HL Deb 17 June 1982 vol 431 cc712-9

3.36 p.m.

Lord Mishcon

My Lords, I beg to move that this Bill be now read a second time. This is a short Private Member's Bill which has passed through its various stages in another place and was selected by my honourable friend the Member for Kettering, who had gained a place in the ballot. I am indebted to him and to my honourable friend the Member for Pontypool, who argued the case for the Bill in another place with great lucidity and ability. But especially am I grateful for the courteous assistance I personally have received from officers of the department of the noble and learned Lord the Lord Chancellor, and I shall refer in particular to that later.

The Bill is meant to cover a small but not unimportant minority of people and cases who may be most unfairly and devastatingly affected by a certain doctrine of our common law. In its general terms it is a good and proper doctrine and no reasonable person could take exception to it. It is that if a man or woman is criminally responsible for the death of another, neither he nor she, nor their personal representatives, can be entitled to reap any financial benefit from that act. As Lord Justice Salmon (as he then was) said in Gray v. Barr, which was reported in 1971, 2 All England Reports at page 974, it would in general, shock the public conscience if a man could use the courts to enforce a money claim either under a contract or a will by reason of his having committed such acts ". The prohibition extends not only to contracts or intestacy or under the Inheritance (Provisions for Family and Dependants) Act 1975 or a donatio mortis causa, but also to the receipt of allowances or pensions to a widow or widowed mother under the Social Security Act 1975.

Experience has shown that there are cases—few they may be, but they are hard cases—where the public conscience would not, in my submission, want those forfeiture provisions to apply. I instance, by was of example, mercy killings, the survivor of a suicide pact initiated perhaps by the non-surviving party, and battered wives driven almost beyond the borderline of sanity and insanity by the cruelty of their spouses. In such cases the court will normally have been merciful and will very likely not have awarded any custodial sentences.

However, it is not at present clear in law beyond a peradventure, despite some dicta to the contrary, including those of the Lord Chief Justice recently, that a procedure is available and a discretion vested in our courts, or in any other body for that matter, to say that the absolute forfeiture provisions do not apply to the unfortunate person concerned, who may thus be left destitute, and in addition an otherwise unexceptional doctrine may perhaps quite indirectly, and possibly unconsciously, have inflicted suffering on completely innocent children.

What is clear is that at present even if there is discretion and a procedure—both of which I repeat are by no means free from doubt—it is an all or nothing situation; either all the pension, or none; either all the interest under the estate, or nothing. On the basis that there is not complete rigidity in this doctrine—and there are, I must concede, dicta of the Lord Chief Justice, as I have mentioned, in 1981, and Lord Justice Salmon in 1971, which would appear to show that there is not complete rigidity—this is what the right honourable and learned gentleman the Solicitor-General said in another place on the Bill; and I quote from col. 7 of the Official Report of Standing Committee C, of 17th March last: One element of the rigidity of the present procedure which merits close investigation is the all or nothing nature of it. Sometimes I think that the practice of leaving the courts to use their discretion has proved to be good. I should be happy to see the courts develop the use of discretion on the application of the rule, now that it has been established. The Lord Chief Justice has shown how the law may be developed on whether there should be an absolute bar. I am worried that it should be all or nothing. If the court decides no bar, all the benefits follow. If it says bar, all the benefits are lost. I do not see how the court itself could deal with that difficulty. The question before the court is whether the bar should operate ". I should like to say in parenthesis that the right honourable and learned gentleman was dealing with the law as it now is, though it is hoped that it may be amended by this Bill. He went on to say: I suggest that we should consider whether to give the court discretion to soften the effect of the rule by saying that it must uphold the rule and that it would be wrong to inherit in the normal way, but that there are mitigating circumstances which mean that it is not necessary, in the public interest, to apply the rule rigidly. I must inform the promoter and the hon. Member for Pontypool that I would be interested in a practical way of applying that. There is a gap there which I should like to see filled ". That ends the quotations from the right honourable and learned gentleman's contribution to the Committee stage of the Bill in another place.

