottish Law Commission in paragraph 52 and I can answer that question with an unequivocal "yes". If I need to amplify it, I only have to say that this is because the Bill contains no provision laying any kind of prohibition upon the right of insurance companies to write the policies in such terms as they may consider appropriate.

Turning briefly to the next point, I acknowledge the force of what the noble Earl said about proof of a negative. As he knows and as I would remind other noble Lords who have a copy of the report, we have been concerned with this kind of provision for a long time in Scotland, though the proof of a negative is an unusual kind of thing in a court of law. But in paragraph 13 of the report there is a quotation from Section 3 of the 1891 Act where the matter to be proved was put in the following terms: When any person has disappeared and has not been heard of for seven years or upwards". That is really in the same category of negative matters which require to be proved.

Perhaps in order to amplify what has been said on matters of proof I may begin by respectfully suggesting that my noble friend Lord Ritchie-Calder was guilty of a slip of the tongue in suggesting that rules of court might lay down indications as to modes of proof. Although it is a matter for the court to decide, I think it is clear that rules of court can lay down provisions as to procedure and, in particular, as to the persons upon whom service of the action must, or can, be made. Of course it follows from that that, once the rules of court contain such an obligation to intimate and serve upon this person and that person, the persons upon whom service is made will look at the matter and, if they have information to present to the court, will come forward with that information. To that extent, the rules of court may affect the proof.

The noble Earl, Lord Selkirk, asked specifically what assurance we shall have that adequate inquiry will be made and to what standard. As to standard, one can only say that the Bill must lay down what is the burden of proof, whether it is proof beyond reasonable doubt or proof on a balance of probabilities. The Law Commission considered this with some care and adopted the standard which is to be found in Clause 2(1)—the standard of a balance of probabilities. But of course that is only the skeleton of the matter. The court is bound to bring a very guarded discretion to a matter of this kind. I think that the noble Earl will acknowledge the correctness of this and will agree that it is not for the legislature to seek to lay down with great precision how a court should go about a task to which it is well accustomed; that is, the task of determining what is and what is not proved by the evidence.

I hope that your Lordships will forgive me if I refer to one or two parts of the report itself because I think they give a clear indication—and they are reflected in the Bill—of the kind of matters to which the court would certainly pay attention. First, the general approach is mentioned in paragraph 51, where it is said that in a court of law all the relevant facts are likely to have been placed before the court. But, if one looks more particularly at certain other paragraphs, one sees how that is to come about and what is to happen. First, paragraph 82 recommends the making of rules and as the noble Lord, Lord Ritchie-Calder, has said, we cannot dictate to the Lord President and the Rules Council what rules they shall make. But surely we can properly respect their discretionary experience in this matter and they will certainly take account of the recommendations in paragraph 82, of any comments made by noble Lords in this House and, indeed, of any representations which the Rules Council may receive from such bodies as the life offices.

Secondly, I should like to look briefly at paragraph 84 because that deals with advertisement and it specifically draws attention to the desirability of making advertisement not just in the small print of the "quality" newspapers—to use a shorthand—but real advertisement in newspapers which are likely to get at the persons who might know something about the existence of the one who has disappeared. So that is one kind of evidence at which the court will have to look— the fruits, if any, of such advertisements. Secondly, in paragraph 85 one finds a recommendation—and no doubt this is just the kind of matter that the court will have regard to, as it always has done in this type of case in the past—that there should be inquiry of the Registrar General for England and Wales and the Registrar General of Births, Deaths and Marriages for Scotland whether they have any record of the death of the person concerned. That has always been done and no doubt it will continue to be done, just as the Commission recommended.

In paragraph 86 we find a recommendation which is to be found reflected in the Bill, that certain persons should be obliged to disclose information to the court. I think the noble Lord, Lord Lyell, spoke about this at Second Reading. One has a clause in the Bill obliging the disclosure of information, which of course is Clause 9.

Next, I should like to mention paragraph 89, which is reflected by Clause 9. Paragraph 89 considers the general duty of disclosure and seeks to preserve the normal rule about confidentiality but otherwise we expect people like bankers and the like to come forward as witnesses to give evidence about the survival of any missing person. I would suggest to the noble Earl, Lord Selkirk, that, although the court is not bound to follow these recommendations, it is very likely to do so and therefore, bringing a guarded discretion, accepting the standard laid down in Clause 2 and taking account of evidence from this kind of source, the court will be able to make a judgment of the kind that it is accustomed to make in similar types of proceedings.

