Local Audit (Public Access to Documents) Bill

Debate between Greg Knight and David Nuttall

3rd reading: House of Commons & Report stage: House of Commons
Friday 24th March 2017 Commons Chamber

[Mr Nuttall]

My hon. Friend raises a good point that I had not previously considered. On the one hand, I agree with him that it is important that individuals should know who is putting such information out there. On the other hand, if it is an anonymous Twitter account, or if the user’s identity has been protected for some reason, I would be inclined to trust the public to treat any published information with a high degree of caution because they would not be able to know its source. Although I would defend the right of anyone to publish such information —this comes back to the question of fake news raised by my hon. Friend the Member for Christchurch—the problem with such accounts is that, because they are not accredited to any recognised journalistic outlet, members of the public should be cautious about what they read on them. That does not detract from my fundamental point that the mere fact of information being published on what we refer to with the shorthand “social media” should not stop it being regarded as having been published.

In the past, things were published in a daily newspaper and that was it. There is the old saying about today’s newspaper being tomorrow’s fish and chip paper, and I am old enough to remember when that was true.

[Sir Greg Knight (East Yorkshire) (Con)]

Does my hon. Friend accept that even in newspapers some items are anonymous? For many years there was a column in the Daily Express called “William Hickey,” but there was no such person.

[Mr Nuttall]

I am grateful to my right hon. Friend for his comment, which supports my answer to my hon. Friend the Member for Shipley. The mere fact of anonymity should not preclude publication, but it should then be up to the individual reader to decide what weight to give the information or news item in a column. Of course, the law would apply equally to printed material under the 2014 Act.

In answer to my hon. Friend, things can be published anonymously in a newspaper, not just on the internet. We often see letters in newspapers saying “name and address withheld.” Information can be put into the public domain without any indication of who has put it there.

Amendment 1 would broaden the scope of what is termed “journalistic material” to ensure that news websites in all media formats are included. The world of journalism is changing and evolving, and it is important in a free society that different viewpoints can be freely expressed and that journalists have the freedom to go about their work.

The public affairs and software company Vuelio listed the top 10 political blogs in the UK as of June 2016, and in first place was Guido Fawkes. It was followed by political websites of all persuasions, including Wings Over Scotland, which I cite for the benefit of our friends from Scotland—the hon. Member for Glasgow Central (Alison Thewliss) has left her place. The list also included LabourList, Left Foot Forward, Political Scrapbook, Political Betting, ConservativeHome, Slugger O’Toole, Liberal Democrat Voice and Labour Uncut. All aspects of the political spectrum are covered by political blogs.

The number of viewers watching a programme, the number of readers of a newspaper and the number of visitors to a website should not, of itself, be the criterion by which we determine whether something is valuable. My hon. Friend the Member for Christchurch made the interesting comment that if something is published on a website that only has a readership within the area of Christchurch and Bournemouth, that would be sufficient to meet the definition of publication. It does not have to be a national publication because, by definition, we are talking about local bodies and local councils. It seems more important to consider the quality of the readership, rather than its number or location. It might be more relevant to communicate something to 100 people in the locality than to 10,000 people who live somewhere else in the country, so we cannot purely look at the numbers when deciding this.

We need to bear in mind not only written publication and communication by social media and on the internet, but the fact that we are moving into an age of video bloggers—vloggers. I have therefore tried not to be too prescriptive about what constitutes a news outlet and my amendment simply specifies “on any website”. With modern technology, it is easy for anyone to produce their own reports and put them on the internet for others to view. Last year, research by the Reuters Institute for the Study of Journalism suggested that 51% of people with online access use social media as a news source. That is a fairly high proportion, but 28% of 18 to 24-years-olds—the younger generation, whom we want to get involved in the political process—cited social media as their main news source; nowadays this is where people get their news. More of that age group cited social media as their main news source than cited television—its figure was only 24%. It is important that this legislation reflects that changing landscape in journalism. We have to accept that in an evolving social media world the definition of “a journalist” will inevitably change over time. My amendment seeks to future-proof the Bill, which is why it stresses the words

“any website on the internet”.

