HL Deb 27 April 1926 vol 63 cc935-46

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

THE EARL OF MIDLETON

My Lords, I propose to make one or two observations before your Lordships go into Committee on this Bill. On a previous occasion a certain course was taken by this House and I confess I am somewhat surprised that the Lord Chancellor has not had regard to the obvious feeling shown by the independent members of the House on Lord Buckmaster's Bill two years ago. I am not prepared to challenge the principle of the Bill, but there are three points on which I would remind your Lordships that strong objection has been taken in this House.

In the first place, as the Bill originally stood, there was no necessity for the registration of children who were to be legitimated under the Bill. It was felt that as a result there might be very serious mistakes and, possibly, great lapses of justice. The question of registration having been fought out three years ago, the Lord Chancellor has included it in his Bill, but the child may be registered or not so far as the Bill is concerned. I think that we have been really following a false trail, because by the provision in the Schedule, whether a child is registered or not the fact does not in the slightest degree affect his legitimacy. In other words, a man may marry and legitimate a child born twenty years before and, having done so, he is not bound to make any announcement by which the legitimate heirs may try the case out, though possibly on his death it may be asserted that three or four children were born and there may be no power whatever on the part of the legal heirs to contravene that supposition.

There is another point with regard to this Bill upon which I have some criticism to offer. It would be perfectly reasonable, if the noble and learned Viscount were to consider making it necessary for the child who is registered, to establish legitimacy according to the Legitimacy Declaration Act. It would then be impossible for him to do it by collateral suit. It would be necessary for all those who were interested to be cited. At present it is possible for the legitimacy to be established while the persons who are directly interested in the testamentary dispositions of the deceased may not be aware even that the case is going on. That seems absolutely wrong. Another advantage of making use of the Legitimacy Declaration Act is that the Attorney-General would have to be a party to the suit and therefore some public official would have to make the necessary examination.

A further respect in which I think that the Lord Chancellor has carried too far his desire to favour this class of persons is by taking all these matters into the county court. Testamentary dispositions should surely be tried out in the High Court. Of course, if the Lord Chancellor chooses to fix a very low figure in order to prevent sums of a very small amount being debated in the High Court, well and good; but he leaves it to the County Court Judge to determine whether he shall hear a suit for £20,000 or £30,000 or not. That seems to me to be inequitable and likely to lead to injustice.

There is another point upon which I should like to protest. I think too little consideration has been given to the objections taken concerning it. The Lord Chancellor assumes that every man who has married again, very likely at a registry office, will remember that his marriage revokes his will. As a matter of fact, we know that a great many men do not remember that. Surely it would not be unfair, when a man has made a will embracing, let us say, three or four children, and subsequently, perhaps at the very end of his life, marries again and forgets that the sum which he intended for three or four will now be divided among others, that he should be required to make a fresh testamentary disposition and that he should not be left to the chance of recollecting that the new marriage, which may have been forced upon him in order to right, as far as he can, a wrong which he committed years before, will affect the testamentary disposition which he deliberately made. The noble and learned Viscount has gone so far in this matter that by the Amendments which he now suggests that your Lordships should accept the remotest next-of-kin descendants of these illegitimate children are to share exactly the same as the children themselves would have done, which, in itself, admits that very possibly a long period of years will have passed which will make it extremely difficult for the legitimate heirs to establish what are the true facts of the case.

I venture to appeal to the noble and learned Viscount before we take the Report Stage to reconsider these provisions. I am quite aware that in a matter of this kind legal questions which he himself brings forward command the votes of the whole Government, including all those who supported the protest that we made two years ago and whose influence if they were not members of the Government might be of a more independent character. He can therefore pass whatever legislation he chooses on this subject. I venture at the same time to suggest to him that this lays upon him a great responsibility that what he does should be fair and equitable.

