§ Amendments reported (according to Order).
§ Clause 2:
§ Re-registration of birth of legitimated persons.
§ 2.—(1) The Registrar-General may, on production of such evidence as appears to him to be satisfactory, authorise at any time the re-registration of the birth of a legitimated person, and such re-registration shall be effected in such manner and at such place as the Registrar-General may by regulations prescribe.
§ (2) It shall be the duty of the parents of a legitimated person, or, if one of the parents is dead, of the surviving parent, within the time hereinafter specified, to furnish to the Registrar-General information with a view to obtaining the re-registration of the birth of that person; that is to say:—
- (a) If the marriage took place before the commencement of this Act, within six months of such commencement;
- (b) If the marriage takes place after the commencement of this Act, within three months after the date of the marriage.
§ (3) Where the parents, or either of them, fail to furnish the necessary information within the time limited for the purpose, the Registrar-General may at any time after the expiration of that time require the parents of a person whom he believes to have been legitimated by virtue of this Act, or either of them, to give him such information concerning the matter as he may consider necessary, verified in such manner as he may direct, and for that purpose to 4 attend personally either at a registrar's office or at any other place appointed by him within such time, not being less than seven days after the receipt of the notice, as may be specified in the notice.
§ (4) The failure of the parents or either of them to furnish information as required by this section in respect of any person legitimated by virtue of this Act shall not affect the legitimation of that person, or affect the right of one parent or of any other person to apply for re-registration under this section.
§ (5) No fee for re-registration under this section shall he charged if the necessary information for the purpose is furnished within the time above specified o but in any other case there shall be charged in respect of such re-registration such fees, not exceeding in the aggregate ten shillings, as may be prescribed by regulations under this section.
§ (6) This section shall be construed as one with the Births and Deaths Registration Acts, 1836 to 1901.
§ LORD PHILLIMORE had given Notice to move at the beginning of the clause, after "The Registrar-General may", to insert "if the marriage took place before the commencement of this Act, within twelve months of such commencement; if the marriage takes place after the commencement of this Act, within twelve months after the date of the marriage. "The noble Lord said: My Lords, when this measure was in Committee I was, unhappily, unable to be present. I put down certain Amendments with a view to the prevention of sham claims. Now that the Bill has passed through Committee I have put down one Amendment for the Report stage, designed, like other provisions, not to affect the beneficial clauses of the Bill, but to prevent cases of sham paternity and bogus claims being imposed upon families. Since I put down my Amendment for this stage the Lord Chancellor has further considered the matter, and I see upon the Paper a proposal by the noble and learned Viscount which will, I think, be better than my own, and, as I understand that he is proposing to move it, I shall not move the Amendment which stands in my name. I want to take this opportunity of saying that, however much I agree with the noble and learned Viscount upon the Woolsack regarding this subject, I am distressed by his proposals in regard to Clause 3 and may have to trouble your Lordships with some observations if those proposals are made. At the moment I will not move.5
THE LORD CHANCELLOR (VISCOUNT CAVE) moved, at the end of subsection (1), to insert:
Provided that the Registrar-General shall not authorise the re-registration of the birth of any such person in an case where information with a view to obtaining such re-registration is not furnished to him by both parents, unless—
§ The noble and learned Viscount said: My Lords, I am obliged to my noble and learned friend for his statement and I will now move the first Amendment which stands in my name. Your Lordships will remember that when the House was in Committee on this Bill, several Amendments were moved with a view to making legitimation conditional upon the parents of the child registering their parentage within a limited time. I resisted all those Amendments and time House did not accept them. I am sure that the House came to a right conclusion, but I promised, in the course of the Committee stage, that I would further consider whether it might not be desirable to make some provision with a view to preventing the power of registration being abused. It is quite conceivable that, say, the mother of an illegitimate child might register the birth of her child and might name a person as its father who, in fact, would not admit himself to be the father of the child, so that evidence might be manufactured which might be used for improper purpose at some later time.
