HC Deb 10 April 1968 vol 762 cc1503-13

8.45 p.m.

Mr. N. R. Wylie (Edinburgh, Pentlands)

I beg to move Amendment No. 1, in page 4, line 30, after first 'that' insert 'when that person was born'.

Mr. Deputy Speaker (Mr. Sidney Irving)

It will be convenient for the House to discuss also Amendment 2, in line 30, leave out from 'was' to 'domiciled' in line 31.

Mr. Wylie

The Amendment is partly drafting, but it is also being used to clarify in our own minds, with the help of the Under-Secretary, the purpose and intentions behind the Clause, which was added in Committee. Initially the provisions of the Bill were somewhat along the lines of the provisions of Section 8 of the Legitimacy Act, 1926, and dealt with the qustion of the recognition of legitimations under foreign law. It is a somewhat technical field of discussion. I hope that I shall not unduly bore the House in the process, but it is important.

The original proposal was clear, was readily understood, and, I repeat, followed the pattern of the 1926 Act. This is the provision which applies to England and Wales but not to Scotland: Where the parents of an illegitimate person marry or have married one another, whether before or after the commencement of this Act, and the father of the illegitimate person was or is, at the time of the marriage domiciled in a country, other than England or Wales, by the law of which the illegitimate person became legitimated by virtue of such subsequent marriage, that person, if living, shall in England and Wales be recognised as having been so legitimated from the commencement of this Act". In other words, Parliament thought fit there to amend what I understand to be the rules of private international law that, to obtain recognition of legitimation under a foreign law, it was necessary for the father to be domiciled in a country recognising legitimation in this way both at the date of birth of the child and at the date of the subsequent marriage. The 1926 Act abolished the need for the father's domicile at the date of the marriage.

When the Bill came to us from the House of Lords, the corresponding provision it contained was readily identified with the provisions to which I have just referred. No exception was taken to any of the provisions of the Bill. Unfortunately, the Government deemed it necessary to take out the original Clause 2 and they inserted Clause 5 by way of a new Clause presented in Committee.

I understand that the reason was that very recently the House of Lords took a decision in a divorce case called Indyka in which it moved away from domicile of the husband as the basis of recognition of a foreign decree. The question of legitimation is equally a matter involving status.

The Under-Secretary was right to have regard to the possible impact the decision might have, and his explanations for radically altering the provisions of the Bill, albeit at that late stage, are tied up with that decision. At the first sitting of the Committee he said: In its present form, the Clause— that is, Clause 2 as it then was— restates the existing law with its recommended amendments. What the present Clause says is that if, by the law of the foreign country in which the father of an illegitimate person is domiciled at the time of the marriage of his father to his mother, that person is rendered legitimate, the law of Scotland will also recognise him as legitimate. That was the original intention of the Bill. We have, however, come to the conclusion in consultation with the Law Commission—"— the hon. Gentleman was referring to the Scottish Law Commission— and hon Members will be aware of the background—that it would be unwise at present to codify the law about foreign legitimation this form. I pause to point out that whatever view one may take of the case of Indyka, which concerned recognition of a foreign decree of divorce, the recognition of foreign legitimations in England is governed by Section 8 of the Legitimacy Act, 1926, and although in every other respect the Bill is intended to bring the law of Scotland on legitimation per subsequens matrimonium into line with the law of England, in this respect it seems to be parting company with it.

The hon. Gentleman went on: The reason for this arises from a decision by the House of Lords given after the Law Commission's Report—a decision which, incidentally, has already been followed in two subsequent cases in England. I should have thought it inevitable that it would be followed, because the decision of the House of Lords in an English appeal is binding on all lower courts in England.