LORD PHILLIMORE

My Lords, desirous as I am that this measure should pass I do regret that there should be two apparent blots upon it, which it is suggested should be cured and which may impede the progress of this measure when it gets to another place. The provisions for registration are quite right in the sense that, while providing for registration in due time, they also say that the child shall not suffer for the neglect of its parents, but they are not balanced by a provision which would prevent bogus claims. The submission that I would make would be that the clause about the Legitimacy Declaration Act should be altered so that people who, unfortunately, have not been properly registered may be able to establish paternity by regular proceedings under the Legitimacy Declaration Act. Then all the relations would have notice that the Attorney-General would appear and that the case would be tried by a Judge specially devoted to that class of work.

To this end I would remove the clause which says that legitimacy proceedings may be taken in the county court, which seems to me to be an entire anomaly and to savour of plutocracy, because whereas, if it is a poor person, he is to go to a county court, the case of a rich estate is to be transferred to the High Court. There is no reason for going to the county court at all, in my humble judgment. Some people think that these will be sentimental cases in which poor people who have hitherto been deemed bastards will desire to have a declaration that they are no longer so. I do not believe that anybody will ever do any such thing or wish to trumpet abroad his father's and mother's shame in that way. I believe that they will assume that which the law gives them as a right and make no more fuss about it. The only times when there will really be occasion to go to the Courts will be when property is at stake, and in that event I submit that the case should be tried in a proper suit under the Legitimacy Declaration Act. I confess that I feel on these two points very much on the lines touched upon by the noble Earl, though I do not go altogether so far as he does. The measure remains, as I think the previous measure did, open to objection.

THE LORD CHANCELLOR (VISCOUNT CAVE)

My Lords, I think it is rather inconvenient that, after we have had a full discussion on the Motion for the Second Reading, we should be subjected to a second Second Reading discussion on the Motion to go into Committee. I have long felt that I cannot satisfy the noble Earl, Lord Midleton, about this Bill, but I should like to answer quite shortly the three points which he made. In the first place I think he suggests that the legitimation ought to depend, not upon the marriage of the parents but on registration. That I have often said is a very substantial and important proposal. We have debated it in this House more than once and I have always submitted that that is not right—that when the parents of the illegitimate child marry legitimation ought to follow from the marriage and that it is not fair to the child to leave it to the caprice of the parents whether they shall or shall not legitimise it by registering its birth and parentage. If the noble Earl intended to raise that point he could easily have raised it again by putting down an Amendment in Committee, but he has not thought fit to do so, and I am sure that if he laid a case before the House for such an Amendment I should not be able to persuade the House not to carry it if the reasons in favour were sufficient.

Then the noble Earl said something which I do not understand. He said that under the Bill legitimation can be established by the child without citing the persons interested. That is not the fact. If any person says he is legitimised under this measure he will have to prove it, and he will have to cite the persons who are interested in testing it. He might do it under the Legitimacy Declaration Act.

THE EARL OF MIDLETON

The noble and learned Viscount has a little misinterpreted me. What I said was that it was possible for a claimant of legitimacy to obtain it without some of those affected by it being in the least aware that he was making the claim, for the children of the marriage are not hound to have notice served upon them.

THE LORD CHANCELLOR

I agree that if a person is the illegitimate child of persons who marry he becomes legitimated at once, but the moment he attempts to found a claim upon that right then he must cite, in some form or other, all the persons interested. He may proceed under the Legitimacy Declaration Act, or take some other proceedings in which he claims property or some other right, but he cannot establish his right legally if it is disputed without citing the persons interested in such claim. The noble Earl also made a point about the county court which I do not completely follow. Many of the persons interested under this Bill if it becomes an Act will be persons of very small means. They will want to prove that they are legitimised by this measure. It may be a hardship for such people to go into the High Court and there incur heavy expenses. The Bill enables them to go to the county court, but it does not, as the noble Earl suggests, leave it to the County Court Judge to decide whether he shall dispose of the case or not, because there is a provision in the Bill under which any person interested may go to the High Court and say: "This is an important matter. Will you direct the County Court Judge to transfer it to the High Court?" The Judge of the High Court may then make an order transferring the case.

