HL Deb 04 July 1923 vol 54 cc802-24

Order of the Day for the Second Reading read.

LORD MUIR MACKENZIE

My Lords, your Lordships, yesterday, received with such ready welcome the case of the bastards that I feel encouraged to think you will also give a kindly hearing to the case that I have to present to your Lordships on behalf of the illegitimates. It is at the request of those who successfully piloted this Bill through the House of Commons that. I have undertaken to place it before your Lordships. I dare say that they might have chosen a better exponent, but I know your Lordships will not attribute as defects in the Bill itself any shortcomings of my own. I think that if it had been proposed to me to bring forward a Bill of this kind for the first time in this House, I should have said that I thought such a change in the law ought to be in the hands of the Government, not of a private member. But the case is different now, because this is a Bill which has come up from the other House, where it was very fully considered, and where it passed both the Second and the Third Readings without a Division. I am bound to say that I think there is some disadvantage, not only to myself but to the House, that this question should be debated in the absence of the Lord Chancellor, but I cannot think that your Lordships will consider that the Second Reading ought to be delayed any longer. Your Lordships may have observed that I was in no hurry to put down the Bill for Second Reading, and I think you will agree that it ought not to be postponed too long.

The Bill, so far as I am concerned, is founded upon sympathy for the illegitimates, for those who have come into the world by no fault of their own, and find themselves exposed to neglect and contempt, and, indeed, to all sorts of degradation. There has been, I think, a great change in feeling upon this subject in recent years—over a good many years, in fact, and, as it seems to me, it is a growing feeling. I do not know whether or not high-minded ladies approve of this Bill. I know that some do, and I should hope that there was not general objection in that quarter. I will not trouble your Lordships with figures and statistics bearing upon the Bill. I will only say that those, at any rate, who work among the poor are aware of a very strong feeling on this matter. They are led to feel compassion for the sorrows, not only of the illegitimates themselves, but of the parents, who are able to retrieve their mistaken courses, but are not able to do anything for the unfortunate children. The proposition to which I ask your Lordships to adhere by moving the Second Reading is the simple one which is contained in the Title of the Bill: "An Act to amend the law relating to children born out of wedlock."

It seems to me to be impossible to bring about a complete remedy, because there are facts in the case which even an Act of Parliament cannot get over. But certainly a great deal might be done to mitigate the severity of the fate of those who are the subject of this Bill. All that your Lordships are asked to do to-day on the Second Beading of the Bill is explained in these words from Clause 1 (1)— Where the parents of an illegitimate person marry or have married one another, … the marriage shall, … if the father is domiciled in England, legitimate an illegitimate person and such person is in this Act referred to as a 'legitimated person.' The greater part of the Bill is occupied with minor points, some of which no doubt are difficult, or at any rate require very careful consideration before being confirmed by this House, but they are not, I venture to say, natters that are involved in the Second Reading. I think that I could not do better than very shortly run through the clauses of the Bill, and your Lordships will see what I mean by drawing that distinction between the Second Reading and the further progress of the Bill.

Clause (1) deals with the legitimation by subsequent marriage of parents. That is, as I have already said, the one question involved on this stage of the Bill. Clause 1 (2) requires particular attention. It was the subject of much marching and counter-marching in another place. I hope it will be well thrashed out here. I will accept whatever is the decision of the House. If the matter were res integra I should have preferred that this subsection were not included. In fact, I cannot help thinking that, if you are to distinguish between illegitimate children, those are in a sadder case who come within the class excluded by this subsection than the others. Therefore, it is not an exclusion which I should have favoured, if the Bill had been one of my own. My impression is, however (though I am not quite sure) that it represents the law of Scotland. I do not know whether one of the noble and learned Lords from Scotland is here who would inform me, but I think that that is so. It is, of course, a strong argument in this House that you should conform to a law of which there has been long experience in Scotland, and with which, I think, my countrymen are quite content. A very eminent Scotsman has just left the House, the most rev. Prelate, the Archbishop of York. The Archbishop of Canterbury is not here, but I believe that both those most rev. Primates, like myself, were born and bred in the country where that law prevails, and that their ancestors, like my ancestors, were quite content to live under that law, and nobody has ever wished to depart from it. Therefore that is an argument that may be used in favour of keeping these words.

It must also be said that the matter was very fully debated in the House of Commons, and that the promoters have committed this Bill to me with these words inserted therein on the last occasion. I must, of course, expect that your Lordships will debate that subject, and it certainly does deserve careful consideration. Your Lordships will observe that subsection (3) provides that what is to happen in regard to the succession of property does not follow, as far as this Bill is concerned, upon the provisions of subsection (1). As at present advised, the clause seems to me to be quite right, but I do not know whether I shall remain of that opinion after having heard the debates in your Lordships' House.

