Orders of the Day — MARRIED WOMEN (RESTRAINT UPON ANTICIPATION) BILL [Lords]

– in the House of Commons at 12:00 am on 29th November 1949.

Alert me about debates like this

Considered in Committee.

[Mr. BOWLES in the Chair]

Clause 1. —(ABOLITION OF RESTRAINT UPON ANTICIPATION, AND CONSEQUENTIAL AMENDMENTS AND REPEALS.)

Motion made, and Question proposed, "That the Clause stand part of the Bill."

8.55 p.m.

Photo of Mr Henry Strauss Mr Henry Strauss , Combined English Universities

I desire briefly to oppose the Motion. This Clause is substantially the greater part of the Bill and the Committee would not wish a repetition of what took place at greater length on a previous occasion. The effect of omitting Clause 1 from the Bill would enable a variety of different provisions to be put in its place, which I realise it would be out of Order for me to deal with now, but hon. Members will find the alternatives upon the Order Paper. I only mention this to show that there are alternatives to Clause I of the Bill but as a necessary preliminary we have to omit Clause I.

The objection to the Clause—the only matter with which I shall now deal—is that it wholly disregards the wishes of testators and settlors before 1936. Testators and settlors from 1936 onwards have been able to effect whatever they wished, and that has produced similar or better results from their point of view than what was effected by the restraint on anticipation. They could use the protective trust, the discretionary trust or a forfeiture clause. All those methods were possible.

The one matter upon which I think every section of the Committee, as I think every section of the House, is agreed is that the doctrine of restraint upon anticipation should be done away with for the future. That was done by the Act of 1935. In the light of that Act, settlors and testators made such provision as they thought fit, and could bring about every result that they wished to bring about, as they can today, in order to achieve for the benefit of the woman beneficiary all the benefits that they thought accrued from the restraint upon anticipation.

It has been urged, I know, against the view that I am putting, that this will not be the first time that there has been a disregard of the wishes of testators and settlors in this matter, but I think it is, in fact, the first time. The only statutory provisions which have been cited in the course of our Debates, or which indeed could be cited, are such provisions as were contained in Section 39 of the Conveyancing and Law of Property Act, 1881, Section 7 of the Conveyancing Act, 1911, and Section 169 of the Law of Property Act, 1925, which is in the same language as, and indeed replaces, Section 7 of the Conveyancing Act, 1911.

All those sections enabled the court in a proper case to bind the interest in the property, notwithstanding the restraint on anticipation, but, of course, the merits would be gone into and the court would have in mind precisely the considerations that the testator or settlor might be presumed to have had in mind when he made the provision. We should not forget that all the settlements and wills that we shall be upsetting, if we allow Clause 1 to stand part of this Measure, will have been made, I suppose almost without exception, since 1881, and therefore with knowledge of the statutory provision which I have mentioned.

The only other matter I need mention, because, for the reasons I have given, I desire to deal with this matter very briefly, is that it would be quite erroneous to think that there is something specially onerous or insulting to women in those provisions of the law which the Clause seeks to abolish. The very wills and settlements which used the device of the restraint on anticipation in the case of daughters very frequently used those other methods I have mentioned, the protective trust, the discretionary trust or the forfeiture clause, in the case of sons. It is quite an error to think that a precaution of this kind was something peculiar to women. It was peculiar to women in the sense that the actual doctrine of restraint on anticipation could only be imposed in the case of a woman, but clauses which would have, I do not say an identical, but a similar and equally restrictive effect in protecting the income in the case of a son could be and infrequently were inserted.

9.0 p.m.

If we allow Clause 1 to stand part, we shall not only wholly ignore the wishes of settlors and testators before 1st January, 1936, but we shall also be abolishing a device which has very often, in the knowledge of all practitioners of the law and the public generally, been effective in securing that the wish of a father to provide for an income for his daughter in all circumstances during her marriage with a particular man, of whom he might know little, should be effective. It has prevented numerous women from losing all they possessed.

I hope very much that the Government will realise that, if they allow Clause 1 to go, they can get the reform of the law which will bring about everything which anybody can legitimately desire to bring about, and everything which led them to propose the reform, without the ill effects which I have mentioned. I. therefore, hope that the House will decide to negative the Clause.

Photo of Sir Arthur Harvey Sir Arthur Harvey , Macclesfield

I agree with my hon. and learned Friend the Member for the Combined English Universities (Mr. H. Strauss) that Clause 1 provides the bulk of the matter which we are discussing. I also agree with him that it does not allow the wishes of testators and settlors to be carried out. My contention is that testators and settlors knew their daughters, granddaughters and nieces far better than we do as legislators. It was suggested a few days ago by the Attorney-General that not much care was taken when documents were signed by the fathers, but I believe that they took infinite care to see that what they signed was what they really meant.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

The Attorney-General (Sir Hartley Shawcross) indicated dissent.

Photo of Sir Arthur Harvey Sir Arthur Harvey , Macclesfield

I see that the Attorney-General shakes his head. It is a matter of conjecture. It means going back some years. I imagine that the lawyers did very well out of it, at any rate. The hon. Lady the Member for Epping (Mrs. Manning) referred to this matter and emphasised the position of women with a small income, perhaps of £100 a year. I do not think that such women are affected by this Measure. The parents of women receiving small annui- ties probably did not trouble to tie up the money. We are probably dealing with sums bringing in a minimum income of £300 to £500 annually.

Photo of Mrs Leah Manning Mrs Leah Manning , Epping

Does not the hon. and gallant Gentleman think that a man who has had to work very hard in order to secure an income would be one of the very first to tie up his money in the fear that some wolf would devour it before his daughter could get at it?

Photo of Sir Arthur Harvey Sir Arthur Harvey , Macclesfield

The hon. Lady may be quite right but she is bearing out the point which I made previously, that they took care to see that the money was tied up. I hope that the hon. Lady will speak on this Clause and try to tie up the Attorney-General. Today we are discussing this matter of the freeing of money, and only last weekend the Lord President of the Council was referring to a large sum of money which was to be received by Mr. Lord of Austin's, a man who has been making a great contribution to the solution of present-day difficulties and employing 20,000 odd people. Under this Clause we are freeing something which, in one or two cases, will amount to £20,000 to £40,000 a year income which these people would not otherwise have got.

It seems wholly out of place that the Bill should be hurried through in this way. Had we been able to take a free vote on this matter in the first place, the Government might have been defeated. As it was, few were here to express their views or to vote. The hon. Member for the Aston Division of Birmingham (Mr. Wyatt), who is not in his place tonight, made a most dreadful speech. It was nauseating. He said that we were offended because Lord Mountbatten had betrayed the Tories. I never knew that he was with us anyhow, and I do not know that we particularly want him, but he is a fine officer and I do not think politics come into this in any way.

I shall end by making one reference to Clause 2, which is the shortest Clause in the Bill—

Photo of Mr Francis Bowles Mr Francis Bowles , Nuneaton

The Question before the Committee is that Clause 1 stands part of the Bill—not Clause 2.

Photo of Sir Arthur Harvey Sir Arthur Harvey , Macclesfield

Then, on Clause 1, Mr. Bowles, I will refer to the name at the top of page 1. A better name would have been the "Husbands Assistance Bill."

Photo of Mr Anthony Marlowe Mr Anthony Marlowe , Brighton

I also support those who wish to see this Clause negatived, because I have not yet found any case made out for it. I approach the matter in this way: obviously, when one is disturbing the will of a deceased man, one is undertaking a solemn act. Presumably, when a will has contained this clause, it has been put in for a reason by the testator, and it is a reason which may never be known to any of us. The right hon. and learned Gentleman, on Second Reading, said that he imagined that in most cases it was put in merely because it was a pro forma clause, and that most lawyers inserted it automatically. That may well be so in a number of cases, but we are not dealing with that number of cases—we are dealing with all cases. There may equally be a large number of cases in which the clause was put in with solemn thought for a purpose, to safeguard a certain situation.

I cannot help feeling that we are doing a serious thing when, in the dark in this way, we are disturbing the will of a person who has undertaken this solemn act and is no longer here to explain his own actions. When undertaking such a task as that, obviously the onus is on those who put it forward to establish some reason for so doing. I have heard no reason whatever during the progress of this Bill as to why this action should be taken at any time, and at this juncture in our affairs in any event. I would much prefer that in place of this Clause there should be some protection left so that at least the matter should be under the control of the court and that only by application to a judge should the restraint be removed. I will not pursue that line, Mr. Bowles, because we are debating the Question, "That the Clause stand part of the Bill," but I put it forward as an argument on the question of whether the Government, who introduced this Clause, have discharged the onus of satisfying this House that it is a reasonable one to introduce now.

On the question of time, it seems unfortunate at this period in our history, when an acute crisis is once again being undergone by the country, that such a Clause should be introduced which has the effect of unfreezing certain assets which were otherwise frozen. The Government have called upon the trade unions to freeze wages. They have themselves frozen post-war credits, they have themselves done everything they could to prevent further money from being put into circulation, except in this instance, where they have suddenly, for no apparent reason, adopted the precisely opposite policy and, while they expect the workers of the country to have their wages frozen, they think it justifiable to unfreeze the fortunes of heiresses. I regard that as a most unfortunate thing to do at this particular time, and for that reason, and for others which I have already explained, I shall be bound to oppose this Clause.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Daventry

I hope that, when the right hon. and learned Gentleman comes to answer the questions put to him by my hon. and learned Friend, he will have something to say about the point made during the Second Reading Debate by the hon. and learned Member for East Leicester (Mr. Donovan), because in the consideration of this Bill it is a rather material point. The hon. and learned Gentleman then put forward the view that this removal of restraint upon anticipation would not really be to the benefit of anyone who wanted to sell the top slice of their income to somebody or other for a capital payment, because the liability for Surtax Would not in those circumstances be avoided. I think that was the gist of the hon. and learned Gentleman's argument. I should like to ask the right hon. and learned Gentleman whether he agrees with that view, and, if he does, what is the particular case which makes it of such importance that we should now press on with this Bill in its present form.

I take the view that there should be power to relieve against restraint upon anticipation in cases where that relief is desirable. I said on Second Reading that I thought the case for such relief was overwhelming. I do; but this Bill, which shows all the signs of haste, while abolishing the restraint upon anticipation which was imposed before 1933, does in fact remove a protection from some married women where I have no doubt that protection is just as necessary today as it has been in the past, and where I have no doubt the testators were quite right in seeking to impose such protection.