To deal briefly with the next question, the noble Earl asked whether any party could raise the question of whether adequate inquiry had been made. First, the court itself, if it approaches the matter as the noble Earl and I would surely expect it to do and brings a guarded discretion, would put itself in an undefended action in the role of a contradictor and thus require that adequate inquiry be made. Secondly, of course any person who can qualify interest to intervene in the proceedings may do so and come forward and make representations about the adequacy. Thirdly, the persons who are listed in paragraph 82 and whom one would expect to see figuring in the rules made by the court, if the court so decided, include the Lord Advocate acting in the public interest. This, again, is a matter with which the Lord Advocate is well accustomed to dealing and it so happens that, because of his jurisdiction over the Procurator Fiscal in Scotland and, through the Procurator Fiscal, his connection with the police, he has particularly good access to information about many persons. Thus the Lord Advocate could properly come forward, if he had any information, and make representations about the adequacy of the inquiry. I hope that answers the point the noble Earl raised.

Lord Campbell of Croy specifically mentioned that he thought that possibly there was a misunderstanding by the Scottish Law Commission of technical insurance matters. I wonder whether I could invite him to specify more precisely what he thinks that misunderstanding to be, because, quite frankly, we have not been able to follow the submission by the insurance companies, which, of course, was made through a Member of the other place and brought to our attention, as to precisely what that misunderstanding is. We would certainly be happy to give consideration to it if the noble Lord can specify more precisely what that misunderstanding is said to be.

I would, however, say this to him: if he looks at the construction of Clause 5 in the Bill, which is the relevant one in relation to this particular matter, the real test is to be found in subsection (2) on page 4, about line 30 onwards. The test is there that the court may make such further order, …as it considers fair and reasonable in all the circumstances of the case The part to which the noble Lord referred, in paragraph (b) of subsection (3) of Clause 5, is introduced by the words: … the court shall, so far as practicable in the circumstances, have regard to the following considerations … and the main one, in paragraph (b), is, … that any capital sum paid by an insurer as a result of the said decree … or any part of such sum should be repaid … So the court is bound to have regard to that. It is not bound by Statute, as I read this Bill, if it becomes an Act, not to have regard to the matter within the brackets in paragraph (b). In other words, there is no prohibition upon looking at some such matter. If the insurance company were able to demonstrate that a particular payment which appears to fall within the words, annuity or other periodical payment was of such a character that it was unfair and unreasonable in all the circumstances of the case not to take account of the character of that, then I am quite certain the court would be free to have regard to such a representation.

I do not know whether that answer satisfies the noble Lord, Lord Campbell of Croy, or the noble Earl, Lord Selkirk. I should like them to consider that before the next stage is reached, and I would certainly renew my invitation to the noble Lord, Lord Campbell of Croy, to specify the misunderstanding if he can. We would certainly like to go back to the Law Commission and ask them whether that misunderstanding is a genuine one.

In closing, I would apologise to the noble Lord, Lord Campbell of Croy, for interrupting him. I thought that these two matters might be taken separately. I now fully understand why he addressed himself to the matter in the way that he did.

8.17 p.m.

Lord CAMPBELL of CROY

I think it might be convenient if I tried to deal with the point the noble Lord has just put to me. I start by saying that this is a complicated and technical matter. Lest there be any misapprehension about what I said, my words were that I believed that the intention of the Scottish Law Commission may not be precisely reflected in the Bill due to a misunderstanding on technical insurance matters. Where that misunderstanding has occurred I would not know. I was not suggesting that the Law Commission had misunderstood. Somewhere between the Report of the Law Commission and action being translated into this Bill, I believe there may have been a misunderstanding, but I would not attribute it necessarily to the Law Commission.

