Inheritance and Trustees’ Powers Bill [HL]
(11 years, 1 month ago)
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The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, it gives me great pleasure to introduce this Bill and to remind the Committee that we have had the invaluable help of Professor Elizabeth Cooke of the Law Commission, the law commissioner who led on the initial Law Commission project. I am a great supporter of the House using its powers in this area to get Law Commission reports into law. There was a period when, for far too long, they gathered dust on the shelves. The process that we have adopted enables us to do some useful work. We are always very grateful to the noble and learned Lord, Lord Lloyd, for volunteering to chair proceedings on these Bills.
The Inheritance and Trustees’ Powers Bill is a fairly short but technical Bill to amend certain aspects of the law of England and Wales as it relates to inheritance and trustees’ statutory powers. The fundamental issue at the heart of much of the Bill—arrangements for disposing of a person’s property after their death—is not one that many of us relish engaging in. It brings unwelcome thoughts of our own mortality. However, these issues must be faced by most of us in some form during our lifetime. In an ideal world such arrangements would be set out in a will—and I repeat that as the first message from this Committee: in an ideal world, the most sensible thing that individuals can do is set out their intentions in a will. However, we do not live in an ideal world. Many people, for one reason or another, do not leave such a document. It is only right that the law, in the form of the intestacy rules, makes appropriate and fair provision for the disposal of their property.
I know that several noble Lords present today have had the advantage of attending the briefing on the Bill by Professor Cooke which we held last week. The Government are very grateful to the Law Commission for the help that it has given in the preparation of the Bill for introduction and its continuing support for the Bill as it goes through Parliament.
The Bill will implement, with some modifications, the legislative reforms recommended by the Law Commission in its 2011 report Inheritance and Family Provision Claims on Death. The project that culminated in that report was prompted by a 2005 government consultation on increases to the statutory legacy. Responses to that consultation included calls for a wider review of intestacy rules with almost all consultees agreeing that such a review was necessary. The Law Commission was asked to examine this area of the law and duly published a consultation paper in 2009, followed by the report, which was accompanied by a draft Bill, in 2011. The Ministry of Justice then carried out a public consultation on the draft Bill earlier this year and then published a response in July, explaining the changes it proposed to make to the Bill. This extended and comprehensive consultation process has resulted in a measure that I believe has broad support and is suitable for the Law Commission procedure in your Lordships’ House.
Noble Lords will be aware that the Law Commission’s previous work in this area included recommendations regarding rights for cohabiting couples on intestacy. The Government decided that it would not be appropriate to take these proposals forward in the Bill now before us. Indeed, the Law Commission recognises that its work on cohabitation raised issues that do not apply to the Bill. The issue of legal rights for cohabiting couples is complex and potentially far-reaching. I believe that there is already more than enough to occupy this House in the Bill as it stands. In addition, the family justice system is already in the middle of a comprehensive reform programme and I do not believe that it would be wise to consider further reform in this area until that process is complete.
The first seven clauses of the Bill deal with two aspects of the law on inheritance: the intestacy rules and family provision. The former dictate the division of property when a person dies without leaving a will. The latter permits certain family members and dependants to apply to the court to vary the distribution of a deceased person’s property, whether that is under the intestacy rules or the terms of a valid will. The Bill will streamline and modernise the intestacy rules, reducing the cost of administering intestate estates and bringing them into line with public expectations. It will also correct some technical deficiencies in the operation of the family provision legislation.
Clause 1 amends Section 46 of the Administration of Estates Act 1925 and, most importantly, makes changes to the entitlement of a surviving spouse or civil partner of a person who dies intestate. The Bill proposes that in a situation where the intestate leaves no children or other direct descendants, the surviving spouse or civil partner will be the sole beneficiary of the estate. This changes the current law under which a surviving parent or full sibling or sibling’s issue is entitled to share whatever is left in the estate after the spouse or civil partner has received the deceased person’s chattels and what is commonly called the “statutory legacy”—in this case, the first £450,000 of the estate. This brings this part of the intestacy rules into line with public expectations. Empirical research has shown that the majority of people favour giving priority to a surviving spouse.
Clause 1 also proposes that where the intestate does leave children or other descendants, the surviving spouse or civil partner is absolutely entitled to the deceased’s personal chattels, a statutory legacy of £250,000 and half of whatever remains of the estate. The other half of the remainder will be shared between the children and other descendants. Under the current law, a surviving spouse or civil partner is only entitled to a life interest in his or her half of the remaining estate. Life interest trusts can be a source of confusion and cost, often for only marginal gain, and the Bill removes them.
Finally, Clause 1 makes several technical changes to the rate of interest which accrues from the date of death of the intestate on the statutory legacy. Clause 1 simplifies the sharing of assets on intestacy in a way that is fair to those who have been closest to the deceased: the surviving spouse or civil partner and any children or their children. Our aim here is to ensure that spouses and civil partners are appropriately provided for. By focusing solely on those closest to the deceased, we aim to simplify the current law on intestacy so that it can better reflect the arrangements that an individual is likely to have made had he or she executed a valid will.
It is impossible to design intestacy rules which satisfy every view of what is right or fair. The rules stand as a legal default position. They should reflect the shape of contemporary society and replicate what most people think is an appropriate division between family members. The changes in the Bill are intended to reflect real-life expectations of what provisions the intestacy rules should make.
Clause 2 and Schedule 1 make a number of changes to the way in which the statutory legacy, or fixed net sum as it is more properly called, is determined. Under the Bill, this sum is, of course, the amount to which a surviving spouse or civil partner will be entitled where the intestate deceased has also left children or other descendants. The most important of these changes impose a new requirement on the Lord Chancellor. At present, the Lord Chancellor has the power to set the level of the statutory legacy but is under no obligation to do so or to keep the level under review. The Bill proposes to change this state of affairs by requiring the Lord Chancellor to make an order setting the level of the statutory legacy at least every five years. As to the actual level to be set, the Bill provides that, unless the Lord Chancellor determines otherwise, the level should be set according to a procedure specified in legislation. The procedure will index link the statutory legacy by increasing it by an amount that reflects any increase in the consumer prices index measure of economic inflation. The legacy can therefore only increase; in the event of no inflation or deflation, the level of the legacy will not change.
Clause 2 enables the Lord Chancellor to set the level of the statutory legacy without using this index-linking mechanism such that he is at liberty to set a level that is equal to or even lower than the pre-existing figure. However, in such circumstances, he will be required to report to Parliament to explain why the mechanism has not been used. These provisions create a legislative framework that will govern the level of the statutory legacy and will ensure that it does not slip behind inflation and lose its real-world value. The changes will benefit surviving spouses and civil partners.