Clause 2 deals with the effect of the Bill upon intestacies. If your Lordships will look at the clause you will sec that there are two dates mentioned in it, and I can imagine that there are those amongst your Lordships who will wonder what is the meaning of those dates. The noble and learned Earl on the Front Bench below me [the Earl of Birkenhead] knows very well to what they refer. They refer to the date on which the Law of Property Act, which he passed through this House and which obtained the assent of Parliament, will come into operation, and it will be very awkward to deal with many of the subjects of this Bill before that Act becomes the law of the land. That is the meaning of the clause and of the provisions contained therein. I dare say that there are noble Lords who would not follow all the intricacies of Clause 2, and I greatly hope that I shall not be cross-examined too closely upon it by those who do understand it. So far as I am capable of judging, I believe that the clause as it stands is right.

Clause 3 is one with which I need not trouble your Lordships because it deals only with technicalities concerning powers of appointment. Clause 4 is so technical, I think, that I ought not to go into it on this stage of the Bill. Clause 5 is a matter of Inland Revenue. Whether it is right or wrong I do not know, but I dare say some light will be thrown upon it in the course of discussion. Clause 6 is one which will naturally excite some interest in this House because it contains the following subsection:— (1) Nothing in this Act shall affect the succession to any dignity or title of honour or render any person capable of succeeding to or transmitting a right to succeed to any such dignity or title. Somewhere else in the Bill there will be found, I think, a provision which deals with the very difficult question of how far property and titles may become divorced under these provisions. That is a, matter which I shall have to try to deal with if any difficulty is raised in Committee, but at the moment I confess that I should not be prepared to give an opinion to your Lordships that was worth giving.

Clause 7 is an Inland Revenue clause. I trust that it is all right, but I am not at the moment prepared to say anything about it. Clause 8, as your Lordships will see, is a long clause in which provision is made in regard to persons legitimated by extraneous law. I should be very sorry to say much to your Lordships upon that just now. It is a difficult subject, and I shall not say anything about it at all unless at some future stage I understand more about it than I do at the moment. Now I come to the last clause. In subsection (2) of that clause a date is mentioned for which I am not responsible and which, I think, is absolutely hopeless. I have come to the end of that part of what I have to submit to your Lordships. I only wish now to say that the Bill was very carefully considered in another place, that it was warmly supported by members of the Government, and, as I have said before, that it passed both Second Reading and Third Reading without a Division.

Perhaps, without being out of order, I may refer to the future course of the Bill in your Lordships' House. There is a temptation when Bills come up from the other House, to try to take them through this House without amendment. If one has the advantage of being able to do that the Bill will, of course, become law without any difficulty; but I would not undertake to ask your Lordships to pass this measure without amendment. As I have said before, there are clauses in it which require very careful consideration. I shall be glad to see them established, with one exception. I shall be glad to see the clauses dealing with the devolution of property accepted, but only accepted because, as the result of your Lordships' careful consideration and the assistance of the noble and learned Viscount, the Lord Chancellor, one can say that they are right. If I may be forgiven for saying so, your Lordships exist to examine Bills that come up from another place, and if you think they really require amendment your Lordships should amend them and stick to your Amendments, and do the other House the honour they deserve of supposing that they will deal with matters that come down to them in a reasonable way and in a manner which is courteous to your Lordships' House.

Then, of course, there comes the question of Committee. If it is a disadvantage not to have the presence of the Lord Chancellor on Second Reading, it is a still greater disadvantage that he should not be here when the Bill is considered in Committee. I hope that I shall receive the approval of your Lordships in not immediately naming a day for Committee, but in waiting not so long as to imperil the Bill by lapse of time but for at least what I might almost call a decent interval to know something of what prospect there is of the noble and learned Viscount being back in the place in which we wish so much to see him. I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2a.—(Lord Muir Mackenzie.)

THE EARL OF BIRKENHEAD

My Lords, I share somewhat the regret of the noble Lord that it has not been found possible for the Government to make this a Government Bill and to undertake the responsibility which would have followed upon such adoption. As the noble Lord quite truly said, this Bill received a great deal of support from various members of the Government in another place and, indeed, the members of the Government greatly, and, as I think in one important particular unfortunately, influenced the effect of the proposals. The noble Lord was somewhat unenthusiastic, I thought, as to some of the clauses of the Bill and he was, if I might say so, parcus laudator of the measure which he was to recommend to your Lordships for Second Reading.

I very much hope that he will not postpone unduly the setting down of the Committee stage of the Bill, though he is evidently right in not precipitating that stage of a Bill which, unquestionably, requires both discussion and consideration. In particular, the conveyancing clauses, or the clauses which involve conveyancing questions, have caused me some little anxiety and will, I think, require further examination. But the noble Lord and those with whom he is acting will, I think, be well advised to keep their eyes very closely upon the development of the Session and the time that is available, because if your Lordships are agreed upon the principle of this measure nothing could be more unfortunate than that, by unduly postponing the Committee Stage, the discussions which may become necessary with another place should occupy so much time that there might be a risk of losing the Bill altogether. I should most greatly regret it if this Bill were lost. It seems to introduce far too late in our social history a measure of elementary social justice.