§ I have looked into the practice in Scotland and I think that we shall be acting in accordance with that practice if we do, to some extent, guard the right of the Registrar-General to require information. I suggest, therefore, that we insert this proviso, the effect of which would be this. Normally the parentage of an illegitimate child legitimated by the marriage would be registered by both parents, but that would 6 be dispensed with, and one parent alone might register the marriage and legitimation, in particular cases named in the paragraphs (a), (b) and (c). The first case is that in which the father has himself admitted the parentage under the provisions of the Act of 1874. The second is the ease in which the paternity has been established by an affiliation order or some other decree of the Court. The third is the case in which a declaration of legitimacy has been made under the Act of 1858 as amended in the Bill. If this Amendment is passed, I think the power of registration would be effectually safeguarded and the objections, or most of the objections, taken in Committee would be met. I beg to move.
Page 3, line 8, at end insert the said proviso.—(The Lord Chancellor.)
My Lords, the present position of the Registrar-General, as I understand it, is that he is empowered to demand information, and having obtained it he is bound to accept it. This Bill, I think, seeks to impose upon the Registrar-General an entirely new function—namely, that of taking evidence, weighing evidence, and pronouncing what must amount to some thing in the natured of a judicial decision. Perhaps the noble and learned Viscount can say what would be the status of such a decision in a court of law. The Amendment is a very good one, so far as it goes. It limits what I may call the judicial function of the Registrar-General to cases in which both parents apply for registration, and venture to suggest that it, would be better to go one step further and do away with the judicial function of the Registrar-General altogether.
§ LORD BUCKMASTER
My Lords, throughout the discussion on this Bill I have felt, and have expressed, anxiety lest by extensive amendment, you would take away the benefit which the Bill is intended to confer, but none the less I am not insensible to the fact that there are designing and deceitful people in the world, and that it might be possible, if the Bill remained in the form in which it passed Committee, that registration might be effected against one of the alleged parents who was dead and thereby considerable wrong might be 7 done. I am therefore quite willing to support this Amendment which the noble and learned Lord on the Woolsack has introduced, and I think that your Lordships, upon examination, will see that it meets a real danger and does not unduly diminish the benefits of the Statute.
Of course, the real danger lies chiefly in this possibility: A woman has married a man, and during their marriage they have not registered the child, an illegitimate child, as their own. On the death of the man, as the Bill originally stood, it would have been open to the woman to register, or attempt registration. That is, of course, a real danger. It was, I think, an ancient Greek philosopher who said that "Maternity is always a matter of fact; paternity is always a matter of opinion." At any rate, this much is certain, that it would be much more easy for a woman to obtain registration against a dead man, without the possibility of anybody on his behalf being able to disturb it, than it would be for a man to effect the same thing against a woman. Therefore, there is no doubt that this Amendment is intended to protect legitimate families against unlawful claims.
I desire, however, to say nothing further about it, because I understand that it meets with the general approval of the House; but I should like to add, in consequence of what fell from Lord Phillimore, that I regard the Amendment has absolutely knit up with the subsequent Amendment which the noble and learned Viscount, the Lord Chancellor, has upon the Paper, and which is to enable people who desire to assert their rights to be called legitimate, to establish that, in the case of poor estates and poor people, in the county court. I do not wish to anticipate what will take place on that Amendment, but my support of this Amendment is certainly on the hypothesis that the second Amendment will pass.
§ VISCOUNT HALDANE
My Lord, I agree with what has been said by my noble and learned friend Lord Buckmaster. I do not think that we need be afraid of what the Lord Chancellor proposes to add to the Bill. The noble Lord opposite spoke of the functions given to the Registrar-General as being judicial functions. No doubt, in a sense, the Registrar-General has got to form a judgment on what comes before him, but 8 he is not made a judge by this. It is only part of the administrative care required of him in every case. Both in the registration of marriages, and in many other cases which have to be handled by officials, that care has to be exercised. I do not think that there is any objection to this Amendment, but we are coming to an interesting discussion when we reach the next Amendment, dealing with the functions of the county court.
§ LORD MERRIVALE
My Lords, I think I understand from the noble and learned Viscount on the Woolsack, that in his judgment this Amendment would not give to registration by the registrar of births any legal effect beyond that which the registration of a legitimate birth gives under the law as it now stands. If it were intended to substitute an entry in the register of births for some other record, which would at any rate settle as a matter of legal evidence what was the parentage, I must say I should not feel disposed to support this Amendment. The registry in the ordinary register of births at present is evidence against nobody except the people who made the entry.