[Sir Greg Knight]

I am a little concerned about my hon. Friend’s amendment, because I think it is restrictive. In terms of hard-copy publications, it refers only to “a newspaper or magazine”. Would it therefore not exclude a parliamentary candidate who was seeking to root out local corruption and wanted to publish in an election leaflet?

[Mr Nuttall]

I am grateful to my right hon. Friend for that intervention, and I fear my definition might exclude that, which may be why my hon. Friend the Member for Christchurch tabled an amendment to include “politician” in the definition. I would hope that any would-be politician—any election candidate nowadays—would have access to social media and their own website and so would be able to use the fact that they were going to publish on that website as reason to inspect the documents.

Let me try to pre-empt some further criticisms that may be made of my amendment that relate to the definitions of “internet” and “website”. The definition of “internet” is:

“A global computer network providing a variety of information and communication facilities, consisting of interconnected networks using standardized communication protocols.”

Alternatively, the “net”, as the internet is often referred to, is defined as

“a worldwide system of computer networks—a network of networks in which users at any one computer can, if they have permission, get information from any other computer”.

--- Later in debate ---

[Mr Nuttall]

To be fair, my amendment does not refer to “citizen journalists”—only the clause title does, although the term is used in the notes and the briefings. With hindsight, I think this should be deleted from the clause title, because it leads people down a cul-de-sac, as they will think a bit is missing from the Bill and will wonder where the definition of “citizen journalists” is. As I said, I decided that rather than trying to define that, it would be better to extend the existing definition of “a journalist”. Perhaps it would have been better to define—somehow— what a “citizen journalist” is, but I was conscious that a number of colleagues objected on Second Reading to the reference to “citizen”, because we are all subjects of Her Majesty. For that reason, I felt it was not sensible to incorporate the term “citizen journalists” in legislation, and I would prefer it if those words were struck from the Bill.

My amendment deals with whether payment being made for a newspaper or magazine, or for access to a website, should affect the situation. I have made it clear that that should have no bearing on whether someone, whether or not a citizen journalist, should have the right to access the accounts of their local council or other body covered by this legislation. The Bill makes it clear that it matters not whether the journalist is paid or unpaid, but I thought it was equally important to clarify this issue about payment to access the site.

[Sir Greg Knight]

The more I reflect on my hon. Friend’s amendment, the more unsatisfactory I think it is. Why is he apparently discriminating against television journalists? Many journalists, such as Michael Crick, might want to prepare a news piece for broadcast in a television programme, not for release in a magazine or newspaper, or on the internet. Why are television journalists excluded from his amendment?

[Mr Nuttall]

I do not intend to exclude anybody. Nowadays, all the broadcasters have websites. They would not necessarily need to publish or broadcast online, but I am not aware of any broadcasters that do not have websites. Perhaps my right hon. Friend is aware of some, but I would have thought it very simple for any broadcaster, faced with a council using the argument advanced by my right hon. Friend as a shield, to say, “In any event, we will be publishing it on our website.”

[Mr Nuttall]

I am grateful to my hon. Friend for that intervention, because it is important to note that the amendment says “and includes”; I have tried not to exclude any other options but merely to clarify. I hope that that will be noted by the Bill’s promoter and the Minister, who I fear may have some reservations about my amendment. I hope they will concentrate and reflect on that intervention from my hon. Friend.

I wish to comment briefly on several other amendments, but I am understandably concerned that I advance the best possible case for my own. I hope I have been able to satisfy all those with concerns about my amendment and that I have set their minds at ease. I note that the Bill’s promoter has not sought to contest my amendment in any way during my remarks. I sincerely hope that, when she speaks, she will indicate her willingness to accept it in the spirit in which it was tabled. It is not a wrecking amendment; it merely seeks to achieve what her explanatory notes to the Bill say and extend the cover to citizen journalists and bloggers to enable them to inspect the accounts of local authorities.

I wish now to deal with the amendments tabled by my hon. Friend the Member for Christchurch and make it clear which of them I do and do not support. His amendment 2, as on the amendment paper, would essentially mean that virtually anyone would be able to make use of the powers in the Bill. I am happy to support that, although it is perhaps a touch ambitious, given the views expressed so far during the Bill’s progress by its promoter and the Minister.

