HL Deb 28 November 1967 vol 287 cc18-32

3.28 p.m.

THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR SCOTLAND (LORD HUGHES)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Hughes.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clauses 1 and 2 agreed to.

Clause 3 [Scope of rights and obligations arising on legitimation):

LORD HUGHES

With the permission of the Committee I should like to associate with Amendment No. 1, Amendments Nos. 4, 5, 6, 9 and 11. The purpose of this group of Amendments is to make drafting improvements to the Bill. The Amendments in this group are largely consequential on Amendment No. 6 by which subsection (8) of Clause 3 will be deleted. The purpose of the group of Amendments is to make the wording of the Bill simpler. They have no other effect than to make it more easily understood. I beg to move the first Amendment.

Amendment moved— Page 2, line 23, after ("person") insert ("under this Act").—(Lord Hughes.)

On Question, Amendment agreed to.

LORD HUGHES

In moving Amendment No. 2 I should like, with the permission of the Committee, to discuss Amendment No. 3. As subsection (2) of this clause is at present drafted it is not clear that the limitations on the right to legitim and on intestacy specified in the subsection apply not only to legitimated persons but also to persons claiming, under Clause 3(7), by virtue of the legitimation of another person. The Amendments make clear that the subsection does apply to such persons. Once again, it is simply a drafting Amendment which I beg to move.

Amendment moved— Page 2, line 26, leave out ("legitimated").(Lord Hughes.)

On Question, Amendment agreed to.

LORD HUGHES

I beg to move Amendment No. 3.

Amendment moved— Page 2, line 27, after ("legitimation") insert ("or of the legitimation of any other person—").—(Lord Hughes.)

On Question, Amendment agreed to.

LORD HUGHES

I beg to move Amendment No. 4.

Amendment moved— Page 2, line 28, at end insert ("after the commencement of this Act and").—(Lord Hughes.)

On Question, Amendment agreed to.

LORD HUGHES

I beg to move Amendment No. 5.

Amendment moved— Page 2, line 30, leave out ("before the said date") and insert ("as aforesaid").—(Lord Hughes.)

On Question, Amendment agreed to.

LORD HUGHES: I beg to move Amendment No. 6. Page 3, line 32, leave out subsection (8).—(Lord Hughes.)

On Question, Amendment agreed to.

On Question, Whether Clause 3, as amended, shall be agreed to?

THE EARL OF SELKIRK

May I ask the noble Lord one question? Is the act of legitimation by law or is there some formal act which has to be taken? I have in mind the ordinary rule which is, I think, "Pater quem nuptiæ demonstrant"—"The father is as the marriage indicates." This is a case where there was not a marriage subsisting. How is it established beyond doubt, and particularly in the future, that legitimation has in fact taken place?

LORD HUGHES

To the best of my recollection (I am talking now of something about which I was given information: I hope that my recollection is correct), this will involve the person seeking legitimation making an application for re-registration as a legitimate person. Otherwise, until such application is made, we cannot know, other than in a broad way, who is or who is not involved. I indicated earlier that we thought there were some 3,000 people who would become entitled to legitimation as a result of this proposal.

THE EARL OF SELKIRK

I thank the noble Lord. I think it is important that we should be clear that there is no question of having to seek declarator in a court, and that there will be merely a re-registration in the register of births and deaths.

LORD HUGHES

That is as I understand it.

THE EARL OF SELKIRK

I think that we ought to be clear about it.

LORD HUGHES

If that should be wrong, I have no doubt that I shall receive information in time to correct it, even in the short time in which I hope that we shall be involved with this Bill. If I say no more about it, that means I am right.

Clause 3, as amended, agreed to.

Clauses 4 and 5 agreed to.