The noble Lord asked me whether I could be more specific about where this misunderstanding has occurred. I understood that the life insurance companies in Scotland had addressed their grievance about the Bill to the Government, and the noble Lord has confirmed that; so I had not written to the noble Lord beforehand to try and explain this because I knew that he would have already received their representations. The way it has been put to me is this, that there are to be excluded, as the Bill is at present, capital sums which have been distributed by way of, an annuity or other periodical payment". The term, "other periodical payment" would include sums which may be largely distributed by way of income benefit, and "income benefit" appears to be a technical term in the insurance world. The insurance companies believe that this kind of payment is in effect a capital sum payment, following death, at stated intervals, and, as I said earlier, they do not see why that form of payment should be expressly excluded from the Bill.

Turning to paragraph 107, which is the key one, in the Law Commission's report, it appears that the Commission was thinking of that kind of annuity which, even if it has a capital content, should be regarded as irrecoverable. That seemed to be the point, that they thought there was a kind of insurance payment which would be irrecoverable anyway. But an income benefit—that is the technical term apparently—is a wholly capital sum payable in instalments and is in no way an annuity or the income or fruits of an estate. That is why the insurance companies in Scotland who are concerned with this kind of policy believe that the provision that capital sums paid by instalments should be excluded from Clause 5 of the Bill is not consistent with the intention of paragraph 107 of the Law Commission's report.

I have tried to give a brief explanation in reply to the noble Lord. I agree with him that this is something which does need further thought and consideration between now and the next stage. As this is the Committee stage and we have the opportunity of speaking more than once, I naturally rose immediately to try to give the noble Lord a brief explanation in response to his request. I hope that following what has been said this evening it will be possible for those who are drafting and assisting with this Bill to look very quickly at what I have said in the light of the representations that have been received from the life offices in Scotland, and see whether the point can be clarified, or if the explanation the noble Lord has given or some other explanation will satisfy the apprehensions of the companies in Scotland.

Lord RITCHIE-CALDER

I should like very briefly to intervene here, because I am going to leave my noble friend to clarify the matter. As I said at the beginning, I am very bad on the small print, and this seems to me to be very small print indeed.

Lord CAMPBELL of CROY

But important.

Lord RITCHIE-CALDER

I would remind noble Lords that my noble friend pointed out—and, speaking as a layman, it seems to me that he was right to point out—that the court "so far as practicable in the circumstances" must "have regard to the following considerations". I should have thought that those considerations included precisely what has been said about the nature of the annuities. I do not know what a lawyer would make of it, but on reading it again I do not think that the words in brackets: that any capital sum paid by the insurer as a result of the said decree (other than a capital sum which has been distributed by way of an annuity or periodical payment)". would preclude the court.

Lord CAMPBELL of CROY

Perhaps the noble Lord would give way in order that we may deal with this point. In that case it seems quite unnecessary to place this specific exemption in the Bill. The courts are being given very wide discretion. Why include an exemption at all? Why not let them have discretion over this too?

Lord RITCHIE-CALDER

I shall simply say that I should like to see the courts given all the discretion they want. I feel sure that the courts would exercise a discretion very much in the light of what would be the genuine concern of insurers. However, I think that I must rely on my noble and learned friend to give us whatever legal reservation he has about what I have said.

The Earl of SELKIRK

Perhaps I could dispose of the first Amendment before we deal with the second and third: it will be a little easier. I am grateful to the noble Lord, Lord Ritchie-Calder, for what he has said, and particularly to the noble and learned Lord, Lord McCluskey, for the point he made about evidence.

I should like to ask one or two questions. First, the insurance companies are the only parties interested who have an interest in life. In the majority of cases most other people will want to prove death. The insurance companies therefore want to place as much emphasis as possible on finding out whether there is any evidence that the person is alive. I should like the noble and learned Lord to check how much negative evidence he wants before it comes to a balance of probability.

I appreciate that this is quite a difficult point, but I wish to put it in two forms. First, investigations cost money. I imagine that if Government Departments are asked it becomes a matter of public expense and they would no doubt cooperate. But if inquiries have to be made in Argentina, Australia or elsewhere, that would cost a great deal of money and the promoters of the action will not want to spend more money than is necessary. I take it that the courts can say that they have not had enough negative evidence. Secondly, as an interested party the insurance company could also say that they do not think that the lines of inquiry have been taken far enough in order to prove the negative point that they had in mind. Those are the two points which I want to put to the noble and learned Lord. If he can answer them I shall gladly withdraw this Amendment.