It is precisely that which the right honourable and learned gentleman was seeking to do that this Bill seeks to do. Here I again express my gratitude for the assistance and advice that I have received from the department of the noble and learned Lord the Lord Chancellor, without, if I may emphasise it, the department, the noble and learned Lord, or the Government being committed in connection with the advice and assistance which was so readily made available to me. I at once concede that there are certain matters which ought to be clarified and indeed incorporated by way of amendment in the later stages of the Bill.

First—and this was the understanding clearly reached in another place; and I make it abundantly clear—the Bill does not, and must not, be made applicable to a conviction for murder. Secondly, the procedure has to be made clear as to how applications can be made, to whom, and within what time limit. Provision has to be made for cases of a legatee who may not come within the provisions of the Inheritance (Provision for Family and Dependants) Act 1975. Indeed, upon reflection there should be amendments for various reasons, so that the Act to which I have just referred—the Inheritance (Provision for Family and Dependants) Act—should not be made the main vehicle, or possibly not at all the vehicle, for the procedures under the Bill.

In regard to social security, I am happy to say that it seems that the department would be prepared to assist by agreeing, if the Bill became law, to cases involving pensions and allowances under the Bill going direct to one of the commissioners. Indeed, it would I think be apparent that the ordinary procedures in regard to the award of social security would not be appropriate to the cases with which we are dealing under the Bill.

As I say, these matters will be covered by amendments, and I shall be only too grateful if I may continue to receive assistance from the noble and learned Lord's department, to which I have already expressed gratitude. For the moment I have dealt, and am dealing, only with the principles of the Bill—a short one, and, I hope your Lordships will think, a deserving one. My Lords, I beg to move.

Moved, That the Bill be now read a second time. —(Lord Mishcon.)

3.48 p.m.

Lord Fraser of Tullybelton

My Lords, I rise to make what might be thought by some not to be a Second Reading point, but to a Scots lawyer it is a Second Reading point. The question is: is the Bill meant to apply to Scotland, or is it not? The matter is very far from clear, because we find in Clause 5(2) a provision which states: This Act does not extend to Northern Ireland "; and I think that, in accordance with practice, that means that it does apply to England and to Scotland. Yet the principal clause of the Bill, the first one, is drafted in such a way that it is operated by inserting a new section in an Act called the Inheritance (Provision for Family and Dependants) Act 1975. That is an Act that applies to England, but not to Scotland or Northern Ireland. So if that section is inserted in the English Act, it will I think have no effect in Scotland, nor indeed will it have an effect in Northern Ireland. Therefore, I do not understand why Clause 5(2) expressly says that the Bill, when it becomes an Act, is not to apply to Northern Ireland.

That is the basic point. There is a refinement on it, which is this. The later clauses of the Bill—Clauses 2, 3, 4 and 5—are not put in by way of an insertion into the 1975 Act, so that on the face of them, they are free to apply to Scotland, if that is the intention, and there is no exclusion of Scotland in the commencement and extent clause at the end. So the position might be that Clauses 2 to 5 of the Bill would apply to Scotland, and Clause 1 would not. I do not know whether or not that is intended; I rather doubt it. If it is intended, then we want to know, in relation to Clause 2, which gives various powers to the court, what "the court" means in Scotland. We know what it means in England, because it is defined in the inheritance Act; we do not know what it means in Scotland. From the point of view of a Scots lawyer, without being disrespectful to the noble Lord opposite, I do not think this is a very happily drafted Bill.

3.50 p.m.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, I think this is probably a suitable moment of time, if no one else wants to address the House—and the noble Lord, Lord Mishcon, will have the opportunity to reply when we are all finished—for me to declare the position of the Government on this Bill. The Government are neutral on this Bill, as they always are on Private Member's Bills—and in this case this means not merely nominally neutral but really neutral. It is absolutely open, so far as Government supporters are concerned, to take whatever line they care to take at any stage of the Bill, or in regard to any part of it.

As my noble and learned friend on the Cross-Benches, Lord Fraser, has pointed out, the Bill cannot go through in its present form because it is defective in a number of ways to which I shall come and of which the Scottish application is a notable example. But, as the noble Lord, Lord Mishcon, has indicated, the Government have promised him drafting assistance, and work on the necessary amendments is, I think, in a fairly advanced stage. I therefore hope that the drafting will not stop the Bill from getting through on any technical grounds. That is why we have given the drafting assistance.