The only other point which my noble friend made was a complaint that a will under which legitimate children might possibly benefit is revoked by marriage. All wills are revoked by marriage. It is part of the law that if a man marries his will falls to the ground and he must make a new will, which, if he is a wise man, he always does. I do not see any reason for altering that rule of law because a man has an illegitimate child who will be legtimated and so become untitled to rights. I do not follow my noble friend at all in this matter. With regard to the observations of Lord Phillimore, I think one part of them was directed to the county court point with which I have already dealt. The other part of his observations I did not follow or did not catch.

LORD PHILLIMORE

My point was that there should be a direct suit for legitimacy and that a man should not be allowed to prove legitimacy in some collateral suit possibly with somebody not so deeply interested as others might be.

THE LORD CHANCELLOR

I do not quite understand on what ground my noble friend says that. A man can bring proceedings for a declaration of legitimacy under the existing Act. That is one way of doing it. The other way is this. Supposing he is a claimant to property on the ground of parentage, he can bring an action of ejectment or something of that kind, as hundreds of persons have done, and can in that action, and indeed must if he is to succeed, prove that he has become legitimated. Such a proceeding is just as solemn and as open to opposition as a petition under the Legitimacy Declaration Act, and I do not see why that method of asserting a claim should not be just as open to him. I have dealt as well as I can with the points raised on this Motion and I hope your Lordships will now agree to go into Committee.

VISCOUNT HALDANE

My Lords, I wish to make one observation. The noble and learned Viscount on the Woolsack has drawn attention to a practice which has of late years grown up in this House—namely, the practice of discussing on subsequent stages of a Bill questions which belong to the Second Reading. It is within your Lordships' power to take that course, but I think it is a course which leads to confusion and to an obscuring of the point. For instance, the noble Earl opposite, to-day, has raised a great question of principle on the Motion to go into Committee. He has raised the question whether the principle of the Bill ought to be legitimation simply by subsequent marriage, or legitimation by registration proceedings. That was a matter for discussion on the Second Reading. It is certainly not a question for discussion on this Motion. This Bill was introduced and has got as far as it has on the footing that the law ought to be assimilated to the law of all other countries, so that legitimation should follow subsequent marriage. That was the principle which was adopted on the Second Reading, and to go into this matter again on subsequent stages is to make discussion in this House very difficult. I therefore venture to hope that the example of to-day will not be repeated.

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF DONOUGHMORE in the Chair.]

Clause 1 agreed to.

Clause 2:

Declarations of legitimacy of legitimated persons.

2.—(1) A person claiming that he or his parent or any remoter ancestor became or has become a legitimated person 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 proscribed by rules of court, shall apply accordingly.

(2) A petition tinder 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 Court

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 EARL OF MIDLETON

I have handed the Lord Chairman an Amendment to leave out subsection (2), which relates to petitions in the county court. I gather, however, from what the noble and learned Viscount has said, that he has no intention of reconsidering the wording of that subsection. Therefore I think it is useless to move the Amendment. But I would point out that to leave it in the hands of the County Court Judge to decide up to any figure what jurisdiction he will exercise is a provision which I should have thought is very unusual in the law and very undesirable. Perhaps the Lord Chancellor will tell me whether, in fact, in any other case such a thing is done.

THE LORD CHANCELLOR

I have already said that that is not done by this Bill. The Bill provides in terms that the county court shall, if so ordered by the High Court, transfer the matter to the High Court. It does not at all lie within the jurisdiction of the county court to decide whether the matter should be dealt with in that court or not.

LORD DANESFORT

Supposing the county court should refuse to transfer the jurisdiction to the High Court, what is the procedure then to be taken by the person who desires to transfer? Can he make an application to the High Court to transfer, or is there an appeal to the High Court?

THE LORD CHANCELLOR

The person who wants the case transferred to the High Court will, of course, apply to a Judge of the High Court to make an order for the transfer. If the Judge makes the order then the Bill provides that the proceedings shall be continued in the High Court. The effect is automatic; the ease goes to the High Court, and the County Court Judge can no longer deal with it.

