§ 3.51 p.m.
§ Report stage resumed.
§ LORD MESTON had given Notice of two Amendments to the Amendment, the first being to omit the opening word "For", and the second to omit in subsection (1) all words after "birth" and to substitute "is hereby repealed." The noble Lord said: My Lords, I beg to move the first Amendment to the Amendment which stands in my name. Let me say in a few words that these Amendments to the Amendment would restore the effect of the original Clause 1 of this Bill. A number of people, including myself, were very disappointed by your Lordships' action in striking out the 316 original Clause 1. Both that clause and these Amendments, which are in effect the same thing, are actuated solely by human kindness. Allow me to say that they strike across many legal principles. I speak under correction, but I understand that among other matters Parliament exists for the purpose of striking out old legal principles and introducing new conceptions.
§ I do not propose to say more than a few words, for two reasons. One is that this matter has already been discussed; and secondly, there are other Members of your Lordships' House who may now want to talk about it again. I only hope myself that it will be a fruitful discussion. As a matter of procedure, the Amendment to the Amendment which I am going to move will open up the whole question, and therefore this can, as a matter of Parliamentary procedure, be discussed in full. If it so turns out that the majority of your Lordships, or at all events a large number of your Lordships, wish me to put this Amendment, I will do so. On the other hand, if it appears that your Lordships do not wish me to put this Amendment but wish to rely on the Amendment which has been moved by the noble and learned Lord, Lord Denning, I will do whatever you wish in the matter. Without any further phraseology, I beg to move the Amendment standing in my name.
Amendment to Amendment moved—
Line 1 of the proposed new clause, leave out ("For").—(Lord Meston)
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, when I spoke on the Second Reading debate on this Bill I examined as carefully as I could the case for and against the original Clause 1. I found myself inclined to support it. It comforted me that on the Committee stage the noble and learned Viscount the Lord Chancellor, speaking in his personal capacity, found himself able to quote from my speech with approval. Unfortunately, I was not able to be present at the Committee stage, but as I read the debate in Hansard I became more and more unhappy at the direction of the debate and more and more convinced that the old Clause 1 was sound. Now we are debating a new and rather narrower version of that Clause 1, unless it is restored to the full version of Clause 1 by the Amendments to the Amendment.
317 Let me say at once I support the Amendment moved by the noble and learned Lord, Lord Denning, as a wise way out of all the confusion that has arisen, although I should not mind if the Amendment to the Amendment was carried also. But the discussion has become more and more complicated as time has gone on; the questions of principle and practice more and more intricate and speculative; and in the end, to add to the general confusion, the dreadful nightmare has presented itself of Parliamentary procedure and the relations between the two Houses. If I became unhappy at the ever more complicated range of the debate I become yet more and more unhappy as to what I should say. To cover the whole debatable field, which I should be quite ready to do, would be intolerable, and I suspect a complete waste of time, because so many of the questions raised are by their very nature not capable of a conclusive answer. They concern the nature of marriage, the conditions that should govern marriage and the part to be played by the law in upholding good standards of marriage for the general social welfare. On all these questions there are infinite differences of opinion.
On the status of marriage Churchmen here and Roman Catholics would agree, but others of your Lordships would not. On the conditions that should govern marriage there would be wide disagreement among your Lordships, and, if I may say so, very bitter disagreement between most of us, and certainly the Church of England, and the conditions made by the Church of Rome, at least so far as those conditions are imposed upon non-members of that community.
May I ask the most reverend Primate why it is necessary to import bitterness into discussions and differences of this kind?
THE LORD ARCHBISHOP OF CANTERBURY
I was not, I hope, importing bitterness. I was saying only that if we went into all this bitterness would arise, and I am sure the noble Lord will not deny that is so. As to the part to be played by law there can be no finality. The power of the law is limited. The capacity of a man to abuse any law is unlimited, and the best way to use a law is often very difficult to find.
318 May I give one instance just to show how complicated these matters do become? The Common Law has always been that a child conceived in fornication is legitimated by the marriage of the partners. But that law conceals the fact, or tries to conceal the fact, that the child was conceived out of wedlock. It is thus a falsification, to some extent, of the real facts. Once it would have been said that it is entirely good, since it relieves the child of the stigma of illegitimacy and makes the parents honest parents once more. But, my Lords, any parish priest, any moral welfare worker, knows that to hurry on a marriage designed to conceal a previous fornication may be the very worst thing to do—it is bad for the parents, bad for the child, and bad for the institution of marriage.
The child may have been conceived in a momentary union between two utterly incompatible persons influenced by all kinds of impermanent reasons: ignorance, over-persuasion, weakness, or a momentary passion regretted as soon as it is over. It may in fact, as I have said, be the worst thing and the cruellest thing possible to make these two persons, oil and vinegar, contract a lifelong union which marriage, your Lordships will remember, always is in the eyes of the Church and of the State. Worst, as I say, for the parents to be, by an accident, compelled into a lifelong union; worst for the child to live with two incompatible parents for all its life, and worst for the institution and the stability of marriage, because it so often leads to the breakdown of a marriage. I use this illustration to show two things: first, that every law concerning the institution of marriage, however well-conceived, is always double-edged and may, in the end, injure the particular institution which it is designed to protect; and secondly, that every marriage case is a pastoral case long before it is a legal case—first and last, it is how to deal, by the grace of God, best for all persons entangled in a miserable situation.
