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Dr. Howells: It is a statement of faith--obviously I have more faith in the courts than the hon. Gentleman in that respect. [Interruption.] I will be steady. I think that what I said in Committee still holds true: we need to strike a balance between the interests of creditors who have not been paid by a deceased insolvent and the survivor, who is the sole owner of what he or she formerly owned jointly with the deceased insolvent.
We are not convinced that the creditors of an insolvent should be in a worse position if the debtor has died than if he or she were living. We think that limiting the application of the new provision so that it will apply only in those cases where the petition for the insolvency administration order is presented after the new provision comes into force strikes the appropriate balance.
It must be remembered that prior to the Palmer case, it was understood that the survivor would automatically have been deprived of the deceased's interest and the creditors would have got the debtor's entire share. On that basis, no thought would have been given to the survivor's situation or interests.
Clause 12 certainly does not treat the survivor as harshly as that. Indeed, it provides for the court to have a discretion to make a monetary order against the survivor, which is very important. It provides that the order will concern only so much of the value lost to the estate as is needed to meet the debts and other liabilities to which his estate is subject. In addition, the court will make such an order only after it has weighed the interests of both the survivor and the deceased's creditors; and in the balancing exercise, the court must assume that the interests of the deceased's creditors will outweigh all other considerations, unless the circumstances are exceptional.
6 pm
Mr. Chope: Is the Minister telling us that the measure may not prove retrospective in practice because one may be able to get the indulgence of the court not to apply it retrospectively? Nevertheless, the legislation will apply
retrospectively and will put in jeopardy women whose husbands have died and who have relied upon having absolute entitlement to the formerly joint estate.
Dr. Howells: It is a question of balance. The hon. Gentleman is right: a judgment has to be made. As I have tried to explain, the provision will apply only in those cases in which a petition has been presented after the measure comes into force. We think that that is right and I hope that the hon. Member for South-West Hertfordshire will withdraw the amendment.
Mr. Page: On Second Reading in another place, the noble Lord McIntosh said that he understood
- the need to be satisfied there is no retrospective aspect involved.--[Official Report, House of Lords, 4 April 2000; Vol. 611, c. 1272.]
Mr. Chope: It is important that the words be on the record. They are:
- It will be made clear that provisions will not have retrospective effect.
Mr. Page: I am always grateful to my hon. Friend for taking my next line away from me, which he did a number of times in Committee. My opportunity will come, however, as the wheel turns.
Despite all those Government statements and despite what the Minister has said, there has been no move. In its present form, the Bill has a retrospective effect in relation to those debtors who die before
- the commencement of this section.
Mr. Butterfill: Does my hon. Friend agree that the plight of such a widow is compounded by the fact that, under (b), the petition for the order can be presented within five years of the day her husband died? That means that she may have to wait five years to find out whether the provision will descend upon her. That is the most appalling uncertainty in which to place her.
Mr. Page: My hon. Friend makes his point. It is a fact of life that elderly people worry more than young people about security. I know of several of my elderly constituents who are desperately worried about accommodation and living in a secure environment. The risk of that environment being upset is exceedingly worrying.
The provision will put widows under pressure and at risk. The Minister says that he has faith in the courts and so do I--particularly if one has a lot of money. My faith in the courts is such that, as I read the section, it clearly directs the courts that unless there are exceptional circumstances they must assume that the interests of the deceased's creditors outweigh all other considerations.
The operative word is "exceptional". The Minister is therefore being disingenuous in his response. I do not believe that the effect that he described will be the effect in practice. The courts will, in practice, go for the extra money and those widows will be at risk, but--
Mr. Chope: I hope that my hon. Friend is not going to seek to withdraw the amendment. Surely, this is a constitutional outrage. Why should not this House deal with the matter rather than leaving it to the other place? Their Lordships were very concerned about any retrospective provisions. Will my hon. Friend join me to divide the House on this important issue?
Mr. Page: This is what friends are for. I have to tell my hon. Friend, having considered the Minister's answer, that I believe that although the thrust and tone of my amendment are right, the drafting is neither specific nor accurate enough to deal with the matter. The Minister has shown himself in his true colours by his answer. I will seek leave to withdraw the amendment, but I hope that it can be produced in another place and that the Government can find it in their heart to look at the matter once again. I beg to ask leave to withdraw the amendment.