I must say that I think it is deplorable that the Government should not have sought to bring before this House a Bill which, while giving facilities for relief from restraint upon anticipation, at the same time endeavoured to allow that restraint to be maintained in cases where its maintenance was both necessary and desirable. I think that could have been done, either by saying that the restraint should not be inoperative save with the consent of the trustees, or, alternatively, should only be inoperative—

Photo of Mr Francis Bowles Mr Francis Bowles , Nuneaton

I am sorry to interrupt the hon. and learned Gentleman, but he really must not make either a Second Reading speech or alternative proposals, which it was in Order for him to do on Second Reading.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Daventry

I am certainly not endeavouring to make a Second Reading speech; in fact, I had almost concluded my remarks. I thought I was addressing myself strictly to this Clause and to reasons why it should not stand part of the Bill. In my submission, this Clause is defective in that respect, and I was indicating, I hope very shortly, that there were two possible methods, either of which might have met the particular defect which I find exists in this Clause. One of them was by saying that the restraint could only be inoperative with the consent of the trustees, and the other was by saying that it could only be inoperative with the consent of the court. That is my objection to the Clause in its present form, and I hope that the right hon. and learned Gentleman, when he replies, will not only satisfy my objections to this Clause, but will also resolve the problem raised by the hon. and learned Member for East Leicester.

9.15 p.m.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

Perhaps I might at once pick up the point which has just been raised by the hon. and learned Member for Daventry (Mr. Manningham-Buller). The hon. and learned Gentleman asked what view I took in regard to a proposition that was put forward by my hon. and learned Friend the Member for East Leicester (Mr. Donovan) in regard to some aspect of taxation law. I must say at once that I do not propose to be drawn into that matter, and for this reason. I made it, I hope, abundantly clear in the course of our Debate on Second Reading that my right hon. and learned Friend the Chancellor of the Exchequer, as myself and as the rest of the Government, adheres firmly to the view that the question of the effect of the proposed changes in this Bill upon Revenue is utterly irrelevant to the proposal contained in it.

It has never been suggested, as far as I know—and I should be surprised if the hon. and learned Gentleman is now going to be the first to suggest it—that it should become a principle of our law or of our legislative policy Chat a man's power to dispose of his property as he chooses should be restricted in favour of the Revenue. We do not think it right in considering this Bill on its merits to consider whether or not this alteration in the power of a married woman to deal with her property as she chooses will or will not affect her liability to pay tax. If this proposal is right on its merits so far as married women are concerned then it remains right, although it might result in some reduction in Revenue. If it is wrong on its merits, then the Revenue position is not affected.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Daventry

I have certainly not sought to suggest that our conclusions on this matter should be determined by the impact of the Revenue laws, but I do think it material, now that the point has been raised from the right hon. and learned Gentleman's side of the House by the hon. and learned Member for East Leicester, who is something of an authority on these matters, that we should have an answer to the point from the right hon. and learned Gentleman.

Photo of Mr Henry Strauss Mr Henry Strauss , Combined English Universities

I understand the force of the argument which the right hon. and learned Gentleman has just used, and for the reason he has given I appreciate his argument that the consideration is irrelevant. But that was not the view taken by the Financial Secretary to the Treasury in winding up the Second Reading Debate. The Financial Secretary expressed a view in agreement with the hon. and learned Member for East Leicester (Mr. Donovan), so that I think it is a little difficult for the right hon. and learned Attorney-General to treat it as quite irrelevant.

Photo of Mr Terence Donovan Mr Terence Donovan , Leicester East

The hon. and learned Gentleman is quite wrong in saying that the point was raised from this side. What actually happened was that it was raised from the other side, namely, in the contention that if this Bill were passed Surtax would be avoided. I merely said that would be wrong, and that, therefore, the objection which the Opposition had to the Bill had no foundation.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

I think that my hon. and learned Friend has finally and certainly effectively disposed of the point raised by hon. Members opposite in order to sidetrack discussion on the real merits of this question.

Photo of Sir John Mellor Sir John Mellor , Sutton Coldfield

I will read to the House what the Financial Secretary to the Treasury said in his winding-up speech on 7th November: I should now like to deal with the Inland Revenue point. It has been said, particularly by those opposing the Bill, that if the Bill is passed there will be a diminution of revenue from Income Tax and certainly from Surtax. The speeches made by my hon. and learned Friend the Member for East Leicester (Mr. Donovan) and the hon. Member for Chichester should dispose of that suggestion.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

The hon. Baronet would, I think, have been a little more frank with the Committee if he had read the next sentence. I will read the next sentence for the hon. Baronet—

Photo of Mr Francis Bowles Mr Francis Bowles , Nuneaton

Order. The Attorney-General has possession of the Floor and, unless he chooses to give way, the hon. Member cannot get possession.

Photo of Sir John Mellor Sir John Mellor , Sutton Coldfield

On a point of Order. The right hon. and learned Gentleman made an aspersion and said I had not been frank, but I would have been most willing if he had allowed me to read further.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

I do not want to make any aspersion against the hon. Baronet. I am sorry he feels so sensitive about the matter, but the point we were discussing was whether the Financial Secretary did concede that the Revenue argument was relevant to this Bill. That was the point, not whether my hon. and learned Friend the Member for East Leicester was right or wrong, but the question of whether the Revenue argument was relevant. That was the point to which the hon. Baronet ought to have directed his mind when he thought it right to intervene in the Debate. What did the Financial Secretary say about it? In any case, supposing it were true, it is no argument against the Bill. It is not, and never has been, the view of the Inland Revenue that persons should be compelled to retain property so that they would have to pay tax upon it. If hon. Gentlemen opposite desire that policy to be embodied in the law of the land, they can put the proposal forward at the proper time."—[OFFICIAL REPORT, 7th November, 1949; Vol. 469, c. 1011.] I am bound to say, having refreshed my memory as a result of the intervention of the hon. Baronet, that the matter was far better put by the Financial Secretary on that occasion than I put it myself a moment or two ago. What is perfectly clear about the matter is that at all times the Government have taken up the consistent position that the Revenue argument is totally irrelevant to the merits of the proposal now before the House and, consequently, I do not propose to pursue it any further.

Photo of Mr Anthony Marlowe Mr Anthony Marlowe , Brighton

May I put a point on that? I can see the argument of the right hon. and learned Gentleman on the merits but, of course, there is the argument I and others put forward on the question of the timing of this Measure—

Photo of Mr Anthony Marlowe Mr Anthony Marlowe , Brighton

The question of whether or not the Revenue suffers is important on the question of timing.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

No, I am afraid I cannot accept that view at all. The question of timing is another point and I cannot accept that it has any relevance to the Revenue aspect of the matter. I do not accept that it can ever be right to deprive a woman or a man of what on the merits of the case he or she is entitled to merely because of the effect on the Revenue.

I rather suspect that the speeches to which we have listened this evening have been those of the second eleven. Those hon. Members opposite who took a prominent part in the Second Reading Debate have for the most part stayed away from the Committee stage and the second eleven have been put in to bat, but I could not help feeling that they showed evidence of practice at the nets under the same coach and repeated very much the same kind of argument. I do not complain of that, because, after all, we are discussing Clause 1 of the Bill and, as there are only two Clauses and the second is merely the short title Clause, debate on Clause 1, if it took place at all, was almost inevitably bound to cover much the same ground as the Second Reading Debate.

On Second Reading the points of substance raised by hon. Members opposite were very fully canvassed and the House decided by a very considerable majority to give a Second Reading to the Bill, and I should be quite disloyal to the decision of the House on Second Reading, if I attempted to go over the various points on the merits which were raised by hon. Members on Second Reading at this stage of the Bill.

The hon. and learned Member for the Combined English Universities (Mr. H. Strauss) devoted himself as far as he was able within the rules of Order to canvassing the merits of the Clauses which stand upon the Order Paper in his name, but for which he thinks unfortunately there may not be an opportunity of discussing at a later stage of the Bill. Obviously I cannot follow him in that. But the hon. and gallant Member for Macclesfield (Air-Commodore Harvey) and the hon. and learned Member for Brighton (Mr. Marlowe) following, I think, a tendency which exhibited itself in our Second Reading Debate and which has been manifested in certain of the newspapers since, took perhaps a rather different and, I think, more regrettable line.

I ventured to say on Second Reading that this was a subject which we ought to try to discuss objectively and on the merits, but that it was manifestly one which provided an opportunity for demagogy. I cannot help feeling that it is a matter for regret that certain hon. Members opposite have been unable to resist that opportunity and some of them, with complete cynicism and in complete disregard of their more usual rô le as protectors of the more moneyed classes in the community, are pretending and have pretended before the Committee today that this Bill gives preferential treatment to the wealthy, and they are pretending to oppose it on that ground.

I say nothing whatever about the real grounds which may be inspiring the opposition of some hon. Members opposite, but I think what hon. Members opposite are now seeking to do—hon. Members who, when it suits, have shed pious tears about the so-called class war—is themselves to provide ammunition—unfused ammunition, rather blank ammunition it may be, but nevertheless ammunition—for the class war. They want to create ill-will between the more wealthy classes of the community, whom they have hitherto sought to represent, and those who are less fortunately placed. They want to suggest that the workers, who have hitherto shown such admirable restraint in not asking for increases in their wages, are being treated in one way and that heiresses are being treated in another.

If a married woman whose father has left her perhaps £4,000 to £5,000, from which she is receiving an income of £3 per week before she pays her taxes, is in the heiress class, then this Bill may assist some heiresses. At any rate, it assists them on this question—that whether they are married or single they will be treated on exactly the same basis and be subject in the same way to the full rigour of the Revenue laws. No special disability will fall upon them as a result of their marriage; no special disability will be removed from them as a result of their divorce.

That is all this Bill does, and to say that it is one which favours heiresses at the expense of the rest of the community is really most unhappily misleading. Hon. Members opposite are pursuing tactics which are too obvious to cause us much anxiety or concern, but if they were not suffering from the mental myopia which is so often an occupational disease of Members of the Tory Party, they would appreciate that this argument which they are using tonight may very easily recoil upon their own heads at some later stage.

9.30 p.m.

Since this Bill was introduced and passed here on Second Reading, the evidence has been accumulating as to the need for it. Many letters have been received, I expect, by hon. Members on both sides of the Committee as well as by myself. I have not, as a matter of fact, received a single letter in opposition to this Bill. I do not attach undue importance to that because I think that, very often, people write letters to the Members whom they think are likely to support their particular view. They knew that I was supporting this Bill, and if they were opposed to it they would have been more likely to write to hon. Members on the opposite side of the Committee. However, the fact is that I have received no letters in opposition. I would just read to the Committee, if I may, because it conveys the whole essence of the matter far better than I can myself, the last letter I have had. This is from a lady who says: I hesitate to add to your very heavy correspondence, but as one who is to benefit under the Married Women (Restraint upon Anticipation) Bill I feel I must tell you with what deep appreciation I have just read the full text in HANSARD of your speech in moving the Second Reading.