My hon. Friend has suggested several other options for the House to consider, including, in amendment 3, extending the access to include politicians. As I made clear in my intervention earlier, I have some concerns about the fact that the word “politician” is not defined anywhere in the Bill, but I have no objection at all to the general proposition of extending the scope from journalists to politicians.

Amendment 4 deals with the position of non-domestic ratepayers, which is particularly important as we move into an era in which we are going back towards the localisation of business rates. That move will inevitably lead businesses within an area to take more interest in what is going on in their local authority, so I wholeheartedly support the amendment.

Amendments 5, 6 and 7 give the House the opportunity to choose between the Bill applying to journalists who are accredited, professional or qualified. We heard from my hon. Friend earlier that his preferred option would be for it to apply to accredited journalists, as per amendment 5. I am happy to go along with my hon. Friend for the reasons he set out.

Amendment 8 would remove the definition of a journalist entirely. As that would, of course, be in direct contravention of my amendment, I would oppose it and press my own instead.

[Sir Greg Knight]

My hon. Friend is galloping on at such a speed that he rather skipped over amendment 3. Does he share my concern that it might be defective because it refers to a politician, the definition of which is someone who is professionally involved in politics, especially someone who holds an elected office? That might rule out an aspiring politician who is a candidate but is yet to be elected.

[Mr Nuttall]

I am grateful to my right hon. Friend for that intervention. He might have missed my intervention, but I made that point earlier in the debate. I entirely agree that there is a difficulty with not defining the term “politician” to make it clear that someone who aspires to elected office should be included, because they are as likely as anyone to want to carry out investigative work, study the accounts to get to the bottom of them, and see whether there is anything in there that they need to bring to the public’s attention.

Amendment 9 is as on the amendment paper. It would extend to section 26 of the 2014 Act the same conditions set out in section 25(3) of that Act. My hon. Friend the Member for Christchurch has again struck on something that is worthy of the House’s consideration. I am not sure whether he wishes to press the amendment to a vote but, should he so wish, I would certainly consider supporting it.

Daylight Saving Bill

Debate between Greg Knight and David Nuttall

Friday 20th January 2012 Commons Chamber

[Mr Greg Knight (East Yorkshire) (Con)]

claimed to move the closure (Standing Order No. 36), but the Deputy Speaker withheld his assent and declined to put that Question.

[Mr Nuttall]

I will not detain the House for long, Mr Deputy Speaker. We have had a long debate already on this group of amendments and I am conscious that a closure motion has already been requested, but I want to deal with some specific amendments in this group. Before I do so, let me reiterate the thanks I expressed to my hon. Friend the Member for Castle Point (Rebecca Harris) when the House considered the money resolution. She has shown exemplary courtesy and great determination to ensure that the Bill got to this stage. As I said in that debate, although I did not vote to curtail debate on Second Reading, I supported the Bill on Second Reading and I intend to vote today for amendments that will strengthen the Bill and help it to achieve its objectives. I appreciate that many people would like a trial to take place and I take cognisance of that regardless of my personal views about whether it is a good or bad thing permanently to change the time in this country.

Leaving aside for the moment lead amendment 13, because my hon. Friend the Member for Argyll and Bute (Mr Reid) has indicated that he is prepared to accept what the Minister has said about it, I hope that we will be given the opportunity to divide on amendment 30. At a time when the whole question of Scottish independence is rising up the political agenda in a way that it never has before, some of the Bill’s provisions seem somewhat perverse. I can well imagine separatists in Scotland seizing on clause 4(4), which clearly treats Scotland, and indeed Wales, differently from Northern Ireland. I see no reason why we should not accept amendment 30 so that agreement is required from the First Ministers of Scotland and Wales.

--- Later in debate ---

[Mr Nuttall]

My hon. Friend makes a good point, but I notice that clause 8(4) states:

“An order under this section is subject to affirmative resolution procedure”,

so there would be some democratic oversight of the use of the power, which most people would find satisfactory.

Those are my thoughts and that is how I will be voting.

[Mr Knight]

again claimed to move the closure (Standing Order No. 36).

Question put forthwith, That the Question be now put.

The House proceeded to a Division.