Question put, That the amendment be made:--
The House divided: Ayes 34, Noes 210.
AYES
Atkinson, Peter (Hexham)
Beggs, Roy
Beith, Rt Hon A J
Boswell, Tim
Bottomley, Peter (Worthing W)
Bottomley, Rt Hon Mrs Virginia
Burnett, John
Butterfill, John
Campbell, Rt Hon Menzies
(NE Fife)
Chapman, Sir Sydney
(Chipping Barnet)
Clifton-Brown, Geoffrey
Cotter, Brian
Davis, Rt Hon David (Haltemprice)
Fearn, Ronnie
Gray, James
Harris, Dr Evan
Harvey, Nick
Heathcoat-Amory, Rt Hon David
Kennedy, Rt Hon Charles
(Ross Skye & Inverness W)
Lewis, Dr Julian (New Forest E)
Lidington, David
Lilley, Rt Hon Peter
McIntosh, Miss Anne
Maclean, Rt Hon David
Major, Rt Hon John
Öpik, Lembit
Page, Richard
Pickles, Eric
Rendel, David
Russell, Bob (Colchester)
Spring, Richard
Stanley, Rt Hon Sir John
Syms, Robert
Winterton, Mrs Ann (Congleton)
Tellers for the Ayes:
Mr. Christopher Chope and
Mr. David Heath.
NOES
Adams, Mrs Irene (Paisley N)
Ainger, Nick
Ainsworth, Robert (Cov'try NE)
Anderson, Donald (Swansea E)
Atkins, Charlotte
Austin, John
Banks, Tony
Barnes, Harry
Barron, Kevin
Battle, John
Bayley, Hugh
Beard, Nigel
Beckett, Rt Hon Mrs Margaret
Begg, Miss Anne
Bell, Martin (Tatton)
Bell, Stuart (Middlesbrough)
Bennett, Andrew F
Bermingham, Gerald
Berry, Roger
Blackman, Liz
Bradley, Keith (Withington)
Bradshaw, Ben
Brinton, Mrs Helen
Browne, Desmond
Buck, Ms Karen
Burden, Richard
Butler, Mrs Christine
Caplin, Ivor
Casale, Roger
Caton, Martin
Cawsey, Ian
Clapham, Michael
Clark, Rt Hon Dr David (S Shields)
Clarke, Eric (Midlothian)
Clelland, David
Coaker, Vernon
Coleman, Iain
Colman, Tony
Connarty, Michael
Cook, Frank (Stockton N)
Cooper, Yvette
Corbyn, Jeremy
Cousins, Jim
Cox, Tom
Cryer, John (Hornchurch)
Cunningham, Jim (Cov'try S)
Darling, Rt Hon Alistair
Davey, Valerie (Bristol W)
Davies, Rt Hon Denzil (Llanelli)
Davis, Rt Hon Terry
(B'ham Hodge H)
Dawson, Hilton
Dismore, Andrew
Dobson, Rt Hon Frank
Dowd, Jim
Drown, Ms Julia
Eagle, Angela (Wallasey)
Eagle, Maria (L'pool Garston)
Ennis, Jeff
Etherington, Bill
Field, Rt Hon Frank
Fitzpatrick, Jim
Flint, Caroline
Flynn, Paul
Foster, Michael Jabez (Hastings)
Foulkes, George
Galloway, George
Gapes, Mike
Gardiner, Barry
Gerrard, Neil
Gibson, Dr Ian
Godman, Dr Norman A
Golding, Mrs Llin
Gordon, Mrs Eileen
Griffiths, Jane (Reading E)
Griffiths, Nigel (Edinburgh S)
Grogan, John
Hall, Patrick (Bedford)
Hamilton, Fabian (Leeds NE)
Hanson, David
Healey, John
Henderson, Ivan (Harwich)
Heppell, John
Hesford, Stephen
Hewitt, Ms Patricia
Hinchliffe, David
Hodge, Ms Margaret
Hope, Phil
Howells, Dr Kim
Hurst, Alan
Hutton, John