A very intelligent woman. I have for years felt bitter resentment that, as a comparatively capable business woman, I was restrained from dealing as I thought fit with my own property. In trustee stock it brings me in an income of £150 a year. Had I freedom to deal with the capital myself, and to invest a portion of it either in my own or my husband's business, it might make a substantial difference to our position.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Daventry

Will the right hon. and learned Gentleman say that she will have freedom to deal with the capital herself?

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

It depends entirely on the terms of the trust. There may well be complete freedom to deal with it herself. It depends entirely on the terms of the settlement. The hon. and learned Gentleman must know perfectly well that under some provisions, some wills, apart from restraint on anticipation, a woman has complete freedom to deal with the property as she wishes. That, I thought, was one of the points that had been made on Second Reading in regard to the position that some heiresses might find themselves in, where, if there were other beneficiaries, there might be agreement between the beneficiaries to put an end to this altogether. But, of course, there are cases where there are no other beneficiaries involved at all. Then she goes on: There is, too, in the minds of people, like ourselves of limited resources, a constant fear of being faced with a situation similar to the heart-rending case you quoted in the House, and I believe that when this Bill becomes law it will bring peace of mind and a sense of security to a great many homes—not the sort of homes that Lieut.-Commander Braithwaite, in his lamentable ignorance of the situation, appeared to envisage, but of people of quite modest means. I know of four or five women whose position is similar to my own. In not one single case is a very large sum involved, nor do I think any of them or their husbands would regard the passage of the Bill as a sign for a spending spree.As to the possibility of seeking relief from the courts, this is, as you so rightly say, quite unrealistic. The legal fees which I myself have already incurred in seeking legal aid, and in taking counsel's opinion as to my position under the existing law, amount to several hundred pounds. All women benefiting by the Bill owe you a very deep debt of gratitude for the way in which it was presented to the House, and, speaking for myself, it is no exaggeration to say that the prospect of liberation has made the greatest possible difference to my own and my husband's happiness.

Photo of Sir John Mellor Sir John Mellor , Sutton Coldfield

I am really rather revolted by the smug self-satisfaction of the Attorney-General in the way he read that letter, because the right hon. and learned Gentleman knows perfectly well that if the Mountbatten Bill had passed into law this Bill would never have been introduced, and, therefore, the people from whom he has received letters would not have had the opportunity of writing them. Therefore, I really think that it was positively indecent of him to come to the Committee to try to take the credit. This Bill was introduced only when it was seen that the Mountbatten Bill was not likely to pass into law.

Photo of Mr Henry Strauss Mr Henry Strauss , Combined English Universities

I wish only to say a few words in answer to the right hon. and learned Gentleman, because he really was less than fair to the arguments I put forward. He was quite wrong in thinking that I had said a word, either inferentially or otherwise, on the merits of later Amendments, in respect of which Clause 1 would have to be removed before I could move them. I confined myself to the demerits of Clause 1. Nor did I mention any case of an heiress, or any of those points to which he devoted so large a part of his speech.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

I did not for a moment suggest the hon. and learned Gentleman did. I have mentioned the hon. Members with whom I linked that part of my speech.

Photo of Mr Henry Strauss Mr Henry Strauss , Combined English Universities

I entirely agree, but it follows from that that the right hon. and learned Gentleman has not dealt, or attempted to deal, with a single one of the arguments I put forward. The Committee need not be afraid that I am going to repeat those arguments, but I think it right that the Committee should realise that, while it is true that if this Clause goes through as it now stands some women will be benefited, it is also true that some women will almost certainly lose. Both those things are true. But what is absolutely certain is that the wishes of testators and settlors before 1936 will have been ignored, whereas, had the right hon. and learned Gentleman proceeded differently, or even if he proceeded differently at this late stage and let this Clause go, he could meet the cases that he has in mind without that wholesale disregard of the wishes of testators and settlors which he knows is shocking many eminent judges and practitioners in the Chancery Division.

Photo of Mr Anthony Marlowe Mr Anthony Marlowe , Brighton

I ask the Attorney-General to come back to the question of the loss to the Revenue, because although he has made his case on that aspect of the matter in relation to the merits of the Clause—in which I agree there is a considerable amount of force—that does not dispose of the matter. There are two aspects to be considered when we are deciding whether or not to pass this Clause: one is that of the merits of the case itself, with which I shall not deal again now; and the other is the question whether we ought to be passing such a Clause at this particular time.

We must always consider any legislation against the background of the time when we are dealing with it, and one of the great objections which I believe a large number of people have to this Bill—leaving aside whether it affects heiresses or anybody else—is the point I took previously, that the policy of the Government is so incomprehensible in unfreezing certain assets at one time while at another time they are freezing assets. It is that inconsistency which I, in common with many others, find very difficult to understand, and it is one of the matters we are entitled to consider when deciding how to vote on a Clause of this kind.

I therefore do not think the Attorney-General can quite ride off the point made by his hon. and learned Friend the Mem- ber for East Leicester (Mr. Donovan) by saying that it is immaterial. If it is important to consider whether this is the right moment to deal with this matter on the question whether or not some assets are frozen, then the point made by the hon. and learned Member for East Leicester becomes of great importance. I confess I was very surprised when I saw that point made by the hon. and learned Member. I know little of taxation law and he knows a very great deal, so I was immensely impressed with that particular point. When he said, as I understand it, in substance, that even when restraint was removed in this manner and the capital dealt with by the beneficiary, the Revenue would be able to follow the tax and recover it from the person from whom the interest—

Photo of Mr Anthony Marlowe Mr Anthony Marlowe , Brighton

That is what I understood to be the effect of what the hon. and learned Gentleman said. I gather I am wrong and that the hon. and learned Member wishes to interrupt me to say so. If that is the case, I will certainly give way, because it is a point of great importance.

Photo of Mr Terence Donovan Mr Terence Donovan , Leicester East

If the hon. and learned Gentleman will read HANSARD tomorrow, he will find that I did not say a word about capital. How on earth can the lifting of a restraint upon anticipation allow the beneficiary to deal with the capital, other things being equal?

Photo of Mr Anthony Marlowe Mr Anthony Marlowe , Brighton

It is because I am in this difficulty over this matter that I am asking the Attorney-General to deal with it. Perhaps the hon. and learned Member for East Leicester will tell me whether I interpreted him wrongly when I understood him to say that it would be possible for the person to whom the benefit was transferred to be pursued by the Revenue. That is what I understood to be the effect of what he said—that the interest from the corpus would still be subject to the same taxation as it would be if the interest were received by the present beneficiary. I have a great respect for his knowledge of these matters. I think that this is one matter which we cannot lightly disregard, and that we are entitled to have the opinion of the Attorney-General on that particular question before we decide on this matter.

I have only one other point to put to the Committee. It is in relation to the attitude which the Attorney-General has adopted to what he regarded as the pious tears which were being shed on this side of the Committee over the contrast between the freezing of wages for workers and the unfreezing of these particular assets. The right hon. and learned Gentleman depended for that purpose on certain letters which he read. He is entitled to get what satisfaction he can from those letters, and I must confess that the particular one which he read showed a better appreciation of the position than one which I received, and which urged me to put down an Amendment to ensure that this so-called benefit was extended to spinsters. That shows the appreciation which some people have of the point in question.

The right hon. and learned Gentleman has not I think prayed in aid that aspect of the matter. He has himself said that had it not been for the Mountbatten Bill, and had it not been for the fact that the removal of the Mountbatten Bill from our deliberations left time for this Bill to be brought in, this Bill would never have been brought in. When he says that there are these poor, pathetic cases which are covered by this Bill, he must also, I think, remind the House that the Government were making no attempt to deal with these poor, pathetic cases and would never have done so, as he agrees himself, unless the Mountbatten Bill had been got out of the way to make room for them. This is not a spontaneous attempt by the Government to meet the tragic cases of small fortunes. When he says that we are shedding pious tears, I say that from the attitude which he has adopted in that respect he is shedding crocodile tears.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Daventry

I do not intend to make a second speech this evening, but I think that, after what the Attorney-General has said, it is desirable that I should make a few comments on his speech. I must say that, although I have no doubt from the manner in which he delivered his speech that it gave him great satisfaction to say the things he did. I regard that speech as completely lamentable. It is very easy for him to make all sorts of cheap gibes, and he has showed in that connection that there is some truth in the statement which he made some time ago—"We are the masters now." Of this sort of cheap gibes he is the undoubted master.

Why I regard his speech as completely lamentable is that he has never really answered the point put by those who are critical of this Bill. It is this: Why has he gone for this complete abolition without adopting the alternative method put forward in another place, and put forward here on Second Reading, in which case I think that this Bill would have gone through without any opposition at all? The right hon. and learned Gentleman has not answered the case; instead, he has indulged in cheap gibes.

9.45 p.m.

He talked about the second eleven. All I can say is that he could not meet the bowling of the second eleven because he has not answered the questions, especially the pertinent question raised by the hon. and learned Member for East Leicester (Mr. Donovan), dealing with revenue considerations. If the hon. and learned Member is right, it is right, unless the Revenue want to lay traps for people, that a warning should be given here and now. If his view is right, and restraints upon anticipation are removed in consequence of the Bill, surely the Attorney-General does not want to lay traps for women who are relieved from this restraint upon anticipation. Surely the right hon. and learned Gentleman will say whether the hon. and learned Member for East Leicester is right. This is an important question, and one which requires an answer. The Attorney-General seemed to indicate that if he wanted the Bill to pass he did not want it to pass quickly, because I have seldom heard such a provocative speech from a Minister who wanted an easy passage for his Bill.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

I am not concerned whether I get an easy passage from hon. Members opposite for the Bill or not; they can make whatever political capital they like out of the Bill, but I do not think it would help them much. I am prepared to stay here for a long time discussing this Bill, but I will try to knock for six the particular points which the hon. and learned Member for Daventry (Mr. Manningham-Buller) thought it right to raise.

It is, as he knows perfectly well, quite incorrect to say that I have not dealt with the alternative proposals that might have been introduced into the Bill but which were not introduced. The alternative proposals were fully considered in another place, and on Second Reading in this House they were the subject of prolonged Debate. I expressed my views about them then, and I think the hon. and learned Member for Daventry also expressed his views. I do not think my views gain much from repetition, and I doubt whether the hon. and learned Gentleman's views gain anything at all from repetition. I will not, therefore, impose on the Committee a repetition of the arguments which were canvassed before the House on Second Reading, and which the House decisively rejected on its vote on the Motion for the Second Reading.