The noble and learned Lord on the other side made his support of the Amendment conditional upon the acceptance of the subsequent Amendment of the noble and learned Viscount, for dealing with these matters of legitimacy in the county court, or in any tribunal which can hear evidence. I should not like to commit myself to a condition of that kind. The law as it at present stands requires that, if legitimacy is to be ascertained, it shall be ascertained in the High Court of Justice. There is every facility at the present time to poor persons to proceed in the High Court of Justice. They proceed under advantages such as have never been known, I believe, anywhere else. They get the services of solicitors, they get the services of counsel, very often of very eminent counsel, and they get that help for nothing, and their causes may be heard, in a great number of instances at any rate, before a Judge of Assize. To my mind, reserving the question as to the conditional assent which the noble and learned Lord will give to this Amendment, I must say that it seems to me that this Amendment is a good Amendment as it stands, but that if it 9 is merely the prelude to the additional Amendment I should have very great doubt about both of them.
§ THE LORD CHANCELLOR
With regard to the question asked by the noble and learned Lord, Lord Merrivale, this Amendment is purely restrictive. It cuts down the power to register in certain eases, and it leaves the effect of registration just as great and just as small as it is without this Amendment.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR moved to leave out of subsection (4) all words after "person," where that word secondly occurs. The noble and learned Viscount said; The second Amendment is, I think, consequential.
Page 2, line 32, leave out from ("person") to end of subsection (4).—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 3:
§ Declarations of legitimacy of legitimated persons.
§ 3. A person claiming that he or his parent or any remoter ancestor was legitimated by virtue of this Act may, whether domiciled in England or elsewhere and whether a natural-born British subject or not, present a petition under the Legitimacy Declaration Act, 1858, and that Act, subject to such necessary modifications as may be prescribed by rules of court, shall apply accordingly.
THE LORD CHANCELLOR moved to add the following new subsection:
(2) A petition under the said Act may be presented by any such person as aforesaid to the county court instead of to the High Court, and the county court on such a petition being presented shall have all such jurisdiction as by the said Act is conferred upon the High Courts:
Provided that where a petition is presented to the county court, the county court, if it considers that the case is one which owing to the value of the property involved or otherwise ought to be dealt with by the High Court, may, and if so ordered by the High Court shall, transfer the matter to the High Court, and on such transfer the proceeding shall be continued in the High Court as if it had been originally commenced therein.
§ The noble and learned Viscount said: My Lords, this Amendment enables applications to declare legitimacy under the Legitimacy Declaration Act, 1858, to be made to the county court. The reason 10 which induced me to put it down can be very shortly explained. The effect of this Bill may be to legitimate a whole number of people, many of them, of course, poor people, who have been looking forward to the Statute to enable them to establish their legitimacy and to be put in them position in which the Act will put them. I think the House has been quite right to guard legitimation by the Amendment which has just been passed. But the effect of that Amendment will be that in some cases persons interested must go to the Court to establish their position, at all events to secure registration. That will be the case whenever one of the parents has died and the father has not either avowed his parentage under the existing Statute of 1874, or been declared to be the father by some order, or in sonic other way. In all these cases application to the Court will be necessary in order to obtain re-registration.
§ I think it would be rather a hardship if all those persons were compelled to go to the High Court to establish that matter. In many cases the evidence will be quite simple. There will probably be complete knowledge of the facts in the family, and no difficulty will arise. In such cases, where the people are unable to afford the expense of proceedings in the High Court, I think it will be just and fair that they should have the opportunity of going to the county court. It will be the duty of the County Court Judges to see that all proper notices are given, so that any one can be heard. And the Amendment provides that, in any case where a petition is presented to the county court, the county court, if it considers that the ease is one which, owing to the value of the property involved or for some other reason, ought to be dealt with by the High Court, may transfer it to the High Court, and in any case where the High Court itself confiders the matter one of importance the High Court may require it to be so transferred. The object of that proviso is to make it clear that in all cases of importance the matter shall go to the High Court, but in other cases, where perhaps no great dispute exists, I think it would be the right thing to allow the county court to deal with the matter. It is for that reason that I have put down the Amendment.
Page 3, line 8, at end insert the said new subsection.—(The Lord Chancellor.)