Later the hon. Gentleman said: Scots law at present relies on the general principle that, where a person is legitimated under a foreign legal system, he should be regarded as legitimate by Scots law only if the system is that of the country of the domicile. Clause 2, as it stands, restates this principle. But in the case to which I have already referred—the Indyka case—the House of Lords, for the first time, decided that the law of the domicile was not the only one to which the courts of this country might have regard in considering what the law governing the status—that is, the legal marital status—of a person should be. It is accordingly quite clear that it is the decision in Indyka which has induced the Government to depart from the perfectly understandable and very clear terms of the Bill as it was originally presented to us after passing through the House of Lords. My concern is that I do not believe that the decision in Indyka is likely to have any bearing on Scottish law, and that the Government are really being over-cautious in trying to leave the matter open for possible change in the law of Scotland. I understand that that was what the Minister was getting at when he said: It is difficult to say what the full effect of this judgment will be on Scots law, particularly as it was given on appeal, admittedly to the House of Lords, from a decision of an English court. I am sure that neither we nor the Law Commission would care to predict how the law might develop from it in the long term. But what the Commission has said is that it would be unwise to enact in the Bill provisions such as those in the present Clause 2, which would not only prevent the Scottish courts from going as far as the House of Lords did in the Indyka case, but would inhibit any future development of the law which might flow from that decision."—[OFFICIAL REPORT, Scottish Grand Committee, 26th March, 1968; c. 7–8.] The Indyka case was a highly special case. It concerned a man who had acquired a domicile of choice in England but who had married before the war a Czech national. He was himself at that time a Czech national. He was subsequently divorced under Czechoslovak law by his first wife. He then remarried and when being divorced by his second wife—he has had a most unhappy matrimonial career—he pleaded that this second marriage was void because the first one had never been dissolved, and that the reason it had not been dissolved was because, by international private law, the law of England could not recognise the Czechoslovak decree which proceeded not on his domicile at the material time but on the nationality of the wife.

It is true that the House of Lords departed in that case from the notion of domicile as being the governing feature in recognition of foreign decrees of divorce and accepted in that case the basis of nationality. But the Scottish Lord of Appeal in the House of Lords—Lord Reid—who delivered the leading speech, dissented from that view, basing his decision on a principle well recognised by the law of Scotland, certainly not on the basis of any principle of nationality.

I doubt whether there is any likelihood of Scottish courts being influenced by that decision. Nor is there a reasonable likelihood of the House of Lords imposing that essentially English decision on the Scottish law on an appeal taken from the Scottish courts.

It is not altogether correct to say that this is a new feature of English practice because, so far as I can see, the English courts have been departing for a number of years from the question of domicile as being the basis for recognition or for actions involving status and, as my right hon. Friend the Member for Argyll (Mr. Noble) said in Committee—unfortunately I could not be there to assist in this matter—a very substantial departure from principle was taken by the English court in the case in re "P" in 1965 because, in that case, the court assumed jurisdiction to pronounce an order in relation to the custody of a child notwithstanding the fact that the father was not domiciled in this country and that the child, being in Israel, was outwith the jurisdiction of the English court at the material time. The basis of the court's decision there was the basis of ordinary residence.

I can say that this was a major departure as I see it from the principle of private international law because it went right in the face of what Professor Dicey in his book, "International Conflict of Law", seventh edition, said on page 390: Domicile and not nationality is the relevant factor in determining jurisdiction. The court disregarded that and disregarded the English laws of authority. The Master of the Rolls, Lord Denning, on page 583, specifically stated that they were not going to follow the Scottish courts in this matter.

9.0 p.m.

Just as the English court rejected the Scottish court in this matter, so the Scottish court in a recent case last year has rejected this English line of authority and that is the case of Oludimu, in 1967. Where the court was pressed to accept the departure followed in England in the case to which I have referred, the Scottish court adhered to the basic international private law proposition—this was also a custody case, nonetheless involving status—that only the court of the domicile of the spouses could deal with custody and no other court will interfere.

I have referred at some length to these cases to underline the proposition that I am making, which is that I do not believe that such weight should have been attached by the Law Commission or the Government to the decision in Indyka and that it is unfortunate that for these reasons a perfectly clear provision with regard to the domicile of the parent at the date of the marriage as being the governing factor in a case of recognition of the foreign law relating to legitimation has been departed from, or has been sought to be departed from, and at the same time a difference emerged between the statutory provisions in the 1926 Act which applied to England, and what is intended to be applied here.