Clause 6 [Additional provisions where legitimated person had previously been adopted by one of both parents]:

LORD HUGHES moved, in subsection (2), to leave out "was executed" and insert "came into operation". The noble Lord said: with permission I would associate Amendment No. 8 with this Amendment. These Amendments make a minor improvement to the Bill. The purpose of Clause 6(2) is to prevent children adopted by their natural parents, whose adoption order is revoked on their legitimation under the Bill, from losing rights under any irrevocable deeds conferring property rights on them as lawful children which they gain, by virtue of their adoption, under Sections 23 and 24 of the Succession (Scotland) Act 1964. This purpose is not fully achieved at present because of the application to Cause 6(2) of the definition of the word "executed" from the Succession (Scotland) Act 1964. The purpose of the clause will be more fully achieved by substituting "came into operation" for the words "was executed". I beg to move.

Amendment moved— Page 4, line 44, leave out ("was executed") and insert ("came into operation ").—(Lord Hughes.)

On Question, Amendment agreed to.

LORD HUGHES

I beg to move Amendment No. 8.

Amendment moved— Page 5, leave out lines 1 and 2.—(Lord Hughes.)

On Question, Amendment agreed to.

Clause 6, as amended, agreed to.

Clause 7 [Savings]:

LORD HUGHES

I beg to move Amendment No. 9.

Amendment moved— Page 5, line 22, leave out from ("person") to ("any") in line 23 and insert ("has been or is legitimated").—(Lord Hughes.)

On Question, Amendment agreed to.

3.36 p.m.

LORD SALTOUN moved to add to the clause: ( ) 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.

The noble Lord said: On Second Reading I pointed out that the legitimation of children born of parents who at the time of the birth were not in a position to marry had certain dangers. One of them seems to me to be quite important, because a man who is in possession of a peerage may have an heir he dislikes, or he may have no heir. He may have the prospect of a peerage falling into desuetude or becoming extinct. This Bill puts in in his power to say to a widow with a son, "If you will marry me and look after me in my old age, I can claim the parentage of your son and make him heir to my peerage." It may be very difficult to refute that, and it seems to me to open the door to fraud.

The answer I receive is a very simple one: that a man may do just the same to his mistress. But that does not seem to me to tally with life in the way in which I know it to be lived. A man who has a child, or a number of children, by a woman with whom he has been living and marries her is doing something which has been normal Scottish practice for many hundreds of years; and he is unlikely, in such a position, to wish to father any other child of that woman of which he is not the parent. Therefore I think that on these grounds my Amendment ought to be accepted.

There is another and much more important reason which I think ought to weigh with your Lordships in this matter. In all time past the Crown has been extremely careful with peerages to define the exact and precise devolution of the title; and as anyone who has listened to the terms of an Introduction to a hereditary peerage knows, the Crown still continues to do that. All peerages granted up to now have been granted within the ambit of the Common Law of the country, and the Crown has always envisaged that the devolution of the peerage would proceed according to the terms of the peerage and according to the Common Law of the country. Now we are in the process of altering the law of the country and introducing a new class which the noble Lord, Lord Hughes, puts at some 3,000.

LORD HUGHES

I must correct the noble Lord. I did not either say or imply that we were proposing to make legitimate 3,000 people who were potential claimants to peerages.

LORD SALTOUN

I am perfectly aware of that. I think I should have drawn your Lordships' attention to that if the noble Lord, Lord Hughes, had not done so. But 3,000 is a very considerable class, and we are in effect, as a House of Parliament, by this Bill extending the devolution of the peerage to a class which was not contemplated by the Crown when the peerage was created. The Crown has granted peerages with many peculiar features about them. The Crown has intervened often to regrant a peerage—the Dukedom of Fife was a case in point—to make the terms of devolution more in accordance with the circumstances of the family. But I do not think that there is any record, until this Bill came before your Lordships' House, of the Houses of Parliament invading the Prerogative of the Crown and expanding the terms of every peerage hitherto granted.