§ LORD PHILLIMORE
My Lords, I trust that you will not accept this Amendment. I have two arguments against it. The first is a sentimental one, and therefore it would probably commend itself to the noble and learned Lord, Lord Buckmaster. It is the first time, I think, in our legislation that the status of a man or a woman is to be determined by a superior or inferior Court according to his wealth. I thought the law was said to be no respecter of persons. I do remember in one of the abortive Divorce Bills a proposal that, in case a person's income was under a certain sum, he might get his divorce in the county court, and I think your Lordships all scoffed at that proposal. I do think it is the worship of plutocracy to say that some of these cases are so important that they should be heard in the High Court, while some should be heard in the county court.
Now I come to the second objection Legitimacy declarations are a luxury. If a man is legitimate, he is legitimate. If any question ever arises as to his title, as next-of-kin, or heir, or on other grounds, to be legitimate, he can prove it in the ordinary way. Until the Legitimacy Declaration Act, which, after all, was passed in my lifetime, there was no way of, so-to-speak, jumping before the stile and getting yourself declared legitimate separately. The law which enabled these declarations—a very convenient law it is, though it is not very often used—fenced and guarded it with many provisions: the issue is to be tried in the High Court, all possibly interested persons are to be made parties, and His Majesty's Attorney-General is always made a party, in order that there may be no collusion for the purpose of an incorrect declaration. It is proposed for that arrangement to substitute decision in the county court.
County Court Judges are excellent people, but they had very much better be put to try actions involving amounts up to £500 or £1,000 than such important questions as legitimacy. They are overworked as it is. They ought to do their work quickly as a rule: it is a small work, and to be done quickly. It is very difficult for them to distinguish between the cases that they have to do quickly and the cases which require solemn consideration. As the noble Lord opposite has already said, there is really no difficulty in going to the High Court. There is 12 now power to sue in forma pauperis, and the matter can be sent on to the Assizes if necessary. I cannot help thinking that when the noble and learned Viscount on the Woolsack proposed this Amendment he must almost have forgotten, if one can conceive it, that there is no appeal from a county court on questions of fact. This will be pre-eminently a question of fact, and it will be decided by a single County Court Judge without appeal, whereas, if it were an ordinary legitimacy case, it would be decided by a Judge of the High Court, with an appeal to the Court of Appeal and a final appeal to your Lordships' House.
Why in one case is a legitimacy question, which may involve just as many difficulties and nice considerations as any other, to be brought before the county courts? Let us be logical and say that all legitimacy declaration cases should be brought into the county court, or let us reject this Amendment. There is really no hardship to anybody. Nobody need have himself declared legitimate. It will be enough for him to say: "My father and my mother lived together. They have now been married. My father and my mother have always said that I am my father's child. I assert that I am his child. I do not want any legitimacy declaration at all."
§ LORD CARSON
My Lords, I hope that your Lordships will agree to the Amendment proposed by the noble and learned Viscount on the Woolsack. If these People are not allowed to go to the county court instead of to the High Court, I believe that in many cases there will be an absolute denial of justice. It is all very well to say that provision has been made for people to appear in them High Court in forma pauperis, as it is called in the law. But there are very many respectable people of small means who could not profess to come within the provisions which enable any one to sue in forma pauperis, and to put such people to the expense of going to the High Court to obtain a declaration of legitimacy under this measure would amount, to my mind, to an absolute denial of justice.
My noble friend has said that the county courts are over-worked. So is the High Court. If the county courts are over-worked it is the duty of the Govern- 13 ment to see that a re-arrangement is made. I have long looked forward to the making of a provision, and I hope some day to see it carried, which will very largely extend the jurisdiction of them county courts, because I believe that owing to the expense of litigation in the Superior Courts, many people are prevented at present from running the risk of incurring the necessary costs in asserting in those Courts rights which they are undoubtedly entitled to assert. My noble friend has said that a legitimacy declaration case is somewhat complicated by the fact that all the parties concerned must be represented and that the Attorney-General must sometimes be represented in the High Court. That only shows the great expense to which parties will be put if they are driven to the High Court. All these matters can be just as easily dealt with in the county courts as in the High Court. As I have already said, it is my view that if your Lordships do not agree to this Amendment yon will be taking away, in a great measure, the very rights you wish to confer upon these people by this Bill.
