§ Lords Amendment No. 1: In page 2, line 27, leave out Clause 2.
§ Read a Second time.
§ 8.0 p.m.
§ The Under-Secretary of State for Scotland (Mr. Norman Buchan)
I think that it might be for the convenience of the House, Mr. Deputy Speaker, if we took, at the same time Lords Amendment No. 22.
§ Mr. Buchan
I beg to move, That this House doth disagree with the Lords in the said Amendment.
We debated this matter at great length on principle and in Committee and further in the House on Report. We believed that the existing Clause 2 was an essential part of the Bill. Its removal would, it appears to me, be a breach of the principle underlying this part of the Bill, the purpose of which is to improve the succession right of illegitimate persons. The method that we have adopted, in following the Russell Report, was to equate the rights of illegitimate children 1376 in their parents' estates with those of legitimate children.
It has been argued that it is too great a step and potentially too disruptive a step to confer on illegitimate children. It seems to me that this is a problem of the established law of succession, one that can be and could be disruptively exercised by legitimate children at present. The logic of the argument of those who put it forward, therefore, would be to change the basic law of succession rather than modify or restrict it to the right of legitim.
It is wrong and unacceptable in the terms of the Bill that the illegitimate child should have no rights or a lesser right than that of the legitimate child, because this again, as I argued on many occasions previously, would be punishing the illegitimate child for the circumstances of his birth, over which he had no control. That is the key issue here.
§ Mr. N. R. Wylie (Edinburgh, Pentlands)
As the Under-Secretary has said, the Amendments give rise, very shortly, once again, to the whole question of how far we can properly go in improving the status of the illegitimate child without at the same time unduly prejudicing the material and legitimate interests of a widow and children of a marriage.
I will not rehearse the attempts that were made by my hon. Friends and myself in the House and in the Standing Committee during the earlier stages of the Bill to try to reach a compromise. I think that this is a field of the law in which a compromise would have been desirable. We on this side of the House approached the problem with as much humanity, sympathy and understanding as I think one possibly could from the point of view of the illegitimate child. No one denies that the illegitimate child is not responsible for the circumstances of his birth, and if anything could be done to improve his status without prejudice to the other competing interests, it should be done.
During the Committee stage we tried a number of compromises. My regret is that the Amendment with which we are faced today is not a compromise. It is all or nothing. Personally, I should have preferred a middle way to the all or nothing situation with which we are faced.
1377 I have all along said that with regard to the estate of the mother there is a very strong argument for putting the illegitimate child in the same position as her other children, and I think that there are also circumstances in which the illegitimate child should have a claim on the estate of the father—as, for example, where there is no widow or there are no children to complicate the issue or, indeed—I think this would be acceptable to most hon. Members—where the illegitimate child has at any time lived in family with the parent or other issue of the marriage.
But because those attempts at a compromise here and in another place have been rejected, we are now faced with a situation in which the choice is a simple one: do we open up in general terms the claim of the illegitimate child to legitim out of the estate of the parent, or do we preclude that claim altogether? Much as I regret it, I have no hesitation in coming down to the latter view, although I would have preferred a compromise on this matter.
We have already passed the provisions of Clause 1, which are calculated to give the illegitimate child a corresponding share of the parent's estate on intestacy to that enjoyed by the children of the marriage. It may be said that it is only logical, that being the case, that the claim of legitim, which is enjoyed by the legitimate children in Scotland, should likewise be applied to the illegitimate child. But there are very material differences here and the effect of this provision is likely to be very much more drastic and material than the earlier provisions of the Bill.
By virtue of Sections 8, 9 and 10 of the Succession (Scotland) Act, 1964, on intestacy, there are built in to the law substantial safeguards so far as the surviving spouse is concerned. I am concerned with the position of the widow. I shall not rehearse the provisions of the Act, but it gives a substantial built-in claim on intestacy on the part of the widow on the deceased husband's estate, both with regard to heritable property and movable property.
Legitim and other legal rights under Section 10 only fall to be calculated from the net movable estate; that is to say, after those prior claims by the surviving 1378 spouse have been satisfied. In that situation, the claim for legitim on an intestacy may not be very material. Indeed, it may be virtually valueless.
The position of the widow is strongly safeguarded by statute law so far as the law of intestate succession is concerned. A different situation arises under the provisions of Clause 2, because the claim for legitim is a claim which a child or children have, a built-in claim on the estate of the person which cannot be defeated by will. This is unique to Scots law in the sense that, so far as I am aware, no corresponding provision applies in the law of England. Indeed, the Russell Committee, which made these recommendations, was dealing here with a feature of the law of intestate succession quite unknown, I understand, to the law of England.
The question arises: are we not going too far by giving the illegitimate child this built-in claim which can override the wishes of the parent and what, in my submission, are the proper and legitimate interests of the widow and the children of the marriage? I give an example of how this could operate.
Suppose a man in the earlier years of his life was responsible for the birth of a child, perhaps before his marriage. Having married he then, as he is entitled to, leaves the whole of his estate to his widow—which, indeed, is what one would expect in normal circumstances. If there were children of the marriage, those children, if they chose to exercise their right to legitim, could, of course, command a share of the movable estate amounting to one-third.
Let us, however, take the case of the man with no children who leaves a widow and chooses voluntarily, in the exercise of his testimentary powers, to leave the whole thing to her. Along comes an illegitimate child, of whose existence perhaps the widow has not known. Indeed, the father himself may not have known of its existence. That child can properly, under the provisions of the Clause, lay claim to one-third of the movable estate. This is a material inroad into what I regard as the legitimate interests of the widow.
Let us, again, take a situation where there are children of the marriage. In many cases, especially where smaller 1379 estates are concerned, the children do not exercise their right to legitim but are happy to let their mother, who, after all, has done a great deal for their well-being and welfare over the years, to have what the father has left. Human nature being what it is, could one really expect that attitude to apply in the case of an illegitimate child who has never been a member of that family? This is where the shoe really pinches. What is legitim for? What is the nature of the right?