Criminal Records (Public Access) Bill

Debate between Greg Knight and David Nuttall

Friday 13th May 2011 Commons Chamber

[Mr Nuttall]

I agree with the Minister. I made the point at the outset that in due course I would like to see the legislation go further. It would be widely welcomed by the public if further information could be made available in the future. It would add to the transparency agenda, which I know the Government are keen on pursuing.

One side effect of such a Bill, which is not intended to be a crime reduction measure, is that if people knew that their neighbours could easily turn on their computer and check whether someone had been convicted of a criminal offence, that might have the effect of reducing crime in this country.

[Mr Greg Knight (East Yorkshire) (Con)]

Might not the Bill have the opposite effect? If the residents of a street discovered that one resident had a criminal record, they might decide to try to hound him out of the area by threatening and abusive behaviour.

[Mr Nuttall]

That information is already public. We are all aware from our own communities that people will often know whether someone living in their area is constantly visited by the police or has had spells in prison. I hear what my right hon. Friend says, but the provisions would be no more likely to cause an increase in attacks on individuals than is the case at present as a result of the information being in the public domain.

[Mr Knight]

I was only pontificating that it might lead in some circumstances to an incident or incidents, but it is clear from the Bill that public knowledge of those who have convictions is likely to increase. Indeed, it is not beyond the realms of possibility that if the Bill became law, someone might develop an iPhone app, for example, that would show how many people in the neighbourhood had convictions.

[Mr Nuttall]

My right hon. Friend raises an interesting point, which fits neatly with my point about available technology and the sort of database that could be created. It is quite likely that a private sector organisation could put such information into a searchable database on the internet, which, as my right hon. Friend rightly says, could easily be accessed on a mobile phone. That is the way in which the internet is going. It is more and more likely that people will carry their own personal computers around with them—tablets are already available —and if a search can be made on a desktop computer in an office, it can be made as one walks down the street. I see no reason why that should not be the case. I cannot see the problems with that.

The main point is that the information must be accurate. We already have the technology to make that happen; of that there can be no doubt. We have already seen the excellent Home Office website that enables individual householders to search right down to street level to find the number and category of crimes committed in their area. Having seen how complicated that website is, covering every road and street in the entire country, I think that the proposed database would be much easier to construct. Provided that measures were in place to ensure that the information on the register was accurate, which could be done easily by ensuring that people could check their own record free of charge, I see no reason why—

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Debate between Greg Knight and David Nuttall

Friday 21st January 2011 Commons Chamber

[Mr David Nuttall (Bury North) (Con)]

I remind the House that I am a solicitor and notary public, although I no longer hold a practising certificate for either profession.

I congratulate my right hon. Friend the Member for East Yorkshire (Mr Knight) on using this opportunity to introduce his Bill in such a selfless way. Few could have anticipated that debate on a Bill with as dry a title as Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill would have resulted in references to unprotected sex in the back of a motor vehicle; that will certainly enliven those who read Hansard, I am sure.

I thank my right hon. Friend for clarifying, in response to an intervention by my hon. Friend the Member for Christchurch (Mr Chope), the difference between tax avoidance and tax evasion. All too often in recent months, Members on both sides of the House, including those on the Treasury Bench, have got those two terms muddled up, and have muddled them in the minds of the electorate. Historically, there has been a clear division in law between tax avoidance and tax evasion. If the Bill comes into use, by way of a disclaimer somebody might say, “That’s tax evasion, or avoidance,” but there is a big difference between the two terms, and I am grateful to my right hon. Friend the Member for East Yorkshire for making that clear.

Many Members, if they had come fifth in the private Members’ Bill ballot, would understandably be tempted to go down the road of popularism, and to use the opportunity to jump on whichever bandwagon happened to be passing. It says a great deal about the public-spiritedness of my right hon. Friend that rather than go down that path, he used the opportunity that he gained in the ballot to bring before the House this Bill, which, with the best will in the world, can be described only as a legal and technical measure. As I shall mention later, it has gone through what can only be described as a very long and tortuous period of gestation to be with us this morning. The Bill may be a technical measure, but it could affect many people in years to come. Many a family may well be profoundly grateful for the changes to the law of succession that the Bill seeks to introduce.