I think that this must have been in the minds of the Government when they introduced the English Bill, because your Lordships will notice that English peerages, the succession to which is even more difficult and strict than in Scotland, are excluded from the operation of the Act. All I am now doing is to move that the same line be taken in Scotland and that the law about Scottish peerages should be left as it is at the present moment. I do not propose to ask your Lordships to divide on this point now, though I consider that it is an important constitutional point. I shall put down the Amendment once more at the next stage of the Bill, and I hope that the Government will be prepared with an answer to the points I have raised. If not, I will certainly ask your Lordships to vote, because I think that the Bill is taking an unusual and quite unconstitutional line. If it be good manners—though, having studied the records of your Lordships' House in the 18th century, I hesitate to ask your Lordships—I would reserve my right to raise this subject again, though I would be willing to withdraw my Amendment now. I beg to move.

Amendment moved— Page 5, line 31, at end insert the said subsection.—(Lord Saltoun.)

THE EARL OF MANSFIELD

I should like to support my noble friend Lord Saltoun from a slightly different angle. He spoke of some Member of your Lordships' House marrying a lady with the idea of having, more or less, a housekeeper for his declining years, and accepting her son as his and making him his heir. He suggested that this might be because the noble Lord in question wanted to spite his existing heir. There have been quite a number of instances, to my knowledge, where for some reason, legitimate or otherwise, a noble Lord has conceived a great dislike for his heir, whether it was his own son or other relative, and I can see circumstances in which a son or a relation could be the legitimate heir for many years and then suddenly find that the old gentleman, towards the end of his life, announces that he had an affair with a married woman before he married, and the putative off-spring of this affair was therefore his legitimate heir, to the exclusion of his own son or other relative. I consider, and I hope your Lordships agree, that this would be a complete outrage. I hope that the Government will consider very carefully what my noble friend Lord Saltoun has said.

3.44 p.m.

LORD HUGHES

My Lords, I would completely agree with the noble Earl, if that is what we had in mind, but I made it perfectly clear on Second Reading that a son who was legitimated by these proceedings would be regarded as having become legitimate only from the date of the subsequent marriage. He therefore takes precedence after any sons of the previous marriage, even though they were born after the legitimated son, because the illegitimate son does not become legitimate until his father is in a position to remarry. The point which the noble Earl presumes, therefore, does not arise. The legitimated son can come in front of an heir presumptive, but not in front of an heir apparent.

The noble Lord, Lord Saltoun, raises this matter in a different form to-day from the form in which he raised it on Second Reading. On Second Reading he suggested that a man might do this to spite his heir presumptive. I do not think that the noble Lord is abandoning that point, but to-day he raises two further points. First, as a bribe, in order to get a cheap, attractive or unpaid housekeeper in his latter years, a Peer might say to her that he would make her illegitimate son his and that in due course he would succeed to his peerage. I know that human nature is a peculiar thing and that there are some funny people about. The noble Lord, in a letter to me, said that the Government had designs on the hereditary peerage; but whatever the Government may have in mind to do about the right of hereditary Peers to sit in your Lordships' House, I assure the noble Lord that their desire to restrict the right of voting and taking part in the proceedings of your Lordships' House is not because they regard hereditary Peers as forming such an unduly corrupt body that they are likely to do the sort of thing against which the noble Lord is seeking to protect us. If a noble Lord wished to spite his heir, surely it would be much more simple for him to find, instead of an attractive widow with a son, an attractive unmarried young lady with a son, which at least would get over the obstacle of having to prove that he was the father of the child, and leave him in the ordinary circumstances of the child being presumed to be the child of the marriage.

It is true that the noble Lord's point is a theoretical possibility, but I submit to your Lordships that if, when we are passing legislation, we concern ourselves not with the things which are likely to happen or even the things which could possibly happen, but with wording our legislation so that it will exclude something which is extremely unlikely to happen, which may not happen once in the next century, we shall never legislate at all. I accept immediately the point that there are some Members of your Lordship's House who would consider that a great advantage.