I go on to deal with the actual provisions of Clause 5(2). What I am not at all sure about is that, even if the hon. Gentleman is right and he is seeking to leave this matter open, he is departing from the positive statement that the domicile of the father at the date of the subsequent marriage must be the governing factor because he wants to leave that open for the Scottish court, if so advised, to follow this English line of authority. I am not at all satisfied that he has done so. On my reading of subsection (2) the implication is clear that the domicile of the father at the date of the subsequent marriage will be the governing factor. The Clause says: (2) Where after the commencement of this Act any person is legitimated under the law of a country or territory outside Scotland, the fact that the father of that person was at any time previous to his marriage to the mother of that person domiciled in a country or territory in which legitimation by subsequent marriage was not permitted by law shall not prevent the recognition of that person as being legitimated. It is at least a possible interpretation of the Clause that the implication, therefore, is that he must be so domiciled at the date of his subsequent marriage. The effect of these two Amendments is to focus attention on the one thing which the Government are seeking to rule out and that is the basic common law provision that there has to be domicile both at the date of the marriage and at the date of the birth. If these Amendments are accepted, the subsection will read—to paraphrase: Where … any person is legitimated under the law of a foreign country … the fact that when that person was born the father of that person was … domiciled in a country … which … That makes it clear that we are ruling out of consideration the question of the father's domicile at the date of birth and we are seeking to leave open at least the question of whether or not his domicile at the date of a marriage is a relevant consideration.

The effect would be to clarify that position, but it would still leave in doubt the question as to whether or not the domicile of the father at the date of the subsequent marriage was the governing factor in deciding whether recognition to the foreign law should be granted. That, it seems to me, is a difficulty inherent in the whole Clause, and I am not at all sure that these Amendments get round it. They will at least draw attention to the fact, as is done in a more positive way in the English section, and as was done in a more positive way in the earlier Clause, that the domicile of the father at the date of birth is irrelevant. What we have to consider, if we have to consider it, is the domicile of the father at the date of the subsequent marriage.

I am most grateful to you, Mr. Deputy Speaker, for allowing me to develop these arguments at some length. It would have been difficult to make this point simply on a narrow construction of those Amendments. This was introduced at a very late stage, when I did not, with respect, think that it could be properly considered by the Committee. I am very grateful for the opportunity of making these observations.

The Under-Secretary of State for Scotland (Mr. Norman Buchan)

I understand the reason for the hon. and learned Gentleman's exploring this at some length and I agree that these Amendments were put down in difficult circumstances. In the long months during which we appear to have been facing one another on various Committees, this was the one occasion on which the hon. and learned Gentleman was missing when it would have been most useful, from the point of view of our discussions, for him to have been present. He has quoted at great length what I said in Committee, therefore I need not explore the reasons for this particular Clause being put in. It was because of the effects of the Indyka case that we endeavoured to put down the Clause in the normal way. The present Clause says that if by the law of the foreign country in which the father of an illegitimate person is domiciled at the time of the marriage of his father to his mother that person is rendered legitimate, the Law of Scotland would also recognise that. But the Indyka ruling had the effect of opening up the possibility of other interpretations.

I must make it clear that the purpose of the exercise is not in any sense to try to bring Scots law into line with English law. It is to set out the Scots law of legitimation with improvements as recommended by the Scots Law Commission. In this one we did not attempt to modify, as we did in other sections.

The hon. Gentleman raised the question as to why we differed from England in the Legitimacy Act of 1926. The hon. Member said that international law developed from the Indyka case. Naturally cases have followed that but it has been taken as an important decision and is already beginning to have effect here, and it would be necessary for the English Act to be amended if it is to develop in the same way. We made these Amendments at the Committee stage in order to avoid the necessity of having to follow what might become a necessity for English law.

On the question the hon. Member put as to whether in this Clause the implication would not clearly be that domicile was still the crucial factor, certainly domicile is a factor, but in a negative sense. We say that it "shall not prevent the recognition of that person as being legitimated." That is the difference: it leaves the question open for future development. I would have thought that that would have been fairly clear.

There are one or two difficulties in these specific Amendments. I recognise that they are designed to replace the present general formula removing a possible requirement in the present law to look at the law of the father's domicile at any time previous to the marriage, with a precise formula removing the requirement to look at the law of the father's domicile at the time of the child's birth. It is possible, however, that the Amendments could have a more specific effect on the Clause.

