HC Deb 08 May 1968 vol 764 cc560-71
Mr. N. R. Wylie (Edinburgh, Pentlands)

I beg to move Amendment No. 1, in page 2, line 4, leave out 'person' and insert 'woman'.

Mr. Deputy Speaker (Mr. Sydney Irving)

With this Amendment we may discuss the following Amendments: Amendment No. 2, in page 2, line 4, leave out 'and is'; Amendment No. 3, in line 5, after first 'children', insert 'or a man dies intestate survived by illegitimate children who have at any time lived in family with him'; and Amendment No. 4, in line 31, leave out 'person' and insert 'woman, or of any man with whom they have at any time lived in family'.

Mr. Wylie

The purpose of these Amendments—apart from Amendment No. 2 which is a drafting Amendment and seems to be unexceptionable and one which I hope the Minister will accept—is to narrow the very wide provisions of Clauses 1 and 2. As those Clauses stand, in effect they put the illegitimate child in precisely the same position as a child of the marriage, in Clause 1 by an amendment to the Succession Act giving the illegitimate child the same rights of intestacy, and in Clause 2 by a further amendment to the Succession Act, 1964, giving the illegitimate child precisely the same right to legitim as the legitimate child.

In discussion in Committee my hon. Friends and I made clear that we were as anxious as anyone to improve the status so far as concerns succession of the illegitimate child for obvious reasons which do not require to be stated. Where the Committee took two different views was where a line should be drawn. In our view the provisions of those Clauses go too far because they are benefiting the illegitimate child to a point at which they can prejudice the legitimate Children, the children of that marriage, and also the widow who also has certain built-in rights of succession.

The effect of those Amendments is to confine the rights of succession of the illegitimate child first of all to the mother's estate, whether she has legitimate children or not, and secondly—this is where tie restriction comes in—to confine the rights of the illegitimate child on the father's estate to those cases where the child has lived, for however short a time, in family with the father.

There are reasons for this. In equity it is right to say that the relationship between a mother and her child, whether legitimate or illegitimate, is such as to entitle that child to an equal share in the estate with her legitimate children. The mother's relationship is such that any distinction drawn by law between her legitimate children and her illegitimate children tends to be somewhat artificial.

As I pointed out to the Committee, the position of the illegitimate child in regard to rights of succession on the estate of the mother has been progressively improved. By the Legitimacy Act, 1926, provided that the mother died intestate without leaving any issue, the illegitimate child was entitled to the same share of the estate as that to which he would have succeeded if he had been legitimate. Then in the Succession Act, 1964, those rights were extended in those circumstances by giving the illegitimate child a right of succession to the owner of the intestate estate of the mother.

We were prepared to accept the proposals of this Bill in relation to the mother's estate by putting the illegitimate child of the mother in exactly the same position from the point of view of rights of succession as her legitimate children. Where the shoe began to pinch was where a question arose as to the rights of succession to the father's estate. The father's estate in any family has certain obligations long recognised by the law of Scotland towards the widow and children. It seemed to us that the line had to be drawn at a point at which there was no undue prejudice, to the rights of succession of the widow and children.

The provisions of Clause 1 amending the 1964 Act in this way and Clause 2 of the Bill undoubtedly qualify the legitimate interests in succession of a widow and children. I do not know that this point is capable of a great deal of elaboration. It is very much' a point of view, but only today I received representations from the Royal Faculty of Procurators in Glasgow and I note that, after full consideration, they entirely share the view which I have put forward. What they say on this aspect of the Bill is this: The Clause on illegitimacy is too wide. The benefits of the Bill should be limited to a legitimate child living in family with a deceased parent, or if adult who was brought up in family with the parent; otherwise grave practical defects could arise by reason of a person unheard of by a legitimate family appearing after the parents' death and alleging to be a legitimate child. This points to some of the practical difficulties to which reference was made in Committee.

What will happen here, since there has been a time bar, apart from the negative prescription of 20 years, is that a claim can be brought only by someone alleging that he is an illegitimate child—perhaps even after the father is deceased, and even if estate has been disputed by the trustees or executors—to the beneficiaries, and Particular to the widow and children of the marriage. In these circumstances it seems to us that this is a very far-reaching proposal.