I come now to the new point which the noble Lord, Lord Saltoun, has raised about the Royal Prerogative. He was good enough to inform me in advance that he was going to raise this point, though rather belatedly: it was not until I met him at a quarter past two that I knew exactly what he was going to raise. But I have consulted my advisers and the information I have had from my legal advisers is that the noble Lord can be definitely assured that the Royal Prerogative is not affected by this Bill.

The noble Lord may wish me to say more about this matter at the next stage, and I have no objection to doing so. On the whole, I should be as well pleased if he put the Amendment down again, because I think that he would be happier if between this stage and the next he had an opportunity of examining with me the information I have available, rather than accepting as conclusive the assurance I have just given, though I am certain that he would take my word on it. Perhaps the noble Lord would wish to be satisfied that the evidence is stronger than could be apprehended by me in the opportunity that was available to me between a quarter-past-two and half-past-three to examine the matter. Therefore I should not take the slightest exception to the noble Lord's proceeding with his intention of setting the matter down again, so that this position of the Royal Prerogative can be made clear to your Lordships' House beyond any shadow of doubt. In the circumstances, I ask the noble Lord whether he will be good enough to withdraw his Amendment.

THE MARQUESS OF ABERDEEN AND TEMAIR

If I understood the noble Lord correctly, the cases which have happened now and then have been settled by the House of Lords Privileges Committee. I mention that because, in my own case, my father's elder brother, when he held the title, went to sea under an assumed name; nobody knew who he was, and he was drowned at sea. But your Lordships' Committee agreed that there was no evidence that he had ever been married, and my father succeeded. Otherwise I might not be here to-day.

LORD HUGHES

The point which the noble Earl, Lord Selkirk, raised has a relevance here. He asked whether the person was made legitimate by law, or whether there was any action that he had to take; and he specified the possibility of a declaration by the court. I gave my impression of what the position was, and that impression is correct. So, in the circumstances which we are envisaging, a man will be able to produce a birth certificate showing that he is the legitimate son of so-and-so, and there will be no facts for your Lordships' House to investigate. I should, however, make it perfectly clear and add the legal point that the actual act of legitimation is not the taking out of the birth certificate. When this Bill becomes an Act the change in the law will have made all of these persons legitimate as from the time of the parents' marriage. The re-registering of the birth in legitimate form merely produces the evidence which that man can put forward that he has in fact got a certificate showing that he is of legitimate birth.

THE EARL OF SELKIRK

Perhaps I may ask one question. I agree with the noble Lord that we should not chase too many hares, but I think we are entitled to discuss the implications of our legislation. The noble Lord has said that the registration is proof of legitimacy. But is it rebuttable proof? After all, it may be false. There is no publication of registration. Someone marries a lady (and this does not apply only to the Peerage, but to all people) and then solemnly declares, "The child is my child"; this is put into the register, and nobody else sees it. But that statement may be false. Ought there not to be some publication of it, so that people who might be interested could advance different evidence? It is not easy to advance evidence, but evidence might be advanced.

LORD HUGHES

This is a completely different point from anything that has been raised up to this time. I agree that, in so far as the Bill is concerned, the object is the legitimation of some 3,000 people at present, and some 50 or so a year to come. Those are the estimates. The Amendment we are now discussing, however, is confined to those who may or may not become possible heirs to title. I accept that what we are looking at in the Bill in general is the position of some 3,000 people and another 50 or so per annum. I would accept that these people are no different from any others whose birth is registered. If someone is presumed to be legitimate in the ordinary way as a result of this Bill, and someone can subsequently prove that that person is illegitimate, the steps which will be taken in this new category will be exactly the same as the steps to be taken under the law generally. If a person has cause to believe that a birth which has been registered as a legitimate birth, or a birth which has been registered and is now going to be made an illegitimate birth, is not in fact so, he will take exactly the same steps in each case.