Clause 3 deals with the statutory definition of personal chattels. Under the current law on intestacy, a surviving spouse or civil partner is entitled to all the deceased’s personal chattels that are not otherwise disposed of under a will. The Bill does not change that but it does propose to amend and update how these chattels are defined. Personal chattels are defined in the Bill as “tangible movable property”, replacing an anachronistic and arbitrary list of property and categories of property in the current law. The Bill also includes three defined exceptions to this definition.
The first is money and securities for money. This is not new. The second exception is for property used, at the death of the intestate,
“solely or mainly for business purposes”.
The words “solely or mainly” are new and will ensure that property—for example, a vehicle such as a van that was regularly used in the course of a business—would be excluded from the definition. The third exception is wholly new and relates to property which is held, at the death of the intestate, solely as an investment. This is a narrow exception that would only apply to property owned as an investment and which had no personal use whatever. For example, valuable jewellery which was worn by an individual, even if only occasionally, would still qualify as a personal chattel and would pass to the surviving spouse or civil partner, even if it was also bought and kept in the expectation that its value would increase.
The remainder of Clause 3 provides that where personal chattels are referred to in a will or a codicil to a will, the current pre-Bill definition of personal chattels will be used if the will itself is executed before Clause 3 comes into force. This will be the case even where a codicil is made after the date that Clause 3 takes effect. However, it is also still open to the person making the will or codicil to expressly state that the new definition of personal chattels should apply.
Clause 4 seeks to protect the position of children who are adopted after the death of a parent. The general rule in these matters is that after adoption, a child is regarded as the legal child of the adoptive parents and has no other legal parents. However, Clause 4 ensures that a child whose parent has already died before the adoption takes place will not lose, as a result of adoption, a contingent interest that he or she already holds in the estate of the deceased parent. This provision is relevant where a child is adopted, perhaps by other members of his or her family, as a result of the birth parents’ death. Adoption in these circumstances is typically open, involving no secrecy. The child has been tragically orphaned, and an aunt, uncle or other relative adopts the child. No one intended, in that situation, that the orphaned child should lose his parents’ estate; yet that is what will happen in cases where inheritance—as a matter of sensible estate planning—is contingent on the child reaching a particular age.
It is important to note that this provision affects only children who are adopted after the death of a birth parent. I believe that this is an important distinction and it is right that the law preserves the rights of children who, at the date of the adoption, already hold a contingent interest in the estate of their birth parents. The law already preserves vested interests held by a child at the point of adoption and ensures that those interests are not lost. Clause 4 simply adds contingent interests into that existing provision. It is wrong that the law can strip away a child’s inheritance simply because she has been adopted. Clause 4 will correct that injustice.
Clause 5 proposes to disapply Section 18(2) of the Family Law Reform Act 1987 in certain circumstances. This section provides that where a person dies intestate and his parents were not married to each other at the time of his birth, the administrators of his estate may presume that he was predeceased by his father and any other person to whom he may be related only by virtue of his father. In the case of a person who has a female parent other than his mother as a result of Section 43 of the Human Fertilisation and Embryology Act 2008, his administrators may presume that he was not survived by this second female parent or by anyone related to him through this parent. This is a pragmatic rule which derives from a time when it was common for the identity of the father of a child born out of marriage to be unknown. Tracking such parents down could present real difficulties to those administering intestate estates. The rule discriminates against unmarried fathers and, in practice, can make it less likely that the deceased’s estate will pass under the intestacy rules to such a parent. Nowadays, it is quite usual for both unmarried parents to be identified as such, and the practical justification for the rule is much reduced.
Clause 5 disapplies this presumption if a person is recorded as the intestate’s father or as a parent other than his mother in a specified formal register of births. In such a case, the estate’s administrators will have the same responsibility to the deceased’s father or other parent as they would to any other relative entitled under the intestacy rules. This amendment clarifies that where such a parent has been formally acknowledged as such, irrespective of the absence of a marriage certificate, that parent should, in general, have the same rights as his married counterpart.
Clause 6 amends various provisions in the Inheritance (Provision for Family and Dependants) Act 1975 by way of Schedule 2. Noble Lords will know that it was formerly the Government’s intention to create an additional ground of jurisdiction for family provision claims in this Bill. This was to enable claimants who were habitually resident in England and Wales to bring such a claim, regardless of the deceased’s place of domicile. Scottish Government colleagues have raised significant concerns about how this additional ground would operate in practice, particularly its potential to displace Scots law to the possible detriment of those who had inheritance rights under that law. We have carefully considered these concerns from our colleagues across the border. I do not now believe that it is possible to engineer a compromise on this point that would answer these concerns and retain the benefits of our original proposal. I am also aware that there has been a previous lack of consensus on the nature of the additional ground of jurisdiction—the relevant provision is at variance with both the Law Commission’s original proposal and the majority view expressed in response to the Government’s public consultation.
On that basis, my intention is to bring forward an amendment to the Bill prior to consideration by the Public Bill Committee which will delete the additional ground of jurisdiction in its entirety. I hope that, by doing so, parliamentary consideration can be better focused on the Bill’s other, equally important and worthwhile provisions.
The first of the remaining changes to the procedure for family provision claims is to extend one of the categories of person who can apply to the court for adequate provision from a deceased’s estate, whether distributed by will or intestacy. We wish to clarify that a “child of the family”—not a biological or adopted child, but a person who was treated as such—should now be understood by reference to any family in which the deceased had a parental role. Such a family need consist only of the deceased and the potential applicant. Currently, such an individual could bring a family provision claim only if they could prove themselves to be a child of the family in relation to the deceased’s marriage or civil partnership. This provision reflects the Bill’s attempts to modernise the law of succession to better reflect the realities of modern family life, and ensures that a claim by a deserving child will no longer be barred simply on the basis of the status of his or her parents.
Clause 6 also amends the wording of the 1975 Act, which defines a person who may make a family provision claim because they are considered to be a dependant of the deceased. The interpretation of the current law requires that when deciding such status, the court must balance the deceased’s contribution towards the applicant’s needs against any benefits flowing the other way. If the applicant is found to have contributed more to the deceased than vice versa, the applicant cannot be deemed to be a dependant. The Bill proposes to remove the “balance sheet test” while preserving the other, fairly strict requirements imposed on a person applying for family provision as a dependant. This reflects the important understanding that “dependency” can be mutual, and its benefits need not all, or largely, flow one way.
The remainder of Clause 6 makes a number of fairly technical changes to the procedure for family provision claims. I do not propose to set these out individually, but they include changes to arrangements governing a court’s power to make an order following a successful claim and changes to the way in which the net estate of the deceased is calculated. These changes, though technical in nature, have a significant practical effect and form part of a package of changes designed to modernise and generally improve the current arrangements for family provision claims.