In my submission, legitim is a right which flows from the family relationship, a right which belongs to the children of a family—a husband, a wife and the issue of the marriage—and it is out of that familiar relationship that this right arises, and it is a worth-while provision which the law of Scotland has long recognised. What we are being asked to do here is to make it possible for a complete outsider, who has no blood ties with the other members of the family, to come along and upset even a will which the deceased parent has made.
§ 8.15 p.m.
§ Mr. Alex Eadie (Midlothian)
I am not challenging the hon. and learned Gentleman's humanity, but I am challenging his judgment to some extent. He gives a recital of various cases. Would he care to comment on the case of an unmarried mother who has a daughter, but leaves nothing to her? This is very important and he knows the aspect to which I am referring. Under the proposition he is putting, how could the daughter be established as a rightful heir or have some claim on any substantial property the mother may have left? What would be the position of a daughter?
§ Mr. Wylie
The hon. Gentleman raised this case in Committee and I do not want to take up too much time going over the situation again. Supposing the mother dies intestate then, under the provisions of Clause 1, the illegitimate daughter has her claim in the same way as a legitimate child would have. The hon. Gentleman raised the issue of what claim the illegitimate child would have on the mother's estate. She would certainly have a claim on intestacy. She would not have, I submit, a claim to legitim if the mother left a will cutting out the daughter.
1380 This is why I said that I would have preferred a compromise, because I believe the relationship between mother and illegitimate child, by the nature of things, to be very strong, and I would have preferred a situation in which, in the case of the mother's estate, a claim for legitim could be exercisable. I agree with the hon. Gentleman there, as I agreed with him about this in Committee. One of our Amendments in Committee was designed specifically to safeguard a claim of this nature at the instance of an illegitimate child on the estate of the other.
My concern here is with the position of the estate of the father, because the estate of the father has certain family responsibilities which arise from the nature of life as we know it in this country—an obligation of support, an obligation to his widow, an obligation to the children of the marriage—and it is where the proposals of the Bill impinge on these obligations that it seems to us to be going too far.
After all, it is not as though the illegitimate child is devoid of any means of support under the existing law. If a woman gives birth to an illegitimate child, she is perfectly entitled on proving the paternity of the child to a continuing obligation on the part of the father for aliment for the maintenance of the child, and under the existing law even after the death of the father there is a prior claim to support at the instance of an illegitimate child out of the estate, and by prior claim I mean that it is a debt on the estate and that it comes before the legal rights of the widow and children.
Therefore, it is not a case of saying that we are depriving the illegitimate child of all support. The law already covers the situation along those lines and, as I have said, if we had had our way, it would have gone much further than that.
The problem here is whether we are going too far in introducing a proposal that the illegitimate child should have a claim on the legitim of the father's estate. In our view, that is going too far. Let us look for a moment at some of the other repercussions of this proposal. On intestacy, while it might be difficult to prove paternity if the parent 1381 has died, there is certainly no rule in Scotland to establish a claim during the life of the parent, because the parent can defeat the claim at the end of the day by leaving a will; but if one writes in a claim of this nature which overrides testamentary freedom, there is every incentive on the part of the illegitimate child to establish a claim for paternity during the life of the parent.
I ask hon. Members to think for a moment of the repercussions of this situation on family life. When we are talking about the morality of all this, we should not altogether ignore the repercussions which these provisions may well have on the family life of equally innocent people, the mother and the children of the marriage. Indeed, I think that it was the Under-Secretary himself who said that one of the disadvantages of all this was that it might give rise to a great deal of speculative litigation of an unpleasant kind—this is at column 32 of the OFFICIAL REPORT of the Standing Committee. It is an inevitable consequence of this type of legislation which the House should not readily overlook that it could give rise to speculative litigation of an unpleasant kind.
But it is worse than that, and let us not shy away from this. It opens the door to the kind of blackmail action which one cannot rule out as a possibility. In the representations which I have received from various legal bodies, possible blackmail action loomed very large in the calculations. There is every incentive, even if the claim is not well-founded, in this situation to put forward a claim in the hope, if only in the hope, that it will be bought off in this way. Those are factors which I ask hon. Members on both sides of the House to consider.
We have here to consider the rights of the illegitimate child who is in no way responsible for the situation in which he finds himself, and one readily accepts that. But that is not the only side of the problem. The other side is what effect this is liable to have on the institution of marriage and the institutiton of family life. Is not this something which we should be trying to preserve rather than prejudice? There is no doubt that legislative provisions of this kind are calculated to prejudice the happiness and unity of family life and also liable to prejudice the legitimate financial interests of the 1382 widow, about whom, like many other hon. Members, I have always had an acute concern.
I hope that the House will reject the Minister's proposal.
§ Sir Hugh Lucas-Tooth (Hendon, South)
I venture to take part in a Scottish debate as I was a member of the Russell Committee and wrote a dissenting note which is relevant to this discussion. Clause 2, which the Lords Amendments would reject, is based on certain proposals of the Russell Committee and it is right, although I apologise to the House for taking some time, that I should read the actual wording of those proposals.
Paragraph 49 says:Having regard to the right to continuing aliment it cannot be said that unless legitim is extended to bastards they are left in all cases in Scotland without any possibility of benefit from the estate of a deceased parent who has disposed of all his property by testamentary disposition. It may therefore be argued that, if a bastard in Scotland may have this continuing right as well as a right on intestacy, he is no worse off than the bastard in England or Wales who (on the basis of our previous conclusions) would have an opportunity of claiming under the Inheritance (Family Provision) Act as well as a right on intestacy.Paragraph 50 says:We stress, however, that our recommendations for England and Wales are designed to elevate the bastard, in that jurisdiction, for the purposes of succession to a parent's estate, from a status inferior to that of the legitimate child. Failure to extend legitim to bastards would to that extent preserve for the bastard, in that jurisdiction, in the field of succession, his inferior status. The relevant comparison is not the position of a bastard in England and Wales with that of one in Scotland: it is the position in Scotland of a bastard with that of a legitimate child.Paragraph 51 says:We consider that it would be right that for purposes of leigitim the bastard should have the same rights as a legitimate child of the deceased parent, whether father or mother.That is the essential part of that recommendation and that is the basis on which the Government desire to retain Clause 2.