So what problem does the Bill seek to solve? Essentially, it would prevent grandchildren from being punished for the sins of their parents. In common law, it has long been the rule—often referred to as the forfeiture rule—that when someone unlawfully kills a person, they cannot benefit from the person’s estate. In short, they cannot inherit property from the deceased person whom they have murdered or otherwise unlawfully killed. Of course, even non-lawyers may be familiar with that common-law rule, as it has featured in many a murder mystery story over the years. Fans of Agatha Christie-type whodunnits may well have come across the rule as part of an interesting subplot to many a gripping yarn.

The forfeiture rule is an example of the general legal principle that a person should not be allowed to profit from his or her crime. That general common-law rule was, of course, enshrined in the Forfeiture Act 1982, which has been mentioned. I should like to clarify that the Act makes it clear that when someone is convicted of murder, the court has no discretion over whether to enforce the rule; it is only when a person is convicted of manslaughter that the court is given discretion over whether to apply the forfeiture rule in full.

As the House will be aware, a person who dies without making a will is said to have died intestate. When someone dies intestate and leaves no spouse surviving, but only a child, the law would, in the ordinary course of events, provide for that child to inherit the mother’s or father’s estate, but of course, in accordance with the rule to which I just referred, a problem arises if the son or daughter has unlawfully killed their parent.

That is more or less what happened in what is usually referred to as the leading case on the subject, which set in train the whole sequence of events that led to the Bill being brought before us this morning, and that is the case Re DWS (deceased), which was eventually quoted in the Court of Appeal in 2001. To understand the background to the Bill, I submit it is essential that the facts of that case, and the details of the judgment given, be examined, because it gives the best explanation of why the Bill is so essential.

In 1993, the son, whom I shall refer to as RS, murdered not one parent but both—Mr and Mrs S. Neither Mr nor Mrs S had made a will, and they were survived not only by their son, the murderer, but by his son—their grandson, T. T was a minor, and claimed in the court action the estates of his grandparents through his mother, who was acting, in legal terms, as his next friend, as he was of course too young to bring the action himself.

To understand the case fully, it is essential that we know what other surviving relatives there were. Mr S did not have either parent surviving him, but he did have his sister, Winifred. Sadly, by the time the case was heard, Winifred had died; she died in April 1995. The House will recall that the murder took place in 1993. Her estate was therefore represented by the persons who became the first, second and third defendants in the action. Mrs S was in a similar position; she did not have a surviving parent, but she did have a brother, Jack, and a sister, Gladys. However, although they both predeceased Mrs S, the sister, Gladys, had two children, who became the fourth and fifth defendants in the case.

The proceedings on behalf of T, the young grandson, were launched in 1995. T, through his mother, sought grants of administration covering the estates of both his grandparents, and he sought a declaration that he was entitled to those estates once he reached the age of 18. The grants of representation were made, and the only issue with which the judge—His Honour Mr Justice Blackburn, in the first instance—had to concern himself was the entitlement of T to the estates. It was accepted at the trial that the son, R, was disqualified from benefiting from his parents’ estate under the principle of public policy enunciated in a number of cases, the leading case being the 1892 case of Cleaver v. Mutual Reserve Fund Life Association.

As Mr S died intestate, the devolution of his estate fell to be determined in accordance with the provisions of sections 46 and 47 of the Administration of Estates Act 1925. Section 46(1)(ii) states:

“If the estate leaves issue but no husband or wife the residuary estate of the intestate shall be held on the statutory trusts for the issue of the intestate”.

When Mr S died, he left issue in his son, RS, and his grandson, T. With RS ruled out because of the forfeiture rule, the question was whether the grandson could inherit. I cannot put it more succinctly than the trial judge, who said:

“The plaintiff’s entitlement arises, if at all, under the statutory trusts set out in section 47(1)(i).

Under the terms of that provision, however, the plaintiff, as the son a child of the intestate, can qualify only if he is within the definition of: ‘issue living at the death of the intestate who attain the age of eighteen years or marry under that age of the intestate who predeceases the intestate’.