That does not mean that we are necessarily favouring or not favouring the Bill—that is a matter for the House—but we hope that, with the assistance of the noble Lord who is in charge of the Bill in this House, and with the use of the resources at my disposal (and I was grateful for the kind words that the noble Lord spoke about my officials) so far as concerns any technical defects that the Bill may have, we can rest assured that by the time it reaches Third Reading it will be in a workmanlike state. The question which the House really has to consider, therefore, is whether it approves the general rule of which the noble Lord, Lord Mishcon, spoke and which he described.

The rule with which the Bill is concerned has been operative (perhaps I ought to say operative in England) for over a hundred years. It has of course always been a rule of our common law that a man may not profit by his own misdoings. But before 1870, when Parliament passed the Forfeiture Act, the application of this rule to felonious killing was masked by the forfeiture which automatically followed a conviction for felony. Since this automatic forfeiture was abolished in 1870, and since felony per se has been banished from English jurisprudence, the result has been that the old common law rule has begun to emerge from beneath its cover and has gradually been extended to the cases to which the noble Lord, Lord Mishcon, referred.

It applies, of course, primarily to inheritance from the estates of the victims in all cases where a person has been convicted of murder or of manslaughter. It applies to any case where such a person seeks to benefit from the estate of the victim whether as a result of a devise or legacy or on an intestacy. The rule, as the noble Lord, Lord Mishcon, indicated, applies indiscriminately. It applies whether to a mercy killing or to a deliberate murder; it applies equally to a serious or a relatively menial manslaughter. Such a case is Giles, where a wife was detained for hospital treatment and not sent to any custodial sentence after admitting that she had killed her husband by hitting him over the head with a chamber pot. It is probable (though, as the noble Lord, Lord Mishcon, pointed out, it is not quite certain) that it is either all or nothing. That is, if it is desired to mitigate the severity of losing all in every case, legislation on the lines of this Bill is almost certainly necessary.

The rule extends, as we have heard, to social security benefits; for instance, a wife's pension. That was decided only a year or two ago. ft has not, so far as I am aware, although I may be wrong, yet been applied to cases of causing death by reckless driving, but know of no reason why it should not be so extended. suppose (although, again, I am unaware of any case where it has happened) it would also apply to the statutory offence of infanticide.

There will, I think, as the noble Lord has said, be very few cases indeed where the Bill, certainly in its present form, will be needed. Clause 3 expressly excludes murder convictions, but of course the House may want to consider questions of so-called mercy killing and come to any conclusion it wants to. The total number of homicides and other relevant offences is still, luckily, rather low in this country. Therefore, noble Lords may wish to consider whether they desire to mitigate the full rigour of the rule or whether they consider there are enough cases likely to be affected to make legislation worthwhile.

Before we part with the Bill, there will, as the noble Lord, Lord Mishcon, has said, have to be some fairly drastic clarifying and other amendments. Should we retain Clause 3 of the Bill—it was inserted in another place for reasons which I think were compelling; namely, that the Bill probably would not have got through without it, and it may be that we think they are compelling here, too—it will be necessary to determine to what authority or authorities application should be made. That, of course, applies in England as well as in Scotland, but it also covers one of the points which was made by my noble and learned friend.

In particular, a question arises whether the authority to which application should be made should be the same in all cases, or whether, as the noble Lord, Lord Mishcon, suggested, social security payments should be dealt with separately. We may have to insert (indeed, I think we shall have to do so) a time limit for applications, because personal representatives, at least, will want to know within a given time whether it is safe to distribute the estate, and in what way. We shall also have to decide the question of Scottish application, which, as my noble and learned friend on the Cross-Benches pointed out, is not a straightforward matter on the present wording of the Bill. At present, it does not extend to Northern Ireland, and there is no particular reason why it should, but, equally, the House might want to consider that.

We shall want, too, to consider the method and date to select for commencement, because I do not think that this is the kind of measure which ought to come into force on the receipt of Royal Assent. Furthermore, if I may say this to the noble Lord, Lord Mishcon, I should rather like him to consider whether we can find another and perhaps less misleading title. The word "forfeiture" has a precise and rather different meaning in English law, and maybe in Scottish law, for all I know. I think at the moment that the Short Title might be improved.