Clause 7 makes various amendments to provisions which require certain types of grant to be left out of account when one is determining the date when representation with respect to the estate of a deceased person was first taken out. These are important changes, but technical, and they will be relevant in only a minority of cases. Again, I do not propose to go through each in detail. There is some uncertainty under the current law as to which grants start time running for these purposes and others and which do not. Clause 7, by way of Schedule 3, aims to clarify these uncertainties by replacing all the current provisions in this area with provisions that clearly and comprehensively set out which grants start time running and which do not.
Clauses 8 to 10 deal with trustees’ powers. Clause 8 concerns a situation where a trustee is able to use income from a trust for the maintenance, education or benefit of a beneficiary who is under 18. The Bill proposes that the amount of income that can be used for such purposes should be a matter entirely for the trustees’ discretion. Currently, an objective test of reasonableness is applied, together with a proviso listing factors that the trustees must consider—for example, a beneficiary’s age—and a specific restriction on the amount that can be paid out. These requirements are not necessary. They are sterile technical burdens and are commonly written out when trusts are professionally drafted. Clause 8 removes them. Given that the trustees must still comply with their fiduciary duties, the reform presents no threat to the interests of beneficiaries. It is right that trustees should in future be able to exercise their discretion flexibly and free from unnecessary restrictions.
Clause 9 deals with a similar situation in which trustees are able to use their power of advancement to make payments of capital to beneficiaries where this is thought necessary. Currently, such payments are limited to one-half of a beneficiary’s future share. The Bill removes this limit so that trustees could, if they think fit, pay out the whole of a beneficiary’s share under this power of advancement. This gives the trustees the flexibility that they would almost certainly be given if they were acting under a professionally drafted will or trust. It has no effect on their fiduciary duty to act in a beneficiary’s best interest, which is imposed by the general law. However, any such payments may still not amount to more than that beneficiary’s future share. Clause 10 sets out, in some detail, transitional arrangements for Clauses 8 and 9.
That concludes my brief description of the substantive provisions of the Bill. The Bill will modernise and simplify the law in a number of areas for the benefit of many people at particularly difficult times of their lives. It is a technical piece of law but no less important for that.
Finally, I must add, as I have done in introductions to previous Bills of this nature, that a Bill such as this demonstrates the importance of having a body like the Law Commission that can prepare expert recommendations for reform of the law in areas that would otherwise remain unchanged and possibly out of date. The Bill also demonstrates the advantages of having in your Lordships’ House this procedure that allows appropriate Law Commission Bills to be scrutinised as far as possible off the Floor of the House. This is the sixth Bill to be introduced under that procedure and I commend it to the Committee.
Lord Henley (Con)
My Lords, I thank my noble friend Lord McNally for introducing the Bill in such a comprehensive manner. In my innocence, I thought that this was a relatively simple Bill that was not going to cause us too many problems. However, I was naive in that approach, and I suspect that when we get into proper Committee, Report and the other stages of the Bill under the Law Commission Bill procedure, we might have to spend slightly more time on it than I originally thought.
I also thank my noble friend for arranging our meeting last week with Professor Cooke and the Law Commission, which was very useful. It helped us to get some understanding of the Bill and explained to us some of the problems. However, having listened to my noble friend’s opening speech, I wonder if we did not spend quite as much time on it as perhaps we should have.
The important point, as my noble friend made clear, is that the Bill deals largely with intestacy. He said, “In an ideal world, such arrangements would be set out in a will”. I would remind the Committee of what I am told is a convention among Quakers. Once a year they say to each other not just, “Have you got a will?”, but, “Have you got an up-to-date will?”. There is no point in having a will if that will no longer reflects your views. Similarly, it is a fairly bad thing if you do not have a will at all. So we all want to see people taking the trouble to make sure that they have a will so that large parts of the Bill need not come into effect, other than those parts that refer to looking after dependants who quite rightly should be allowed to get something if the will has excluded them.
I am very grateful, as well as for that remark from the Quakers, for a quotation sent to me by the Law Commission. It is from Cato the Elder, as quoted by Plutarch. I am going to give it in English, not in Latin—the noble Lord, Lord Beecham, can probably translate it back. He said:
“And as for repentance, he said he had indulged in it but thrice in his whole life: once when he entrusted a secret to his wife; once when he paid a ship’s fare to a place instead of walking thither; and once when he remained intestate a whole day”.
I think that it is important that everyone remembers the importance of making a will and making sure that that will is kept up to date, and for that I am grateful to my noble friend.
As one who believes in property and the freedom of testation, I am also grateful to my noble friend for covering another matter at the meeting that we had last week, and that is the fact that, other than that it makes provision for dependants, the Bill does not impinge at all on that freedom of testation. Obviously there has to be some protection for individuals, for partners, spouses and others, but I still believe that it is right that everyone should have the right, subject to what they own and whether there are trusts and others, to leave their property as and how they wish; whether it be to the cats’ home, to a political party or to their own children or whatever. I make that point because I think that it is important that we all remember that freedom of testation is a very important part of everything that we believe in in this country.
Sadly, some people will die intestate and therefore there is a necessity for rules in this area. It is a long time since I did my Bar exams and I cannot remember what the precise rules were, but having looked through the Bill, it seems to make a pretty good fist of allocating those resources on the occasions when there is a spouse or a spouse and dependants. However, there is something that I cannot quite see. The first question I want to put to my noble friend—again, I am grateful for the diagram that he provided at last week’s meeting which set out the rules before and after reform—is whether I am right in thinking that for those estates where there is no surviving spouse or children, the rules continue as they were. I cannot remember the precise details of these, but those who are more learned in law will no doubt be able to advise us. So my first question concerns intestate estates where there is a surviving spouse, civil partner or children.
My second question relates to the fixed net sum, as set out in Clause 1. There seems to be an indication that this is going to be set at around £450,000, that the Lord Chancellor will have the power to amend it and that he will have to look at it at least every five years. However, I think that we would all be very grateful if my noble friend could say a bit more about the thinking behind that sum—how they selected it and what they think is likely to happen in the future. Having said that, I would be grateful for some statistics on how many intestate estates have more than £450,000 in the bag. I suspect that it is a pretty small number, because I think that most people who have assets of that sort will have taken the trouble to take some advice. I might be wrong in that, but I would grateful to know from my noble friend just what the statistics say.
The third question I want to put to my noble friend relates to the changing definition of chattels. I listened very carefully to what he said about jewellery and whether it was something that had been, say, worn by the spouse and was therefore part of her property rather than some other asset. I have some small personal experience of this and have to say that I see trouble ahead. It is an issue that might be worth exploring in greater detail on a later occasion.
The last point—I want to be relatively brief in this—is about procedure. I understand that this is the fifth or sixth Law Commission Bill that we have had since the procedure was agreed, and I think that most noble Lords will agree that it has worked pretty well. I remember being involved in the first one that we ever had; it was of such a technical nature that I do not think I understood a word of it from beginning to end, but there were wiser people than me in the Room on that occasion. All I want is an assurance from the Government that they will ensure that this procedure is used only for uncontroversial Bills of the sort that are appropriate, as set out by the Procedure Committee. This is an area where we do not want to see any drift or growth in how these matters work.