On its face therefore, section 47(1)(i) requires:

(a) that as issue of a child of the intestate, the plaintiff should

(i) be living at the death of the intestate”—

which of course T was—

“(ii) attain the age of 18 or marry under that age”—

although that was not yet achieved, the grandson might have gone on to do so—

“(b) that his father, RS, being a child of the intestate, should have predeceased the intestate”—

which was not the case. The judge concluded:

“Literally applied, therefore, the plaintiff cannot satisfy the conditions laid down for him to take.”

The counsel instructed to represent T, Mr Barlow, submitted that the crucial section 47(1)(i) should be construed as though RS had predeceased his father. Not surprisingly, the judge rejected that submission:

“Persuasively though the argument was put, and sympathetic though I am to the plaintiff’s plight, I cannot accept Mr Barlow’s submissions. In my view the relevant authorities do not justify such an approach. If anything they assume that as happened of course, the offender must indeed be taken to have survived his victim.”

It was then necessary to determine whether Winifred’s executors—the House will recall that Winifred was the murdered man’s sister—should inherit. The difficulty was that, if her estate was to benefit, compliance with section 46(1)(v) was required. That provision requires the intestate to have died without husband or wife, or issue or parent. However, there was issue, because both the son, RS, and the grandson, T, had survived. There were two possibilities for the court to consider.

First, as the conditions set out in subsection(1)(v) had not been satisfied, Winifred’s estate could not take, in which case, the estate of Mr S would pass to the Crown as bona vacantia. In view of the current state of the public finances, some people in the Treasury may well think that there ought to be more cases in which the Treasury stands to benefit, but that was not a matter that the court took into account. Secondly, notwithstanding the non-satisfaction of the conditions required for the operation of that subsection, the next available class could nevertheless take, where a person from an earlier class, although in existence, is disabled from taking.

Although it appears from the situation that prompted those questions that Winifred’s estate was entitled, it was not one that, according to the research undertaken by counsel, had been the subject of a decision in any previous reported case. The question had arisen—and had been considered in the context of a disclaimer, rather than in the application of the forfeiture rule—in the case Re Scott (deceased) and Widdows v. friends of the Clergy Corporation in 1975. I do not propose to go into the facts this morning; suffice it to say that the decision in that case was that if one class of potential beneficiaries had disclaimed, and there were no members in subsequent classes, that did not prevent members of a class with a lower entitlement from inheriting.

[Mr Knight]

My hon. Friend is dealing with two important cases, but does he agree that they illustrate that our intestacy provisions are defective, and that the Bill seeks to put that right? The intestacy rules are a default mechanism, designed to help people who did not make a will, by channelling their property to their nearest blood relatives. Those cases show that there is a defect in that mechanism that is enabling further, distant relatives to benefit in those narrow cases, which is something that the Bill seeks to put right.

[Mr Nuttall]

My right hon. Friend is absolutely right. Reading in even more detail the transcripts of those judgments, it was clear to me that the judges, certainly at first instance and again in the Court of Appeal, struggled with that dilemma, because they knew that in cases of intestate succession the will of Parliament was that the closest issue to the deceased should inherit, whereas the operation of this rule meant that more distant relatives were taking. In the case Re DWS, they concluded reluctantly that, with the best will in the world, they could not override the wording of the 1925 Act.

The judge decided that the case provided a common-sense if not entirely logical answer to the problem arising from RS’s disqualification from benefit. The Treasury was not represented in that case and decided that it would not even appear, so I think that the judge was looking for a way to ensure that at least someone in the family benefited, which is why he seized on the case of Scott as a way out. He stated that, if necessary—and he did not think that it was—the same result could be achieved by implying that the words “capable of taking” were added after the words “no issue’” in section 46(1)(v). The inclusion of those words was another way around the problem.

When I read the details of all the cases, it seemed rather odd that the judge was prepared in effect to add the words “capable of taking” into an Act. However, when it came to the previous rule, there was no way round it. Had he not made that decision, and found a way to get round the forfeiture rule, perhaps we would not be here today and there would be no need for the Bill. As a result of that approach, the estate of Mr S did not pass to the Crown as bona vacantia, but to Winifred’s executors.