§ LORD MERRIVALE
My Lords, I am sorry to find myself at variance with my noble and learned friend below me, but I am absolutely at variance with him. I happen to have had, as a member of the Bar and as a Judge, some experience of these matters, and I regret the Amendment and the probable effect of it. My noble and learned friend on the Woolsack will not misunderstand me when I say that. Notices of Amendment are given because of representations which are made. First of all, on the question of hardship, the ordinary case of establishing the legitimacy of a child of persons who are not persons of estate or position, will be that, when marriage has taken place, there will be the proper entry in the register of the registrar of births and that will put the whole matter at rest. The notion that persons who have not some object in view beyond legitimacy will resort to legal proceedings to obtain a declaration of legitimacy, is one of the most surprising I ever heard expressed. People in this country do not go about getting declarations of legitimacy for the satisfaction of having the decree of a Court upon a matter which is perfectly well known to everybody concerned. In the ordinary ease of a child born 14 illegtimate and legitimated by the operation of this Act, the facts will be matters of common knowledge to everybody, and nobody will dream of legal proceedings.
What is involved in legitimation is that you are grafting upon some family tree a new branch, and the declaration of legitimacy is not obtained in order to establish the parentage of the child among those who know the persons concerned. The object of obtaining it has relation either at the present or in the future to status or property in rivalry with other persons whose status or property will be involved. That is a very serious object, and, to my mind, every case of that kind is an important case. Its gravity is the greater because where persons who are fraudulently-minded are concerned—and fraudulently-minded people are often concerned in transactions arising out of illegitimacy—there will be some proceedings in a country county court, unknown to persons whose interests will be affected and carried through as a matter of course, and the decision will be indisputable except upon a new trial in the immediate future, and it will be absolutely indisputable in the more remote future. Those of your Lordships who know what questions arise on the judicial side of this House, and will recall the gravity of some of the matters which depend upon legitimacy at a comparatively remote time, will see what very grave questions are involved in this Amendment.
With regard to the discrimination here, it is practically impossible to apply it. How is the County Court Judge to know what persons he ought to have before him? The actors in the proceedings and those who desire legitimation will take care that he does not have too many before him; that is to say, that he does not have before him any of those who may be prejudically affected. How is the County Court Judge to know what is the degree of importance of the matter in respect of status or property? For my part I regard these tests as illusory. The real tests are the tests of status, the tests of position, of legitimacy or illegitimacy. But how is the County Court Judge to apply any standard by which he can decide that some casual, unopposed, or practically unopposed application is of grave consequence? Is there to be some representative of public authority upon 15 the scene on these occasions? Apparently not. Who is to determine these things How are you to decide, in a matter of doubt, whether it is a case of far-reaching gravity? I do not think such questions can be answered. They are to be determined, apparently, not upon sentimental grounds but upon illusory grounds.
I trust this Amendment will not be adopted. There is nothing in past experience to lead one to suppose—certainly nothing in my experience during a long course of years to lead me to suppose—that there will be the slightest hardship in a proper case in getting a matter of this kind determined where it ought to be determined, but when it is borne in mind that so far as legitimate descent is concerned, during something like fifty years—the noble Lord remembers the exact date, but during something like fifty years, perhaps a little more—the question being not whether the parents had begotten a child before they were married, but whether the child was born in wedlock after the marriage of the parties, you have had that question remitted by Parliament with serious restrictions to a High Court and to a Division of the High Court. When you are legitimating bastard children, to give them and their parents an advantage which you have never given while the status of marriage was different, seems to me, a proposition without warrant, and, for my part, I shall be bound to vote against it.
§ LORD BUCKMASTER
My Lords, the noble and learned Lord, Lord Phillimore, suggested that I should fall in with one of his arguments upon the ground that it was bashed upon sentiment. I have not the faintest notion what he means, and I certainly am not prepared to agree with the argument either of the noble Lord or the argument that succeeded his. In truth, what is the position here? No one can doubt that the effect of this Bill is to enable the children of poor parents to obtain the status of legitimacy. I say that is the general purpose of the Bill for this reason. If people who are well-to-do have had an illegitimate child and have married, they would be well advised as to the steps they ought to take to secure the record of the legitimacy of their offspring. It is upon poor people, who will be very imperfectly acquainted with the provisions of this Bill, that the 16 benefits of this Bill will be chiefly conferred.