I hope that I have been appropriately brief. There are a number of questions for my noble friend and I look forward to later stages of the Bill in due course.
Lord Wills (Lab)
My Lords, I, too, congratulate the Minister on his magisterial introduction to the Bill, which I welcome. I also congratulate the Law Commission on the quality of its work, which laid the foundations for the Bill. I am delighted to see this procedure in place for ensuring that Law Commission reports do not, as the noble Lord, Lord McNally, said, gather dust on the shelves. As a Minister in the previous Government, I was responsible for putting in place this long-overdue reform of process. It is good to see it working so well and to see all the excellent work that is done by the Law Commission, in this area as in many others, being given practical effect in this way.
The Law Commission’s work in this area set out to ensure that the intestacy rules,
“strive to reflect the needs and expectations of modern families”.
Behind that work and behind the Bill lies the imperative of ensuring an equitable distribution of the estate of the deceased. Underpinning that must be the need for such distribution to reflect, as far as possible, the wishes of the deceased. Society must strive to protect the delivery of such wishes—it is a debt that each generation owes its predecessors.
The changing nature of modern families has created a situation where such protections can be illegitimately thwarted. The Bill offers a rare legislative opportunity to mitigate such mischief. That mischief can arise, in particular, in the case of vulnerable, lonely and elderly people, where an enduring or lasting power of attorney has been granted and the attorney abuses their powers to plunder the assets over which they have power. The official line of defence against such abuse is the Office of the Public Guardian but informal lines of defence are also provided by family and friends and by those who might legitimately expect to be beneficiaries of the estate in due course.
However, these defences can be of little value in the cases—which are, sadly, increasingly common—of vulnerable elderly people without close family or friends to monitor their situation. It is impossible to know how prevalent a problem this is because it is, by its nature, often concealed. However, because it is concealed, the Office of the Public Guardian can often do nothing about such abuse. Even when it does come to light, it is often after the death of the person concerned, and the Office of the Public Guardian has no jurisdiction after death.
The mischief can also arise even when no power of attorney has been granted but when there is a fiduciary relationship. The problems here can extend beyond the obvious one where the person drawing up the will becomes a beneficiary of it.
For example—and I set out this example solely to illustrate the nature of the problem—an elderly person, perhaps in a care home, asks for advice on making a will and the care home refers them to a local solicitor. In drawing up the will, the solicitor and the elderly person strike up a close relationship. The solicitor begins to pay regular visits to discuss the will and other matters. The solicitor might, quite properly, point out that they need to charge for the visit, and the elderly person, glad of the company, is glad to agree. However, the elderly person may not be aware that the solicitor is visiting far more often than could be justified professionally and that, instead of charging a normal hourly fee, they might be charging double that and then paying themselves those fees out of the estate that they are administering.
It might be argued—and I think that the noble Lord, Lord Henley, would agree with me on this given what he has just said—that if an elderly person wishes to spend their money on company from a solicitor or anyone else, the state has no right to interfere with that wish. That is an area where the state should not trespass. However, disproportionate charges for that solicitor’s visits and a disproportionate number of visits might, unknown to that elderly person, exhaust the estate and deprive the beneficiaries, who will often be charities, of the legacy that the testator wished them to have. If that had been fully explained to that elderly person, they might well have decided not to have quite so much company from the solicitor.
If the situation is not made clear and there is a breach of fiduciary duty, there appears to be very little remedy in practice. Again, this is by its nature often a concealed mischief and will rarely come to light. In this situation, the beneficiaries of the will, who might be expected to take a close interest in the administration of their future inheritance, are charities and will not necessarily be aware of the will.
The Solicitors Regulation Authority operates, understandably and prudentially enough, on a risk basis. It investigates only after a number of complaints, and the nature of this mischief means that a significant number of complaints are unlikely to emerge. It therefore seems that professionals—this will usually be solicitors but not necessarily exclusively so; it might involve others such as accountants and doctors—can operate to milk the estates of elderly, lonely and vulnerable people with a high probability of impunity.
This risk has been acknowledged by the Solicitors Regulation Authority, which has said:
“Theft and serious overcharging by solicitors acting in a representative capacity such as executor of an estate (but also under powers of attorney) continue to pose a high risk. The numbers of reports to the SRA of possible irregularity in probate cases increased from 6 in 2004, to 31 in 2005, 52 in 2006 and 65 in 2007. This problem is particularly insidious because it can take place over many years without detection. Beneficiaries, especially charities, are unaware that their money has been stolen. Sometimes solicitors or their employees take a long-term view by drafting wills to enable them to steal money from estates in later years”.
It is therefore clear that this problem has come across the radar of the SRA. The numbers are not great, but they may be only the tip of an iceberg. The problem is compounded by the fact that, as I understand it, if an estate is of nil value, it does not have to be published. A sufficiently calculating solicitor or other person in a position to do so can then time the plundering of the estate to such an extent that it is exhausted by the time of death. Therefore, there is no public record of the depletion of the estate. In the circumstances that I have described, there will be no close family or friends to be beneficiaries who might question the exhaustion of the estate. The charities, which are often the beneficiaries in these circumstances and which, as I understand it, scrutinise published wills to check out their legacies, will have nothing to scrutinise. Such a lack of transparency fosters a culture of impunity which can only encourage the plundering of estates of the elderly and vulnerable by those who are malignly intentioned and are in a position to do so.
There is clearly a problem here, and the Bill offers a rare legislative opportunity to tackle it, although I fully accept that the main thrust of the Bill is in a completely different area from the one that I have just described. Before the Minister decides to tell me that I may be straying too far off course here, I should say that I have sought advice from the clerks on the amendment that I intend to put down and they have advised me that what I have in mind is admissible.
Of course, no legislation can ever guarantee to remove any mischief completely, but it can often mitigate its incidence and its extent. I believe that greater transparency can do just that in this case. I tell the Minister now that I intend to put down an amendment in Committee to promote such transparency. I am very happy to share this with the Minister and his officials in advance in the hope that all their greater experience, wisdom and judgment can improve my amendment and make faster and securer progress towards tackling a problem that I hope we can all agree should be tackled.
Lord Marks of Henley-on-Thames (LD)
My Lords, I, too, welcome this Bill. As my noble friend has explained in his lucid and comprehensive introduction, it implements some of the proposals in the Law Commission’s 2011 report, Intestacy and Family Provision Claims on Death.