While one would inevitably want to strengthen the legal position of the illegitimate child so far as possible—and I would mention in passing that the Legitimation (Scotland) Act was, apart from one technical requirement, accepted without any opposition from this side of the House, so I hope that no one will doubt our sincerity in this matter—a balance of interest has, none the less, to be struck and in our view this Clause goes too far. These Amendments, apart from the drafting Amendment to which I have referred, seek to restore the balance to what is equitable to the illegitimate child on the one hand, and to the widow and children of the marriage on the other.

10.41 p.m.

Miss Harvie Anderson (Renfrew, East)

Until this moment I have not had an opportunity of supporting my hon. and learned Friend in this respect. I must say in passing that I regret the absence of the right hon. Member for Edinburgh, East (Mr. Willis). It seemed quite like old times a moment ago, and I thought they were going to so continue. But I want to take this opportunity of supporting my hon. and learned Friend, partly because I am not a lawyer. Frequently this House is riddled with lawyers but, curiously enough, when legal Bills come to the Floor there are remarkably few of them present.

I want to make quite plain the fact that I am speaking not as a lawyer, but as one of the tens of thousands of ordinary citizens who are very considerably alarmed by the extent of provision for the illegitimate child which is being made in this part of the Bill. I know that this has been long argued out in Committee, but I should like to support the point of view which has been expressed so well tonight by my hon. and learned Friend, and to say that, although not a lawyer myself, I have from time to time benefited as he has from the advice of the Royal Faculty of Procurators of Glasgow, of which my father was long a member. I think that they have perhaps seen more clearly the possible results of the legislation which we are passing tonight than we in this House have been able to do, in our anxiety to make a more equitable distribution in favour of the illegitimate child.

Reference has been made—and I should like to remind the House of this—to the fact that when we passed the Succession (Scotland) Act, 1964, we provided for the issue. But in column 4 of the Report of the Committee stage of this Bill, the relevant passage of that Act was quoted. It said: but is survived by illegitimate children, the illegitimate children shall have the right to the whole of the intestate estate."—[OFFICIAL REPORT, Scottish Standing Committee, 2nd April, 1968; c. 4.] At that time I was very alarmed at that provision, because I thought that it would inevitably lead to precisely the situation in which we find ourselves tonight. Whereas I thought at the time of passing the Succession (Scotland) Bill, as I still think tonight, that it is right to make adequate provision for the illegitimate child, I do not think it right to extend that provision to the point where it is possible to damage the legitimate children of a marriage.

The most substantial point in this consideration is that made by my hon. and learned Friend, which makes clear that an illegitimate child could appear on the scene for the first known time not only after the decease of the father, but also after the distribution of the estate to the widow and children. When we reach a point where this is possible in law, then I think we are opening the doors to very grave considerations. It does not take a lot of imagination to visualise a situation where this will happen; to visualise a situation where, when this happens, it will greatly, alter the anticipated position of the widow and the legitimate children; and, indeed, alter the pattern of life which they may have set for themselves as a result of receiving the distribution from the estate. That part of the submission of the Royal Faculty of Procurators of Glasgow which has been quoted is very pertinent, and I think that the practical difficulties which could arise if we pass the Bill in its present form are sufficiently grave to warrant that these Amendments should be accepted even at this late stage in the full knowledge that they will not damage the rights which we are seeking to offer the illegitimate child, but that they will preserve the rights which the legitimate child can be expected to have and, in my view, should continue to hold.

10.45 p.m.

I support what my hon. and learned Friend has said, and I hope very much that the Minister may see this not so much in the light of the new legislation, concentrated on an over-liberal view, but with objective sight such as that presented by those outside bodies, and the many people who have written to us, who are, perhaps, in a better position to look objectively than we are in this House tonight.

Mr. Buchan

I have listened with great care to the arguments which have been put forward. To a great extent they repeat the arguments with which we grew fairly familiar in Committee during an extended debate. I have not heard, I must confess, anything which has changed my basic view of the rightness of these provisions. The new arguments, the new evidence, the new points of view, the quotations by the hon. and learned Gentleman the Member for Edinburgh, Pentlands (Mr. Wylie) and the hon. Lady the Member for Renfrew, East (Miss Harvie Anderson) from the Royal Faculty of Procurators do not seem to me to alter the basic principles with which we have been concerned in these discussions. Indeed, I am rather surprised that the Amendment we now have here is, if anything, rather more restricted than the one we dealt with in Committee, as I recall it.