The purpose of the subsection is this. Scots law recognises foreign legitimations per subsequens matritmonium if the "proper law" of the father provides for the child's legitimation per subsequens matrimonium, and "proper law" raises a different difficulty not touched on by this particular Amendment. At present the Scottish courts regard the law of the country of domicile as the "proper law" for deciding matters of status of this kind. As originally drafted, the Bill required the Scottish courts to have regard to the law of domicile. But since there was the possibility that if this were left in the common law the courts of this country might get over some of the difficulties and hardships involved in a strict application of the law of domicile by having regard to some other law—for example, the question of nationality—

Mr. Kenneth Lewis (Rutland and Stamford)

On a point of order. In view of the thin attendance in the House and the absence of hon. Members on the benches opposite during a discussion of important Scottish matters, I beg to draw attention to the fact that fewer than 40 Members are in the Chamber.

Notice taken that 40 Members were not present;

House counted, and, 40 Members being present

9.12 p.m.

Mr. Buchan

I was saying, before we were interrupted in that extraordinary way, that we felt that if the matter were left in the common law rather than in the statutory law the courts of this country might get over some of the difficulties and hardships involved in a strict application of the law of domicile. Therefore, questions of nationality and matters of status could arise. To get over the difficulty, we amended the Bill in Committee.

I recognise the difficulty of removing the statutory requirements, but the question which then arises is: what is the "proper law" of the father at what time? Is it at the time of the marriage, at the time of the birth or even at the time of conception? The father might move from country to country so that his "proper law" might change between these events. If one "proper law" provided for legitimation and the other did not, would the Scottish courts recognise the child as legitimated or not?

The present Scots law clearly requires the Scottish courts to have regard to the father's "proper law" at the time of the marriage. But it may also require the courts to have regard to the father's "proper law" at the time of the child's birth, or, more doubtfully, the child's conception, and to refuse to recognise the child as legitimated unless the "proper law" at each of those times provides for its legitimation. The purpose of the subsection, following what is done for domestic legitimations in Clause 1 and the recommendation of the Law Commission, is to establish for the future that these doubtful requirements regarding consideration of the "proper law" at the time of birth or conception will no longer apply. The Scottish courts will have regard only to the father's "proper law" at the time of the subsequent marriage.

I accept that the hon. and learned Member for Pentlands may have wished to make the point, as he did to some extent, that, if what we are going is to remove the possible requirement that the courts should look at the "proper law" at the time of birth, we should say so instead of using the general phrase any time previous to the marriage". We felt that the Opposition's Amendment should be resisted because it did not remove the possible requirement about time of conception. It may be that their view is correct, but I think that there would be agreement that it should not exist in future.

The only question is whether the requirement has sufficient spectral existence to make it wise to ensure that it does not haunt the courts in future. The Government think that it has. They stand on the fact that the Law Commission felt it necessary to refer to it. Therefore, it is desirable to make sure by removing it. The sub-section as drafted does this, but the Amendment does not.

With this brief explanation, I hope that the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) will accept the Clause as it stands and will withdraw what I regard as a probing Amendment.

Mr. Wylie

I have heard it suggested that the common law in Scotland might require domicile at the date of birth, but I have never heard it suggested that domicile at the date of conception was seriously taken as a factor governing recognition of the foreign law.

This is a matter for the Minister to decide and he has taken a decision. Where a section reads, as this does, that the domicile at a certain date prior to the marriage is not to be relevant, there is a statutory implication—and I am not sure that the courts would not put this construction upon it—that that means domicile at the date of the marriage, which is in accordance with existing common law principles. The difficulty is that if, contrary to what I have said, the Scottish courts move away from domicile—I do not think they are likely to do that—to some other criterion in divorce or custody matters, for example, such as residence or nationality, none the less their hands would be tied in legitimation proceedings by the terms of the section.

A matter of this complexity is not something to be developed at this time of night. It is not for the Opposition to take upon themselves responsibility for this kind of a change. I have listened to what the Minister has said. I am not satisfied, but it is a matter for the Government to decide. In the light of these observations, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Motion made, That the Bill be now read the Third time.—[Queen's Consent, on behalf of the Crown, signified.]

Question put forthwith pursuant to Standing Order No. 55 (Third Reading), and agreed to.

Bill accordingly read the Third time and passed, without Amendment.