Particularly welcome is the improvement of the position of spouses and civil partners as compared with the position of remoter relatives. It is entirely right that where a deceased leaves a spouse or civil partner but no children, the spouse or civil partner should take the entire estate. It is also right that where there are surviving children as well as a surviving spouse or civil partner, then that survivor should take not just the statutory legacy absolutely but also his or her half of the residue absolutely. The complication and the capacity for encouraging disputes that was inherent in the existing arrangement, whereby the survivor’s half interest was held on a life interest only, should be done away with. I believe that these and other changes in the Bill chime with contemporary views of family life. They also accord more readily than do the present arrangements with the economic realities of dependency. These changes will help avoid the difficulty, the expense and the time involved in bringing claims for family provision under the 1975 Act as well.
In the case of family provision, my noble friend has stated that the Government intend to abandon the provisions presently in the Bill to reform the domicile threshold for bringing a family provision claim. Families and family wealth are increasingly international, and not only among the wealthy. I would suggest that there are cases where claims against the estate of non-domiciled deceased persons ought to be capable of being brought. It may be that habitual residence of a potential claimant is not an appropriate test for the reasons of Scots law and practice that my noble friend gave. But in this respect, as he reminded us, the provisions in the Bill differ from the Law Commission’s original proposals. The Law Commission report recommended that the existence of real property in England and Wales, or property to which domestic succession law applied, should be the alternative threshold condition apart from domicile of the deceased, whereas, as my noble friend has said, the Bill in its present form would have established habitual residence of the potential claimant as the alternative threshold condition.
I wonder whether the existence of real property here, or property to which domestic succession law applies, should, as the Law Commission proposed, even in the absence of domicile of the deceased or habitual residence of the claimant, justify a financial provision claim. I hope that the Government, rather than simply abandoning the position by amendment, will consider whether there is an alternative way of effectively widening the present threshold.
In connection with family provision claims, it is plainly right that we should add as an eligible person a child treated by a parent as a child of the family; that change is plainly welcome.
The Bill, however, implements only one part of the recommendations of the Law Commission’s 2011 report. As my noble friend also pointed out in his introduction, the other part comprised its recommendations for provision for cohabitants to take under the intestacy rules after five years’ cohabitation, or two years if the cohabitants had children living with them. Those proposals were incorporated in a separate draft Bill, the Inheritance (Cohabitants) Bill, which was annexed to the Law Commission’s report.
The Government have not sought to implement those provisions either in this Bill or in any other Bill. I differ from my noble friend and the Government in my assessment of the wisdom of this. It was left to my noble friend Lord Lester of Herne Hill to bring in a Private Member’s Bill in the terms of the Law Commission’s draft in the previous Session in an attempt to secure the implementation of these recommendations relating to cohabitation. That Bill fell for lack of time and government support after Second Reading in this House. Its provisions are now included in my Cohabitation Rights Bill, which was introduced in this House earlier this month.
The fate of those provisions is not my only concern in this area. The Law Commission in 2007 produced a lengthy and detailed report entitled, Cohabitation: The Financial Consequences of Relationship Breakdown. In that report, the commission recommended a limited scheme of financial relief to adjust economic disadvantages arising out of cohabiting relationships and to share the benefits derived from such relationships.
Again, my noble friend Lord Lester of Herne Hill introduced a Private Member’s Bill in 2008 which would have introduced reforms which were not the same as but similar to those proposed by the Law Commission. The Labour Government did not support that Private Member’s Bill, the noble and learned Baroness, Lady Scotland, then the Attorney-General, saying that the Government wished to await the outcome of research into how the Scottish legislation to similar effect, passed in 2006, was working.
In September 2011, four years after the Law Commission’s 2007 report, when I asked an Oral Question of the Government on this issue, they announced the same day by Written Ministerial Statement that there would be no action taken by the Government in this Parliament to implement the Law Commission’s proposals. Those proposals on financial relief on relationship breakdown are now the central part of my Cohabitation Rights Bill. However, in the nature of things and despite any optimism on my part, it may be some time before that passes into law.
Meanwhile, more and more cohabiting couples in England and Wales—nearly 6 million people now cohabit in the United Kingdom—go without the legal protections on breakdown or death that the Law Commission has firmly recommended that they should have. This is against the background of widespread public confusion about the position in law of people who choose to cohabit. In a British Social Attitudes survey in 2006, no less than 58% of respondents thought that cohabiting couples who split up were probably or definitely in the same position as married couples. The myth of the common law marriage is widespread, but it is just that, as your Lordships know: a myth without any foundation in law.
Reform of the law relating to cohabitation enjoys widespread judicial support. Scotland has had a cohabitation law similar to that proposed by the Law Commission since 2006. Ireland introduced similar legislation in 2010. This is what the noble and learned Baroness, Lady Hale, our one woman Supreme Court judge—and how regrettable it is that she is the only one—said last July, in a major case on the Scottish Act in the Supreme Court, Gow v Grant:
“The main lesson from this case, as also from the research so far, is that a remedy such as this is both practicable and fair. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship”.
She concluded:
“‘The Act has undoubtedly achieved a lot for Scottish cohabitants and their children’. English and Welsh cohabitants and their children deserve no less”.
This is not good enough. The Law Commission’s proposals on separation were made in 2007 after a long and detailed consultation, and on intestacy in 2011. They were thorough and carefully considered. The Law Commission is the independent body set up by Parliament to recommend to the Government necessary law reforms, with a mission to keep the law fair, simple and modern. Yet in spite of repeated pleas from the professions and the judiciary at all levels to implement the commission’s proposals, no action has been taken.
I am not saying that any proposal of the Law Commission should automatically be implemented without parliamentary scrutiny—far from it. Of course it is for Parliament to determine what proposals it will implement and what it will decline to implement. However, the point of having the Law Commission is to achieve reform of the law, and that central function risks being thwarted by the failure of government at least to bring legislation before Parliament to implement the commission’s proposals. I suggest that the default position at any rate should be that the Government should bring forward legislation for consideration by Parliament when the Law Commission makes detailed proposals for law reform.
As a result of a decision taken by the conference of my party in Glasgow this autumn, the implementation of the Law Commission’s proposals on intestacy and on relationship breakdown is now Liberal Democrat policy. However, that in a sense highlights the problem. Proposals of the Law Commission for law reform should not have to be the stuff of party politics. I do not disagree with my noble friend Lord Henley that this fast-track procedure should not be available for every controversial proposal of the commission, but that does not mean that the proposal should not be brought before Parliament to be debated in the usual way. Governments of all parties should regard it as incumbent upon them to bring legislation before Parliament to implement Law Commission proposals.
Under the protocol set out in the Law Commission Act 2009, agreed between government and the commission, the Lord Chancellor is under a duty to report annually to Parliament on progress in implementing Law Commission reports. The Government must take that protocol seriously and indicate a high duty in this area. The progress on cohabitation reform suggests that such a duty has not been taken sufficiently seriously to date. The Bill is welcome but does not go far enough. One is left with an uncomfortable sense that we are implementing the easy and non-controversial proposals and ducking those that are more controversial. I adapt the words of the noble and learned Baroness, Lady Hale: the Law Commission’s proposals deserve better than that.