But the argument is that this is not intended to be fair treatment to the illegitimate child. If it were, it would be said that the law of England was all wrong. It is designed to give equality as between legitimate and illegitimate simply and solely for the sake of giving equality. That is the principle which pervades the whole of Part I of the Bill 1383 and it is in objection to that principle that I made my dissenting note to the Russell Report.
I do not wish to argue that principle, because I would certainly go wide of the Amendment, but I hope that I can properly draw attention to Appendix IV of the Report. That gives the legal position in all the diverse countries in which the Russell Committee took evidence of illegitimate children. In not one country, and that includes countries such as Denmark and Sweden, which have been extremely progressive in this context, have the legitimate and the illegitimate child been equated in succession from the father.
We received evidence to the effect that this was attempted in certain countries, which found that it did not work and returned to the old system. The Government are trying to do something which they will find impracticable. It is easy and comforting to one's conscience to take a sentimental view of the position of the illegitimate child, and to say that it is not in any way his fault, and that he should be treated just as well as the legitimate child. I would go to this length and say that it is morally right for both the individual citizen and the legislature to try to avoid, as far as possible, discriminating between the legitimate and the illegitimate.
I say as far as possible, because I do not believe that it can be right or wise to avoid discrimination to the point of infringing on the basis of marriage as a principle. If one were to do that, one would have to go to the length of enacting that the parents of an illegitimate child would be deemed, so far as the child is concerned, to have been married. That is obviously nonsense and, therefore, one cannot go the full length. This Clause goes beyond the point of what is reasonable or possible.
The Society of Writers to the Signet has said that this proposal is, in effect, legalising polygamy by a side wind. The Society of Writers to the Signet is hardly an insignificant body. In Scotland, the right of legitim is an essential part of the legal basis of marriage. This Clause interferes with that and, to that extent, damages the institution of marriage.
§ Mr. J. T. Price (Westhoughton)
If it is not improper for a mere English Member to intervene in the hon. Gentleman's speech—[Interruption.] yes, he is an English Member, too, but he is speaking on Scottish law—it might be appropriate to remind him, and hon. Gentlemen who are interested in this debate, that if one took, for example, the historic example of King Robert II of Scotland, who had numerous bastard children, whose descendants are now occupying some of the most lucrative estates in Scotland, it would run contrary to some of the arguments which he has put forward.
§ Sir H. Lucas-Tooth
If I may go further than that, I would remind the hon. Member that King William the Conqueror was himself a bastard. I do not think that that carries the argument very far. I am saying that, if one introduces legislation which impinges on the legal basis of marriage, one is doing an injury which, in the long term, will be very great indeed.
I do not want to argue this purely on the broad legal principle. There will be serious and immediate practical difficulties following this legislation. In most cases the rights of legitim are simply not in force. That is what I am told. Families agree among themselves not to enforce those rights strictly, but to deal with the property left by one or the other of their parents in the most convenient way.
Most modest estates do not consist of a convenient little bundle of Stock Exchange securities, or gold hidden under the bed. The ordinary individual who dies leaving some sort of estate leaves a business, something like a shop. I do not mean the building of a shop, I mean a shop business, very often with a rented shop. That kind of property simply cannot be cut off.
When a man leaves a small shop business and a widow and one married child, there will almost invariably be some arrangement made between the parties that one will run the business and make some provision for the other, depending on the age of the parties and considerations of that kind. But the claim of a capital sum—and legitim is the payment of a capital sum—by an illegitimate person who is not a member of his family will absolutely prevent the possibility of any such arrangement being made.
1385 This sum is not insignificant in the case of a single illegitimate child, but a person may have two or three illegitimate children, and they will come in, and between them they can take up to one-third of the estate. The result will necessarily be an immediate need to realise the property such as it is, in the case of a business as a going concern almost invariably with very heavy loss, and this will do grave damage.
It must be remembered that in very many cases the illegitimate child will be the offspring of a mother who is extremely hostile to the widow—this is a matter which I do not think I need argue—and who will be very strongly disposed, when the child is an infant, to take the utmost steps to enforce the right and proceed even to damage the interest of the rival family. This would be a very unfortunate result.
Secondly, there is a very powerful reason for ensuring that a wife should be entitled to rely on her own legal rights and on the rights of any children she may bear to her husband. Every hon. Member would agree that that is a proper basis on which the House should legislate. But the result of Clause 2 will be that a wife who marries a man who bears him a child and then finds that the husband is enticed away will have her own and her children's rights very seriously reduced by the rights of legitim which will go to the illegitimate children. That is entirely wrong.
Have the Government considered the effect of adoption in connection with this Clause? As I understand, certainly in England, an adopted child loses all right to legitim. There will be a very strong temptation in the case of a fairly well-to-do father of an illegitimate child to make an approach to that child's mother with an offer of money to get the child adopted. Under the Clause, the mother will get nothing, and therefore if she is a relatively poor woman, as may often be the case, an offer of hundreds of pounds or perhaps £1,000 will be extremely tempting to her. She would get something whereas she would have got nothing before. She will sell the child's birthrights under this Clause because the child will be only a year or two years old and will not be able to argue for himself.
It is wholly improper to put this sort of temptation before a man and woman. 1386 I do not think that it is right that women should be tempted to have their children adopted, or that men should be prompted to put this sort of temptation in the way of those by whom they have had illegitimate children.
It seems to me that the whole effect of the Clause is wrong and contrary to public policy and that it will lead to harm in the short run and do grave harm in the long run. I hope that the Government will accept these arguments and agree that the Clause should be taken out of the Bill.
§ Mr. Donald Dewar (Aberdeen, South)
. This is positively the last appearance of the Bill in this Chamber. I start by congratulating the Government on acting on the Russell Committee's recommendations. It is extremely pleasant to find that we are well ahead of our English colleagues in this respect at least.
