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Clause 1 — (Powers Of Consular Officers In Relation To Property In England Of Deceased Persons)

Volume 463: debated on Tuesday 22 March 1949

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6.30 p.m.

I beg to move, in page 1, line 16, at the end, to insert:

"Provided that the court may, if it thinks fit, postpone the making of a grant by virtue of this section during such period as the court considers appropriate having regard to the circumstances of the case."
The Committee is aware of the background of this Bill. I do not propose to spend any time, unless I am so requested, in dealing with general points at this stage. The object of Clause 1 is to reflect Article XVIII of the Convention which we have signed with the United States of America. Under the Article which presumably would be embodied in any other convention of this type, a consular officer is entitled to obtain a grant of representation to the estate of a deceased person when the national of this consular officer would have been entitled to receive it if the national had been present or had been represented in the court. The Committee will remember that a number of hon. Gentlemen, including my hon. Friend the Member for East Islington (Mr. E. Fletcher), raised a point here during the Debate on the Second Reading.

My hon. Friend the Member for East Islington said that no provision was made with regard to the time at which the consular officer might make his application for the grant. In our submission, as my right hon. and learned Friend the Solicitor-General attempted to explain, we had addressed ourselves to this point in the original text. The idea behind Clause 1 of this Bill, and, of course, Article XVIII of the Convention, is that the consular officer only comes in as an administrator in the last resort, as it were. He does not act, nor is he empowered to act, where the interested national is represented in the ordinary way. He would only act in the circumstances to which I have already alluded. However, the hon. Member for East Islington and hon. Gentlemen opposite made the point that plainly an interval should be allowed to elapse before the person normally entitled to apply for a grant should be superseded by the consular officer of his country.

On reflection, and in consultation with my right hon. and learned Friends, although as we say we think this point has always been inherent in the Clause, we thought the suggestion was reasonable and that we should try to meet it. There is another Amendment on the Order Paper in the name of the hon. and learned Member for Daventry (Mr. Manningham-Buller) in page 1, line 16, at the end to insert
"but the court may, if it thinks fit, postpone the making of the grant for such time as it thinks necessary to enable the said national to be informed and to decide whether he desires to be represented otherwise than by the Consular officer."
We did not think it wise to try to define an exact period of, say, three, six or twelve months. We thought that the court itself would be the best judge. Therefore we propose to add the words of the Amendment I have moved. I hope that the Committee will consider that this is a wise way of addressing ourselves to the problem. I am told that the circumstances of cases might vary greatly. The court will be in possession of any facts which it thinks relevant. Therefore, the court could be trusted to see that if the consul appearing seemed to be at all hurrying the process, due provision should he made for the absent national. I hope that this Amendment will commend itself to the Committee.

This Amendment is really designed to cover the same point as that dealt with in the Amendment in my name and that of my hon. Friend the Member for Farnham (Mr. Nicholson). The wording of the two Amendments is slightly different. The wording of the Amendment in my name I think more closely corresponds to the provision in the Convention to which the right hon. Gentleman referred, but I agree with him that probably the wording of his Amendment is better in that it seeks to place no limitation at all upon the circumstance to which the court may have regard. As I understand his Amendment, it will be open to the court to postpone making the grant if, for instance, the court is not satisfied that the national has any knowledge that the application is being made by the consular officer and has not had any opportunity of expressing his consent or dissent.

We also welcome the fact that this addition will be made to Clause 1. As drafted, it was mandatory upon the court to make the grant provided that the preliminary conditions mentioned in the Clause were satisfied. In my opinion it is right that this provision should be added to Clause 1 and it would be the wrong way of doing it merely to insert a provision of this character in all the Conventions which may be made under this Bill when it becomes an Act. It may well be advisable to insert a similar provision in the Convention when it is agreed, but it is most desirable that it should be contained in the Bill which will apply to all the Conventions of which there may be a considerable number in the course of years. For those reasons, we welcome this Amendment. It improves the Bill. We sought to improve the Bill by our Amendment and I am glad to say that the right hon. Gentleman has met us more than half way.