The Lord Chancellor has, I think, with great wisdom provided that any question which may fall to be determined by a court owing to the negligence of the parents in effecting registration, should be determined by the county court. I have listened to the arguments, and I cannot understand why not. The first argument that is put against it is this. The noble and learned Lord, Lord Phillimore, said that this was a concession to plutocracy. I cannot follow him there. It is a concession to poverty, if it is a concession to anything. It is to enable poor people to get their rights declared, and not to enable the rich. Nor can I see that any person need be hurt or slighted because there is open to him a perfectly competent court to which he can have recourse without being bound to spend large sums of money. The noble and learned Lord, Lord Merrivale, said this was illusory. What is illusory? I cannot understand. The question is a question of fact, pure and simple for the County Court Judge to determine. I cannot see what there is illusory about it. The noble and learned Lord said that the High Courts is open to poor people, that Poor Peoples Rules are in operation, and, that they can go there. He knows, Tam unite satisfied, that in many cases those Rules are, in fact, illusory. In the first place, poor persons have to pay £5 before they can proceed, and in the next place they have frequently to pay money for calling up witnesses. He knows quite well that, although there are a large number of eminent counsel who do most freely and generously give their services, yet the way in which the poor person's case is got up is not the same way as that in which the rich person's case is got up, and no one who has had any experience of the administration of Poor Persons Rules can deny that fact.
§ LORD MERRIVALE
I must tell my noble and learned friend that certainly in the course of the last two years when, as he knows, there has been administrative changes in this matter, poor persons cases ordinarily have been conducted with extraordinary attention and care. It has been regarded as an obligation of honour both amongst solicitors and members of the Bar. I have a case freshly in my mind now, which arose in the divorce 17 jurisdiction, where I reflected to myself that wealthy litigants could not have secured a greater degree of attentions than had been given, by reason of difficulties, to poor persons who had no means at all of resorting to law.
§ LORD BUCKMASTER
No one has denied there may be lots of such cases. That is not the point. The point is whether the same attention is given to all the cases. I say it is impossible. First of all, the power that wealth gives to enable evidence to be obtained and to be criticised and examined, is often not obtainable if a person has no money to provide it. I am willing to agree that there may be, and are, outstanding cases where you can get all the attention that may be required, but to say chat that is generally the case, and that every poor person's case is looked after as the rich person's case is looked after is to say something which certainly does not agree with my experience, and I doubt if it would agree with the experience of any other person. Finally, what is the real argument against this? There is only one valid argument, and that is an argument based upon the hypothesis that the County Court Judge is less competent to deal with it than the High Court. Why? It is essentially a question of fact. County Court Judges, to-day, are a very different class of people from what they were when the noble and learned Lord and I appeared before them many years ago, and just in the same way the London magistrates to-day are immeasurably better than their predecessors of thirty or forty years ago.
There is no doubt whatever that County Court Judges are perfectly able to determine what, after all, is a plain question of fact, which might well be determined by a jury if you wanted it. Juries are determining questions day by day which involve the most violent conflict of evidence. They are brought into contact with people who do not hesitate to tell untruths, and they are extremely acute in determining which evidence is to be trusted and which is to be disbelieved. The question of fact is complicated with nothing, and I beg your Lordships not to have once more the old story of the High Court administering a special form of jurisdiction of a great and sanctified character to which poor people have not 18 the same access as the rich, but to enable them to have what the county courts were established to secure, the opportunity of obtaining English justice at a small cost.
§ VISCOUNT HALDANE
My Lords, as one who has had two periods of experience in looking into the system of county courts, and of superintending them, I wish to add my voice to those who think it would be a retrograde step to-day to confine the jurisdiction to the High Courts. I think that, for the kind of question of fact which will have to be determined on these legitimacy applications, the local judge is the best judge. In the first place, the witnesses are very often much more readily available in the country than in London, where you may have to bring them if you had your ease before the High Court. In the second place, I entirely agree that the County Court Judge of to-day is really a first-rate Judge. He is most carefully chosen. It is not the case that these appointments are given away. On the contrary, the closest scrutiny is made, not only as to whether a man is an efficient lawyer but whether he is also a man who will inspire the people with whom he has to deal with a sense of confidence in his desire to do justice. From that point of view the county court is a better tribunal for this purpose than the High Court.
As for saying, as the noble and learned Lord did, that the poor can get a ready access to the High Court, we might bring about that state of affairs in the future but it is not the case to-day. I speak as one who has been charged with the business of looking into this matter, and I can assure him that the case of the poor person who wants to get to the High Court is very hard and very difficult. They do not get the assistance they ought to get; whereas if the case is heard in the county court they can be helped by friends. They cannot get that help if the case is heard in the High Court. It has been said that there is no appeal. There is an appeal whenever a question of law is raised.
§ VISCOUNT HALDANE
I did not say hat my noble and learned friend said there was no appeal on a question of law, but that there was no appeal except on 19 a question of law. Multitudes of cases come before your Lordships' House from the county courts under such Statutes as the Workmen's Compensation Act, in which very serious questions have to be determined and which have to be considered only on questions of law. The County Court Judge, if he thinks there is a question of law, raises it so as to admit of such an appeal. Under the Amendment the County Court Judge can do that, or he can certify that the case is one which should go to the High Court by reason of its nature. I do not think we need have much apprehension that anything else but pure questions of fad will be considered by the county court in these questions of legitimation. If there is property at stake you can bring the case to the High Court. That is not a concession to plutocracy; it is the system under which we live to-day. If it is a case of any importance it comes to the High Court: the county courts are limited in their jurisdiction. The normal and ordinary tendency is to extend the jurisdiction of the county court in every direction. For these reasons, I think, the Lord Chancellor is really conferring a benefit on the public by the Amendment he proposes to introduce.
§ THE EARL OF MIDLETON
My Lords, I do not wish to intervene in a discussion, on which we have heard such high legal authorities as the noble Lords who have spoken on both sides, as to the competency of the county court, but I desire to ask the Lord Chancellor one question. In the form of the Amendment he makes it quite clear that he thinks it undesirable that the county court should deal with matters of very wide importance, such as questions affecting money. But so far as I can see, speaking as a layman, there is nothing to prevent the county court deciding questions which may involve hundreds of thousands of pounds. The only barrier is that the County Court Judge himself may refer the case to the High Court or that the High Court should so order it, to be transferred. I do not see, however, how it can come to the knowledge of those concerned in time to allow them to appeal to the High Court to make such an order, and County Court Judges may be like other men and have opinions of their own as to their competence. Surely the Amendment requires a little more careful wording. The Lord Chancellor will no doubt 20 recognise that it is open to criticism that it should be left to the decision of the County Court Judge himself to refer the case, or that it may be referred on an order of the High Court which it may not be in the power of those interested to obtain in time.
§ THE LORD CHANCELLOR
Your Lordships have heard many distinguished legal authorities on this point and I need add very little to what they have said. But I should like to add this. A question raised under this Amendment may involve no property at all, or a very small sum. In those cases I really think the county court might be allowed to adjudicate. The difference in expenses between a hearing at home, if I may use the expression, in the county court district, and coming to London is very much greater than some of your Lordships might imagine. A great deal of the expense consists in bringing witnesses up to London and keeping them there until the case is heard. That is very costly and many people might not be able to afford it.
As regards the poor persons practice, which has been mentioned, I should like to tell your Lordships this. We have just had from a very competent Committee which has examined the Poor Persons Rules, a Report in which they say that as the matter now stands there is no difficulty in getting counsel to take a poor person's case, but there is some difficulty in getting a sufficiency of solicitors to deal with all these cases. I am not shutting my eyes to the fact that the solicitors' branch of the profession has rendered very admirable public work in taking up poor persons' cases, but under the present system, when most of the poor persons' cases are divorce cases and must generally come to London, there is a difficulty in getting enough solicitors to deal with all of them and you may have the same difficulty under this Bill if this Amendment is not passed. The Committee recommended certain changes, and the Government have approved the adoption of the changes they recommend. I am now engaged in getting them carried out. They will take some time, but before long I hope to see the new system adopted ands used in poor persons' cases in the civil courts. That is by the way. At present there is some difficulty in getting help for all the poor persons' cases.
21 I want to answer a question asked by the noble Earl just now. I think he is under a misapprehension. Although these proceedings are taken in the county court, they will be subject to all the precautions which must be taken on application being made to the High Court. That is to say, the County Court Judge will have the duty of seeing that proper notice is given to all persons who may appear to him to have an interest, including, in a proper case, the Attorney-General. Any person interested, if it were considered that the matter was of sufficient importance to be dealt with by the High Court, could then apply either in the county court or in the High Court to have the matter removed from the county court, and if the case were of
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ Clause 5:
§ Future wills, settlements and other dispositions.
§ (5) This section shall take effect subject to any contrary intention expressed in the disposition.
§ THE LORD CHANCELLOR
My Lords, I have now to move an Amendment to Clause 5, which deals with the effect of future wills in connection with this Bill. In the Committee stage Lord Raglan moved an Amendment to subsec-
§ such a nature as to make this desirable—if, for instance, it were desired to have an appeal on questions of fact or if it were a case involving any considerable sum—then the persons interested, and those who were opposing the application, could themselves apply either to one court or to the other to have the case removed from the county court. I am quite sure that if the County Court Judge is informed that the matter is one which should properly be dealt with by High Court he will not be at all slow to remove it from the county courts.
§ On Question, Whether the said new subsection shall be there inserted?
§ Their Lordships divided: Contents, 48; Not-Contents, 7.21
|Canterbury, L. Abp.||Burnham, V.||Desborough, L.|
|Chaplin, V.||Ebury, L.|
|Cave, V. (L. Chancellor.)||FitzAlan of Derwent, V.||Erskine, L.|
|Haldane, V.||Gage, L, (V. Gage.) [Teller.]|
|Salisbury, M. (L. Privy Seal.)||Hutchinson, V. (E. Donoughmore.)||Hemphill, L.|
|Hunsdon of Hunsdon, L.|
|Peel, V.||Loch, L.|
|Shaftesbury, E. (L. Steward.)||Younger of Leckie, V.||Olivier, L.|
|Beauchamp, E.||Oranmore and Browne, L.|
|Clarendon, E. [Teller.]||Annesley, L (V. Valentia.)||Raglan, L.|
|Eldon, E.||Arnold, L.||Rathcreedan, L.|
|Lovelace, E.||Askwith, L.||Redesdale, L.|
|Lucan, E.||Buckmaster, L.||Somers, L.|
|Stanhope, E.||Carson, L.||Southwark, L.|
|Vane, E. (M. Londonderry.)||Clwyd, L.||Stanmore, L.|
|Colwyn, L.||Strachie, L.|
|Allendale, V.||Danesfort, L.||Thomson, L.|
|Bertie of Thame, V.||Darling, L.||Wharton, L.|
|Mayo, E.||Ullswater, V.||Biddulph, L.|
|Midleton, E.||Merrivale, L. [Teller.]|
|Banbury of Southam, L.||Phillimore, L. [Teller.]|
§ tion (5), which provides that "this section shall take effect subject to any contrary intention expressed in the disposition." The noble Lord moved to insert "or implied." I thought that that was rather dangerous. I have tried to find another form, and I have adopted the form which appears in many Statutes. I therefore propose to move, in subsection (5), to omit all words after "section" and to insert "applies only if and so far as a contrary intention is not expressed in the disposition, and shall have effect subject to the terms of the disposition and to the provisions therein contained."23
Page 4, line 13, leave out from ("section") to end of clause, and insert the said words.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 11 (Right of illegitimate child and mother of illegitimate child to succeed on intestacy of the other):
THE LORD CHANCELLOR moved, at the end of the clause, to insert the following new subsection:
(4) This section shall apply to Scotland with the substitution of 'heritable' for 'real' and 'moveable' for 'personal.'
The noble Viscount said: This clause, which deals with the right of an illegitimate child to succeed on the intestacy of its mother, alters the law, and it is desired to make the same alteration in the law of Scotland. Therefore, on the suggestion of the Scottish Office, I have put down this Amendment.
Page 6, line 19, at end insert the said new subsection.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 12:
§ Short title and commencement
§ (2) This Act shall come into operation on the first clay of January, nineteen hundred and twenty-six.
§ (3) The provisions of this Act shall extend only to England and Wales.
§ THE LORD CHANCELLOR moved, in subsection (3), after "shall," to insert "save as therein otherwise expressly provided." The noble and learned Viscount said: My Lords, this Amendment is consequential.
Page 6, line 24, after ("shall") insert ("save as therein otherwise expressly provided").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.