I accept that the Amendments put forward are not a total rejection of the views of the Russell Committee. I accept that they are an attempt to meet the problem to some extent, but I do not really think that it is sufficient to argue that because in an earlier Measure, the Legitimation Bill, we legitimated 3,000 people, and perhaps 50 to 60 a year onwards from its enactment, we have solved the problem, though we have gone a considerable way to solving it. While I recognise that hon. Members opposite supported that Bill, and I recognise their good faith in this matter, I do not think they have got to grips completely with our standpoint on this and our intention to proceed with these provisions.

The difficulty, among others, in the concept maintained by so many hon. Members opposite is, I think, that they tend to have the vision of the family and the arrival of the disrupting element, as they see it, of the illegitimate child who is not expected. I know that this has been a popular concept in some of our worst literature. I know it could happen in reality today. I know the heartburning such a situation may cause to the established family. However, with respect, one must ask hon. Members opposite to look at the other side of the picture, that is to say, the person who arrives.

Clause 1 of the Bill is an attempt to rectify an injustice which may have existed for a very long time for many people, and I ask hon. Members opposite to project themselves from their vision of the disruption of the family to that of the injustice which has been taking place for the illegitimate child. I must ask them to try to understand the motives behind the Clause. All these assumptions were fully considered in the Report of the Russell Committee, assumptions which were possible and desirable, and also the attempt to distinguish between different kinds of illegitimate persons in different circumstances—those who have lived in family and those who have not. They were also discussed in Committee on the Bill. I rejected similar Amendments in Committee for the reasons which I will deploy this evening, although I hope at less length.

I take the view that it is wrong and misguided to punish the child through the law of succession for the behaviour of the parents. I then used the term "punish by proxy". This is true of all children in relation to succession to estates of both parents. I do not accept, in spite of the clear difficulties, that there is a difference between the children of the father and the children of the mother.

Miss Harvie Anderson

Surely the hardship is equal for the legitimate child whose life is disrupted by the appearance of the illegitimate as that caused by the disruption to the illegitimate child by the right of succession.

Mr. Buchan

With respect I do not think that it is. A considerable shock may be administered. It may be that a legitimate child will lose part of the, estate, but we are considering a proportional loss and a total loss. I do, think we can equate the two things. Our views may have become coloured with a rather Victorian sense of morality which makes us fail to see the deeper morality involved. When one looks at this in the familiar concept of the family relationship it is never argued that this is necessary in the case of the legitimate child. It is not argued that one should adopt the concept of the line of succession only where the child has been living in the family. I do not see how we can apply that concept to the legitimate child.

The Amendments would cut out some of the deserving cases which the hon. Member for Hendon, South (Sir H. Lucas-Tooth) referred to in his minority Report. A father may have recognised and supported an illegitimate child, but circumstances may have prevented him bringing that child into the family.

The Russell Committee looked at the problem of the definition and found that they could not distinguish …with the simplicity which should be aimed at in any law of succession between illegitimate children with whom parents had established some degree of relationship, and others. The expression, "living in family" illustrates the dangers of trying to differentiate. It is not easy to express a definite term which can be interpreted and the certainty would go.

Apart from the moral argument, it is wrong to place this extra hurdle in their path by making them prove they were living in family. It is true that implementing the principle would impinge on the rights of inheritance of widows and legitimate children. We argued this at length in Committee.

In the case of the widow, it would happen only if she was receiving a large inheritance and she had no legtitimate children. If she had, it is the legitimate child which of itself would impinge on the widow's rights. The number of cases which would be affected by illegitimate children alone would be small.

We have accepted one simple criterion, which is that of paternity, and I want to deal with the difficulty of proof of paternity. Reference was made to the difficulties which might arise when a child arrived alleging to be an illegitimate child. The difficulties fall into two main groups, since necessity for proof can arise many years after the alleged father is said to have sired the child.

Evidence will rarely be available and the child will, in all probability, be likely to succeed only where he had been living in family or the father had acknowledged paternity in some other way. Secondly, it might be difficult to find a person who could successfully challenge or oppose the child's claim and it would be difficult to produce counter-evidence.

In a case of dispute, the court can take account of other possible factors, such as the birth certificate, a court decree or the finding of paternity. Such a finding of paternity will be admissible now as evidence of the child's right to succeed and, by virtue of the other parts of the Bill, it would be for anyone contesting the matter to show that the finding was wrong under Clause 11.