As the House will have gathered from the well-argued, serious speeches of the last few minutes, a considerable matter of principle is at stake in the Amendment, which, in effect, strikes out Clause 2. Not only is there a sharp difference on technical matters, but there is displayed a broad split in social attitude between the two sides of the House.
I may say, in passing, that I particularly regret that the hon. Lady the Member for Hamilton (Mrs. Ewing) is not here tonight. I say that only because she made it known publicly that she was extremely annoyed at not being selected to serve on the Committee on the Bill. We were led to understand that it was a matter in which the hon. Lady had a deep interest and on which she was well qualified to speak. Indeed, some sympathetic members attempted to challenge the Committee of Selection with points of order on the matter.
I understand that the hon. Lady has chosen tonight to go to a boxing match. All I can say is that I sincerely hope that we will not in future be able to look back and draw general lessons as to her priorities from this.
The hon. Member for Hendon, South (Sir H. Lucas-Tooth) very fairly said that the principle running through the Bill, and which has been struck out by the Amendment, is that the Government 1387 are trying to put the legitimate and the illegitimate on the same basis. The hon. Member fairly and frankly said that he could not accept that aim. It was not a matter of ways to achieve it. He disagreed drastically and basically with what we are about. This has been clear throughout the discussions on this point both in the House, in Committee and in another place.
The Government have been saying that the illegitimate child has been unfortunate. Everyone is agreed upon that. The hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) made the point eloquently a number of times. The child often had been cast out from the family circle. It had not been part of the family group, and in that way had been victimised by circumstance.
Where we disagree, and where the split comes, is that the Government go on to say, "Very well, we shall try at least, in, perhaps, a narrow, material sense, but, we think, an important sense, to minimise this misfortune by giving illegitimate children full financial rights in the estate of the parents." The Opposition go on to argue, however, that those children have been victimised in the past and because to correct the wrong would cause distress for other parties, they are prepared to victimise them further and push them even further into the wilderness.
It is worth remarking, in passing, that there are illegitimate children who have lived in the family circle and have been accepted into the home. If we strike out Clause 2, we will leave them at the mercy of the parent who is drawing up a will.
It may be that a child can live for many years in the family, in the home, and yet, at the end of the day, the parent, for reasons best known to him or her, perhaps due to a temporary quarrel, may decide to cut the child out of the will. The natural child is protected fully by legitim, but the illegitimate child in those circumstances would be the loser in every respect. The point is not quite as simple as is sometimes made out.
I accept—I would be insensitive if I did not—that the presence of an unexpected or unknown illegitimate child after the death of the father can cause dis- 1388 tress to the natural children and to the widow. It is, however, a matter of balance. We all accept and have stressed that the illegitimate child is the innocent victim of the social stigma which has attached itself to him. I do not think that, on balance, it is right that such children should be asked to suffer further.
It may be that as a result of the Bill as the Government would like to see it there will be a tendency to put the matter to the test by raising actions to establish paternity during the course of the parents' lifetime. However, I do not think this will be very common. Certainly, if the child, or the person claiming to be the child, has no prima facie case I can hardly imagine he would find it very easy to proceed in the courts to any great effect.
There has been a deal of controversy and talk about morality. I do not wish to proceed too wide on this matter. All I would say is that I do not see how providing legitim for illegitimate children can be said to be striking at the very essence of marriage. I would have thought, if we are talking about morality, that there would be a very strong case for saying that the law ought to lay down the responsibilities we should attach to parenthood.
To push the case to an extreme, it might be argued that, as the Lords would leave the Bill, it is encouraging a man who has an illegitimate child to turn round and say it does not matter because there is compulsory provision for the natural child only. I do not see why that responsibility should be so written off if the child is illegitimate, but there should attach responsibility in the fullest sense of the word, the same responsibility which the father would have had to face if the child had been born within wedlock.
The most common argument, which I confess I cannot fathom, is that in some way it is wrong to write in legitim because legitim is a matter of right and excludes the wishes of the testator or the potential testator, and that it does not matter whether a man makes a will, he cannot defeat legitim, and that this in some way is an infringement of his personal rights as an individual. If one accepts that point of view one should 1389 abolish legal rights altogether. The whole case for legitim is that it is something which cannot be eliminated, something which cannot be avoided, it is something which the child can absolutely count on, whatever his relations may be with his parent. I do accept the argument that the illegitimate child is particularly at risk, and likely to be forgotten or swept aside. He doubly needs the protection I should have thought of legitim in a situation like this.
I accept that there may be technical difficulties about proof undoubtedly in a small minority of cases or a long period of time elapsing before a child turns up claiming to be the illegitimate child of a deceased person, but the onus of proof will always be on the claimant. In the insurance world there are a number of devices such of caution which ensures executors against events much less obscure and covers the possibility of unexpected demands after a long lapse of time.
I do not see the point made by the hon. Member for Hendon, South (Sir H. Lucas-Tooth)—I certainly do not see it as a sizeable point—of small family business and the sudden unexpected appearance of the illegitimate child claiming legitim and so completely upsetting the cosy, private family arrangement. After all, as the hon. Member knows—and he probably knows more about this than most of us here in the Chamber—legitim only attaches to movable estate. If the business were so small or so shaky or in so unfortunate a financial position that money could not be raised to pay off a child claiming legitim, then it would seem to me that the amount involved would be very small indeed. It would only occur in the marginal cases and I do not think the argument is a major weight in the balance.
§ Sir H. Lucas-Tooth
I was not suggesting that he might want to appear suddenly, although it might happen if a father had gone off and had an illegitimate child. Secondly, taking the ordinary sort of small business we are talking about, the claim might be for just about one-quarter of the total capital invested in the business. One cannot, running a business of that kind, pay out anything like one-quarter of the capital.
§ Mr. Dewar
I do not see exactly how the hon. Member arrives at one-quarter 1390 of the capital unless he is envisaging a situation in which the wife claims, and there are no children, but in that case no legitim would be paid at all till the illegitimate child appeared and claimed, in which case it might amount to one-third at a maximum. It is only upon the movable estate, and it must occur only in rare circumstances. If the business is of substance I would have thought that arrangements could have been made.