That, of course, all led on from a murder in 1993. The case began in 1995 and reached the Chancery Division at Newcastle-upon-Tyne in March 1999. The decision was appealed on behalf of the grandson and the case went to the Court of Appeal in November 2000. Three years later, in July 2003, the Department for Constitutional Affairs asked the Law Commission to review the relationship between the forfeiture rule and the law of succession. In particular, the terms of reference specified that the review should be carried out with reference to the difficulties highlighted in the case Re DWS (deceased).

[Mr Knight]

Will my hon. Friend confirm that there was no suggestion at all in the case Re DWS that the grandchild had in any way aided and abetted the murder? He was an innocent potential beneficiary who lost out. Indeed, I believe that at the time of the murders the grandchild was only two years of age.

[Mr Nuttall]

I was not aware of the precise age of the grandchild, only that he was a young minor. I apologise: the preamble to the law report does state that RS had a two-year-old son, so it is fair to say that at that age he was entirely innocent. His mother, as I mentioned earlier, was acting on his behalf to ensure that he would not suffer as a result of the acts of his murderous father.

The Law Commission embarked on an investigation of the matter. It was asked to explore ways in which the law might be reformed to prevent the apparently unfair outcomes of the sort that occurred in that particular case. In October 2003, the Law Commission published a consultation paper entitled “The Forfeiture Rule and the Law of Succession”. It was in July 2005—another two years having passed—that the commission published its report. We can see how the years passed—it was 10 years since the start of the case and 12 years since the original murder.

In the introduction to its report, the Law Commission stated:

“It is clearly right to exclude a murderer from inheriting, but it seems unfair to exclude the murderer’s children as well. This outcome appears arbitrary: it is not based on public policy, but it is a by-product of the way the intestacy legislation is drafted.”

The Law Commission’s recommendations in its report of July 2005 were, first, that there should be a statutory rule that when a person forfeits the right to inherit from an intestate through having killed that intestate, the rules of intestate succession as laid down in sections 46 and 47 of the Administration of Estates Act 1925, as amended, should be applied as though the killer had died immediately before the intestate.

The Law Commission recommended, secondly, that when a person forfeits a benefit under an intestacy through having killed the deceased, but as a result of the reforms, property devolves on or is held for a minor descendant of the killer, the court should have the power to order that the property be held by the Public Trustee, who should administer it so as to avoid benefit to the killer. Thirdly, when a person forfeits a benefit under a will through having killed the testator, the will should be applied as though the killer had died immediately before the testator unless the will contains a provision to the contrary.

The fourth recommendation was that where a person forfeits a benefit under a will through having killed the deceased, but as a result of the reforms property devolves on or is held for a minor descendant of the killer, the court should have power to order that the property be held by the Public Trustee, who should administer it so as to avoid benefit to the killer. Fifthly, when a person disclaims an inheritance either under a will or under the law of intestacy, the inheritance should devolve as if the person disclaiming had died immediately before the deceased. The sixth and final recommendation was that when a person loses a benefit under intestacy by dying unmarried and a minor but leaves children or remoter issue, the property should devolve as if that person had died immediately before the intestate.

The following year, in 2006, the then Labour Government accepted the Law Commission’s recommendations and included the provisions to implement them in part 3 of a draft civil law reform Bill which they put out for consultation in December 2009. Seven of the eight respondents to part 3 of the consultation on the Bill supported the reforms and agreed that the new law would be fairer and simpler to operate.

--- Later in debate ---

[Mr Knight]

As far as I can ascertain, having looked at the figures, the Bill will affect about 200 cases a year.

[Mr Nuttall]

I am grateful to my right hon. Friend for that helpful information. If we extrapolate from that, disregarding the fact that the legal proceedings took six years from their launch to their conclusion, we can calculate that in the past 10 years around 2,000 cases have been affected by the delay in bringing the matter to fruition.

My right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) referred to the evidence that Professor Beale gave to the Justice Committee when it prepared its sixth report, which was part of the pre-legislative scrutiny procedure for the draft Civil Law Reform Bill. Professor Beale had indicated the difficulties in implementing the Law Commission’s recommendations. With regard to limitation periods, one problem was that the delay had been so long that new cases had come along in the meantime and changed the legal position.