Now I come to the observations of the hon. and learned Member for the Combined English Universities (Mr. H. Strauss). I am sorry if I did not deal with the arguments he put forward, and I hope he will acquit me of any discourtesy, because he puts serious points and they are worthy of serious consideration. But the reason I did not deal with those points is the same as the reason I do not intend to deal, and have not dealt, with the points raised by the hon. and learned Member for Daventry. The points made by the hon. and learned Member for the Combined English Universities were also fully canvassed on the Second Reading Debate, and what is the good of going over precisely the same ground again when the House has already decided the matter?

There is, however, one thing which the hon. and learned Member for the Combined English Universities said that I cannot pass completely without challenge. I cannot agree that the Bill will undo, as he suggested, the deliberately formed intention of the great mass of testators and settlors in whose wills or settlements this restraint upon anticipation clause appeared. I have been at some pains to ascertain what the practice was in the profession in this matter. I have no knowledge of it myself, but I consulted those engaged in this branch of the law. I am bound to rely on what was said in the "Law Times" on this matter, in an article dealing with the whole subject and —I want to be fair—which was hostile to the Bill. That article stated: A restraint was practically invariably attached to life interests given to women before 1935, and the number of wills and settlements containing such a provision must be very large. The device, originally doubtless intended for the wealthy woman, was generally adopted by the conveyancers"— not by the testators, not by the settlors, but by the conveyancers— for women in very humble circumstances." Any practising lawyer will concede that they were put into settlements or wills as a matter of common form, and if settlors or testators asked to have the effect of them explained, they were told that they were a common form and that they were the usual thing to do and would protect the girl. They had no idea at all that the result would be, not only that it might protect the wife in some way, but that it would also prevent her from dealing with her property as she might wish to do. I assert that without doubt in the vast majority of cases where these restraints have been imposed in the cases of humble people, the testators or settlors have not realised that what they were doing was not only protecting their daughter's interest against a third party, but preventing that daughter from dealing with the property herself.

Photo of Mr Henry Strauss Mr Henry Strauss , Combined English Universities

Does the right hon. and learned Gentleman not agree that the test of whether the testators' or settlors' wishes are interfered with is to be found in what was the sequel to the passage of the 1935 Act?

Photo of Mr Henry Strauss Mr Henry Strauss , Combined English Universities

And does he dispute that what was said, for instance, by a well-known practitioner, Mr. John Sparrow, in his letter to "The Times" is true, that since the Act testators and settlors have used all sorts of alternative methods producing similar results precisely because the 1935 Act was on the Statute Book?

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

I do dispute that, and I dealt with this and other points on Second Reading. Such information as we possess—and it is a good point which has been raised by the hon. and learned Gentleman—shows that since restraints became illegal after the 1935 Act, other devices have been resorted to but only in a comparatively small proportion of the cases, which bears out the argument that had the two methods been available to testators or settlors at the early date, and had their minds been directed to them, they would probably have chosen neither.

Photo of Mr Anthony Marlowe Mr Anthony Marlowe , Brighton

There is a great deal of substance in what the right hon. and learned Gentleman said. In many cases this was merely put in pro forma, but this Bill also covers other cases where it was put in with thought and care. That is the point I am worrying about, because the cases where it was put in pro forma could be dealt with by application to the courts while the others could not.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

We shall have an opportunity of discussing that on the new Clause on the Order Paper in the name of the hon. Member for South Hendon (Sir H. Lucas-Tooth). I wish, in passing, only to say that I can see no reason for penalising the great majority of married women simply because a minority might have had some form of restraint imposed upon them. That is the answer to the hon. and learned Gentleman the Member for Brighton (Mr. Marlowe).

Even if I am absolutely wrong about all this, even if in the absence of restraint a protective trust or some other device were imposed by testators and settlors, I would still say that it would be wrong to maintain that protection now. I adhere to the view, which was cogently put forward by the right hon. Member for West Bristol (Mr. Stanley) on Second Reading, when he said that our law in the past had allowed far too great an influence by the dead hand on the

lives of living people. I think it is a very good thing to put an end to it.

I have only one other observation to make, and it refers to a point put by the hon. and learned Member for Brighton and the hon. Member for Sutton Cold-field (Sir J. Mellor). I am prepared to thank hon. Members opposite for having drawn our attention at the time of the Mountbatten Bill to the possibility of introducing a general Measure. I am grateful to them, because the result no doubt is that this is a far better Bill than the Mountbatten Bill would have been. I accept that at once. Why we should, for that reason, reject this Bill I am not quite sure.

I would only add this: The hon. Baronet is completely mistaken in supposing that the Mountbatten Bill could not have been passed by this House. I thought I had put forward on Second Reading—I do not think the hon. Baronet was here at that time—the compelling reason which would have led this House, dealing with the Bill, as it has to do on a personal Bill, as a quasi-judicial matter, to pass the Bill. I do not think that anybody has seriously doubted that if that Bill had gone on we should have been bound to treat it as a quasi-judicial matter, as one to which we should have to assent. It was because of that dilemma that we thought that the idea put forward by hon. Gentlemen opposite of having a general Bill was a good one. We are disappointed that, having put forward the idea, they are now seeking, for motives into which I do not inquire, not to support it.

Question put, "That the Clause stand part of the Bill."

The Committee divided: Ayes, 223: Noes, 20.

Division No 293]AYES[10.0 p.m.
Adams, Richard (Balham)Binns, J.Collins, V. J.
Allen, A. C. (Bosworth)Boardman, H.Colman, Miss G. M.
Allen, Scholefield (Crewe)Bowden,H. W.Corbet, !Mrs. F. K. (Camb'well, N.W.)
Alpass, J. H.Bower, N.Corlett, Dr. J.
Anderson, A. (Motherwell)Braddock, Mrs. E. M. (L'pl. Exch'ge)Cullen, Mrs.
Altewell, H. C.Braddock, T. (Mitcham)Daggar, G.
Austin, H. LewisBramall, E. A.Daines, P.
Awbery, S. S.Brook, D. (Halifax)Davies, Edward (Burslem)
Ayrton Gould, Mrs. B.Broughton, Dr. A. D. D.Davies, R. J. (Westhoughton)
Bacon, Miss A.Brown, T. J. (Ince)Davies, S. O. (Merthyr)
Baird, J.Burden, T. W.Deer, G.
Balfour, A.Butler, H. W. (Hackney, S.)de Freitas, Geoffrey
Barton, C.Carmichael, JamesDobbie, W.
Battley, J. R.Champion, A. J.Donovan, T.
Bechervaise, A. E.Chetwynd, G. R.Dye, S.
Berry, H.Cobb, F. A.Ede, Rt. Hon. J. C.
Beswick, F.Cocks, F. S.Edelman, M.
Bing, G. H. C.Collindridge, F.Edwards, Rt. Hon. N. (Caerphilly)
Edwards, W. J. (WhitechapelLongden, F.Royle, C.
Evans, Albert (Islington, W.)Lucas-Tooth, Sir. H.Sargood, R.
Evans, John (Ogmore)Lyne, A. W.Scott-Elliot, W.
Farthing, W. J.McAdam, W.Segal, D. S.
Fernyhough, E.McGhee, H. G.Sharp, Granville
Fletcher, E. G. M. (Islington, E.)McGovern, J.Shawcross, Rt. Hon.Sir. H. (St. Helens)
Follick, M.McKay, J. (Wallsend)Shurmer, P.
Forman, J. C.McKinlay, A. S.Silverman, J. (Erdington)
Fraser, T. (Hamilton)McLeavy, F.Simmons, C. J.
Freeman, J. (Watford)MacMillan, M. K. (Western Isles)Skeffington-Lodge, I. C.
Ganley, Mrs. C. S.MacPherson, Malcolm (Stirling)Skinnard, F. W.
Gibbins, J.Macpherson, T. (Romford)Smith, C. (Colchester)
Gibson, C. W.Mainwaring, W. H.Smith, Ellis (Stoke)
Gilzean, A.Mallalieu, E. L. (Brigg)Smith, S. H. (Hull, S. W.)
Glanville, J. E. (Consett)Mann, Mrs. J.Sorensen, R. W.
Grenfell, D. R.Manning, Mrs. L. (Epping)Soskice, Rt. Hon. Sir. Frank
Grey, C. F.Marquand, Rt. Hon. H. A.Sparks, J. A.
Griffiths, W. D. (Moss Side)Mathers, Rt. Hon. GeorgeSteels, T.
Guy, W. H.Medland, H. M.Stewart, Michael (Fulham, E.)
Haire, John E. (Wycombe)Mellish, R. J.Stubbs, A. E.
Hamilton, Lieut.-Col. R.Middleton, Mrs. L.Sylvester, G. O.
Hannan, W. (Maryhill)Mitchison, G. R.Symonds, A. L.
Hardman, D. R.Monslow, W.Taylor, H. B. (Mansheld)
Hardy, E. A.Morgan, Dr. H. B.Taylor, R. J. (Morpeth)
Harrison, J.Morley, R.Taylor, Dr. S. (Barnet)
Hastings, Dr. SomervilleMort, D. L.Thomas, D. E. (Aberdare)
Haworth, J.Moyle, A.Thomas, I. O. (Wrekin)
Henderson, Joseph (Ardwick)Murray, J. D.Thomas, John R. (Dover)
Herbison, Miss M.Neal, H. (Claycross)Thorneycroft, Harry (Clayton)
Hewitson, Capt. M.Nicholls, H. R. (Stratford)Timmons, J.
Hobson, C. R.Noel-Buxton, LadyTolley, L.
Holman, P.O'Brien, T.Viant, S. P.
Holmes, H. E. (Hemsworth)Oldfield, W HWadsworth, G.
Houghton. DouglasPaget, R. I.Walker, G. H.
Hoy, J.Paling, Rt. Hon. Wilfred (Wentworth)Wallace, H. W. (Walthamstow, E.)
Hughes, Emrys (S Ayr)Paling, Will T. (Dewsbury)Warbey, W. N.
Hughes, Hector (Aberdeen, N.)Palmer, A. M. F.Webb, M. (Bradford, C.)
Hughes, H. D. (W'lverh'plon, W.)Palon, J. (Norwich)Weitzman, D.
Hynd, J. B. (Attercliffe)Pearson, A.Wells, P. L. (Faversham)
Irvine, A. J. (Liverpool)Peart, T. F.Wells, W. T. (Walsall)
Irving, W. J. (Tottenham. N.)Poole, Cecil (Lichfield)Wheatley, Rt. Hn. J. T. (Edinb'gh, E.)
Isaacs, Rt. Hon. G. A.Popplewell, E.While, H. (Derbyshire, N. E.)
Janner, B.Porter, E. (Warrington)Whiteley, Rt. Hon. W.
Jeger, Dr. S. W. (St Pancras, S.E.)Porter, G. (Leeds)Wilkes, L.
John, W.Proctor, W. T.Wilkins, W. A.
Jones, D. T. (Hartlepool)Randall, H. E.Willey, O. G. (Cleveland)
Keenan, W.Ranger, J.Williams, D. J. (Neath)
Kinley, J.Rankin, J.Williams, W. R. (Heston)
Lavers, S.Reeves, J.Willis, E.
Lee, F. (Hulme)Reid, T. (Swindon)Wills, Mrs. E. A.
Levy, B. W.Rhodes, H.Woodburn, Rt. Hon. A.
Lewis, A. W. J. (Upton)Ridealgh, Mrs. M.Woods, G. S.
Hubbard, I.Robens, A.Yates, V. F.
Lewis, T. (Southampton)Roberts, Goronwy (Caernarvonshire)Young, Sir. R. (Newton)
Linstead, H. N.Robinson, Kenneth (St. Pancras, N.)Younger, Hon. Kenneir
Lipson, D. L.Rogers, G. H. R.TELLERS FOR THE AYES:
Logan, D. G.Ross, William (Kilmarnock)Mr. Snow and Mr. George Wallace.
NOES
Agnew, Cmdr. P. G.Gage, C.Stoddart-Scott, Col. M.
Baldwin, A. E.Harris, F. W. (Croydon, N.)Strauss, Henry (English Universities)
Barlow, Sir. J.Hollis, M. C.Sutcliffe, H.
Bromley-Davenport, Lt.-Col. W.Macpherson, N. (Dumfries)York, C.
Conant, Maj. R. J. E.Marlowe, A. A. H.TELLERS FOR THE NOES:
Crosthwaite-Eyre, Col. O. E.Neven-Spence, Sir. B.Air-Commander Harvey and
Dower, Col. A. V. G. (Penrith)Price-White, D.Sir John Mellor.
Erroll, F. J.Savory, Prof. D. L.

Clause ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.

New Clause. —(POWER TO APPLY TO THE COURT FOR RELIEF IN SPECIAL CASES.)

(1) Where a restriction on anticipation or alienation was immediately before the passing of this Act attached to any interest in or income from property (in this section called "the trust property") which interest or income belonged or was payable to a married woman (in this section called "the principal beneficiary") and such restriction ceases to be effective by virtue of the provisions of section one of this Act, then any of the persons mentioned in the next following subsection of this section may apply to the Court within the period of six months from the date of the passing of this Act for such relief as is mentioned in subsections (3) and (4) of this section.

(2) The persons who may apply to the Court as aforesaid are the trustees for the time being of the Act or settlement under which the interest arises or in whom the trust property is vested as the case may be (in this section called "the trustees") or the principal beneficiary.

(3) The Court may, if it is satisfied on any such application as aforesaid that the effect of the cesser of the restriction by virtue of section one of this Act is detrimental or likely to be detrimental to the interests of the principal beneficiary and that it is just and equitable so to do, by order direct that the income from the trust property or any part thereof or any annuity or other periodical income payment comprised in the trust property in so far as such income would otherwise be payable to the principal beneficiary shall be held on protective trusts as defined by section thirty-three of the Trustee Act, 1925, for the benefit of the principal beneficiary for such period as the principal beneficiary shall remain married (but not for any period of a subsequent marriage).

(4) The Court may, if it thinks fit, in making any order under this section—

  1. (a) direct that such order shall be deemed to have been made on the date of the passing of this Act or such later date as may to the Court seem fit, and
  2. (b) in any case where the principal beneficiary has already done or suffered an act or thing or where an event has happened before the actual date of the making of the order whereby the trust of the income from the trust property in favour of the principal beneficiary during the period of her marriage would have failed or determined under the provisions of sub-paragraph (i) of subsection (1) of section thirty-three of the Trustee Act, 1925, direct that the income from the trust property shall be held upon the trusts set out in sub-paragraph (ii) of subsection (1) of the said section thirty-three with immediate effect from the date of the order and the order shall be effective accordingly.

(5) At any time upon the request of the principal beneficiary made within six months after the passing of this Act the trustees may furnish her with a certificate that they have not applied and do not intend to apply to the Court for an order under this section in respect of her interest in the whole or any part of the trust property or the income there from and after the making of any such certificate no application for relief under this section shall be entertained by the Court in respect of the interest or income described in the certificate.—[Sir H. Lucas-Tooth.]

Brought up, and read the First time.

10.10 p.m.

Photo of Sir Hugh Munro-Lucas-Tooth Sir Hugh Munro-Lucas-Tooth , Hendon South

I beg to move, "That the Clause be read a Second time."

Perhaps I should first declare a personal interest in this matter. I should perhaps have done so when I spoke on the Second Reading of the Bill. I am a trustee of a trust in which there are life tenants who are restrained from anticipation. It is not a matter in which I have any direct financial interest but, on the other hand, it is a personal interest and it is only right that I should make the fact known to the Committee before moving this Clause.

I am in favour of the principle of this Bill. As I have just voted for Clause 1 to stand part of the Bill, it will hardly be denied that I have gone rather further than paying lip service to it. On the other hand, I am in favour of the Bill provided that a serious blemish in it is put right. There are serious injustices which will follow the Bill becoming an Act if it does so without amendment. I referred on Second Reading to the possibility of such injustices and it happens quite by chance, that one such case has come to my own attention between the Second Reading of the Bill and the present time.

The case is that of a married woman who is enjoying a small income from a settlement which I believe represents her father's savings that were left to her. It was a sum of £2,000 or £3,000, of the order just mentioned by the learned Attorney-General. Her life interest is subject to a restraint upon anticipation. This lady was persuaded by her husband one or two years ago to guarantee his overdraft with the bank. I understand that at the time he pointed out to her that her trust income was subject to a restraint, and the bank was so informed.

What has happened? The husband has gone bankrupt and the lady, with a small child, is living on an income of £2 or £3 a week provided by this settlement, being the income from the life savings of her father. If this Bill passes in its present form, that income will immediately become assets for the payment of her husband's debts, her life interest will be taken and sold, and there will virtually be nothing left for the lady and her child on which to live.

I do not know what the learned Attorney-General or any hon. Member of this Committee may think about that case, but I am certain that no one can deny that the injustice involved is such that it cannot be tolerated for one moment and that something must be done to put that position right. I do not know how many cases of that sort there may be up and down the country. I have made such inquiries as I can, but it is impossible to tell. The learned Attorney-General earlier this evening read a letter which he had received, and it was quite clear from that letter that his correspondent had no idea at all what were the contents of this Bill. It was quite clear that she thought that the effect of this Bill would enable her to deal directly with the capital of her trust.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

The hon. Gentleman has raised in his new Clause a very serious point, with which I shall endeavour to deal frankly and fairly when the time comes, but is that not rather a red herring? It is true that, dependent on the terms of the settlement, a woman may either be able to deal directly with her capital or sell her interest to an insurance company or a bank, which is exactly the same thing. In effect, this woman, freed from the restraint, will be able to realise—perhaps that is the better phrase—the capital value of her interest, whatever that interest may be. It may be that, if she had only a life interest, she will be able to realise the capital value of that life interest. It may be that there are no other beneficiaries under the trust and that she might be able to realise the whole capital value of the settled property. It is true, I think—and I am sure the hon. Gentleman, who has great experience of these matters, will help me here—that, in one way or the other, once this restraint is removed, the married woman will be able to realise the capital value, whatever it may be, of her property.

Photo of Sir Hugh Munro-Lucas-Tooth Sir Hugh Munro-Lucas-Tooth , Hendon South

I quite appreciate what the learned Attorney-General says, and, in a way, this is a red herring to this new Clause. The only point I was seeking to make is that the right hon. and learned Gentleman's correspondent, whose letter he read out, was almost certainly mistaken as to the effect of the meaning of the Bill. I venture to say, from my own knowledge and from the discussions and correspondence which I have had, that not 99 out of 100, but 999 out of 1,000 really do not understand what is the meaning of this Bill at all. I am quite sure that there are a large number of women affected in the way I have described who are entirely ignorant at the present time that the passing of this Bill will place their entire worldly income at the mercy of a bank or insurance com- pany, or of some other person who has no rhyme or reason for getting it at all.

That is the position, and it is for that reason that I have put down this somewhat lengthy new Clause, which is necessarily a technical one. I must explain very briefly how it operates. In the first place, the Clause gives to the court a power to give protection to a married woman in the sort of circumstances which I have described if either she or her trustees apply to the court for that protection; in other words, it is only where a married woman or her trustees actually go to the court and ask for protection that that protection can be given at all.

In the second place, the form of protection that is given is that provided under Section 33 of the Trustee Act. It is not, however, a life-time protection, but merely that kind of protection which she would have enjoyed under the restraint which is being removed. She is getting protection for the period of her existing marriage, not for any period after her husband's death and not for any period of re-marriage. It is placing her almost exactly in the same position in which she would have been regarding protection if this Bill had never passed.

I imagine that the Government's principal objection to such a Clause would be that it might delay the coming into operation of the Bill itself, and, for that reason, there are some rather technical provisions contained in subsections (3), (4) and (5) of the Clause to prevent any such delay occurring.

10.15 p.m.