As the Amendment stands, I agree with the Minister that to exclude Clause 2 runs contrary to everything that the Government are trying to do. We are here giving the illegitimate child full rights, as far as possible, as a child of the parent concerned, and it would be extremely inconsistent and unfortunate if we were to strike out that Clause and leave in Clauses 1 and 4.
Clause 4 deals with the abolition of the illegitimate child's right to aliment after the parent's death. The hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) said, in effect, that this was part of a package deal—a quid pro quo. He explained in Committee that it was true that the illegitimate child was losing an important right, but, on the other hand, he was getting a great deal under Clauses 1 and 2. To lose Clause 2 would be to upset the whole balance and destroy the pattern of what the Government are trying to do. This would be an unfortunate and retrograde step.
The hon. and learned Member made it clear that he was in an unfortunate situation, because he did not want to argue the case in the extreme terms which the House of Lords had forced upon him. He agreed that there was an argument for saying that if Clause 1 existed Clause 2 was a logical progression from it. He has not explained to my satisfaction why he has now departed from that stand. Let me remind him that in Committee on 2nd April, 1968, he said:If the basic proposition in Clause 1 is correct, it is logical and proper that the provision of Clause 2 should follow, because this Bill seeks to put the illegitimate child in exactly the position of a legitimate child regardless of all other considerations, and this would not be done if the right to legitim were precluded, because that is the right of the child of the marriage.I know that the hon. and learned Gentleman does not think that the solution suggested is the best one, but the 1391 only message that we can take from what he said in Committee is that to start altering the balance and cut out one of the Clauses in an arbitrary way will not result in an orderly position. What he said in Committee set out the matter with great clarity and brevity, and I can only recommend to its author and to his hon. Friends the logic of what was then said.
§ Mr. Wylie
Would it not be proper for the hon. Member to read the next sentence, which goes on to explain why there was a distinction between Clauses 1 and 2? I said:A right of this nature is, in effect, more significant than the rights under intestacy, for two reasons. One is that the Succession Act, 1964, built in very substantial safeguards and interests to the surviving spouse, and the right of legitim, jus relictae, only comes along after the prior claim has been satisfied."—[OFFICIAL REPORT, Scottish Grand Committee, 2nd April, 1968, c. 40.]That is why Clause 2 is more offensive than Clause 1.
§ Mr. Dewar
I agree that the hon. and learned Gentleman has more reservations about Clause 2 than about Clause 1, but he stressed that if Clause 1 stands Clause 2 is a logical progression. He had the courage of his convictions then because he will remember that he did not move to delete Clause 2 in committee; he merely tried to amend it in certain ways.
§ Mr. George Younger (Ayr)
I want to add one or two points to what has been said already in this very interesting debate, and I start by saying that this is an immensely difficult problem. I do not think that anyone on either side of the House should be happy about either of the two solutions, because there are disadvantages in both.
We shall not affect all illegitimate children or anything like all of them by this change of the law. We are not talking about the happiness or otherwise of the vast majority of illegitimate children, because most of them subsequently are legitimated by their parents marrying. Of the remainder, the vast majority become adopted. It is a growing custom to adopt illegitimate children. We shall not put right any hardship to any of these cases by this change in the law. We are dealing with only a very small proportion of those unfortunately illegitimate who are disowned by their parents.
1392 I accept at once that this change in the law can be of important benefit to some of that small number. What I argue is that the countervailing disadvantages in society as we know it are so powerful that we ought to be reluctant to make the change. Whatever may be the benefit to a small number of illegitimate children, it cannot put right the original wrong of bringing an illegitimate child into the world. That is undoubtedly a great disadvantage to that child and we are trying to remove it, but one cannot entirely eradicate the original wrong.
What it comes to, therefore, is that the vast majority of illegitimate children are not affected by the change, and a small number of them may get some advantage, but the disadvantages are very much greater.
Mention has been made of the distress caused to the members of a happy, united family who have lived together for many years by the appearance at a late stage in life of an illegitimate child whose existence was not known to them. That may seem unusual, but it can happen, and it is most undesirable from the point of view of the family, which is an important element in our society, that it should be allowed to happen.
Then there is the more distressing though rather unlikely case of the appearance of a supposed illegitimate child after the death of the father—
§ Mr. Dewar
Does not the hon. Gentleman accept that there is the illegitimate child to be considered? I do not see why he should suffer in silence, nor do I see why the legitimate family should be kept in ignorance of the kind of man the husband or father is, merely in the interests of maintaining a respectable façade.
§ Mr. Younger
The hon. Gentleman does me an injustice. I have attempted to make it clear that I start from the position of my sympathy being with the illegitimate child. If we can put matters right, we should try to do it. However, two wrongs do not make a right, and we must be careful to see that what we do is in the interests of the child.
In some respects, this change in the law may be of disadvantage to the very person whom we are trying to protect. 1393 Adoption has been mentioned, and we have heard an outline of the situation which could arise when adoption is the solution chosen. Here is another case which should be considered. Once the change in the law takes place, if the illegitimate child is born to a woman and the father is reasonably well off, what will the family lawyer advise the mother of the child to do when the question of adoption comes to be considered? If he advises her to have the child adopted and she does so with the agreement of the father, in due course the child becomes the adopted child of its new pa rents and so loses any rights to benefit from its natural father.
Supposing in later life, that child discovers who its real father is. I know that that is not supposed to happen, but it very often happens through the family lawyer. What will be the thoughts of that child when it realises that its adoptive parents, being poorly off, took him over and denied him the right possibly to a large sum of money from his natural father? This may be an unusual case—and I think that it is—but we are here to consider unusual cases before passing laws. We have to consider this matter carefully, because it can be against that child's interests to be cut out of what could be a consider able benefit in its natural father's estate.
It might look even worse. We must remember that, when the act of adoption takes place, the natural parents have to consent and sign the adoption papers. If the child in later years finds that it has lost an expectation through this act, it will look like collusion between the adopting parents and the natural father to get this possible liability on the estate of the natural father out of the way. Many people will say that this is a very unusual case. So it is. But that is what we are here to consider.
§ Mr. Buchan
As I see it, the hon. Gentleman is saying that, if this law were passed, there would be the odd case where a person would not get legitim; therefore, no one should get legitim. Is that what the hon. Gentleman is arguing?
§ Mr. Younger
That is putting the matter in an extreme way. I am trying to 1394 show where it can work in the opposite way to what everyone intends.
What will happen when an illegitimate child is born and the mother marries someone, not the natural father, who is very well off? When the illegitimate child grows up, he will have a rich mother who might be living in the lap of luxury and a father who possibly has a wife and family in poor circumstances. Assume the natural father then dies. The illegitimate child will have a right of legitim to that poor father's estate to the detriment of his widow and children. Yet the illegitimate child, making this claim and possibly making a substantial difference to the happiness of the declining years of the widow, may be extremely well off owing to the good fortune of his real mother. Will that be equity or fairness? This cannot happen in the present situation when legitim is confined to the family of a father and mother who are married with their own children. These are cases where this extraordinary law will prove very difficult to administer. I hold very strongly that the disadvantages are unable to outweigh the undoubted advantages to a small number of illegitimate children.
My natural inclination is to agree that anything we can do to help an illegitimate child to lead a normal life is a good thing. But we should not do this absolutely wantonly without considering the effects and the side effects of what this law will produce.
Finally, I come to the family. It is not enough to say that, in the small number of cases, it is worth threatening the happiness and security of families as such to try to put right a wrong which took place possibly many years before. Let us not forget that the illegitimate child who has been completely abandoned and who is to get the benefit of this law has but the most negligible connection with the family of whose estate he will become a part. He has no personal connection of any kind in many cases, and it is not worth threatening the happiness of families in these cases for the sake of this benefit.
§ Mr. Dewar
I do not agree with the hon. Gentleman, but I see what he is driving at. Will he tell the House what his solution would be to the shocking case of a wife who has positively rejected 1395 her husband then coming along and claiming legal rights, to the dismay of the united, happy second family?
§ Mr. Younger
That is a different situation, because we are dealing with a separated wife from a previous marriage. The second marriage is, and must be, entered into in the context of there having been a previous marriage. I do not see any terriffic, sudden, unheard of hardship in that. This is something with which everyone has to live.
What we are concerned with is the bringing in of a cuckoo to the nest at a late stage in a marriage. This is a sad thing to consider, and something which we ought to regard seriously. Marriage is the basic element of our society. The family is the basic unit, and we should not do anything to weaken the ties of the family, or to threaten the unity of family life generally.
Having started with a great desire to do the best we could for the illegitimate child, on balance, and with reluctance, I come down on the side of saying that this proposal goes too far. I should have preferred a compromise like that suggested earlier. I think that that would have been fair to all concerned.
§ Mr. Alex Eadie (Midlothian)
I think the House should be clear that we are not talking about a compromise. Indeed, if the proposition put forward by the Opposition were carried it would mean that there would be no reform, despite the fact that some hon. Gentlemen opposite have grave doubts about whether the Amendment should be made.
The hon. Member for Ayr (Mr. Younger) started by saying that this was a distasteful business for both sides of the House. I think one can follow that by saying that if there was no illegitimacy we should not be discussing it, but we live in the world as it is, and therefore we, as legislators, have to face the facts.
The hon. Gentleman quoted a lot of hypothetical cases which might arise if the Bill had been passed in the form in which it was before it went to the other place. As the House has to vote on this issue, I do not propose to quote hypothetical cases. I am not a lawyer, but, as a Member of this House, I think that I am entitled, in a debate such as this, to relate my experience of this matter. I 1396 referred to this in Committee, and I think that I have a responsibility to mention it again before we go into the Lobby to vote. I think that I have a responsibility to try to make clear what we are voting about.
I agree with the sanctity of marriage, but I do not believe that people should be allowed to be absolved from their responsibilities. I do not think there is anything distasteful about illegitimate children as such. It is not their fault that they are illegitimate. Whether children are legitimate or illegitimate, I do not think their parents should be absolved from their responsibilities.
The whole issue was brought forcefully to my notice when I was a newly elected Member. I held a surgery one night, and it was attended by a middle-aged lady of good bearing and appearance. She had a responsible job. She told me that she had a difficult case which she had discussed with lawyers, and had taken an opinion from a Queen's Counsel, but had been told that nothing could be done for her.
Her case was, simply, that she was the illegitimate daughter of a wealthy spinster, and one day she had picked up the papers and read the news of her mother's death. She had not been given the opportunity to attend the funeral and when she made inquiries she found that her mother had left all her wealth to a far removed cousin. She went to lawyers in Edinburgh and inquired about her position. She found that she had no legal rights, and that she was not entitled to one penny of the estate.
I do not want to stick out my chest, but I think I can say that whereas the lawyers failed, I, as a Member of this House, managed to get agreement over the issue. I think that it is wrong for a Member of this House to be called on to discharge this kind of responsibility.
The way in which I handled the matter may or may not have been responsible for the lady getting a settlement. I should make it clear, perhaps, that I do not know the amount of the settlement she got. She told me that she was satisfied and that, because there was no legal right, she thought that we should not pursue the matter.
I do not think that her mother should have been allowed to hide her past. I 1397 do not think that my constituent should have been forced to go round all the legal brains in Edinburgh to discover if she had a case and then go to her Member of Parliament and say, "I have lived in this area all my life. People do not know it, but I have to tell you that I am an illegitimate child. This is my problem".
Instead of talking about hypothetical cases, I believe that we should talk about actual cases. I believe that cases such as that which I have described prompted the Government to bring forward this legislation. I agree that we may discover that errors have been committed. This happen.; with all legislation. We always improve on legislation. There is no perfect piece of legislation; there is no perfect set of words. I believe that tonight the House has the opportunity to make people face up to their responsibilities in relation to illegitimate children and that this legislation will enable illegitimate children to get what I think are their legitimate rights.
I hope that the House will support the Government and disagree with the Lords Amendment.