LORD SALTOUN

William Pitt said that the first Marquess of Wellesley was an animal of the slowest gestation that he had ever heard of. I think it was because he took ten years to compose one speech. I must apologise to the noble Lord, Lord Hughes, because I am myself an animal of very slow gestation and my mind moves slowly. I brought the point to his notice as soon as I had worked it out. I am not satisfied—and the noble Lord, Lord Hughes, has said nothing this afternoon to convince me—as to why this Bill for Scotland is in different terms from the English Act. I should very much like to have some information upon that point. I am in your Lordships' hands. I cannot withdraw my Amendment unless your Lordships all wish me to. I am perfectly willing to withdraw it and put it down next time if the noble Lord, Lord Hughes, and your Lordships agree to that course. But if your Lordships want me to, I will press the Amendment. However, before even considering that, I should like to hear why the Bill for Scotland is different in this respect from the English Act.

LORD HUGHES

I am sorry to be getting up again, but the noble Lord has asked me another question. I dealt with this point on Second Reading. The noble Earl, Lord Dundee, pointed out that for some 700 or 800 years the law of Scotland had been in advance of the law of England but that with the passing of the present English legislation the English law went ahead; and I said on Second Reading that we are now seeking once again to put Scotland a little ahead of the English position. I thought the House accepted the principle that, whatever the defects of the parents, whatever the morals or the immoralities of the parents, the illegitimate child was the same whether his parents were free to marry at the time of his conception or whether they were not. It is not an act of the child which differs in the two cases, and I thought your Lordships had accepted the principle that it was fair that the children should be accorded the same treatment. This is what the Bill proposes to do, and in that sense we go ahead of the law of England in this matter of succession to title.

I did not intend to say this, because, as I said, I am willing to discuss with the noble Lord between now and the next stage the question of the Royal Prerogative, and I would have drawn his attention to this point, which I learned only after I had spoken to him: that his Amendment does not only do what he intends to do, but would put the position in Scotland beyond that in England, because in England a child who is legitimated and whose parents were free to marry at the time of his birth can succeed to title. The effect of accepting Lord Saltoun's Amendment would be that a person legitimated by the subsequent marriage of his parents would not be free to succeed to title, whether his parents could or could not have been married at the time of his birth. As I have said, I did not wish to put forward this point, because it was quite clear that it was not what the noble Lord intended. He merely intended to preserve the status quo as it exists in relation to titles in Scotland, and inadvertently, he has taken it farther back still.

LORD BALERNO

Would your Lordships allow me to intervene on this point and say something which might allay Lord Saltoun's fears? If a clause were inserted in this Bill making it compulsory that the blood grouping of every hereditary peer should be recorded, then the identification of the illegitimate could be ascertained when the claim were made. This point might perhaps be considered for a later stage.

4.0 p.m.

THE EARL OF DUNDEE

May I say one word in the hope of clearing up this point, for the benefit of my noble friend and others of your Lordships? It is a little complicated, because there were two Acts in England. The first was the Act of 1926. Until then, no one who was born illegitimate in England could ever become legitimate, even if the parents, who were unmarried when he was born, subsequently decided to marry. In the rest of the world, or Western Europe, including Scotland, subsequent marriage of unmarried, people legitimised the illegitimate children whom people had previously had. That was not so in England.

In 1926 the English corrected that, but they exempted succession to titles. The 1926 Act, which went only so far as the legitimation of children of unmarried people, contained exactly these words which the noble Lord, Lord Saltoun, has now out down. It did not affect succession to any hereditary title or dignity. Then, in the 1959 Act in England, which enabled illegitimate children born of people who were married to somebody else, subsequently, long after, to become legitimate, they simply repeated the same saving clause: that this should not affect the succession to any hereditary title.

There has always been a difference between Scotland and England in regard to the marriage of people who have previously been unmarried and had illegitimate children. But this new Scottish Bill does raise a new point, because we are now doing something which has never been the law of Scotland, although legitimisation of children of unmarried people has always been, from time immemorial, the law of Scotland. This Bill now makes it possible to legitimise the children of people who have been married to somebody else, if, owing to some person being divorced, or some such cause, they ultimately re-marry.