I will not weary the Committee by going into those provisions. Perhaps I should say that the application has to be made within a period of six months of the passing of the Bill. In other words, after six months no one can apply to the court for any protection at all. During that period of six months in which it is still open to the woman or her trustees to apply, the woman can deal with her property if she merely asks the trustees to give her a certificate to the effect that they themselves do not intend to apply to the court. In that way it is quite clear that any life interest affected by this Bill could be dealt with immediately after it becomes an Act provided that the woman was anxious to deal with it and the trustees were not intending to take action under the Clause. I do not think it can be said that the Clause is any serious impediment to the general principle of the Bill. It will, however, cover quite a number of extremely hard cases, and I sincerely hope that the Government will see their way to accepting the Clause.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

I am obliged to the hon. Baronet for the way in which he has put the new Clause and I at once recognise that it concerns a serious proposal. We recognised—I will not say when we first saw it on the Order Paper—because we had considered the possibility of some such device as this before, that the proposal involved a serious effort to substitute another kind of restriction in certain cases for the one which the Bill proposes to abolish. My noble Friend the Lord Chancellor and I have given it the most serious consideration. Not being a Chancery lawyer myself, we have taken the best Chancery advice open to us in the matter, and I have now listened most carefully to the arguments put forward by the hon. Baronet. In the result ! must say—and I have risen at once to say it, although I have no wish to curtail the Debate, because I thought it might be for the convenience of the Committee if I indicated at once what was the position of the Government in the matter—having given the matter the most careful and thoughtful consideration, the Government are firmly opposed to this new Clause which really seeks to impose upon married women restrictions as to the manner in which they deal with their property which would sometimes be much more disagreeable to them than the restraint which it is the object of this Bill to remove.

I cannot help thinking that the proposal involved in the new Clause arises from a confusion between the object of a restraint on anticipation and a protective trust which was apparent during the Second Reading Debate, and which, if I may say so with great respect to the hon. Baronet, has been indicated in the remarks he has just addressed to the Committee. It is really all based on the assumption that the settlor or testator, had he not been able to impose the kind of restraint which we are now abolishing by this Bill, would have taken the other course and imposed a protective trust on his daughter, or whoever it might be.

But we are satisfied that that assumption is really only true in a comparatively small proportion of the total number of cases that will be affected by this Bill, and I venture to think that almost anybody with experience of the matter will bear me out in that view. I hope I do not appear to be delivering a lecture on this, but it is a bit technical and it is a Chancery matter on which I have had to obtain instructions. Basically, the object of a restraint on anticipation and of the protective trust device which is involved in this new Clause are really quite different. The restraint on anticipation arises only on marriage and continues only during marriage.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

I know what the hon. Member is going to say, that this protective trust he contemplates in his proposed new Clause would assist in some way, but I am dealing with the basic idea of the two things and say that testators or settlors would rarely have chosen a protective trust if the matter had been open to them at that time, as indeed it was. The object of the proposed restraint was to protect the wife "from the kicks and kisses" of the husband, as it was put in the old cases, at a time when those were more usual than today. But I made the point on Second Reading and make it most emphatically again on the very best advice I can obtain on the matter, that it was not then regarded and never accepted by the Chancery courts simply as a device against creditors to protect a woman against parties who might be her creditors, or her husband's creditors.

Photo of Sir Hugh Munro-Lucas-Tooth Sir Hugh Munro-Lucas-Tooth , Hendon South

Is the right hon. and learned Gentleman saying that the restraint against anticipation does not operate against creditors?

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

I am not saying that, but its object was never a device to protect against creditors. As it has developed it has had that result for a period but the hon. Baronet will agree that that is really fortuitous and the whole basis on which the device was intended and accepted by the Chancery courts was as a protection against the husband who was then able to exert a rather stronger influence than husbands can exert nowadays to get the wife's money from her. We have discussed the theory that the wife's money belongs to the husband by the old Common law and the whole manner in which Chancery stepped in. I do not think anyone who has studied the matter would deny the proposition that the courts would never have adopted this device if its object had been to enable a married woman to cheat her creditors. The protective trust on the other hand was a device which was intended partly with the object in view of protecting the married woman, or man, or whoever it may be, against creditors. It usually had, hut need not have, although it would have under the proposed new Clause, no reference whatever to the position of married women as such. Insofar as this new Clause would enable some married women to continue to defeat, or delay, or cheat their creditors—

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

Of course it would. If the hon. Member read the speech by Lord Simonds in another place he would see very clear indications of it. I do not profess to be such a great authority on the matter. Of course, it enables married women who run up bills

Photo of Sir Hugh Munro-Lucas-Tooth Sir Hugh Munro-Lucas-Tooth , Hendon South

Where does it say that? Will the Attorney-General state where that is said?

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

Where what is said? I do not expect the hon. Member to put that in his new Clause. He would show even greater myopia than I would expect from hon. Members opposite if he put those words in the new Clause, but that is the result. It enables a married woman apparently in possession of income of her own to incur credit from trades people and, when the bills come round and the trades people attempt to get payment from the married woman, to say, "This is subject to a protective trust. We shall bring the trust into operation and you will not be able to touch a penny of my money."

Photo of Sir Hugh Munro-Lucas-Tooth Sir Hugh Munro-Lucas-Tooth , Hendon South

The right hon. and learned Gentleman said that in another place Lord Simonds said that a Clause such as mine would have the result of defeating creditors. Will he refer to any such passage?

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

Lord Simonds was referring to the effect of the restraint on anticipation. The effect of the protective trust is far more in that direction. That is the whole object of it. The hon. Member is not being very frank if he does not agree and does not inform the Committee that what happens under a protective trust is that the moment the beneficiary goes bankrupt, the moment a third party gets some title to the income, the operative clauses of the trust come into effect and the beneficiary ceases to have any title to any part of the income at all, with the result that the creditor cannot touch a penny of the money. That is the object of it.

Photo of Sir Hugh Munro-Lucas-Tooth Sir Hugh Munro-Lucas-Tooth , Hendon South

That is the effect of restraint on anticipation.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

Certainly; I was saying that in so far as this device would enable some married women to continue—that was the word I used—delaying or defeating or cheating their creditors, I have no sympathy at all with the proposal. The hon. Member gave the instance, no doubt at first sight a rather distressing instance, of a lady, with a child, who had guaranteed her husband's overdraft, but I must say that that leaves my withers completely unwrung. Look at what it really means. What is the position? Does that case really afford any conceivable ground for creating a protective trust? See what happens.

Either with the existing restraint on anticipation in the case of a lady or with this new device of the protective trust, the lady, knowing that she has protection, guarantees her husband's overdraft, informing the bank, as I understand—and I make no point on that—that there is this protection in existence. What is the result? During the lifetime of her husband, whilst his strong right arm is there to support her, whilst he is able to go on earning money in order to keep his wife and child, even if he is bankrupt, this protection will continue in operation. The moment the husband dies, when this unhappy lady is left alone and a widow, having no resources with which to support her child, the protection goes and the bank comes in and seizes the whole Of the money.

What possible sense can there be in providing a device of that kind? I venture to suggest that one would be doing a very grave disservice to that lady if one provided her with a device so illusory, so much a delusion and a snare, that it would lead her to the view that her money was safe only to find, at the very moment when she needed it most, when her husband had died, that the bank was able to seize the lot. I cannot think that is the case the hon. Member puts forward. The protection of this, if I may call it so, fickle and fortuitous device goes at exactly the moment the married woman is most likely to need it—when her husband dies and she has no other resources of income.

Photo of Sir Hugh Munro-Lucas-Tooth Sir Hugh Munro-Lucas-Tooth , Hendon South

May I give the right hon. and learned Gentleman the answer to that point? The position is this: the lady in question was in the act of negotiating with the bank for making application to lift some part of the restraint in order to arrive at a compromise solution. With the introduction of this Bill the bank are, not unnaturally, quite unwilling to go forward with the compromise.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

The protective trust will not remedy that position in any respect. The protective trust will go on: she will be able to make her application to the court and, assuming it is granted, the protective trust will come into operation. The bank may or may not agree to enter into some compromise in regard to the matter. The trustees may or may not agree to enter into some compromise in regard to the matter, and one has to consider their position in the matter now. The position is likely to be, in that case, that it will remain subject to the protective trust; her money will be protected until her husband dies. The protective trust will then come to an end and the bank will come down on the whole of this money. If I may say so, with great respect to the hon. Baronet, it is not a sensible arrangement to propose for this lady whose case has been drawn to his attention.

Let me return, if I may, to the assumption which the hon. Baronet makes for his new Clause—that by some kind of supernatural omniscience it is doing what the testator or the settlor would have done if he had thought about it. I agree it is possible in a small minority of cases—

10.30 p.m.

Photo of Sir Hugh Munro-Lucas-Tooth Sir Hugh Munro-Lucas-Tooth , Hendon South

I had not made that point and I do not.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

I really thought that was the whole basis of this Clause. If it is not so, I am sure it is my fault. I completely misconceived that. If we are not doing something which trustees or settlors would have wished to do, in these circumstances what conceivable authority have we for imposing this disagreeable restraint on married women at all? Who are we to intervene in this matter against the married woman unless we intervene on the assumption that we are doing something that the grandfathers or fathers of these women would have wish to do? If the hon. Baronet does not put that argument forward, then I would submit that the whole case for substituting this restrictive and protective device for the restraint upon anticipation must go completely. Consider what this device does. In many cases it would impose a much more onerous restraint on married women than the one which it is the object of this Bill to impose and it will impose that restraint not at the will of the father or settlor, but at the will of a complete stranger—at the instance of a trustee, perhaps of a trustee corporation, perhaps of an ill-disposed trustee relative, who may know very little about the family circumstances of the beneficiary. It imposes that more onerous restriction simply because the beneficiary happens for the time to be a married woman.

Under a restraint on anticipation, although the creditors are defeated and the married woman cannot anticipate her income, she does continue at least to receive the whole of her income as her absolute property, and year after year as her income comes in she can do exactly what she chooses with it. Not so under the protective trust device of the new Clause. When the operative clauses of that protective trust come into force, when a married woman goes bankrupt or a third party attempts to levy execution in order to get payment for some debt she has incurred, then the married woman is deprived not only of any right she might have had to capital or anticipation of income, but she is deprived of her right to the actual income itself. From that time forward she is not entitled to receive a single penny. She is left in leading strings, at the mercy of trustees not of her own choice, who may be utterly unsympathetic towards her and know nothing of her family circumstances and her particular needs. She may possibly be left at the mercy of trustees who are ill-disposed relatives, who think that by imposing the protective trust and diminishing the amount which at their discretion they can pay to the married woman, they will get greater benefits for other beneficiaries.

I think that most trustees would say—and I have made some inquiries about this—that it was a most odious burden to impose on them, that they should have to go to the court and argue that they know better than the married woman how she should deal with her property. In so many cases, especially where it is a big trust corporation, what knowledge have they of the real circumstances in which a married woman is placed and of her real needs? We think it is quite intolerable, at any rate in cases that operate against the will of the married woman, that this kind of restraint should be imposed on a married woman against her will. The argument does not apply to the provision, which perhaps is unique, that the beneficiary herself might apply for protection in order to defeat her creditors.