Lord Shaw of Northstead (Con)
My Lords, I am no lawyer and do not propose to go into the detail of the Bill. My sole objective is to show my welcome—and, I believe, everybody’s welcome—for its introduction.
The Bill introduces amendments to legislation some of which goes back as far as 1925. They seek to correct shortcomings in existing legislation that have appeared. I was prompted to take an interest in the Bill by my recollection of a family incident some years ago. Our solicitors suddenly produced a number of short documents for each of us, including uncles, aunts and the rest, to sign. My immediate response to all this was, “Why the devil should we sign them?”. So the solicitors came back to me and I was told that if certain highly unlikely but entirely possible happenings took place concerning intestacy—including sudden unexpected deaths and so on—the intentions of our wills or trusts would not fulfilled. Having been told that, I did not go into the matter any further—I just told everyone to sign as quickly as possible. Presumably all is well and, anyway, I do not think that there were any sudden deaths or whatever in the family.
In looking at the changes outlined in the Bill it is very important from our point of view that they have all been carefully and thoroughly considered and approved by the Law Commission, which has itself sought full public comment before arriving at its conclusions. In supporting the Bill, I express my thanks to the Law Commission for its work and its conclusions, and I hope that these will lead to a speedy, welcome and successful passage of the Bill.
Baroness Hamwee (LD)
My Lords, I had friends—not Quakers—whose favourite activity of a long winter’s night, when we were all students and young lawyers in practice, was to make and remake their wills. I do not know whether they filled in the odd half an hour with the odd codicil as well. Many of us, like them, at some point in middle age, go from, “I am immortal” to, “I cannot face thinking about it”. It is no surprise that the Nuffield study used by the Law Commission reported that family circumstances and the wish to avoid family arguments, as well as having assets, is the prompt to make a will. I say “assets” rather than “wealth” because there is also awareness, particularly of the cost of housing and the positions of one’s children and grandchildren.
I was fascinated by some of the information at the back of the Law Commission report. I have to say that when I picked it up last night I thought, be careful what you wish for. The jump in the number of intestacies in the three years in the middle of the 2000s—or, as the Law Commission explains, probably deaths five years previously, when the grant was in those years—is very puzzling. The report is impressively thorough; one would expect no less.
Many people think that the law must automatically reflect what they perceive to be sensible and right, but, as other noble Lords have already said this afternoon, what you think is right may not coincide with what I think is right. I was taken by the emphasis the Law Commission put, and which the Minister has analysed and repeated, on rules, without affecting freedom of personal decision. The aim of bringing the law into line with needs and expectations reflects exactly what the law should do, but there are, as has been explored, new forms of family and some very complex permutations, given sequential marriages, step-relationships and so on. I could tell from the Minister’s speech that that is well recognised. I knew that with my noble friend Lord Marks taking part in the debate there would be no need for me to linger on the issue of cohabitation, but I agree with him on the complexity and importance of international aspects too.
I was particularly interested in the provisions for adopted children who are part of a new family. I was lucky enough to take part in the recent work of the Select Committee looking at adoption legislation. It highlighted for us the importance to many adopted young people of their sibling relationships and of the maintenance of contact with their birth siblings. The issue of different rights in the case of children of deceased birth parents, where some interests are vested and some are contingent, had not occurred to me, but I realise that it must be very difficult, both for adopters and for adoption agencies, to handle this issue. I suspect it may also be pretty difficult if adopters who have a child whose interests are contingent have children who have significantly less wealth than their adoptive sibling but, as the Minister said, this is typically a very open arrangement.
The provisions about maintenance and advancement seem eminently sensible. Given what applies to which trusts created when, I did wonder whether this might be some sort of job creation scheme for lawyers, who will all be advising their clients to make new wills. However, in defence of the profession, I did not recognise the scenario painted by the noble Lord, Lord Wills, although I accept there are bad apples in every profession. I did have a parallel thought in that I object to the market that the banks have created in wills and probate. The noble Lord, Lord Beecham, is nodding. It is a good thing that they are not as creative in their timing as the noble Lord, Lord Wills, has suggested is possible. I would be intrigued to see his solution to this. It is in the interest of solicitors—I am a solicitor, despite not having practised for some time—as well as of clients that there is simplicity. Dealing with a client at war with his family after a death in that family is stressful for everyone, including the solicitor. Some arguments can never be solved.
There will be points to probe in Committee. Along with the noble Lord, Lord Henley, I wondered about assets which are classed as investments if they are only narrowly investments. I was thinking about works of art—what a pity if they cannot be enjoyed as well as being investments. I know people who collect works of art who justify it to themselves as being an investment, but a lot of people enjoy seeing the works on their walls. I have not thought this through but I wonder whether there is any interaction here with the inheritance tax provisions, which are different for personal assets and for the assets of a trade or business. That comes from having been a partner in a firm that acted for a lot of people in the arts world.
There will be points such as that to probe but there is one that I should like to raise now. I should be glad to know before we reach Committee whether it is intended that different provisions of the Bill will come into force at different times. I appreciate that the commencement sections of a Bill really are for the geeks but it is important here to understand this, because a lot of the provisions work as part of a complete package. No doubt, along with other Members of this Committee, I soon will be off to add remaking a will to my to-do list.
Lord Lloyd of Berwick (CB)
My Lords, I am glad to have the opportunity to speak during the gap. I do not intend to deal with any of the provisions of the Bill, which have already been very well covered in the debate but want to say something about the procedure that we are following.
I remember the time not so very long ago when the Law Commission would study an area of the law that was badly in need of reform. Very often it would be doing so at the request of the Government. It would then take all the trouble and all the care to produce a report such as the one we have here—I refer not just to the cover but to the contents, some of which I have read—but nothing would happen. The Government may have accepted all the recommendations of a report and thanked the commission warmly for all its hard work, but still nothing would happen. The reason always given was that there simply was not time for a Second Reading in the Chamber.
Therefore, the matters covered by these reports, urgent though they might be, would accumulate from year to year. It became almost a scandal and must have been extremely frustrating for the Law Commission. Then came the noble Baroness, Lady Ashton, like a sort of deus ex machina. As Leader of the House, she was determined to do something to speed up the process, which is exactly what she did. I remember well the discussions that we had at that time, and I can say that without her we would not be here today in the middle of this Second Reading debate. I hope that the noble Lord, Lord Wills, who spoke on this, can confirm that view.