Illsley, Eric
Jackson, Helen (Hillsborough)
Jenkins, Brian
Jones, Ms Jenny
(Wolverh'ton SW)
Jones, Dr Lynne (Selly Oak)
Jones, Martyn (Clwyd S)
Keeble, Ms Sally
Keen, Alan (Feltham & Heston)
Keen, Ann (Brentford & Isleworth)
Kemp, Fraser
Kennedy, Jane (Wavertree)
Khabra, Piara S
King, Ms Oona (Bethnal Green)
Ladyman, Dr Stephen
Lawrence, Mrs Jackie
Laxton, Bob
Leslie, Christopher
Levitt, Tom
Lewis, Ivan (Bury S)
Linton, Martin
Lloyd, Tony (Manchester C)
Llwyd, Elfyn
McAvoy, Thomas
McCafferty, Ms Chris
McDonagh, Siobhain
Macdonald, Calum
McGuire, Mrs Anne
McIsaac, Shona
Mackinlay, Andrew
McNulty, Tony
MacShane, Denis
Mactaggart, Fiona
McWalter, Tony
McWilliam, John
Mahon, Mrs Alice
Marsden, Gordon (Blackpool S)
Marsden, Paul (Shrewsbury)
Marshall, David (Shettleston)
Marshall-Andrews, Robert
Martlew, Eric
Maxton, John
Meacher, Rt Hon Michael
Meale, Alan
Merron, Gillian
Michael, Rt Hon Alun
Michie, Bill (Shef'ld Heeley)
Miller, Andrew
Mitchell, Austin
Moffatt, Laura
Moran, Ms Margaret
Morris, Rt Hon Sir John (Aberavon)
Mountford, Kali
Murphy, Jim (Eastwood)
Naysmith, Dr Doug
O'Brien, Bill (Normanton)
O'Hara, Eddie
Olner, Bill
Osborne, Ms Sandra
Palmer, Dr Nick
Pearson, Ian
Perham, Ms Linda
Pike, Peter L
Plaskitt, James
Pollard, Kerry
Pope, Greg
Pound, Stephen
Prentice, Ms Bridget (Lewisham E)
Prentice, Gordon (Pendle)
Quinn, Lawrie
Radice, Rt Hon Giles
Rammell, Bill
Reed, Andrew (Loughborough)
Reid, Rt Hon Dr John (Hamilton N)
Roche, Mrs Barbara
Rogers, Allan
Rooker, Rt Hon Jeff
Rowlands, Ted
Roy, Frank
Ruane, Chris
Ruddock, Joan
Salter, Martin
Sarwar, Mohammad
Sedgemore, Brian
Skinner, Dennis
Smith, Jacqui (Redditch)
Smith, John (Glamorgan)
Smith, Llew (Blaenau Gwent)
Soley, Clive
Southworth, Ms Helen
Spellar, John
Squire, Ms Rachel
Starkey, Dr Phyllis
Stevenson, George
Stoate, Dr Howard
Strang, Rt Hon Dr Gavin
Sutcliffe, Gerry
Taylor, Rt Hon Mrs Ann
(Dewsbury)
Taylor, David (NW Leics)
Temple-Morris, Peter
Thomas, Gareth R (Harrow W)
Timms, Stephen
Touhig, Don
Trickett, Jon
Twigg, Derek (Halton)
Tynan, Bill
Vis, Dr Rudi
Walley, Ms Joan
Ward, Ms Claire
Wareing, Robert N
White, Brian
Whitehead, Dr Alan
Williams, Rt Hon Alan
(Swansea W)
Williams, Alan W (E Carmarthen)
Wills, Michael
Winnick, David
Winterton, Ms Rosie (Doncaster C)
Wood, Mike
Wright, Anthony D (Gt Yarmouth)
Wright, Tony (Cannock)
Wyatt, Derek
Tellers for the Noes:
Mr. Graham Allen and
Mr. Kevin Hughes.
Question accordingly negatived.
Clause 15
Dr. Howells: I beg to move amendment No. 51, in page 9, line 40, at end insert--
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