There is one other aspect of this matter, and this is the one I venture to put forward, and I put it forward on advice after a good deal of consultation as really the most formidable and most decisive objection to the hon. Baronet's new Clause. It proposes to vest a wholly new discretionary jurisdiction in the Chancery judges, and it proposes to vest that discretionary jurisdiction in those judges without giving them the slightest guidance, without giving them a single clue how that discretion is to be exercised. I have the very highest regard and respect for the judges of the Chancery Division. They do in various matters already possess a discretionary jurisdiction. I do not think they like exercising it, but they do so to the best of their ability.

I would not. for my own part, express any view against even the extension of that discretionary jurisdiction unless I was satisfied that objection to it would commend itself to the best Chancery opinion. But it ought to be realised by the Committee that the exercise of a discretionary jurisdiction in cases of this kind is really a very difficult thing. It is not right to impose on Chancery judges who, after all are human beings in the end, the impossible task of forming an opinion, often on conflicting evidence, often on imperfect evidence, because, as the hon. Baronet will agree, one never gets more difficult cases, cases in which more bitter hostility is aroused than these cases of family disputes. It really is too much to ask the judges in cases of that kind, in cases of most uncertain evidence as to the character, conduct and propensities of the married woman concerned, to impose a protective trust of this kind. It is not right to ask them to decide in a particular case whether or not a married woman should be deprived throughout her married life of the right of receiving and disposing of her property, or of any part of it in the way she thinks best.

After all, married women are the best able to decide what is the best way of dealing with their own property. To vest powers of that kind in the courts would, we think, inevitably result in a great deal of inequality of treatment between one beneficiary and another, in many cases a great deal of hardship, and in some, injustice. We agree with the view expressed, I rather think on both sides of the House, I am not sure, but I think on both sides of the House on Second Reading, that it is undesirable to extend these discretionary jurisdictions in that way, particularly in this difficult class of family dispute.

I come to the end of what I am afraid is a rather long speech. The exercise of this discretionary jurisdiction in matters of this kind, unguided by set rules or principles as it inevitably would be, is rather like the exercise of the principles of equity of old. The hon. Baronet will remember what the great John Selden said about that. It applies exactly to the kind of jurisdiction which he is seeking to establish today. At the end of the sixteenth century he said: Equity is a Roguish thing: for law we have a measure. For law, that means where there are actual rules laid down by the Common law, which can be applied— For law we have a measure, we know what to trust to; Equity is according to the Conscience of him that is Chancellor In those days it was the Chancellors who exercised the discretionary equitable jurisdiction. Now, that discretionary jurisdiction is vested in the Chancery Court, and the old jurisdiction is covered by precedent. But what is proposed now is a new jurisdiction. Equity is according to the Conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. 'Tis all one as if they should make the Standard for the measure which we call a ' Foot,' a Chancellor's Foot; what an uncertain Measure that would be! One Chancellor has a long Foot, another, a short Foot, a Third an indifferent Foot. 'Tis the same thing in the Chancellor's Conscience. And that is the kind of jurisdiction to which the hon. Baronet would wish to make over these unhappy married women.

Photo of Mr Reginald Manningham-Buller Mr Reginald Manningham-Buller , Daventry

The right hon. and learned Gentleman has, as he himself has admitted, delivered a long speech in reply to the new Clause of my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth); but, despite that long speech, at times full of vigour and vehemence, he has not dealt with the points behind that Clause. I must admit that I have no large knowledge of the Chancery practice, but I must say that, listening to his answer, I do not think that he has really answered the case put forward. He has spoken of protective trusts, and the way in which they can be used by married women to defeat credit. This Bill, one would have thought, was designed to abolish protective trusts; but it does not, and if they are bad things now, they will continue to be bad things when this Bill has been passed into law.

He spoke an awful lot, I thought, of defeating creditors; but the case put by my hon. Friend was that of where the bank had taken as security, or some charge on the wife's income, anything which the hon. Baronet said they knew was subject to restraint on anticipation. In some cases, if the restraint remained, the bank might be fortunate in getting a large security owing to the death of the husband, or of divorce. But this Bill, in that particular case, is automatically enlarging the security the bank has got, to the detriment of the maried woman. There is no doubt at all that that is the effect of this Measure. That is what my hon. Friend tried to deal with in this new Clause. Does the learned Attorney-General really think that it is right to confuse the issue on that? It is confusing the issue to talk of defeating creditors when this is enlarging the security which the bankers receive. One does not know how many cases of this sort there are; but I feel great sympathy with that married woman when she finds the effect of this Bill is to penalise her and give the bank a great deal more than it thought it would get when it took the security.

That is the sort of case to which this House should give protection, and that is what the new Clause seeks to do. I do not see why it should not work fairly and equitably. The learned Attorney-General did not pay enough attention to it; he spoke glibly of ill-disposed trustees. Here I must disclose an interest because I am a trustee of several trusts but I do not think any of the beneficiaries consider that I am ill-disposed; but this particular woman, to whom my hon. Friend referred would, of her own initiative, be able to apply to the courts and say that a removal of this restriction is detrimental to her.

Does the learned Attorney-General think that any of His Majesty's Judges of the Chancery Court would have any difficulty in coming to that conclusion? Then she would have to show, and I quote the words of the Clause, that it is just and equitable so to do. That is, to retain protection, she would have to say that. Does the right hon. and learned Gentleman think that she would have any difficulty if she established that she had given the security to the bank and if it turned out that it was subject to a restraint on anticipation, that she would have any difficulty in convincing the court that some protection should remain in respect of that security? I do not believe she would. I do not believe that application would meet with any opposition at all.

10.45 p.m.

I myself think the court would hold in that case that the restraint on anticipation has gone by Act of Parliament, but it is by this new Clause inserted in the Bill by my hon. Friend the Member for Hendon, South, that we are enabled to provide the protection which should obviously be provided. We are able to do so because Parliament put a Clause in the Bill to give us power to do so. I believe myself that power is most desirable. I do not believe that the courts would find any difficulty in distinguishing between cases where it was just and equitable to provide protection and those cases where it was not. I do not believe that the application of this particular new Clause would lead to a large number of family quarrels or anything of that sort. I find it hard to realise that.

I think that the right hon. and learned Gentleman has done scant justice to the point that lies behind this new Clause and I would ask him, even now, to give further consideration to it, because there are cases, such as the one my hon. Friend mentioned, where it is right that some protection should remain in the interests of the married woman, not with the object of defrauding or defeating creditors, but with the object of securing that creditors do not get an increased security for whatever money they have advanced.

I have made my position on this Bill clear. I have not opposed, at any time, in anything I have said the principle of giving some relief to the restraint on anticipation, but I take very strongly the view that some protection is required in cases such as my hon. Friend has mentioned. It was because I thought there should be some relief that I did not vote on the last Division but unless the right hon. and learned Gentleman can come further to meet this particular point put by my hon. Friend, I must say I shall with the greatest pleasure vote with him—and this is a free vote on this side of the House—if he goes to a Division on this matter.

Photo of Mr Conolly Gage Mr Conolly Gage , Belfast South

I must say I am surprised that the Government are not accepting this new Clause. If it had no other merit, it would be one of the first amendments drawn by a Chancery lawyer that is readily understandable by all practitioners in the King's Bench, such as myself, and anyone else I was disappointed and very surprised at some of the arguments advanced by the Attorney-General against it. He said, when he was referring to the fact that this would try to interpret the wishes of a testator, "Who are we to intervene?" That has been the point of the whole opposition to this matter, that we have thought, on this side of the House, that we should not intervene in affairs under the private disposition of testators.

But we have intervened already. The Government have intervened against our advice and I think it is necessary to consider the results that may accrue. I always think it profitable on occasions like this to go into various types of hypothetical cases that one can encounter. If we had enough Chancery lawyers here. I have no doubt that we could go on all night on different sorts of cases of which they have had experience at different times.

The basic fact is that there will be cases where there is hardship when the restraint is lifted. I do not think any hon. Member in the House is going to deny that there will not be such hardship in certain cases. I am not one of those people who say that it is necessarily a hardship when the restraint is lifted that the creditors can get at the women's capital. I think it was one of the disadvantageous results of the restraint on anticipation. What is suggested here, and it is the whole point of the amendment is that the trustees will be able to go to the courts. Judges of the Chancery Division are not likely to impose a protective trust if they think its purpose is to defeat the woman's creditors.

I think the case put by my hon. Friend, the Member for Hendon, South (Sir H. Lucas-Tooth), in which the husband was in fact bankrupt, is a good one, but there might be cases where the wife's income might be attached for debts for which she was in no way responsible. There may be cases where the husband was able to get at the wife's capital, and the right people to consider all this are the trustees. They are, after all, placed there for that purpose. The duties of trustes are onerous and trying and they get little reward. They have to carry out these duties, although it may be unpleasant for them to do so. But it is no reason for saying that they shall not have to do them. If they go to the courts the cases can be considered on their merits, in a way in which we here cannot possibly consider the merits of all the cases. They can be brought to a Chancery judge, and if he feels it is not a case in which the wife should have a discretionary trust allowed on her he can say so. and he can say that the trustees should pay the costs if he thinks they should not have brought the case. There is that protection to prevent the trustees from bringing frivolous claims. It is important to leave the matter to the judge.

I think the hon. and learned Member for Leicester, East (Mr. Donovan) was the first person to mention this matter. I was impressed 'by what he said when he suggested that there might be a Clause which should allow the trustee to keep the restraint on anticipation. That would have been out of Order on the Committee stage, but I think this new Clause will do very much the same thing in just as good a way. The final argument of the right hon. Gentleman the Attorney-General, which he said was his strongest, was, if I may say so with respect, his worst. The argument he advanced was that it would be an unpleasant duty for a judge to have to carry out But many judges have unpleasant duties to carry out, and we are not here merely to remove them because they are unpleasant duties. After all, Chancery judges have plenty of discretionary duties which they must dislike.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

With respect, I did not say it was an unpleasant duty. I do not think that arose. Judges have to perform unpleasant duties, but what I said was that it was a difficult duty which they could not perform without inequality as between beneficiary and beneficiary and I quoted the celebrated dictum of John Selden.

Photo of Mr Conolly Gage Mr Conolly Gage , Belfast South

Considering all the beneficiaries is a very difficult duty, but there are other duties just as difficult and unpleasant where a Chancery judge has to make a decision in his discretion, such as where he has to deprive a married woman of the custody of her child, one which I am sure they all detest. However, that is no reason for saying that they shall not have to do it any longer, and it is no reason in cases such as this for not imposing such a duty. This is a modest and reasonable proposal, and one which all sides—

Photo of Mr Conolly Gage Mr Conolly Gage , Belfast South

I always respect the views of the hon. Lady the Member for Epping (Mrs. Manning). I hope she will believe me when I say that this is just as much a benefit for the married women as for anyone else.