I accept that where there is not this kind of evidence it will be more difficult to prove paternity. But the onus is surely on the person making the claim rather than the other way round. After all, the court must be satisfied that paternity has been proved, and even if no rebutting evidence is found by the defence, a finding will not be made unless the evidence for the child is sufficient to prove the case.

So we are left with the prospect in this argument of possible fraudulent claims. But claimants will be required to prove their cases in a court of law and it will not be easy for them to do so. The main difficulty surely is not the prospect of fraudulent claims. One of the difficulties of a legitimate claim of an illegitimate child will be that of proof.

Sir Hugh Lucas-Tooth (Hendon, South)

I do not wish to intervene in a Scottish debate, having already expressed my views on Second Reading. However, I would ask the hon. Gentleman whether he does not think that the proposals in the Bill will often lead to blackmailing actions or at any rate to blackmail—that is to say, claims on the flimsiest foundations which the legal representatives of the next-of-kin will be unwilling to oppose because it would give publicity to the matter which they will be anxious to avoid, although there is likely to be no foundation for the claim.

Mr. Buchan

I do not think that there is a great possibility of their being a very large number of such cases. Again, if there is a certain danger to society in this way, it is sometimes the sort of danger we have to accept in order to get the greater right done. May I add that we welcome the contribution of the hon. Gentleman to this discussion. On both sides of the House we know the great part he contributed to the Russell Committee. I have outlined and reiterated some of the arguments I deployed earlier in rejecting Amendments on this matter. I have not referred to the Amendment on legitimation, which, in a sense, provides even more reason why the Bill should be left as it is.

Miss Harvie Anderson

Will the hon. Gentleman deploy the argument for the disruption of family life which would inevitably be created by the submission of a fraudulent claim? If, as is possible, a number of claims such as those mentioned by my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) and others, are likely to be made as a result of the Bill, surely we must put in the scales—and the hon. Gentleman has not done so—the great effect such claims will have on the legitimate family life, whether the claims are successful or not.

Mr. Buchan

These considerations have been put into the scales and we have come down firmly, not even on balance but firmly, on the side of morality and we believe that right is on the side of the Clause as drafted.

Mr. Wylie

It is never well for a Minister to complain about the drafting

of new Clauses and Amendments by the Opposition. We do not have the facilities of the Government in this matter. Surely terms like "living in family" and "membership of family" are not unknown in statute law. In my recollection, I believe that similar expressions are to be found in the Rent Restriction Acts. There has been no difficulty in interpreting that sort of expression so far, and there would be no difficulty here.

I would certainly prefer the hon. Gentleman to take his stand on the issue of principle, as he did in the latter part of his reply. The question is now whether we should go the whole way or whether a line should be drawn at some point. In our view, this provision in the Bill goes too far. We believe that it prejudices the interests of family life, and to that extent we should not support it, despite the hon. Gentleman's valiant effort to convert us to the Government's point of view.

Question put, That the Amendment be made:—

The House divided: Ayes 58, Noes 120.