§ Mr. Buchan
This is not the first time that I have had to participate in this debate. Twice before we have had this discussion and the same kind of argument has been deployed. I have never known an issue in which the basic principles and morality which divides one side from the other have been so clearly deployed. Under the banner of family relationships hon. Members have been discussing property relationships. They have advanced the sanctity of property, whereas we have been concerned with the sanctity of life. They have created a picture of the illegitimate child disrupting the home as if this was the only situation. One hon. Member even used the term "a cuckoo in the nest". The basis of hon. Members opposite is the Victorian basis of a middle-class family dependent upon property. The argument which has been advanced could almost have been culled from "The Forsyte Saga".
On very few speeches have we come down to the real issue here, which is that of the illegitimate child. I prefer the Scottish nomenclature, rather than "bastard". We used to call such a child a "love-child". We might get 1398 better thinking and feeling on this issue if we thought about them in that way.
I was shocked by the contortions of the hon. Member for Ayr (Mr. Younger). His was a most extraordinary speech in which, as he agreed when I interrupted him, he argued that, because in one strange and unusual case a child of a rich father who had discarded him could be aggrieved, we had to reject the rights of every illegitimate child. This was a most extraordinary proposition and after my interruption the hon. Gentleman agreed that this was the basis of the argument.
§ Mr. Younger
Surely the Under-Secretary is not suggesting that there is anything wrong with looking at the effects of legislation before passing it. The hon. Gentleman is seeking to censure me for having mentioned this. This was a straightforward example which we should deal with. He and I both ought to deal with this in a sensible and adult way.
§ Mr. Buchan
I ask the hon. Gentleman to examine what is being proposed. I suggest that it would be quite improper to reject legislation which affects the vast mass of illegitimate children because of a hypothetical situation in which one child might feel aggrieved—not at being rejected, but from knowing that there was money to be got which he did not get. It again comes back to the property relationship. I plead with hon. Members opposite to get away from this devotion of mind and thought to property and to start thinking of human beings.
We are told that we are not going to solve the problem and it is said that two wrongs do not make a right and we should not penalise a settled family, but we must consider this young "cuckoo", we must consider the effect on the child himself. If a wrong has been done we accept that it cannot be put right in this way, but additional suffering must not be put on the innocent sufferer because of the initial wrong. Hon. Members opposite are saying that the illegitimate child who is innocent must have the suffering put upon him rather than on the family. I know the difficulties of the family and I respect the view of my hon. Friend the Member for Aberdeen, South (Mr. Dewar) who 1399 said that, however painful this must be, it is right that they should know the background of the situation and the nature of the father. I have always thought that truth is more valuable than covering up.
This matter has been argued at great length. I especially respect the arguments put forward by the hon. Member for Hendon, South (Sir H. Lucas-Tooth) who has contributed a great deal to our thinking and to that of the Russell Committee. I exempt him from some of the strictures I have on hon. Members oppo-
§ site. I know how deeply he has been involved, but I ask him to consider this point. He rejected our views because he said we are not concerned with fairness. I cannot make a distinction between fairness and equality. Our attempt is to bring fairness and equality to the illegitimate child who is deprived of his proved rights and happiness. In both cases fairness and equality combine.
§ Question put, That this House doth disagree with the Lords in the said Amendment:—
§ The House divided: Ayes 153, Noes 91.1401
|Division No. 311.]||AYES||[9.15 p.m.|
|Abse, Leo||Fraser, John (Norwood)||Morris, Alfred (Wythenshawe)|
|Allaun, Frank (Salford, E.)||Garrett, W. E.||Morris, Charles R. (Openshaw)|
|Alldritt, Walter||Gourlay, Harry||Newens, Stan|
|Allen, Scholefield||Gray, Dr. Hugh (Yarmouth)||O'Malley, Brian|
|Archer, Peter||Greenwood, Rt. Hn. Anthony||Orbach, Maurice|
|Atkins, Ronald (Preston, N.)||Gregory, Arnold||Orme, Stanley|
|Atkinson, Norman (Tottenham)||Griffiths, David (Rother Valley)||Oswald, Thomas|
|Bagier, Gordon A, T.||Griffiths, Eddie (Brightside)||Owen, Will (Morpeth)|
|Barnett, Joel||Griffiths, Will (Exchange)||Page, Derek (King's Lynn)|
|Beaney, Alan||Hamilton, James (Bothwell)||Parkyn, Brian (Bedford)|
|Bence, Cyril||Harper, Joseph||Pentland, Norman|
|Blackburn, F.||Harrison, Walter (Wakefield)||Perry, Ernest G. (Battersea, S.)|
|Booth, Albert||Haseldine, Norman||Perry, George H. (Nottingham, S.)|
|Boyden, James||Hazell, Bert||Price, Thomas (Westhoughton)|
|Braddock, Mrs. E. M.||Heffer, Eric S.||Probert, Arthur|
|Bradley, Tom||Herbison, Rt. Hn. Margaret||Rankin, John|
|Broughton, Dr. A. D. D.||Horner, John||Rees, Merlyn|
|Brown, Hugh D. (G'gow, Provan)||Reynolds, Rt. Hn. G. W.|
|Brown,Bob(N'c'tle-upon-Tyne,W.)||Houghton, Rt. Hn. Douglas||Rhodes, Geoffrey|
|Buchan, Norman||Howarth, Robert (Bolton, E.)||Roberts, Albert (Normanton)|
|Buchanan, Richard (G'gow, Sp'burn)||Hughes, Emrys (Ayrshire, S.)||Ross, Rt. Hn. William|
|Butler, Herbert (Hackney, C.)||Hughes, Hector (Aberdeen, N.)||Shaw, Arnold (Ilford, S.)|
|Chapman, Donald||Hughes, Roy (Newport)||Shore, Rt. Hn. Peter (Stepney)|
|Coe, Denis||Hunter, Adam||Silkin, Rt. Hn. John (Deptford)|
|Coleman, Donald||Hynd, John||Silkin, Hn. S. C. (Dulwich)|
|Concannon, J. D.||Janner, Sir Barnett||Silverman, Julius|
|Craddock, George (Bradford, S.)||Johnson, James (K'ston-on-Hull, W.)||Skeffington, Arthur|
|Crawshaw, Richard||Jones, Dan (Burnley)||Slater, Joseph|
|Cullen, Mrs. Alice||Kenyon, Clifford||Small William|
|Dalyell, Tam||Kerr, Russell (Feltham)||Snow Julian|
|Davidson, Arthur (Accrington)||Lawson, George||Spriggs, Leslie|
|Davidson, James(Aberdeenshire,W.)||Leadbitter, Ted||Steel, David (Roxburgh)|
|Davies, G. Elfed (Rhondda, E.)||Lomas, Kenneth||Steele Thomas (Dunbartonshire, W.)|
|Davies, Dr. Ernest (Stretford)||Lubbock, Eric||Tinn, James|
|Davies, Harold (Leek)||Lyon, Alexander W. (York)||Urwin T. W.|
|Davies, S. O. (Merthyr)||Lyons, Edward (Bradford, E.)||Walden, Brian (All Saints)|
|Delargy, Hugh||McBride, Neil||Watkins, David (Consett)|
|Dempsey, James||McCann, John||Watkins, Tudor (Brecon & Radnor)|
|Dewar, Donald||MacColl, James|
|Dickens, James||Macdonald, A. H.||Whitaker, Ben|
|Dobson, Ray||Mackenzie, Alasdair(Ross&Crom'ty)||Wilkins, W. A.|
|Doig, Peter||Mackenzie, Gregor (Rutherglen)||Williams, Clifford (Abertillery)|
|Dunwoody, Mrs. Gwyneth (Exeter)||Maclennan, Robert||Williams, W. T. (Warrington)|
|Dunwoody, Dr. John (F'th & C'b'e)||McMillan, Tom (Glasgow, C.)||Wilson, Rt. Hn. Harold (Huyton)|
|Eadie, Alex||MacPherson, Malcolm||Winstanley, Dr. M. P.|
|Edwards, William (Merioneth)||Mahon, Peter (Preston, S.)||Woodburn, Rt. Hn. A.|
|Ellis, John||Mallalieu,J.P.W.(Huddersfield,E.)||Woof, Robert|
|Ennals, David||Manuel, Archie||Yates, Victor|
|Ensor, David||Mapp, Charles|
|Evans, Fred (Caerphilly)||Marks, Kenneth||TELLERS FOR THE AYES:|
|Faulds, Andrew||Mason, Rt. Hn. Roy||Mr. Ioan L. Evans and|
|Fernyhough, E.||Miller, Dr. M. S.||Mr. Charles Grey.|
|Finch, Harold||Morgan, Elystan (Cardiganshire)|
|Alison, Michael (Barkston Ash)||Black, Sir Cyril||Campbell, B. (Oldham, W.)|
|Allason, James (Hemel Hempstead)||Brinton, Sir Tatton||Campbell, Gordon (Moray & Nairn)|
|Atkins, Humphrey (M't'n & M'd'n)||Bromley-Davenport, Lt.-Col.Sir Walter||Carlisle, Mark|
|Bennett, Dr. Reginald (Gos. & Fhm)||Bullus, Sir Eric||Clegg, Walter|
|Costain, A. P.||Kaberry, Sir Donald||Russell, Sir Ronald|
|Currie, G. B. H.||King, Evelyn (Dorset, S.)||Scott-Hopkins, James|
|Dalkeith, Karl of||Kirk, Peter||Sinclair, Sir George|
|Dance, James||Lane, David||Smith, John (London & W'minster)|
|Digby, Simon Wingfield||Legge-Bourke, Sir Harry||Stainton, Keith|
|Elliot, Capt. Walter (Carshalton)||Lewis, Kenneth (Rutland)||Stoddart-Scott, Col. Sir M.|
|Elliott,R.W.(N'c'tle-upon-Tyne,N.)||Longden, Gilbert||Tapsell, Peter|
|Errington, Sir Eric||McAdden, Sir Stephen||Taylor,Edward M.(G'gow,Cathcart)|
|Eyre, Reginald||MacArthur, Ian||Taylor, Frank (Moss Side)|
|Fortescue, Tim||Maude, Angus||Tilney, John|
|Foster, Sir John||Mawby, Ray||Turton, Rt. Hn. R. H.|
|Gilmour, Ian (Norfolk, C.)||Mills, Peter (Torrington)||van Straubenzee, W. R.|
|Glover, Sir Douglas||More, Jasper||Waddington, David|
|Glyn, Sir Richard||Morgan, Geraint (Denbigh)||Walters, Dennis|
|Goodhart, Philip||Munro-Lucas-Tooth, Sir Hugh||Ward, Dame Irene|
|Gower, Raymond||Murton, Oscar||Weatherill, Bernard|
|Grant, Anthony||Nabarro, Sir Gerald||Whitelaw, Rt. Hn. William|
|Grant-Ferris, R.||Neave, Airey||Williams, Donald (Dudley)|
|Grieve, Percy||Osborn, John (Hallam)||Wilson, Geoffrey (Truro)|
|Griffiths, Eldon (Bury St. Edmunds)||Osborne, Sir Cyril (Louth)||Wolrige-Gordon, Patrick|
|Gurden, Harold||Page, Graham (Crosby)||Wright, Esmond|
|Hall, John (Wycombe)||Percival, Ian||Wylie, N. R.|
|Hall-Davis, A. G. F.||Pink, R. Bonner|
|Hamilton, Lord (Fermanagh)||Pym, Francis||Younger, Hn. George|
|Harrison, Brian (Maldon)||Ramsden, Rt. Hn. James|
|Holland, Philip||Rees-Davies, W. R.||TELLERS FOR THE NOES:|
|Hornby, Richard||Rhys Williams, Sir Brandon||Mr. Timothy Kitson and|
|Jopling, Michael||Rossi, Hugh (Hornsey)||Mr. Hector Monro.|
Question put and agreed to.