Since the Minister of State has referred to a speech which I made on the Second Reading of this Bill, may I also say that I welcome the Amendment which has resulted from that discussion? I prefer the Amendment put down by the right hon. Gentleman to that put down by the hon. and learned Member for Daventry (Mr. Manningham-Buller). The Minister of State said one thing which I do not think ought to pass without comment. It was with regard to the Convention. We are, of course, here only dealing with the Bill. It is contemplated, as I understand it, that there may be a small number of further conventions, but I do not think this House ought to assume, unless the Minister of State tells us so, that every convention with any other Government will necessarily take the same form or contain the same provisions as does this one with the United States.

We must have regard to the legislative provisions in the Bill, and it is important to observe that, if subsection (1) had been left unamended, there would have been a mandatory obligation on the court to make a grant without any of the expressions which at present are open to the Probate Court when dealing with all other applications for a grant of letters of administration. If this Amendment had not been put forward, it would have been necessary to substitute the word "may" for the word "shall" in line 14, but I understand that the proviso which is the subject of this Amendment virtually transforms what would otherwise have been a mandatory injunction on the courts into a discretionary one. For that reason, I think it is very desirable and a great improvement in the Bill.

Amendment agreed to.

I beg to move, in page 2, line 3, to leave out paragraphs (a) and (b), and to insert:

"(a) is entitled to payment or delivery of any money or property in respect of any interest in the estate of a deceased person or vesting in possession on the death of any person, or is entitled to payment of any money becoming due on the death of any person; or
(b) is a person to whom any money or property comprised in the estate of a deceased person may be paid or delivered in pursuance of any enactment, rule or regulation, whether passed or made before or after the commencement of this Act, authorising the payment or delivery of such money or property without representation to the estate of the deceased being granted."
This Amendment seeks to substitute for the two paragraphs of subsection (2) an alternative form of wording. No question of principle is involved and it is simply a matter of drafting. To indicate to the Committee what were the defects which we found in the original wording, may I say that the original draft of the first of these two paragraphs caused some doubt whether settled property passing upon the termination of a tenancy for life would be included in that paragraph, and we have altered the wording so as to include it. There was also doubt whether the first paragraph did or did not include the case where a foreign national was a creditor of the deceased person, and who might, in certain circumstances, be entitled to have the estate administered. It was desired to exclude that case, and the new wording quite clearly excludes it.

In regard to the new paragraph (b), it is a question of arrangement, subject to the introduction of a reference to rules and regulations, as under some Acts there is a power to direct payment by rule or regulation. Therefore, in order to intro- duce a reference to that possibility we have slightly altered the orginal wording.

Amendment agreed to.

Further Amendment made In page 2, line 14, after "property," insert "in England."—[ The Solicitor-General.]

I beg to move, in page 2, line 21, at the end, to insert:

"(3) A grant of administration made by virtue of this section may be made to the consular officer by his official title, and to his successors in office; and where a grant is so made, the office of administrator, and all the estate, rights, duties and liabilities of the administrator (including liabilities under the administration bond) shall be vested in and imposed on the person for the time being holding the office, and no fresh grant shall be required by reason only of the death or vacation of office of the person to whom the grant was made or in whom it is vested as aforesaid:
Provided that nothing in this subsection shall affect any limitation contained in the grant, or any power of the court to revoke the grant."
This Amendment is designed to meet a point made by my hon. Friend the Member for East Islington (Mr. E. Fletcher), who raised the question whether the grant of administration would be made to a consular officer personally as an individual, or whether it would be made to him as the holder of an office, and, further, whether it would devolve from time to time upon the holder of the office upon any change taking place in the holder of that office at any particular time. We recognise that it is desirable that the grant should devolve upon the holder of the office from time to time; in other words, that it should not terminate upon a change of office. Accordingly, we have introduced a new subsection which will make it perfectly clear that that is what is intended. It will be observed that there is a proviso that nothing in the subsection shall affect any limitation in the grant of the power of the court to revoke the grant. I hope the Committee will agree that this is the best way of meeting the arguments adduced by my hon. Friend.

Amendment agreed to.

Clause, as amended, ordered to stand part of the Bill.