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Clause 2—(Powers Of Consular Officers In Relation To Property In Scotland Of Deceased Persons)

Volume 463: debated on Tuesday 22 March 1949

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6.45 p.m.

I beg to move, in page 3, line 8, at the end, to insert "or his successors in office."

The purpose of this Amendment is to give effect in Clause 2 to the same principle which was incorporated in the last Amendment to Clause 1, which is to ensure that, where a consular officer is appointed as attorney in Scotland for a foreign national, if that consular officer were to demit office, his successor in office would fill the bill.

Amendment agreed to.

Further Amendment made In line 10, to leave out "he were."—[ The Lord Advocate.]

I beg to move, in page 3, line 14, 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 is entitled to payment or delivery of any money or property 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 production of confirmation;"
The purpose of this Amendment is merely to put in similar language the terms of the Amendment already made in Clause 1, and to insert this counterpart into Clause 2, which affects Scotland. The reasons are exactly the same as those explained by my right hon. and learned Friend on the earlier Amendment.

Amendment agreed to.

Further Amendment made In page 3, line 25, after "property" insert "in Scotland."—[ The Lord Advocate.]

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

May I ask the Lord Advocate two questions? Being entirely ignorant of the law of Scotland, I assume that it is unnecessary to have any additions to Clause 2 to correspond to the addition to Clause 1 which the Committee has just accepted. I should also like to ask the Lord Advocate why it is necessary in line 33 for the words "in Scotland" to occur. I should have thought that the proviso should have been made to provide that,

"no person shall be authorised or required by this subsection to pay or deliver any money or property to a consular officer if it is within his knowledge that any other person in the United Kingdom has been expressly authorised to receive that money or property on behalf of the said national."
I gather that the words "in Scotland" in line 33 have been put in to correspond with the words "in England" in line 20 on page 1, and, although it is only a matter of drafting, it seems to me that the exemption which it is contemplated should be given by this Clause should apply if, in fact, there has been any person in the United Kingdom who has been expressly authorised to receive the property or the money on behalf of the said national. It seems to me quite unnecessary, and, I would hope, an unintentional limitation, that a person who has been expressly authorised to. receive payment should actually have to live in Scotland. If the Lord Advocate agrees with that, then I hope that this matter will be reconsidered before the Bill passes its final stage.

The reason why it was not necessary to incorporate in Clause 2 an Amendment specifying a time limit, such as was incorporated in Clause 1, is due to the fact that the whole procedure in Scotland is entirely different from that followed in England. As hon. Members will appreciate, in England a grant of representation is made to the consular officer. In Scotland, the foreign national will be appointed executor, and under the provisions of this Clause the consular officer will only be entitled to act as attorney for that purpose. In Scotland, if there is an application to be appointed as executor of an estate, there are certain priorities as to the people entitled to be confirmed as executor.

Accordingly, in the first instance, the court would consider an application by the consular officer, as the attorney, for the foreign national to be confirmed as executor. If the foreign national did not qualify to be confirmed by virtue of the fact that someone with a superior claim was entitled to be confirmed, then the question would not arise. If, on the other hand, the foreign national fell to be appointed because of his superior claim, then by virtue of the provisions of this Clause the foreign national would be appointed as the executor and the consular officer would only be acting as his attorney. If the foreign national did not wish the consular officer to act as his attorney, he could withdraw the mandate which by statute is conferred on the consular officer, and, to that extent, he could remove the consular officer from the effective administration of the estate. For these reasons it was not deemed necessary to incorporate a similar provision in this Clause to that in the Amendment moved to Clause 1.

The second point raised by my hon. Friend was why there was restriction in the proviso to subsection (3) to the effect that it should only apply to any other person in 'Scotland who had been expressly authorised to receive that money or property on behalf of the foreign national. This is a self-contained Clause affecting Scotland. There is a similar provision in Clause 1 in relation to a person in England, and, in the first instance, I should have thought that my hon. Friend would have raised this point in relation to Clause 1. The explanation is simply that Clause 1 deals with England and Clause 2 with Scotland. There is a provision in the appropriate part of each of the Clauses to the effect that the money will not be paid to the consular officer if, in the English case, there is another person authorised in England, and if, in the Scottish case, there is another person authorised in Scotland. We have dealt with the United Kingdom as far as England and Scotland are concerned by dealing with each in the respective parts of the Bill. That, of course, was necessary in the framework of the Bill because Scotland is made a separate country for the purposes of the Convention. That being so, it was necessary to include it in the Clause in this form. I am sorry that there are no Scottish Members present on the Opposition benches to hear this momentous declaration.

It was obvious to anyone who read the Bill with comprehension that it made Scotland a different country for the purpose of the Convention, and I am sorry that the Lord Advocate made the sorry joke about Scottish Members on these benches not being present. The reason is that there was nothing contentious about that point, and, therefore, there was no reason to raise the point with which the right hon. and learned Gentleman so adequately dealt.

Perhaps I might be allowed to remind the hon. and learned Gentleman that it was a Scottish hon. Member opposite who, because of the difficulties of the Bill, requested my hon. and learned Friend the Lord Advocate during the Second Reading Debate to be present on this occasion.

Question put, and agreed to.

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