Lord Wills
I am sure that this is not courteous but I should like not only to place on record the work done by my noble friend Lady Ashton but to put the history straight. When I came into position in 2007, this was not a work in progress. The person who deserves most credit is no Minister but the then chair of the Law Commission, Sir Terence Etherton—now, I think, at the Court of Appeal. He was indefatigable in badgering me as the responsible Minister and all the officials to make sure that something happened. I am sure that the Ministry of Justice will remember this. As we are paying tribute, I say with all respect to my noble friend Lady Ashton that if there is one person who really deserves the credit it is Sir Terence Etherton. I hope that the noble and learned Lord will agree with me on his central role in this important reform.
Lord Lloyd of Berwick
I entirely agree with the noble Lord—I can remember Lord Etherton badgering me in exactly the same way—but it was the noble Baroness, Lady Ashton, who in the end got it through. It seems to me that we owe a huge debt of gratitude. By “we”, I mean the law and not just us around this Committee.
Perhaps I may couple just one other name: that of the noble Lord, Lord McNally, the Minister in charge of this Bill. I hope that he will not be too surprised by my saying that. As I think I have been involved in all the Law Commission Bills—I was surprised to hear that there were six; can it be as many as that?—I know from my experience that having a Minister who is himself keen on law reform makes all the difference.
Finally, I want to mention Professor Elizabeth Cooke, who has been in charge of work on this Bill from its very inception. In the old days, Acts of Parliament were sometimes named after the person who had drafted them; Lord Tenterden’s Act comes to mind. I would like to think that at some time in the future this Act might become known as Baroness Cooke’s—I say Baroness; she is not a Baroness yet—or Professor Cooke’s Act. This is an admirable report; it is very well set out, very clear and ideally suited for this procedure. I hope that it will find favour with the Committee.
Lord Beecham (Lab)
My Lords, I join other noble Lords in thanking the Minister for the clarity with which he went through this very technical Bill. He has made it comprehensible, I think, to all who have heard him address these issues today. Before we began today’s debate, the noble Lord, Lord Henley, inquired whether I had any more Dickensian quotations—we tend to bandy them across the Chamber at one another. I confess that I have not come up with anything, except perhaps to note that this is after all a Bill about expectations great and modest.
The noble Lord also said that he was pleased that the Bill did not interfere with the freedom of testation, which of course it does not. It is perhaps worth reminding your Lordships that the Inheritance (Provision for Family and Dependants) Act allows for applications to be made in respect of an estate where a dependant feels that his or her interests have not been adequately reflected in the will that has been made or, indeed, under an intestacy. However, this measure does not deal with that particular set of events.
The noble Lord inquired into the numbers involved. The impact analysis of the Bill refers to there being something like 1,045 estates valued at £450,000 or more; that was the figure he was looking at, which currently applies for cases where there is no surviving spouse. However, although there are 1,000 such estates or thereabouts, the estimate is that only 5% to 10% of those are intestate estates. We are therefore dealing with pretty modest numbers, although they are obviously significant to anyone involved with one of those estates.
I have to congratulate my noble friend Lord Wills again on the ingenuity with which he manages to bring into legislative debates matters about which he is particularly concerned. I am tempted to throw in a slightly Dickensian reference to King Charles’s head, but will not pursue that at any length because, of course, he raises a legitimate and interesting point, which we will no doubt have the opportunity of debating further. However, when it comes to exploitation of vulnerable people or misconduct by any adviser—be it a solicitor, bank or anyone else whose responsibility clearly ought to be to act in the interests of those to whom an estate has been left—the numbers are again pretty small. The noble Lord mentioned 65 cases. There are 240,000 grants of representation every year; that figure appears in the commission’s report. It is a minuscule proportion, but of course any one case is too many. Not far from where I used to practise in Newcastle—I declare my interest as a now-unpaid consultant in a firm in which I was formerly senior partner—there was a serious case where, I recollect, a £90,000 bill was levied on a £100,000 estate by a solicitor who was, of course, subsequently struck off and also visited with criminal sanctions. I think the office where he carried out this misfeasance remains to this day unlet and unoccupied. That is not to say that my noble friend is not right to raise the issue. It will be interesting to see what proposals he has to make about it.
The noble Lord, Lord Marks, made some interesting points. He referred to the fact that dealing with the issue of cohabitees is to be Liberal Democrat policy, which must of course give great heart to cohabitees, bearing in mind what happened to things like student loans and nuclear power. Nevertheless, hope springs eternal in a Lib Dem’s breast. We might see some action—possibly—along those lines. I share the noble Lord’s concern about cohabitation. The commission argues a strong case for dealing with what is now a growing number—the noble Lord referred to 6 million although I think the documentation suggests 7.5 million —of people, about 15% of families, living in that state. I am not sure why the Government choose not to proceed—not necessarily in this Bill but in this Parliament—on a matter which I would have thought would command support. The consultation responses to the commission’s report were fairly limited. Although I recall there were some in the part about cohabitation, they were a relative handful.
If I have a confession to make, it is that I did not quite struggle through the entirety of the Law Commission’s report, but did look particularly at the section on cohabitation—which, appropriately enough, comprises about 15% of the report. There were obviously those with particular religious views who were concerned about the cohabitation proposal but there did not seem to be great hostility beyond that. I would have hoped that the Government would look more sympathetically at that. It need not be in this Bill but they could, at least, pursue further consultation with a view to bringing forward legislation, whichever Government assumes office after the next election.
I agree with the noble Lord on that issue but am not entirely convinced about his references to the desirability of the half-share—which, under present circumstances, may be held on a life interest—becoming absolute. In many cases that would be absolutely appropriate, but it might be a bit hard in a situation where the total estate is not that much more than the statutory amount of £250,000 but where there are children, particularly if they are from a first marriage or civil partnership, for example. Such children might see their inheritance reduced effectively to a quarter of the estate; whereas ultimately, under the existing framework, it could be a half. If there is a lot of money, that is less relevant, but if it is a relatively modest estate there might be some potential hardship to children, particularly in the case of a second marriage or second civil partnership. Having said that, I suppose that it is always possible to revisit these matters in due course, but it would be interesting to see how that plays out.
Two other matters occurred to me. The first comes from the left field, as it were, and relates to the position where a testator or intestate with English domicile had two wives. That may be the case if someone of a certain religion had come from a country where it was possible to have more than one spouse. I am not sure what the current situation is, let alone how that would apply in these circumstances. I do not know whether the Minister, his colleague or those behind him can advise about that. It is not going to be a huge issue but it might be an issue.
I mentioned the second issue—the potential impact when a joint tenancy is part of the family’s assets—at the meeting that the Minister helpfully organised. A joint tenancy is one in which there is an undivided share of property. A husband and wife, or any two people, hold the property, which automatically passes on death to the other. It is not included in the estate and is not therefore taken into account under the present arrangements. That is as opposed to a tenancy in common, where you have a distinct share that can be left by will or would pass under the intestacy rules. I suppose it is possible that the inheritance family provision legislation could apply in that context; someone may feel that they have been significantly bypassed and could make an application. I do not know what the prospects of success for such an application would be. Perhaps I am overcomplicating things but I wonder whether some notice ought to be taken of the potential impact of a joint tenancy absorbing perhaps a significant part of the estate and taking it outside of the regime that the Bill helpfully provides. Perhaps one might consider that in Committee or perhaps the Law Commission might want to advise the Minister before we get to Committee as to whether anything might be done in that respect.