These are all matters on which discussion is now taking place, and they will be disposed of in Committee. For my part, I remain entirely neutral. I would suggest that, unless the House were to think that the existing rule should be maintained in its full rigour, we should give the Bill its Second Reading and see what comes of our amending discussions. Of course, if the House were to take a view in principle hostile to the Bill, it might be as well to dispose of it now, to save us time later on. But I rather fancy, from the absence of a long list of names of noble Lords wishing to speak and from the intervention of my noble and learned friend, who has spoken about Scotland only, that on the whole the House is not hostile to the Bill. If, after the Committee and Report stages, the Bill becomes technically workmanlike, the House will have to decide the question then. In the meantime, the Government retain a neutral attitude.

Lord Elwyn-Jones

My Lords, the absence of a long list of names in relation to a Bill of so esoteric and refined a character is not entirely surprising. The House will be grateful to the noble and learned Lord the Lord Chancellor for indicating the matters in the Bill that call for remedy. I was not quite clear from the intervention of the noble and learned Lord, Lord Fraser of Tullybelton, whether, while he rightly protested about the ambiguity of the position in relation to Scotland, he was indicating that if it was made clear that it applied to Scotland, he would tend to give it his support, subject, as I understand, to technical amendment of the drafting of the Bill. If it is proper for me to invite him to do so, perhaps the noble and learned Lord might give an indication.

Lord Fraser of Tullybelton

My Lords, I did not intend to indicate any view on the Bill. It came to my notice only today. I am not qualified to speak for Scottish public opinion without at least canvassing some friends.

Lord Elwyn-Jones

My Lords, that was characteristic of the modesty of the noble and learned Lord. He has certainly reserved his position. In view of the willingness of the noble and learned Lord the Lord Chancellor to give assistance in the drafting of the matters that need amendment, your Lordships may think that the better course is to enable this Bill to have a Second Reading. I hope that my noble friend has not minded my intervention from the Front Bench. That is the course that I personally would welcome.

4.3 p.m.

Lord Mishcon

My Lords, I am grateful to those noble Lords who participated in this debate. It is a Bill about inheritance and sometimes one gets a legacy in a form which one finds rather embarrassing. It is a fact that I inherited this Bill from the other place. I feel that its principles are so right and sound that I am more than happy to try to pilot it through this House with the always courteous and kind assistance of your Lordships. I was the first to admit, as I must say in fairness was my honourable friend the Member for Pontypool, that it left another place in a somewhat defective condition. That is why I repeat my gratitude to the noble and learned Lord the Lord Chancellor who has profferred yet more assistance to see that the Bill is before your Lordships at its later stages in a far tidier and more practical form.

The noble and learned Lord, Lord Fraser of Tullybelton, with his usual courtesy, gave me notice just before I entered the Chamber of the point that he would raise. He will have noted that I said that, for various reasons, it may be that the Inheritance (Provision for Family and Dependants) Act should not be made the vehicle for this Bill because it might have the effect—I think that it would have the effect—of excluding Scotland if it were. Obviously, consideration will be given to the points that he helpfully made with a view to seeing that the jurisdiction point is clear and that the territory that the Bill is supposed to cover is clear and, at a later stage, I hope to give reasons for that territory which I hope will be satisfactory to the noble and learned Lord.

The noble and learned Lord the Lord Chancellor behaved with a neutrality that I hope we always have from our allies because it was a most helpful neutrality. In the circumstances, I thank him for it and especially the indication that your Lordships might see fit, in view of the fact that, if there is to be an amendment of the all-or-nothing rule, legislation is necessary and it would be a good thing for your Lordships to look at this Bill in its later and tidier stages and give the Bill a Second Reading.

My noble and learned friend Lord Elwyn-Jones, I find, never makes an intervention in a debate unless it is a useful one. He, too, has given me (if I may so interpret his words) a benevolent blessing in regard to the purpose of the Bill but has pleaded, as I myself would have pleaded, for a Bill to be before your Lordships in a more acceptable form. The principle is the one that I have adumbrated, I hope, to the satisfaction of the House today.

On Question, Bill read a second time, and committed to a Committee of the Whole House.