I think perhaps it is natural that some of your Lordships should want a little more clarification on the points which have been raised, and perhaps also some of your Lordships may want a little legal clarification, which the noble Lord obviously could not give now, about the nature of the proof which might be required. Because I think we all feel that, while it is a good thing, and has always been Scottish law, that unmarried people who have an illegitimate child and then decide to put things right and marry, should be able to legitimise the child, it is not quite the same when people get divorced and marry later on. It is not a question of doing justice to the child, but a question of the convenience of society. I think that if the noble Lord would withdraw his Amendment now—we want to help the Government with this Bill—and if we could have a little more legal information at the next stage, it would help us to ease our minds on this subject. It is just a little disquieting to feel the sort of things which might happen and which some of your Lordships have mentioned.

LORD SALTOUN

Before withdrawing my Amendment, I should like to say that I have read my Amendment again and again and again—three times—since the noble Lord, Lord Hughes, told me it went too far. My Amendment says: Nothing in this Act shall affect the succession to any dignity et cetera. That means that nothing in this Act shall affect the present situation with respect to the succession. The Common Law at present is precisely clear; and I think therefore it can hardly be said that this Amendment goes too far. However, I am in your Lordships' hands, and, if you will permit me, I will withdraw my Amendment and put it down for the next stage of the Bill, after consultation with Lord Hughes.

Amendment, by leave, withdrawn.

Clause 7, as amended, agreed to.

Clause 8 [Interpretation]:

LORD HUGHES: I beg to move Amendment No. 11.

Amendment moved— Page 5, line 42, after ("person") insert ("(whether under this Act or before the commencement thereof)").—(Lord Hughes).

On Question, Amendment agreed to.

LORD HUGHES moved, after subsection (4), to insert: (5) The provisions of this Act shall have effect in relation to any question as to the succession to, or devolution of, any title, honour or dignity after the commencement of this Act as if the right to succeed to that title, honour or dignity were a right under a deed coming into operation after such commencement and as if the title, honour or dignity devolved in accordance with such a deed.

The noble Lord said: I should like to say just a few words about this Amendment. It is not quite a drafting Amendment. Your Lordships will recollect that on Second Reading I informed your Lordships' House that persons not legitimated by subsequent marriage under previous law would oust heirs presumptive, but not heirs apparent. A doubt has since been cast on this view. That is the Government's intention, but it has been suggested that subsections (2) and (3) of Clause 7 might have the effect that persons not able to be legitimated by subsequent marriage under the present law might be unable to succeed to titles, where the parents either have married in the past or marry in the future.

The Bill has been carefully drafted to avoid retrospective interference with the intention of those who have executed deeds which are irrevocable; for example, wills where the testator has died before the Bill comes into effect. Accordingly, subsections (2) and (3) of Clause 7 provide that deeds which came into operation before the commencement of the Act shall be interpreted under the old law; and it is possible that succession to title might be interpreted as occurring under a deed (letters patent, et cetera) coming into operation at the first creation of the title. To remove the doubt, this new subsection provides that future succession to title shall be deemed to be by virtue of a deed coming into effect after the commencement of the Bill.

In saying this, I appreciate that this matter would be affected by the Amendment which the noble Lord, Lord Saltoun, has withdrawn. I freely give the undertaking that if the Committee accept this Amendment it will not in any way interfere with their freedom to act, as may be necessary at subsequent stages, on the discussion which may take place on, the noble Lord's re-submitted Amendment. I beg to move.

Amendment moved— Page 6, line 23, at end insert the said subsection.—(Lord Hughes.)

On Question, Amendment agreed to.

Clause 8, as amended, agreed to.

Remaining clause agreed to.

House resumed: Bill reported, with Amendments.