Basically, we are supportive of the proposals. Subject to possible minor adjustments here and there, they represent a way forward. I join the noble and learned Lord, Lord Lloyd, and others in paying tribute to the commission and particularly to Professor Cooke for the amount of work done and the clarity with which the case has been made, both in documentation and in the helpful session that we had. We look forward to completing the work on the Bill fairly rapidly. It will certainly provide justice for many people and improve on the current situation. In principle, therefore, we support the Bill.
Lord McNally
My Lords, we have had a good debate, which I am sure bodes well for very interesting discussions in the Public Bill Committee. I again put on record my thanks to the noble and learned Lord, Lord Lloyd, for taking on the responsibility as chair of that Committee. As noble Lords will have gathered, I am also much reassured by the presence close by of Professor Cooke as I try to give answers to matters raised by noble Lords.
The first of my noble friend Lord Henley’s questions was about the situation where there is no surviving spouse or children. In such a case, the law remains the same. As to how the fixed sum was reached, that came out of a study in 2005, which made me think that it might be ripe for looking at again. On the question of whether this is a surprisingly large sum, one of the factors is housing, which makes it relatively easy for an estate to have quite large sums in it. Nevertheless, I am told that it affects at the moment only 2% of estates, partly because, as was mentioned, people who have a house and realise that its value is rising have the incentive to make a will.
The point that my noble friend raised about chattels is one that we may well explore in Committee. As I think my noble friend Lady Hamwee said, it is in respect not just of jewellery but of paintings and other things where there might be a wavy line between investments and chattels. That is certainly something to look at. For the same reason that I will refer to when I come to the interventions of my noble friend Lord Marks, I assure my noble friend Lord Henley that this procedure will be used only for non-controversial reforms. That is its strength and why Parliament has confidence in it. We should keep to that kind of discipline.
As the noble Lord, Lord Beecham, said, the noble Lord, Lord Wills, took us to interesting areas. However, the noble Lord was right to point out the danger of mischief and of the abuse of elderly and isolated individuals. Much of that is the responsibility of the Office of the Public Guardian, which also comes within my ministerial responsibilities. Allegations of theft or overcharging by any professional are serious and concerning but I do not believe that this Bill is the right place to tackle such misconduct. The Inheritance and Trustees’ Powers Bill does not directly deal with wills but instead focuses largely on situations where no will has been made. Dealing with the concerns raised by the noble Lord would not only expand the content of the Bill to deal with wills but would mean taking it into the territory of professional legal regulation, which would be a very significant step and is already dealt with under the auspices of the Solicitors Regulation Authority and the Law Society. However, the Committee will undoubtedly consider the points made by the noble Lord, Lord Wills, carefully unless the chairman rules that out. Not that I am not suggesting that will happen—we look forward to an interesting debate on any amendment tabled by the noble Lord, Lord Wills.
My noble friend Lord Marks gave us a glimpse of the detail into which Liberal Democrat conferences go in making policy. I cannot quite remember the debate myself, but I am sure there were many speeches from the floor that dealt with our policy on this. I have to say to my noble friend that he used a good deal of his speech to talk about things that we have not done and were not in the Bill. These are very relevant and may well need to be brought before Parliament, but he gave the game away at the end of his peroration when he described the issues that we have left out of the Bill: he will see when he reads Hansard that several times he used the word “controversial”. It is because they were controversial that they fell foul of the request of the noble Lord, Lord Henley, that we stay clear of that.
Lord Marks of Henley-on-Thames
My Lords, I draw my noble friend’s attention to a distinction that I hoped I had made between controversial proposals of the Law Commission, which I suggest ought to be brought before Parliament for legislation, and non-controversial proposals, such as are included in the Bill, which are suitable for this procedure. I hope I was making it clear that I do not suggest that this fast-track procedure is suitable for controversial legislation, but I do suggest that the Law Commission should not be frightened or intimidated away from introducing controversial proposals. Indeed, when considering its new, 12th—I think—programme of law reform, it has made it clear that it does not propose to steer clear of controversial proposals. I believe that that is thoroughly laudable.
Lord McNally
I could not agree more. I also say that I take very seriously my responsibility to bring the non-controversial parts of the work before the House.
Whether we should take the non-domicile question out of the Bill can be looked at in Committee. It seems to me that what we have done is no more than to recognise the realities we face in our relations with our Scottish colleagues, but I take on board the point made by my noble friend Lord Marks that in an increasingly international world some of this might have cross-border dimensions.
My noble friend Lady Hamwee made the point about housing now being a big part of any inheritance. She also raised the question of inheritance tax implications. We can look at that in Committee if necessary, but on her specific question about the commencement provision, there is no precise timing as yet, but the intention is that commencement will be all at one time.
I was extremely pleased by the contribution of the noble Lord, Lord Shaw, both for his welcome for the Bill and for the personal example that he gave, which was extremely helpful to the Committee. I shall treasure the compliment of the noble and learned Lord, Lord Lloyd; I shall tuck it away. We will have to leave it to the historians to decide whether it is Wills, Ashton, Etherton or one of the joint parentages we were talking about earlier in the debate. Nevertheless, the fact that the noble and learned Lord has been willing to take on the chairmanship has given an impetus and confidence to this procedure.
I was greatly sorry that the noble Lord, Lord Beecham, did not take this opportunity to give us a quote from Bleak House. Surely there is one somewhere here.
Lord McNally
It is the classic. There is an old joke of which I saw a picture in a bar in Scotland: one farmer was pulling a cow’s horns, another farmer was pulling its tail and underneath was a lawyer milking the cow. However, the noble Lord, Lord Beecham, made a spirited defence of his profession and put into perspective some of the suggestions made about malpractice. As I mentioned when I dealt with the contribution of the noble Lord, Lord Wills, this is looked at elsewhere in the law.
On the issue of two wives, only the wife of a marriage that was legally recognised under English law would be relevant as regards intestacy rules. However, if noble Lords would like to pursue this in Committee, we can look at it in more detail. You do not have to be a Muslim or a Mormon to have some interesting domestic arrangements; this is not personal, but I can think of one or two which might come into this category.
That just shows why it is extremely sensible to use this procedure and the careful research and advice of the Law Commission in carrying this forward. I hope that we can now move into Committee and do this work, which is one of the more satisfactory exercises in Parliament. As the noble Lord, Lord Shaw, pointed out, we manage to pick up pieces of the law that have fallen out of date and address them in an extremely practical way.