Photo of Mrs Leah Manning Mrs Leah Manning , Epping

I do not think it is, because it introduces a degree of inequity which no Chancery judge, however objective he was. could overcome. That is the real point which the Attorney- General made, not the point of difficulty which the hon. Gentleman is trying to make now. The point is the difficulty of being able to do this with equity between case and case.

Photo of Mr Conolly Gage Mr Conolly Gage , Belfast South

I do not think that is so. One has to remember that the married woman in this case has already for some time had to endure restraint upon anticipation. All we are saying now is that the trustee shall in certain circumstances be allowed to come to a judge and say that it would be highly undesirable in the interests of the lady to have it raised. If he is wrong in that the judge will say so: if he is right the judge will not allow it to be done. That is all that is being done, and in those circumstances I hope that this proposal will receive genera] support.

Photo of Mr Henry Strauss Mr Henry Strauss , Combined English Universities

I only intervene because I think that the right hon. and learned Gentleman misled the Committee by quoting the celebrated dictum of John Selden on the vagueness and elasticity of the rules of Chancery at the time that the dictum was pronounced. The right hon. and learned Gentleman took advantage of addressing a mainly lay assembly, because he well knows that since that date the rules of equity have become at least as rigid as, and, in the view of most of us, a good deal more rigid than, the rules of common law.

Photo of Mr Hartley Shawcross Mr Hartley Shawcross , St Helens

The hon. and learned Gentleman accuses me of seeking to mislead the Committee, but he is surely doing precisely that thing now. The Clause proposes to introduce a new discretionary jurisdiction which the Chancery judges will have to discharge. It imposes on the Chancery judges exactly the same kind of discretionary jurisdiction which was imposed on the Chancellors at the beginning of their equitable jurisdiction. In the course of 500 years I have no doubt that the Chancery judges would build up the same body of rules and principles for the exercise of this discretion as they have built up for the exercise of their original equitable jurisdiction. This proposal puts the Chancery judges in respect of this matter back at the position of the Chancellors in the day of John Selden with no principles to guide them. If the hon. and learned Member had thought of a body of rules and principles which he had included in the Clause to guide judges, I would not make that point, but it is impossible to fix such a body.

Photo of Sir Hugh Munro-Lucas-Tooth Sir Hugh Munro-Lucas-Tooth , Hendon South

That is what was done in the Family Inheritance Act.

Photo of Mr Henry Strauss Mr Henry Strauss , Combined English Universities

I have much greater respect for the forensic and legal abilities of the right hon. and learned Gentleman than to think that he has any seriousness whatever in the speech which he has just delivered. He knows perfectly well that this is giving to the Chancery judges nothing at all comparable to that about which Selden spoke. He knows that for hundreds of years the jurisdiction of the Chancery judges has been closely bound by precedent. He knows perfectly well that, if this Amendment were adopted, the Chancery judges would soon find examples of the practice of their courts which they thought should govern them in this instance. It is quite fantastic to suggest that it would give the Chancery judges any such freedom as they had several centuries ago.

11.0 p.m.

There is really no justification for that at all. The truth of the matter is, as the right hon. and learned Gentleman must know, that for many years now the Chancery judges have considered themselves almost more strictly bound by precedent than the common lawyer. In perhaps the most famous of all modern decisions—Donoghue v. Stevenson—as was pointed out to me by a great common law judge now no longer alive

—it was the two Chancery judges who felt they must dissent. It is therefore not true that the Chancery judges are less bound by precedent. That answers the point of the hon. Lady the Member for Epping (Mrs. Manning). I appreciate her sincerity, but I would assure her that she was misled, I think justifiably, by the quite unjustifiable argument of the right hon. and learned Gentleman.

Photo of Mr Terence Donovan Mr Terence Donovan , Leicester East

On the Second Reading of this Bill it is quite true I did ask that this kind of proposal might be examined because I had in view the type of case, not where a creditor should be defeated, but where a married woman' might have a husband of this sort—and there are indeed husbands of this sort about only too anxious to get hold of the wife's money and spend it in a wasteful and unwise way. I had hoped it would be possible to find some sort of protection against that sort of husband, as envisaged in this amendment, allowing her to go to court and ask that the restraint be maintained. As I gather from the Attorney-General the proposal has been considered exhaustively, not unsympathetically, and after listening to him I think the objections do outweigh the advantages. I am sorry that it should be so but I do not feel that I can vote in favour of it after what he has said.

Question put, "That the Clause be read a Second time."

The Committee divided: Ayes, 16; Noes, 170.

Division No. 294.]AYES[11.5 P.m
Agnew, Cmdr. P. G.Harvey, Air-Comdre. A. V.Smith, E. P. (Ashford)
Baldwin, A. E.Hollis, M. C.Stoddart-Scott, Col. M
Barlow, Sir J.Maitland, Comdr. J. W.Strauss, Henry (English Universities)
Conant, Maj. R. J. E.Manningham-Buller, R. E.Turton, R. H.
Crosthwaite-Eyre, Col. O. E.Marlowe, A. A. H.TELLERS FOR THE AYES:
Harris, F. W. (Croydon, N.)Mellor, Sir J.Sir Hugh Lucas-Tooth and Mr. Gage.
NOES
Adams, Richard (Balham)Braddock, Mrs. E. M. (L'pl. Exch'ge)Davies, S. O. (Merthyr)
Allen, A. C. (Bosworth)Braddock, T. (Mitcham)Deer, G.
Allen, Scholefield (Crewe)Bramall, E. A.de Freitas, Geoffrey
Anderson, A. (Motherwell)Brook, D. (Halifax)Dobbie, W.
Attewell, H. C.Broughton, Dr. A. D. D.Donovan, T.
Austin, H. LewisButler, H. W. (Hackney, S.)Driberg, T. E. N.
Awbery, S. S.Champion, A. J.Dugdale, J. (W. Bromwich)
Bacon, Miss AChetwynd, G. R.Ede. Rt. Hon. J. C.
Baird, J.Cooks, F. S.Edwards, W. J. (Whitechapel)
Balfour, A.Collindridge, F.Evans, John (Ogmore)
Barton, C.Collins, V. J.Fernyhough, E.
Bechervaise, A. E.Colman, Miss G. M.Fletcher, E. G. M. (Islington, E.)
Berry, H.Corlett, Dr. J.Follick, M
Bing, G. H. C.Cullen, Mrs.Format, J. C.
Binns, J.Daines, P.Fraser, T. (Hamilton)
Boardman, H.Davits. Edward (Burslem)Freeman, J. (Watford)
Bowden, H. W.Davies, R. J. (Westhoughton)Ganley, Mrs. C. S.
Gibbins, J.McKinlay, A. S.Skinnard, F. W.
Gibson, C. WMcLeavy, F.Smith, C (Colchester)
Gilzean, AMacpherson, Malcolm (Stirling)Smith, S. H. (Hull, S.W.)
Glanville, J E. (Consett)Mallalieu, E. L. (Brigg)Snow, J. W.
Grey, C. F.Mann, Mrs. J.Sorensen, R. W.
Griffiths, W. D. (MOM Side)Manning, Mrs. L. (Epping)Soskice, Rt. Hon. Sir. Frank
Guy, W. H.Mathers, Rt. Hon. GeorgeSparks, J. A.
Haire, John E. (Wycombe)Medland, H. M.Steele, T.
Hamilton, Lieut.-Col. R.Melfish, R. J.Stewart. Michael (Fulham, E.)
Hannan, W. (Maryhill)Middleton, Mrs. L.Stubbs, A. E.
Hardman, D. R.Mitchison, G. R.Symonds, A. L.
Harrison, J.Morgan, Dr. H. B.Taylor, H. B. (Mansfield)
Hastings, Dr. SomervilleMorley, R.Taylor, R. J. (Morpeth)
Haworth, J.Mort, D. L.Thomas, D. E. (Aberdare)
Henderson, Joseph (Ardwick)Moyle, A.Thomas, John R. (Dover)
Harbison, Miss M.Murray, J. D.Tiffany, S.
Hewitson, Capt. M.Neal, H. (Claycross)Wallace, H. W. (Walthamstow, E.)
Hobson, C. R.Nicholls, H. R. (Stratford)Warkley, W. N.
Holman, P.O'Brien, T.Webb, M. (Bradford, C)
Holmes, H. E. (Hemsworth)Oldfield, W. H.Weitzman, D.
Houghton, DouglasPaling, Will T. (Dewsbury)Wells, P. L. (Faversham)
Hoy, J.Palmer, A. M. F.Wells, W. T. (Walsall)
Hubbard, T.Pargiter, G. A.Wheatley, Rt. Hon. John (Edinb'gh, E.)
Hughes, Emrys (S. Ayr)Pearson, A.White, H. (Derbyshire, N.E.)
Hughes, Hector (Aberdeen, N.)Porter, E. (Warrington)Whiteley, Rt. Hon. W.
Hughes, H. D. (W'lverh'pton, W.)Porter, G. (Leeds)Wilkes, L.
Hynd, J. B. (Attercliffe)Proctor, W. T.Wilkins, W. A.
Isaacs, Rt. Hon. G. A.Randall, H. E.Willey, O. G. (Cleveland)
Jeger, Dr. S. W. (St. Pancras, S.E.)Ranger, J.Williams, D J. (Neath)
Jones, D. T. (Hartlepools)Reid, T. (Swindon)Williams, W. R. (Heston)
Keenan, W.Rhodes, H.Willis, E.
Kinley, J.Roberts, Goronwy (Caernarvonshire)Wills, Mrs E. A
Layers, S.Robinson, Kenneth (St. Pancras. N.)Wilmot, Rt. Hon. J.
Lee, F. (Hulme)Ross, William (Kilmarnock)Woodburn, Rt. Hon. A.
Levy, B. W.Royle, C.Woods, G. S.
Lewis, A. W. J. (Upton)Sargood, R.Yates, V. F.
Lewis, T. (Southampton)Shackleton, E. A. A.Younger, Hon. Kenneth
Logan, D. G.Sharp, Granville
Longden, F.Shawcross, Rt. Hon. Sir. H. (St. Helens)TELLERS FOR THE NOES:
Lyne, A. W.Silverman, J. (Erdington)Mr. Popplewell and
MoGhee, H. G.Simmons, C. JMr. George Wallace.

First and Second Schedules agreed to.

Bill reported, without Amendment; read the Third time, and passed, without Amendment.