Division No. 137.] AYES [11.0 p.m.
Alison, Michael (Barkston Ash) Grant-Ferris, R. Silvester, Frederick
Atkins, Humphrey (M't'n & M'd'n) Hall, John (Wycombe) Smith, John (London & W'minster)
Awdry, Daniel Harrison, Col. Sir Harwood (Eye) Stainton, Keith
Berry, Hn. Anthony Harvie Anderson, Miss Stodart, Anthony
Boardman, Tom Higgins, Terence L. Stoddart-Scott, Col. Sir M. (Ripon)
Bruce-Gardyne, J. Hordern, Peter Taylor, Edward M. (G'gow, Cathcart)
Buchanan-Smith, Alick (Angus, N & M) Jenkin, Patrick (Woodford) Temple, John M.
Campbell, Gordon Maxwell-Hyslop, R. J. Walker, Peter (Worcester)
Cary, Sir Robert Mitchell, David (Basingstoke) Ward, Dame Irene
Chichester-Clark, R. Monro, Hector Weatherill, Bernard
Clegg, Walter More, Jasper Webster, David
Crouch, David Munro-Lucas-Tooth, Sir Hugh Whitelaw, Rt, Hn. William
d'Avigdor-Goldsmid, Sir Henry Nicholls, Sir Harmar Wilson, Geoffrey (Truro)
Deedes, Rt. Hn. W. F. (Ashford) Osborn, John (Hallam) Wright, Esmond
Eden, Sir John Osborne, Sir Cyril (Louth) Wylie, N. R.
Elliott, R. W. (N'c'tle-upon-Tyne, N.) Page, Graham (Crosby) Younger, Hn. George
Eyre, Reginald Percival, Ian
Fletcher-Cooke, Charles Peyton, John TELLERS FOR THE AYES:
Goodhew, Victor Pink, R. Bonner Mr. Michael Clark Hutchinson and
Gower, Raymond Rhys Williams, Sir Brandon Mr. Ian MacArthur.
Grant, Anthony Shaw, Michael (Sc'b'gh & Whitby)
Archer, Peter Coe, Denis Ellis, John
Armstrong, Ernest Concannon, J. D. English, Michael
Atkins, Ronald (Preston, N.) Davidson, James (Aberdeenshire, W.) Evans, Ioan L. (Birm'h'm, Yardley)
Atkinson, Norman (Tottenham) Davies, Dr. Ernest (Stretford) Faulds, Andrew
Bagier, Gordon A. T. Davies, Harold (Leek) Fletcher, Ted (Darlington)
Barnett, Joel Davies, Ifor (Gower) Ford, Ben
Bessell, Peter Dewar, Donald Forrester, John
Binns, John Diamond, Rt. Hn. John Freeson, Reginald
Bishop, E. S. Dickens, James Garrett, W. E.
Booth, Albert Dobson, Ray Gourlay, Harry
Bradley, Tom Doig, Peter Gregory, Arnold
Broughton, Dr. A. D. D. Dunnett, Jack Grey, Charles (Durham)
Brown, Bob (N'c'tle-upon-Tyne, W.) Dunwoody, Mrs. Gwyneth (Exeter) Hamling, William
Buchan, Norman Dunwoody, Dr. John (F'th & C'b'e) Hannan, William
Buchanan, Richard (G'gow, Sp'burn) Eadie, Alex Harrison, Walter (Wakefield)
Carmichael, Neil Edwards, William (Merioneth) Haseldine, Norman
Herbison, Rt. Hn. Margaret Maclennan, Robert Richard, Ivor
Horner, John McMillan, Tom (Glasgow, C.) Robinson, Rt. Hn. Kenneth (St. P'c'as)
Houghton, Rt. Hn. Douglas MacPherson, Malcolm Robinson, W. O. J. (Walth'stow, E.)
Howarth, Robert (Bolton, E.) Mahon, Peter (Preston, S.) Ross, Rt. Hn. William
Howell, Denis (Small Heath) Manuel, Archie Rowlands, E. (Cardiff, N.)
Hunter, Adam Marquand, David Sheldon, Robert
Janner, Sir Barnett Mendelson, J. J. Silkin, Rt. Hn. John (Deptford)
Jenkins, Rt. Hn. Roy (Stechford) Millan, Bruce Small, William
Jones, Dan (Burnley) Milne, Edward (Blyth) Steel, David (Roxburgh)
Jones, J. Idwal (Wrexham) Mitchell, R. C. (S'th'pton, Test) Stonehouse, John
Jones, T. Alec (Rhondda, West) Morgan, Elystan (Cardiganshire) Swingler, Stephen
Judd, Frank Moyle, Roland Taverne, Dick
Kenyon, Clifford Newens, Stan Thomson, Rt. Hn. George
Kerr, Russell (Feltham) Norwood, Christopher Varley, Eric G.
Leadbitter, Ted Oakes, Gordon Wainwright, Edwin (Dearne Valley)
Lever, Harold (Cheetham) Ogden, Eric Wainwright, Richard (Colne Valley)
Lewis, Ron (Carlisle) O'Malley, Brian Walden, Brian (All Saints)
Loughlin, Charles Oram, Albert E. Watkins, Tudor (Brecon & Radnor)
Lyons, Edward (Bradford, E.) Oswald, Thomas Williams, Mrs. Shirley (Hitchin)
Mabon, Dr. J. Dickson Page, Derek (King's Lynn) Willis, Rt. Hn. George
MacDermot, Niall Palmer, Arthur Woof, Robert
Macdonald, A. H. Parkyn, Brian (Bedford) Yates, Victor
Mackenzie, Alasdair (Ross & Crom'ty) Pavitt, Laurence
Mackenzie, Gregor (Rutherglen) Peart, Rt. Hn. Fred TELLERS FOR THE NOES:
Mackintosh, John P. Perry, Ernest G. (Battersea, S.) Mr. Neil McBride and
Mr. Joseph Harper.
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