Lord McCLUSKEY

I am grateful to the noble Lord, Lord Campbell of Croy, for the further explanation that he has given. It will certainly be considered. As regards the other point that possibly someone has, as it were, mistranslated paragraph 107, I must repudiate that because the Law Commission did us the service of producing a draft Bill. At page 74 of the report the noble Lord will find that the words to which he refers within the brackets on lines 15 and 16 of the present print of the Bill are taken from the Law Commission's own draft Bill.

On the question of cost, I certainly do not dispute what the noble Earl, Lord Selkirk, says. I would suppose that most cases will either be cases in which the pursuer in the action is supported by legal aid or cases in which the expectation of benefit from the estate is such that it would warrant expenditure in removing the obstacle between the pursuer and achieving the benefit of the estate. I do not think that I can go further than that. I, personally, certainly have had some experience of appearing in this kind of action, either in relation to married persons under the 1938 Act or in relation to the 1891 Act, or even in relation to common law petitions. One must produce such evidence as one can—as a result of advertisements that are placed—of persons who would know if the missing person was still alive; for example, relatives, friends and so on—from wherever he may have connections, whether it be Australia, Argentina or elsewhere.

It is not my experience that in the past these inquiries have been enormously expensive. But, of course, if an insurance company was to come into the process—as it would be entitled to do if it has any patrimonial interest—and if it was to insist upon expensive inquiries and these inquiries were to draw a blank, that would help to enable the court to arrive at a decision on the discharge of the onus of proof. It may be that the insurance company would be unable to cavil at some order made upon it to pay the costs of such inquiries as it had caused to be made and which have turned out to be fruitless. I hope that that deals with the point made by the noble Earl, Lord Selkirk.

The Earl of SELKIRK

I am very grateful to the noble and learned Lord. He has fully answered my point. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clauses 3 and 4 agreed to.

Clause 5 [Effect on property rights of recall or variation of decree]:

8.36 p.m.

The Earl of SELKIRK moved Amendment No. 2: Page 5, line 15, leave out from ("annuity") to ("or") in line 16.

The noble Earl said: We have really discussed this Amendment quite fully already. I do not think that I can add anything very useful to it. The point that the insurance companies were making was that this was a capital sum paid every year for a certain time. They wondered—and this is very much the point which my noble friend Lord Campbell of Croy made—whether, in terms of the report or the intention of the Bill, this should be a compulsory repayment. The words in question which they doubted were the words which appear in the Amendment. The noble and learned Lord has said that he will look at it and I should be perfectly happy if he will do so. If he undertakes to do so I shall not press the matter any further.

Lord McCLUSKEY

The undertaking that I gave to the noble Lord, Lord Campbell of Croy, certainly covers Amendment No. 2 and would cover Amendment No. 3. It may be that in the light of that and having regard to the lateness of the hour, the noble Earl may feel able to withdraw both these Amendments.

Lord CAMPBELL of CROY

Before that happens perhaps I could say a few words. The noble and learned Lord, Lord McCluskey, realised that I raised this question on the first Amendment because, if that had been acceptable, I do not believe that it would have been necessary to have these as alternatives, as the first Amendment would have subsumed this point. The noble Lord, Lord Ritchie-Calder, said—and I congratulate him on having gone into all these matters, but sympathise with him about the complications—that this was a point in the small print. I would only add that it is none the less a very important matter for life insurance in Scotland. Scotland has been a leader in the world in insurance matters and particularly in life insurance. Therefore, it is something that matters, even though it is a complicated and technical point, which I entirely accept.

I am grateful that the noble and learned Lord, Lord McCluskey, has said that he will look into this general question. I hope that we shall get a satisfactory answer at a later stage. This has appeared in the Bill due to the possibility of a change in the sense between the paragraph in the report and the drafting of the Bill. I have the greatest respect for the Parliamentary draftsmen who have been assisting the Scottish Law Commission. One of them is a very old friend of mine, one whom I have known most of my life and who has just retired. I know that there is great difficulty in translating a paragraph from a report into the language of a Bill. It may simply be that in the course of that translation there has been a slight change of sense which was not intended.

The Earl of SELKIRK

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Remaining clauses and Schedules agreed to.

House resumed: Bill reported without amendment.

Report received.