The Secretary of State for Justice at the time, the right hon. Member for Blackburn (Mr Straw), had accepted that there had been delays in implementing the Law Commission’s recommendations. He said that the draft Civil Law Reform Bill had “been in process” since he had been at the Ministry of Justice. He said:

“One of the difficulties… is that this is an important measure but there have always been other… demands on the legislative programme in the past which have meant that it has been squeezed out, because it is worthy—I actually think very important in terms of what it is doing—but it has not been seen as such a high priority.”

I am sure that those affected by that in the 2,000 cases would think that it is an extremely high priority. He continued:

“That is the honest trust about it… There has also been an extensive period of consultation.”

Well, he is certainly right there. He continued:

“The original proposals, for example, in respect of damages following fatal accidents, which were in the Law Commission proposals, have themselves been refined since then. But if you are saying: ‘Does that take 11 years?’, the answer to that is no.”

There are clearly problems with the procedures. If the case highlights anything—it is perhaps something that the House should look at—it is how the recommendations of the Law Commission are put into legislation. The Minister might have something to say on that later.

The Justice Committee did much pre-legislative scrutiny on that draft Bill and produced an excellent report on it, so it is interesting that the coalition Government have now announced that they do not intend to proceed with it. Were it not for the good fortune of the decision by my right hon. Friend the Member for East Yorkshire to adopt the Bill after his name was drawn in the ballot, I wonder how long the work of the Law Commission and the subsequent legislative scrutiny of the Justice Committee would have languished in the parliamentary waiting room.

If the Bill passes into law, the position would be clarified by virtue of the inclusion of proposed new section 46A, which provides that where a person is entitled to inherit on an intestacy but has either disclaimed their right or is precluded from inheriting by the forfeiture rule, that person is to be treated as having died immediately before the intestate. Clause 2 makes a similar provision to cover cases in which a person dies having left a will and a beneficiary under that will either disclaims or is precluded from inheriting by virtue of the forfeiture rule. Clause 3 provides that in the tragic case of a single parent under the age of 18 dying intestate and leaving a child or children surviving, the estate of the intestate—

[Mr Nuttall]

My hon. Friend makes an excellent point. One of the problems is that the affairs of a person who is murdered are left hanging in mid air. If they have not made a will, their affairs might be left to the vagaries of the intestacy laws. If they have made a will and have been murdered by their son, law might provide for the estate to pass to that son anyway.

[Mr Knight]

My hon. Friend, like me, is a lawyer, so I hesitate to suggest this to him, but is not the answer to that question that any good will has a default position? If a testator gives to a son a share of the estate, which might be a 100% share, and that son then murders the testator, thus becoming prohibited from inheriting under the forfeiture rule, a good will would state that in the event that a son does not inherit, the estate should go to person A, B, C or whoever. Does my hon. Friend agree that a well-drafted will should cover that eventually? In my view, a will that does not do that and merely gives money to one person, without stating what will happen if that person cannot inherit, is an appallingly drafted will.

[Mr Nuttall]

My right hon. Friend is absolutely right, and I am sure that my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has taken that comment on board. It was exactly the point I was about to make. I would add that I am sure that professionally drawn wills would, in the vast majority of cases, make further provision for substitution. As I know from experience, many wills are made at home—home-made wills—in which case people might not be so careful or think that it is even necessary to think beyond their nearest and dearest. They simply write their will at home, with two witnesses, and leave it at that. In such circumstances, if that person had an only child and that child murdered the testator, there would of course be nothing that the testator could do about it. However, if the person dies within a year of the act, it can still be classed as murder. The person might linger and still have appropriate testamentary mental capacity to make another will and change it. I could imagine those circumstances arising, although I accept that they would do so rarely.

Clause 3 provides that in the tragic case whereby a single parent under 18 years old dies leaving a child or children surviving, the estate of the intestate is distributed as if the single parent had died immediately before the intestate. That point was covered adequately in the comments of my right hon. Friend the Member for East Yorkshire.

My right hon. Friend thinks that the issue will affect 200 estates a year, but in future many thousands of estates will benefit from the proposals in the Bill. One thing is certain: many families will be for ever grateful that this measure was brought before Parliament. I certainly wish it well, I am pleased to see that Members on both sides of the House support it, and I trust that it will have the support of the whole House.