Clause 2 agreed to.

Clause 3 agreed to.

THE LORD CHANCELLOR moved, after Clause 3, to insert the following new clause:—

Succession on intestacy of legitimated persons and their issue.

".Where a legitimated person or a child or remoter issue of a legitimated person dies intestate in respect of all or any of his real or personal property, the same persons shall be entitled to take the same interests therein as they would have been entitled to take if the legitimated person had been born legitimate."

The noble and learned Viscount said: All my Amendments on the Paper are directed to one point. This Bill, like previous Bills, provides that when a child has been legitimated it shall have a right to succeed on intestacy to the property of its parents, together with other children. But it does not provide—and, indeed, none of these Bills have provided—that if the legitimated child dies intestate its property shall go to its parents as established by the marriage. I think it ought to work both ways. It is very unfair to give a right of succession one way and not the other. The moment that defect was pointed out to me I directed that Amendments should be drawn to supply the omission, and these Amendments are intended to have that effect.

Amendment moved— Clause 3, page 3, line 18, at end insert the said new clause.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 4:

Rights of spouse and issue of illegitimate child dying before marriage of parents.

4. In the event of an illegitimate person dying before the marriage of his parents, leaving any spouse, children or more remote issue living at the date of such marriage, then, if that person would, if living at the time of the marriage of his parents, have become a legitimated person, such spouse, children or more remote issue shall have the same rights under this Act of taking interests in property as they would have had if the illegitimate person had died immediately after the marriage of his parents, and that person shall, for time purpose of the transmission of such rights as aforesaid, be deemed to be a legitimated person within the meaning of this Act.

THE LORD CHANCELLOR

I beg to move to leave out Clause 4 and insert the following new clause:—

Application to illegitimate persons dying before marriage of parents.

".Where an illegitimate person dies after the commencement of this Act and before the marriage of his parents leaving any spouse, children or remoter issue living at the date of such marriage, then, if that person would, if living at the time of the marriage of Ins parents, have become a legitimated person, the provisions of this Act with respect to the taking of interests in property by, or in succession to, the spouse, children and remoter issue of a legitimated person (including those relating to the rate of death duties) shall apply as if such person as aforesaid had been a legitimated person and the date of the marriage of his parents had been the date of legitimation."

Amendment moved— Clause 4, page 3, leave out Clause 4 and insert the said new clause.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 5 agreed to.

Clause 6:

Death Duties.

6. Where a legitimated person and his spouse and issue or any of them take any interest in real or personal property, any succession legacy or other duty which becomes leviable after the date of legitimation shall be payable at the same rate as if the legitimated person had been born legitimate.

THE LORD CHANCELLOR

I beg to move the next Amendment.

Amendment moved— Clause 6, page 3, lines 41 and 42, leave out ("and his spouse and issue or any of them take") and insert ("or any relative of a legitimated person takes.")—(The Lord Chancellor.)

On Question, Amendent agreed to.

Clause 6, as amended, agreed to.

Clause 7:

Provisions as to persons legitimated by extraneous law.

(2) All the provisions of this Act relating to legitimated persons and the rights of a legitimated person, his spouse, children or more remote issue to take and transmit interests in property shall apply in the case of a person recognised as having been legitimated under this section, or who would, had he survived the marriage of his parents, been so recognised; and, accordingly, this Act shall have effect as if references therein to a legitimated person included a person so recognised as having been legitimated.

THE LORD CHANCELLOR moved, in subsection (2), to omit the words "the rights of a legitimated person, his spouse, children or more remote issue to take and transmit interests in property," and to insert "to the taking of interests in property by or in succession to a legitimated person and the spouse, children and remoter issue of a legitimated person (including those relating to the rate of death duties)."

Amendment moved— Clause 7, page 4, line 19, leave out from ("and") to ("shall") in line 21 and insert the said words.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

Remaining clauses agreed to.

Schedule: