HL Deb 12 March 1925 vol 60 cc514-23

Order of the Day for the Second Reading read.

THE LORD CHANCELLOR

My Lords, I beg to move the Second Reading of this Bill, which is similar, except in two matters to which I will refer, to the Bill which was passed by your Lordships last year. The pith and marrow of the Bill is to be found in Clause 1, which provides, in effect, that if two unmarried persons have a child and afterwards marry, the child shall, whether the parents marry before or after the commencement of this Act, be legitimated, and the same provision will take effect from the date of the commencement of this Act or from the date of the marriage, whichever last happened. If this Bill is passed it will put an end to a very long controversy. The rule which we seek to enact was the rule in the civil law and in the canon law, and it is to-day the law in Scotland, where, I believe that the old practice of putting children born before the marriage under what is called the cair-cloth, that is to say, under the marriage cloth used at the time of marriage, has not yet quite died out. But the English Common Law-has always been the other way, and at the Council of Merton, held in 1236, when all the Bishops pressed for an alteration of the English law so as to bring it into conformity with the canon law, the assembled Earls and Barons replied that they would not change the law of the realm, which had been hitherto used and accustomed, and they used the expression often heard since, nolumus leges Angliæmutari.

Since that time many changes have occurred in the laws of England, and I think in the opinions and feelings of this country, and the feeling has grown that where parents have erred and seek to repair their error, they should be encouraged and allowed to do so to the full extent, and by their marriage to remove from their children the stigma of bastardy. Many Bills for that purpose have been brought in. Bills having this effect have been accepted more than once, so far as the principle is concerned, by both Houses, and I think that the Government are interpreting the feeling both of Parliament and the country in taking charge of this Bill and recommending it for the acceptance of Parliament. It is a subject which lends itself to rhetoric, but I have no rhetoric, and therefore I am content to say that in my view the change proposed is both just and wise.

I must refer to one provision of the Bill—namely, subsection (2) of Clause 1, which provides that Nothing in this Act shall operate to legitimate a person whose father or mother was married to a third person when the illegitimate person was born. That subsection reproduces the Scottish law, which has always declined to extend the rule as to legitimation by subsequent marriage to the issue of incestuous or adulterous intercourse. The proviso has in this country provoked deep and, I am sure, sincere differences. Some people say that the child alone is to be considered, and that this exception does injustice to the child. Others say there are other matters to be considered, and that the omission of this proviso would introduce new difficulties and new dangers, and strike a blow at the Marriage Laws of this country. This House has always taken the latter view. Twice last year this subsection was the subject of discussion and decision in this Houe. On each occasion the House decided in favour of the insertion of this provision, and on the second occasion so decided by a majority of two to one. I do not know whether that controversy will or will not we renewed in Committee on this Bill, but I will not argue the point to-day and will only say that I could not have introduced a Bill which did not contain this provision.

There are two clauses in the Bill which are new. One is Clause 2, the effect of which is this: There was inserted in the Bill of last year an Amendment which provided that legitimation by marriage should not take effect unless the parents avowed the parentage within some definite time. That was inserted at the instance of my noble friend Lord Midleton. I was never quite satisfied with the form of the Amendment, although I always felt sympathy with the object. The effect of the Amendment as then drafted was that if the parents, either from caprice or forgetfulness, or some other reason, did not register the parentage within a limited time after their marriage or the passage of this Bill, the child could not afterwards become legitimated. I think that that might have acted hardly upon some children. We propose to put in place of that provision the second clause of this Bill, the effect of which is to make it the duty of the parents to register the birth of the child as their child; that is to say, when they marry, to re-register it within a limited time after the marriage, and if they fail to do so the penalty will fall upon the parents who neglect their duty, and it will be still possible to register the child as a legitimated child of its parents. I hope my noble friend and the House will think that that covers the substance of the arguments which he put before the House, and will consider that this is a good solution of the difficulty which he raised.

The other new clause is Clause 3 of the Bill, which authorises any child affected, or his parents, to ask for a declaration of legitimacy under the Legitimacy Declaration Act of 1858: The object of that is that if parties interested so desire they shall be able to bring forward evidence and prove their case while the evidence is still to be had, and not to postpone it until the evidence may be lost. The rest of the Bill deals mainly with questions of property and is substantially in the form in which you passed the Bill last year. I am satisfied that the Bill will effect a useful and long-desired change in the law, and I hope that your Lordships will give it a Second Reading. I therefore beg to move.

Moved, That the Bill be now read 2a.—[The Lord Chancellor.]

LORD BUCKMASTER

My Lords, as I was responsible for a former Bill which passed your Lordships' House I may perhaps say a few words on this measure. First of all, I recognise with gratitude that the Government have adopted the Bill in substance, and that they are prepared to make an effort to remove what I have always thought to be a very grave injustice. But in one particular respect they have felt themselves constrained to retain a provision, which was undoubtedly introduced into the measure I have referred to as my Bill, but which I greatly regretted. But after what was said by the noble and learned Viscount, the Lord Chancellor, when my Bill was formerly discussed, it was not to be expected that he would introduce a Bill omitting a clause such as that to which he has referred—that clause, I mean, which provides that the benefits of this Bill shall be denied to a child who has been guilty of no greater wrong than having one of its parents married to a third person at the time of its conception.

People have odd opinions of justice and they may reconcile this to their own consciences as they will, but to me it is a flagrant wrong. I cannot see why, if you are going to legitimate children at all, you should set up a special class and brand them with a special stigma for something for which they cannot be in any way responsible. I know it is urged that this is done in the interests of what is frequently referred to as "the sanctity of the home." I can only repeat that this is another instance of what the reading of history has often taught me—that some of the greatest injustices are perpetrated in the name of the highest ideals. So be it. I shall not attempt to challenge this Bill now, nor shall I attempt to invite your Lordships again to discuss the old matter upon which you have already passed an opinion on two occasions, but I could not let this Bill go by without repeating my protest against that provision.

With regard to Clause 2 I am bound to say I think the Lord Chancellor has discovered a very fair and a very humane solution of a great difficulty. As the matter stands no negligence on the part of a parent will rob the child of the benefit which this Bill confers, and that appears to me to be just and fair. On the whole, I am sincerely grateful to the Government for the distance they have gone, and I only regret, although I foresaw it, that they were unable to go one great step further.

VISCOUNT HALDANE

My Lords, like my noble and learned friend I also am grateful to the Government for having gone as far as they have gone, and I very willingly assent to the Second Reading. But I cannot speak too strongly about what seems to me to be the iniquity of Clause 1 where you penalise the innocent children for that for which they have no responsibility. It is said that this is done to strengthen the sanctity of the home. I do not think it has anything to do with the sanctity of the home. It is a question affecting the children and we are left with the responsibility of allowing to remain under this stigma those who contributed nothing to what is objected to. It is said that is only following the Scottish precedent. If so, they must be old Scottish Acts before the Union. Nobody pays any attention to these things now in Scotland, and if these Acts exist it is only because of the inaction which has very long pervaded the minds of the legal profession in Scotland with regard to legal reform. Anyhow, no foundation built upon old Scottish legislation is really worth anything in the times in which we live.

LORD PHILLIMORE

My Lords, everybody will sympathise with the object of this measure and, as I said on a previous occasion, I heartily support it. One is tempted to stray a little after the speeches of the two noble and learned Lords who have just spoken. If one were to listen to them, every bastard child should be legitimated straight away. You are considering only the interests of the innocent child. But the noble and learned Lords have forgotten a decision of your Lordships' House of quite recent date, in the case of Russell v. Russell. Suppose the case of an adulterous wife. Under your Lordships' decision that child is the child of the marriage. The adulteress afterwards marries a paramour, and then she says it is the child of her paramour. Under which law is it to come, if you are to have the clause which the two noble Lords desire, and at the same time the decision of your Lordships' House is to stand?

But I did not really rise so much for that purpose, as to submit to the Lord Chancellor and to the Government a consideration with regard to Clause 2, and, in connection with that, with regard to Clause 3. I had the honour of helping the noble Earl, Lord Midleton, and of speaking in support of his proposal on the last occasion, and he has desired that I should speak first now, though I hope he will also address the House. I quite feel the difficulty, we always felt the difficulty, that the parents might be lazy or indifferent or ignorant, but the danger which we saw is not in the least met by the amendment. The danger which we saw was that of people, years afterwards, coming forward and saying that they were the children of such a union, when there was nobody to contradict them, and we referred to what we understood to be the foreign practice, under which, when two people marry, they at the same time, either in the register or in the contract, or on some other occasion, specify "And we thereby legitimate, etc." This provision does not mean that at all. It puts a duty on the parents, no doubt, but on the supposition in this case, the child is not a child of the parents, and yet there is no presumption against somebody who comes forward later and says: "I was their child."

It has occurred to me in the course of this evening that something could be done to meet the difficulty of the noble and learned Viscount on the Woolsack, and the difficulty which the noble Earl, Lord Midleton, and others, who voted with us on the last occasion, felt. If I remember rightly there was a Division, and a considerable majority of your Lordships voted with us. It now occurs to me that it might be worded in this manner: Unless the child was declared at the time of the marriage—in the language proposed by the noble Earl last time—it should have the burden of proving under Clause 3, not before the Registrar-General but before a Court, on an application under the Legitimacy Declaration Act, that it was a child of the marriage. That is merely a suggestion which has occurred to me, but I wish to point out to the Lord Chancellor that the risk which we anticipated, and which certainly had a great effect upon your Lordships' House on the last occasion, is not in any way met by Clause 2 as it stands.

THE EARL OF MIDLETON

My Lords, I desire to say a few words in support of what has fallen from the noble and learned Lord, Lord Phillimore. I confess I was very much astonished, after what passed last year, to find that the noble and learned Viscount on the Woolsack, having undertaken to introduce this Bill, had really so very little regard for the principle which was adopted in this particular matter by your Lordships and was accepted as a compromise by the noble and learned Lord, Lord Buck-master, who was in charge of the Bill last year. I was still more astonished when I heard the arguments by which the Lord Chancellor supported it. He said that the Bill was intended to put an end to a long controversy. It was conclusively shown in the debates last year that the Bill as drawn and as introduced into your Lordships' House would have had the effect in one direction of terminating a long controversy, but of opening in another direction a variety of much longer controversies.

It stands to reason that if, after the lapse of thirty or forty years, you have to hunt up the validity of the birth of a person who is the offspring of two people who were not married, you will have to go into a number of most difficult and devious calculations for which there is really no material, on which to found the arguments to be put before the Court. On whom has that to fall? On the legitimate offspring. On persons who have regarded themselves up to that moment as being the sole legitimate offspring of their parents and upon whom is suddenly sprung a demand by one parent that any number of children that she may claim to have had in some period long past by the father of the legitimate children should be placed on an equality with themselves. That was shown in the debate last year by one lawyer after another to be likely to be fertile in controversy.

How does the noble and learned Viscount deal with that matter? I am astonished when I consider his statements. He said that the penalty for not making this declaration was to fall upon the parents. What does that mean? At present, if a child is lawfully born there is a penalty, though not a very serious one, if it is not registered. But that is a case which is known to everybody. It is not very likely that two persons who are married by a registrar and then, perhaps, leave the country directly afterwards, will ever be made amenable by the registrar, and if they are not made amenable at the time when the question arises the penalty will never be exacted of them, but it will fall on the legitimate heirs who, at enormous expense, will have to try to prove the illegitimacy of claims made by people about whom there is no evidence that can be relied upon. I cannot imagine a less defensible or more onerous duty being put upon any one.

In regard to the clause itself, I think that practically everyone voted last year against it and in favour of the provision which I moved. I think it was almost universally supported by noble Lords opposite. If the Government intended to deal with this question it was their bounden duty to take care that there should be something which could be referred to at the time by those who seek a legitimacy order. The burden of the whole discussion which we had last year was as to whether the legitimate offspring or the illegitimate offspring were the more important. Under the Bill as it stands these bastards may lay claim and acquire rights to property which have never been suggested during the lapse of thirty or forty years and about which the legitimate offspring have no proof and no means of obtaining evidence.

For that reason I earnestly trust that the noble and learned Viscount will give us a little time before the Committee stage of the Bill is taken. I regard Clause 2 as most objectionable from many standpoints. I do not know whether it is in accordance with the Scottish law and I hope that we may have an opportunity of seeing how far hat is so. Certain it is that if at this late period the law of England is to be changed in this manner it ought surely to be done with proper safeguards. By "proper safeguards" I mean something which is not only an obligation on paper with no penalty in case it is not met, but something which will really prevent these questions being made the sport of legal action for years at distant periods, without any chance of testing the evidence by which they ought to be supported.

EARL RUSSELL

My Lords, I desire to say one word only and to raise one small point only in regard to this Bill. So far as Clause 2 as a whole is concerned, I entirely agree with the description of it which was given by the noble and learned Lord, Lord Buck master—that it seems to meet this difficulty as well as possible. But in subsection (2) (a) it is provided that the parents of a legitimated person shall have the duty of furnishing the Registrar-General with information with a view to obtaining the re-registration of the birth of that person— … If the marriage took place before the commencement of this Act, within two months of such commencement … It seems to me that this Bill may very likely affect a considerable number of persons who do not take any great interest in public affairs, who are, very likely, not advised from day to day by solicitors or other legal advisers, and have no knowledge at all of the passage of Acts of Parliament. The period of two months in their case seems rather a short one.

Your Lordships will realise that knowledge of when am Act of Parliament has been passed, particularly a new Act of Parliament like this on a new subject, is apt to take some time to penetrate to what I may call the masses at large, and I would suggest to the noble and learned Viscount on the Woolsack that he should make that period something like six months. So far as I can see, there is no question of principle involved. It is merely that you desire to have some finality and some period given. I should not think of putting down an Amendment on the subject, but I would ask the noble and learned Viscount to consider, before the Committee stage, whether it would not be on the whole fairer and wiser to extend that period.

THE LORD CHANCELLOR

My Lords, my noble friend Lord Midleton is mistaken in saying that anybody in the House voted against this particular clause last year. This clause was not proposed by anyone nor, I think, was there any Division upon the clause proposed by the noble Earl. I think it went through without any Division at all and, therefore, nobody expressed any opinion upon it except those who spoke. I have taken note, of course, of what has been said by noble Lords against the substitution of this clause for the clause of last year. If a claim to parentage should be made in years to come by a child who has not been registered under this clause I think there would be some presumption against that claim by reason of the fact that the duty of registration had not been performed. I think it would go to that extent in the direction desired by my noble and learned friend. Lord Phillimore, but if it is possible for the Committee to strengthen the clause in any way I shall be pleased to consider any proposal that may be made with that object in view. I do not think, however, that the House would sanction a provision taking from the child who is not re-registered in the limited time the chance of proving parentage in the years to come. I recognise that difficulties may arise. With regard to the point raised by the noble Earl, Lord Russell, I can only say that I will take note of what he said, and will carefully consider the point to see whether it is possible to meet him.

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