The principle which underlies this Bill is that no child shall suffer because of the transgressions of the moral law by its parents. Let us never lose sight of this principle, because we shall find it, I think, a guide in various difficulties which have arisen elsewhere, and which will certainly re-present themselves for consideration in this House. There can be no other principle, I think, involved in this case. No one, for instance, will say that we are to legitimise children out of consideration for the father or the mother I am not concerned here to debate any question of sexual morality, and I gladly evade such an obligation in this connection. If therefore we exclude any consideration at all for the father or mother—I am dealing with the ethical side of it—there remains no other sure guide for legislation of this kind except the paramount interest of the child.

How elementary are the considerations of justice which make it right that that interest should be safeguarded? The child is innocent of all wrong. It comes into the world, in existing circumstances, with everything that can contribute a pathetic, a melancholy disability of shame to its youth and its maturity. The very system under which birth certificates must be produced on recurrent occasions in life, results in each of those occasions being stamped with some fresh stigma of humiliation for one who is completely innocent of any offence either against the law of this country, or the morals of this country. When he is at school in the surroundings of a village (if his lot has been cast among the lowly part of the population in these Islands) or (if he belongs to a section in society which is more happily provided for in means of the world) when he comes to a public school it is known to those before whom his age must be vouched by his birth certificate that the stigma of shame was branded upon him in infancy.

We have passed far in legislative matters, I hope, beyond the precept that the sins of the fathers shall be visited upon the children unto the third and fourth generations. This may, unhappily, still he true in some melancholy physiological matters which exceed the scientific skill of man to alleviate or to cure. It has long since ceased to be the guide or the principle upon which our Legislature depends. I cannot believe that any considerable number of your Lordships—who for so many years, I might, indeed, say for so many generations, have set a high example of progressive thought in these matters to another place—will dissent from the general principle which, so long after it should have been corrected by legislation, is effectively secured by the proposals of the present Bill.

There is, however, one section that was very generally referred to by the noble Lord who moved this Bill, which requires a more particular consideration. The point is really, as the noble Lord himself seemed to be aware, one for Committee, but it so dominates in importance any other topic that is raised in the Bill that I think it right, as a preparatory step, to put down an Amendment for the committee stage to alter the proposals of the Bill in their present form and to offer now some explanation of the, point which, in my judgment, will require this correction in Committee and which I shall attempt to amend in Committee. Section 1, subsection (2), in the Bill as originally introduced, was in this form— Nothing in this Act shall operate to legitimate a person whose father or mother was married to a third party when the illegitimate person was born. The effect of that is manifest. Supposing A and B, being unmarried, had an illegitimate child, the benefit of the measure was to be given to that child, on their subsequent marriage, but as the Bill stands there is this limitation upon the benevolence which is shown to the illegitimate child, that if either the father or the mother of the child was married to a third party at the time of the birth of the child the benefits were withheld from the illegitimate.

I do not think that any person who had accepted what was the obvious principle of the Bill could possibly have, made himself responsible for an exception which seems to me at once so barbarous and so entirely out of harmony with the general principle of the proposal, because what does it mean? It means that although we are agreed that the object and the sole justification of this legislative proposal is in the interest of the child, to remove from that child a stigma for which that child has no individual responsibility, nevertheless in certain excepted cases, dependent upon what might almost have been an accident as to whether either the father or the mother was married to a third party at the time of the birth of the child, this protection was to be withdrawn. What conceivable connection has that got with the case of the child we are to benefit? We are not here to distribute either praise or censure to the fathers. We are not here by nice gradations of morality to distinguish between the degrees of blame which we must give respectively to fornication and adultery. Such inquiries are wholly alien to any purpose which we have in our minds in dealing with this question. How are you to distinguish between the case of a child in the one instance and in the other?

Suppose that you have before the Legislature two children, each of them, we will suppose, about the age of twenty, each of them illegitimate. One of them says: "I claim the benefit of the Act," and to him the Legislature says: "You are entitled to the benefit of the Act because your father and your mother were neither of them married to another party when you were begotten and when you were born." To the other who comes before the Legislature with individual claims which are indisputably just as strong, because they are identical, you say: "We will give you no relief in comparison with him with whose case we have just dealt. We say you shall still continue to be illegitimate." When he says: "Why in the name of social fairness do you say that?" you answer: "It has nothing whatever to do with you. The decision could not have been influenced, and it is not influenced, by anything that you have suggested or anything that you have done. The distinction is because in our judgment the moral fault was greater which gave you birth." To adopt such a view is, in the first place, to repudiate and to negative the, whole principle upon which these proposals depend, and, if that principle is right, it is to perpetuate an act of utterly indefensible injustice to the child placed in the unhappy circumstances which I have described.

These somewhat obvious considerations did not fail to attract attention in another place. I must trouble your Lordships in a few sentences with the Parliamentary history of this business. The matter was discussed very fully in Standing Committee. These considerations were explained and the result could not for one moment be in doubt, I venture to think, in any rational assembly uninfluenced by official pressure. Accordingly, in Standing Committee this provision, after a full and intelligent discussion, was taken out. The Attorney-General made some observations on that occasion. He pointed out that it is not the case that it is consistent with the law of Scotland. The noble Lord rather founded himself upon a supposed advantage, which I do not fully appreciate, that would attend a complete uniformity between the Divorce Law of Scotland and the Divorce Law of this country. That argument leaves me quite cold. We have gone on for several centuries differing profoundly from the Scottish nation in our Divorce Law without exciting any considerable degree of dissatisfaction or protest cither in this country or in Scotland, and I know no reason why those who have attempted from time to time to reform the Divorce Law of this country should be debarred from making a reasonable provision in our own legislation by any reference or appeal to Scottish precedent.

For the Attorney-General that argument does not apply. He says: If that be the only reason for the clause I doubt very much whether it effects its object, because I am told by Scottish lawyers that by the law of Scotland it is necessary, in order that the child may become legitimate, that the parents should be free to marry, both at the date of conception and at the date of birth. This clause does not carry that out. A child conceived in adultery and born after divorce would be illegitimised by the law of England, but not by the law of Scotland. If the only argument for that clause is that we want to bring the law of England and Scotland into harmony the clause must be left out. We have the advantage of the guidance of the Attorney-General. Now we come to the discussion on the Report Stage, on June 15, in the House of Commons, and a very surprising development took place then. The clause was replaced.

No one who has read the Report of the debate in the OFFICIAL REPORT can be under the slightest delusion as to the circumstances in which a clause so illogical and indefensible was restored. It was not restored in obedience to a conviction entertained by any of the speakers who addressed themselves to the arguments which were raised. It was restored in consequence, and solely in consequence, of a most surprising intervention in the debate by the Solicitor-General. I ought to make it plain that we might have been excused for supposing that we had the advantage of the Solicitor-General's support in this matter. The Solicitor-General in an earlier stage of the Bill made an observation in which he said: I despair of explaining what complications may ensue if the Bill goes through in its present form in regard to succession to property. … If this Bill goes through a child will be legitimated in England who would not be legitimated in Scotland. And the Solicitor-General, on June 15, when the clause was restored, also said: If this Amendment be accepted and the words, which were removed in Committee, are put back into the Bill, substantially it will make the law as enacted by this Bill in regard to England what the law is in Scotland. The Attorney-General finds himself in complete disagreement with the Solicitor-General on this point. The Attorney-General, who is an old friend of mine, has recently stated in the country, a little impolitely I think, to fourteen of his present colleagues, that in the course of the last few months he has been very busy in clearing up Coalition mess. When this admirable task has been completed and the Augean stable cleansed, for the present condition of which fourteen of his colleagues were responsible equally with other malefactors like myself, I hope the learned Attorney-General will find time also to clear up some little discrepancy which appears to exist between himself and the Solicitor-General on a not unimportant matter.

When the clause was restored on the Report Stage the Solicitor-General, entirely forgetting or disregarding what the Attorney-General had said on a previous stage, and also what he himself had previously said, made a very strong and vehement intervention in the debate and said what calamitous consequences would follow unless the clause was restored. I believe I am right in saying that the Solicitor-General on a previous occasion had voted with the majority for removing it. Between the two stages his mind had so completely altered that he who had been in favour of removing the clause when the matter was discussed in Committee, came to the conclusion, on the Report Stage that it would be calamitous to remove it. The reason he gave was that it would establish a difference between the law of Scotland and the law of England, whereas the Attorney-General on an earlier stage said that it was impossible to suppose that the retention of this clause would retain uniformity between the law of England and the law of Scotland.

I shall certainly propose, when the Committee stage is reached, that the decision which should be taken by this House is the decision taken during the Committee stage in another place, and if your Lordships are good enough to accept that proposal I cannot doubt that it will be received, and most gratefully received, by the promoters of the Bill. It will be realised how faulty and unsatisfactory was the advice, differing from his earlier view, given by the Minister who intervened. If you take that view you will make the Bill at once more harmonious to its own purpose, more consistent and infinitely more fair and generous to that most unhappy class which it is primarily intended to benefit.

LORD BUCKMASTER

My Lords, I hope the noble Lord who introduced the Bill will forgive me for saying that when I heard his speech I was irresistibly reminded of the old tale which must have cheered many of us in our infancy; I refer to the story of "The Babes in the Wood." It appears that this legislative infant has been entrusted to his care by its parents in another place, and he appears to have abandoned it to your Lordships with an earnest request that you should reverently cover its body with leaves by means of as many Amendments as you think right to introduce. I say nothing of what the promoters may think of the prospects of this Bill if it be amended, as I have no doubt it will be in response to the invitation of the noble Lord. But as he has suggested that in its present form it is either incomprehensible or unpleasant, I shall certainly do my best to bring; my little tribute of leaves and scatter them upon its body. I have the gravest doubt whether in those circumstances the Bill will ever see the light of day, and I would abstain were it not that it is quite certain that it is impossible to expect the same reticence from other members of your Lordships' House.

I regret this, and for this reason. I regard this Bill as one of these measures at which when it becomes law people will look with surprise because of the long and weary time during which it has been brought to birth. It is to me incomprehensible that a civilised community could do the unspeakable wrong of branding with illegitimacy a child born out of wedlock when its parents have married and have desired to do everything that remains in their power to remedy the initial wrong of which they were guilty. The injustice to the child is something that no man can possibly defend, because no one can suggest that the sins of the parents are born in the child so that the child should carry like a scapegoat into the wilderness of its life all the errors of which its parents were guilty. From the point of view of the child, therefore, I do not suppose that anyone will doubt that this measure ought to be passed.

But it not only for the sake of the child that I desire to see this Bill become law. It has often seemed to me one of the most unfortunate things in life that you should deny to men and women the opportunity of remedying wrongs of which they have been guilty, and when a man and a woman have been responsible for the birth of an illegitimate child and have, subsequently married, it does seem to me that it is an act of extraordinary cruelty to deny to them the right to receive as a legitimate child into their household the infant that was born before they were married in holy wedlock. I know it will be said that this is one of the things that will encourage immorality. I have heard that argument so many times in connection with so many matters, and my answer to it has been given so frequently in your Lordships' House that I hesitate to repeat it again. I will only say that the people who imagine that acts of immorality are the result of mathematical calculation are utterly ignorant of human nature. That is not the way they arise. A man and a woman do not associate together, with the unfortunate consequence of a child being born, after they have prepared an elaborate balance sheet like that issued by a company, looking at the profit and loss on one side and the other and deciding on which side the balance of advantage lies. I utterly disbelieve that people will abstain from these acts from the fear that the child when born may be illegitimate. They may abstain from the fear that the child will be born, but not from the fear that the child, when born, will suffer as these children must suffer.

I sincerely hope, therefore, that this Bill will receive its Second Reading and that the Amendment which the noble and learned Earl beside me has given evidence of his intention to move will be accepted. I will say no more about that Amendment at present because I intended to put down exactly the same Amendment myself. I trust that when that Amendment comes up it will receive your Lordships' favourable consideration. For the moment I will conclude by saying that I hope that this Bill will receive a Second Reading and that when it has passed that stage the noble Lord in charge of it will take some form of tonic which will enable him to fight for the life of this Bill in Committee and to see if it be not possible to secure its passage with something better than an apology for its existence.

THE LORD PRESIDENT OF THE COUNCIL (THE MARQUESS OF SALISBURY)

My Lords, I rise because I think it is only respectful to your Lordships that some indication should be given from the Government Bench as to the attitude which His Majesty's Government adopt in respect of this Bill. I have to say at the outset that we as a Government do not take any part in it. As members of your Lordships' House we have, of course, the full privilege of any other noble Lord of expressing our opinion both by word and by vote as to the Second Reading of this Bill and as to any Amendment which may be moved in any subsequent stage. But although I do not speak as a member of the Government in respect of this Bill, I hope the noble and learned Earl opposite will forgive me if I say that I think an elaborate attack upon the Solicitor-General for his conduct in respect of this Bill in another place is not a very convenient course. Strictly speaking, it is out of order, but, of course, we do not enforce those orders, and I have no desire to enforce them. As regards the conduct of the Government as a whole, it is no doubt convenient to refer to their attitude in one House of Parliament or the other as the case may be, but for the purpose of a personal attack as between the Attorney-General and the Solicitor-General I should have thought that the proper place in which to deliver such observations would be the House to which they both belong.

As regards the Bill, speaking only for myself I shall not be desirous of opposing the Second Reading. I think there is a case for a Second Reading, and I think that, in the words used by one of the noble and learned Lords opposite, when two people desire to make good a great wrong which they have committed they ought, so far as is possible, to have the opportunity of doing so. At the same time, I think the burden of proof, as it were, rests upon them as to how far that is a reasonable course, having regard to its consequences. People speak as if this were a very simple matter. No one who heard the speech of my noble and learned friend who introduced the Bill into your Lordships' House, no one who follows the tenor of the Bill itself, can fail to be convinced that, far from being simple, it is a very complicated matter. People say we-must get rid of the old idea that the sins of the fathers are visited on the children. You cannot do it. The thing is impossible. No legislation will achieve it, for the broad, hard, stern facts remain, and you have to make up your mind to that. You may mitigate them, as the noble and learned Lord opposite wishes to do and as I think your Lordships will probably wish to do, but you cannot get away from them. You have only to look at the tenor of the clauses of this Bill to realise that you cannot get rid of what is called the slur of illegitimacy merely by passing an Act of Parliament. It will be clear that certain children were born out of wedlock and that certain others were born in wedlock, and as they grow up it will be found, where they both belong to the same family, that the elder children rank below the younger children because of that fact. That appears on the face of the Bill. I merely mention it as an example. You cannot get rid of the facts, and you must make up your mind to them.

If I may venture to say so, I think that the noble and learned Lord who introduced this Bill exercised a very wise discretion when he said that he thought this was pre-eminently a Bill which ought to be scrutinised very carefully in your Lordships' House. We have amongst us men of great wisdom and prudence in matters of this kind, many learned noble Lords whose advice upon such a matter is all-important. I hope that the two noble and learned Lords who spoke will not think me disrespectful if I suggest that when they address themselves to the difficult law surrounding this Bill they will free themselves a little from the strong sentiments which they entertain on subjects of this kind. Naturally, they feel very sorry for people who have done wrong and for the consequences of that wrong. So do we all. But these are very difficult matters which must be approached in the coolest spirit. They must not for a moment allow the sentiment or the pity which they feel to interfere with the cold calmness of their legal judgment. I earnestly hope that when we get into Committee they will help us to solve this very difficult question without an appeal to our compassion at every second sentence.

It is a very difficult matter, and we on this side art; specially at a loss, because there is sitting behind us at the present time no noble and learned Lord. We are deprived of the experience and advice of the noble and learned Viscount, the Lord Chancellor. I have said that as a Government we do not take any side in respect of this Bill, but I do think that in turning out good legislation from this House it is of the very highest importance that we should have the guidance of the noble and learned Viscount on the Woolsack. He is occupying the greatest position in the law in England at this moment, and his absence from our deliberations on this occasion seems to me a very great loss. I am glad to say that I have in my pocket a letter which indicates that we may hope that my noble and learned friend will be able to resume his services to this House, and to the country, after the Recess that is about to take place, and that when we reassemble in the autumn he will be found in his accustomed position on the Woolsack. I very much hope that your Lordships will not ask us to proceed to discuss this Bill in Committee until we have the advantage of his presence.

THE EARL OF BIRKENHEAD

But that will be in the autumn.

THE MARQUESS OF SALISBURY

Yes, and I think that is right.

THE EARL OF BIRKENHEAD

Will the noble Marquess explain what are the legal difficulties? Except as to one or two small matters of conveyance, there are no legal difficulties at all.

THE MARQUESS OF SALISBURY

I am not a lawyer, and am incapable of explaining legal difficulties. But I find the Bill extremely complicated, and I heard the impassioned speech by the noble Earl with reference to subsection (2) of the first clause.

THE EARL OF BIRKENHEAD

That is not law, but fact.

THE MARQUESS OF SALISBURY

I stand corrected. The noble and learned Earl is a very adequate censor in these matters, but I stand by my judgment that these are matters which ought to be very carefully considered by lawyers, and I venture to think that it would be wise not to press the Bill forward. I have no control over the House, and I am only giving my humble suggestion as a Peer among other Peers, when I suggest that we should agree to the Second Reading of the. Bill, and that afterwards those interested in the matter should confer together, when I hope they will be satisfied that the course which I suggest is the one that they should pursue.

LORD GORELL

My Lords, I agree with one sentence in the speech of the noble Marquess, when he said that this Bill is not a simple Bill, but I do not go so far as to say that because of the difficulties which he sees in it the Committee stage of the Bill must necessarily wait until the Lord Chancellor is present. The noble Marquess distinctly stated that the Government took no part in it, and so far as legal difficulties are concerned there are many noble Lords who, with equal though past judicial experience, are capable of pronouncing upon those difficulties. At the same time it does seem to me that although the principle of the Bill is perfectly simple, there are certain difficulties, at any rate to those who are not trained lawyers, in the application of the Bill, and I confess that I was much relieved by the statement of the noble and learned Lord in charge of the Bill, in which he made it certain that there would be Amendments by referring to the question of the date as being hopeless. That would certainly be one Amendment, and I had anticipated that he would take much the same course as was taken by the noble and learned Lord in charge of the Matrimonial Causes Bill, and tell your Lordships that the measure would be lost if Amendments were moved.

As, however, it is thrown open to amendment by the noble and learned Lord in charge of the Bill, it might be well to point out one or two difficulties which occur to me, not as a trained lawyer. It seemed to me that the noble and learned Earl drew a very touching picture as to discrimination between certain classes, but a large portion of his speech was of wider reference than the reference in this Bill, and the eloquent phrases which he used as to the commiseration to be extended to certain children under this Bill could equally be applied to any child born illegitimate, whether the parents subsequently married or not. I imagine that there could be no argument really in favour of Clause 1, subsection (2), other than that it was a deterrent, and to that extent I associate myself with the words of Lord Buckmaster. There must be discrimination, but I hope we shall not keep this subsection in the Bill, and shall have as little discrimination as possible.

I may be wrong in this, but it seems to me that there are two cases of discrimination in the Bill apart from that subsection—namely, in Clause 6, subsection (1), which says:— Nothing in this Act shall affect the succession to any dignity or title of honour, or render any person capable of succeeding to or transmitting a right to succeed to any such dignity or title"; and under Clause 4, subsection (4) you cannot separate the devolution of property from a dignity or title of honour, although under Clause 4, subsection (3) a legitimated person would succeed to certain property. There you discriminate between two children in exactly similar circumstances. You might perfectly well have two men in contiguous places in the country, one of whom suffered under the provision of this subsection. He would have succeeded to the property along with the title of honour, but for this discrimination, whereas the other is in exactly the same position as if he had been a legitimate person from the first.

Then there is another in the first subsection of Clause 1. As at present drafted it seems to me that it will have this effect. The Bill is to come into operation on September 1, 1923, and under it any child of parents who subsequently marry becomes legitimated if alive at that date. If he happens to be dead before that date he is not legitimated. It is quite obvious that in all Bills of this kind there must be a date on which it comes into operation, and to make the Bill retrospective would introduce endless complications, but this Bill, if it passes as it is at present drawn, will have this effect, that where you had three children born before the marriage of the parents and one of whom has died before the date for the coming into operation of this Bill and the other two are still living, and all of those three children have had children themselves, the children of the child who is dead will be descended from an illegitimate child, but the children of the children who are alive will be descended from a legitimate child.

This, in the times in which we live, will have this definite discrimination, and there are cases which could be quoted. If those three sons, in the period of war through which we have passed, have had this record, that one volunteered for war and was killed, and the other two did not go to the war at all, and now live, the children of the soldier are definitely penalised under this Bill because of the patriotism of their father. I was hoping that there would be an opportunity of putting in an Amendment to meet that particular case. I was afraid that the noble and learned Lord would say that that would destroy his Bill, but, in the circumstances, I hope to have a further opportunity of moving an Amendment to that effect.

LORD PARMOOR

My Lords, I am entirely in accord with the views expressed to your Lordships by the noble and learned Lord who moved the Second Reading. I understand that those views are very much in agreement with the views of the noble Marquess which have just been stated. I imagine that everyone is in favour of the general principle of the Bill. It was discussed as long ago as at the Assize of Northampton, over seven centuries ago, when the Spiritual Peers desired legitimation in these circumstances, and the non-Spiritual Peers objected on the ground that the title to estate would be imperilled by a system of legitimation such as we have in the present Bill. There are many clauses in this Bill which are so complicated that I find great difficulty in understanding them. Lord Muir Mackenzie asked me if I would look through the Bill in order to see whether, in my view, these difficulties did arise. I told him I thought they certainly did, and they are particularly matters with which the Lord Chancellor could deal. They are not matters within my cognisance, but matters of intestacy, devolution of estates, and so on.

I do not think you can deal with this Bill in the haphazard way which has been suggested. We want illegitimate children to be rid, as far as can be, of their stain, but I think the Bill is much too wide. I have not had an opportunity of considering Clause 1 (2), and as I have great respect for the opinion of the Solicitor-General, Sir Thomas Inskip, I should very much like to read more carefully than I have been able to do what his views were. But let us consider this. Suppose the mother is married, and after her marriage a child is born. The prima facie assumption is that it is the child of the two people who are married, to which no taint need be attached at all. Is the idea of subsection (2) in the case of this child, which prima facie is a legitimate child, because its parents were married before it was born, to relegate it to the illegitimate ranks, and then try to make it legitimate by Act of Parliament? That appears to me to be the effect of subsection (2). I do not want to speak too positively, because I have not had time to study the matter, and I do not know what Sir Thomas Inskip said; but I entirely agree with the noble and learned Lord who moved the Second Reading of the Bill, and I hope he will carry out his excellent intention of giving adequate time, so that such a complicated Bill may be fully considered.

LORD BUCKMASTER

Assuming that this Bill is postponed until after the Lord Chancellor can resume his place, will the Government adopt the Bill, after it has passed through the House, and secure its passage in another place?

THE MARQUESS OF SALISBURY

I could not answer that question without notice.

LORD BUCKMASTER

Because otherwise the Bill is lost.

THE LORD BISHOP OF NORWICH

My Lords, the last speeches to which we have been listening have made the Bill appear so complicated that there seems to be some doubt as to whether it will be able to remedy the wrong with which it deals without introducing worse wrongs. No one can at this stage, I fancy, prophesy what the upshot may be. At the same time, I was very grateful to Lord Buckmaster when he dealt with the moral side of the question. I know that in earlier speeches it was said that it was desirable to leave out that special aspect of the question, but if it is left out in your Lordships' House I feel no doubt that it would be largely canvassed outside, and many of those who would read this debate in its full or in an abbreviated form will be those who will pay great attention to the moral issues involved.

The noble and learned Lord, Lord Buckmaster, explained—and I was very grateful to him for emphasising that point—that those who drive themselves into sin of this kind do not do so with a full and careful calculation of its consequences. I could not myself suppose that we were encouraging sexual sin by removing, so far as is possible, the stain that at present attaches to an illegitimate child. On the contrary, my own view—and it is only my own view, for I do not speak with any authority from the Episcopal Bench—is that, after the intricacies of the Bill have been solved and it is passed, the general effect of the Bill would be rather to encourage marriage on the part of the erring man and woman than to encourage sexual irregularity in the first instance. If that is the case then I think one is entitled to associate oneself with one's whole heart with the words that fell from the noble and learned Lord, Lord Muir Mackenzie, and from the noble Earl, Lord Birkenhead, when he appealed to our compassion.

It is perfectly clear that this Bill, however amended, will never touch the bulk of the illegitimate children in the country. No one would pretend that it would, but if we can, by a compassionate act, help those whom we may attempt to assist, I cannot see that, because the scope of the Bill is as limited as it is, that is any reason for saying that it should be rejected. I myself have been brought in contact with just the sort of things of which the noble and learned Earl, Lord Birkenhead, spoke. As the headmaster of a great school I had to deal with a certain number of those who, in what are popularly called the upper classes, were the sons of irregular unions, and I was immensely struck by the number of the occasions when this disability came up, and the difficulty that one had in passing on such boys to the Universities and elsewhere. It was not as if the stain was once accepted and then let alone, but again and again the mud had to be stirred up, and in every case one's pity went out to the innocent victim of the parents' guilt.

I think that the Bill, when amended, will still have a very limited scope, but I believe, on the other hand, that there are many, among the poor and among the rich, who will stand to benefit by this Bill, and if we cannot, as the noble Marquess rightly said, remove all the stigma, and if the facts themselves really constitute the stigma, yet I do believe that a Bill wisely conceived may do very much to reduce the number of occasions on which stones would be thrown at some of the illegitimately born. Therefore, in a spirit of compassion and, as I believe, right compassion, I can see no moral objection to passing this Bill, and I sincerely hope that when it does lie within our power to act with pity and sympathy we may use the opportunity even though its range may not be very widely extended.

VISCOUNT HALDANE

My Lords, I rise not to continue the discussion, but to ask the noble Marquess opposite whether he can get the House out of a difficulty. I have read the Bill and I agree that it is a difficult Bill, and it is made much more difficult because of the very odd way in which the draftsman has put it together. It is, therefore, desirable that we should have the Lord Chancellor on the Woolsack when we have the opportunity of considering it. But if we are to wait until the autumn we shall be placed in this difficulty. Governments have a way of taking up the whole of the time in Autumn Sessions. It is too much, I think, to ask the noble Marquess to tell us that the Government will be responsible for the Bill in the autumn, because he may not wish to do that; but we may ask him to say this. If we assent to the putting off of the Committee Stage until the Lord Chancellor has had an opportunity of looking at the Bill, will he give an undertaking that when the Bill goes back- to the Commons there shall be at least an opportunity of considering the Amendments we have made. I do not ask the noble Marquess to say that at this moment, because he may wish to consult with those who are responsible in another place. But if my noble and learned friend Lord Muir Mackenzie, before putting down a date for the Committee Stage, would put a question to the noble Marquess and get from him an answer that is satisfactory, it would very much facilitate matters.

THE MARQUESS OF SALISBURY

My Lords, I can only speak by the leave of your Lordships. I think the request and the observations of the noble and learned Viscount are very reasonable, and I shall be quite prepared to give an answer to this question if the noble and learned Lord will give me an opportunity of consulting my colleagues in another place before I reply. I cannot promise that the answer will be "Yes," but I will give him an answer, and I think it is a very fair course to pursue.

On Question, Bill read 2a, and committed to a Committee of the Whole House.