So I forgo the temptation to pursue all these possible ramifications, upon some of which the noble and learned Lord, Lord Denning, threw a beam of light in the course of his speech. I come back to what I conceive to be the one clear issue of this Amendment. It is always our duty, I should say, to keep the law as closely in touch as possible 319 with reality, with truth, with things as they are. The noble and learned Viscount, speaking as a lawyer, has assured us that in the view of the Government the old Clause 1—and presumably also this amended Clause 1—is legally workable: it will "work satisfactorily as a piece of legal machinery." I am therefore free to consider the matter from the point of view only of what is the course nearest to reality and to truth, since that would be a situation best able to be dealt with by pastoral means without having to cut a way through legal complications.
Perhaps I may venture to summarise the whole situation. Two persons, by an act of fornication, become the parents of a child. The child is conceived out of wedlock. But the fact can be easily concealed, though not cancelled, by a timely marriage—a hurried marriage. At the same time such a marriage may be pastorally disastrous. Secondly, two people, by an act of adultery, cause a child to be conceived, but if a well-timed divorce is managed, they can get married before the child is born (the noble and learned Lord, Lord Denning, illustrated this), so that the child conceived out of wedlock is born in wedlock and, therefore, legitimate. Two persons, by adultery, become the parents of a child conceived and born out of wedlock. Nothing can ever alter that fact; the child is for ever born out of wedlock.
There are, however, legal methods of meeting that situation. One—the Amendment recognises it—is that, in spite of the adultery, the parents, or rather the one parent and the other partner to the marriage, agree that the adultery shall be concealed; the married couple take the child born of adultery into their own family, into the family life, as one of their own children. Pastorally that is a legal fiction, but pastorally it is the one nearest available for the true good of all concerned, because it gives to the illegitimate child the active care of one parent and a secure home, things of which an illegitimate child should not be deprived.
Now we come to the problem of this Bill. A and B, by adultery, cause a child to be conceived and born out of wedlock. In due course—or rather, if you like, in undue course—by whatever ill or unhappy means, A and B become 320 legally married. What is to happen to the child? That is the question. It can be left with no status at all in the world, belonging to nobody. But surely none of us would like that. What then is to be its relation towards its newly married parents and to the world in general? The parents can adopt their own child. That is the course recommended by some, for perfectly good reasons; or, if this Bill passes, they can secure for the child a legitimated status: not a legitimate status, because that can never be acquired or given by any law, but a legitimated status conferred by legal machinery, just as adoption is conferred by legal machinery.
There are a good many possible ramifications in this question. If A.I.D. ever became a legally recognised operation in this country—which God forbid!—exactly the same question would arise. The child would be, beyond all doubt, born out of wedlock, and not merely by the passion of two people but by the connivance of a doctor and a donor. If the law were to approve such an operation, that fact should not be concealed from society at large—somebody ought to have a record of it on behalf of society. It would not be suitable to let that child be absorbed into the life of the family simply by the consent of the husband and nobody else. If the deed is done under the law, the fact of it must be dealt with under the law. In those circumstances, shall this A.I.D. child, by a deceit fiction and falsification, be registered as the child of the husband who is not its father? Or, since it is the child of an unknown donor, and is therefore out of wedlock, shall it be legitimated or shall it be adopted? That is precisely the problem that we are faced with here.
I return to our own problem. Shall this illegitimate child—or rather, to be accurate, this innocent child—deprived so far of any status in the world by the act of natural parents, now that its natural parents have become married legally, be adopted or legitimated? One or other must be done to give it a status at all in the world. May I say here that I do not believe for one moment that people contemplating adultery will seriously debate first between themselves whether adoption or legitimation is the better course for the child possibly to be conceived. All they are thinking of at 321 that moment, if they are thinking at all, is whether or not to violate the laws of marriage in the eyes of God and of society for their own satisfaction. I am not in the least deterred by the argument that this will weaken the institution of marriage.
So, my Lords, I return—I have almost finished—to my pastoral problem; namely, which is better: that this adulterous child, if you like to call it so, whose parents are now legally married, shall be adopted or legitimated? I have to decide that problem by the best rule that I know: never legislate for concealment if you can avoid it, but always to secure the maximum truth and that the truth shall be known. I cannot conceive any other basis for sound legislation. In the case we are considering adoption is a legal fiction. It says, "We take this child for our own, as though it were not previously our child," when in fact it is. That is, to my mind, a legal fiction, and it seems to be a procedure of concealment designed not merely to suggest a false idea but actually to deny the truth, to deny the reality that these two, the mother and father, have given birth to this child.
Legitimation, whatever possible evils may lie behind it, is honest and open for all whose business it is—and I underline this—to know their neighbour's business. It is not everybody's business to know that, but some must. Legitimation does not conceal the fact that the child is born out of wedlock. It reveals it, since otherwise legitimation would not be necessary. It meets a bad situation and tries to remedy it honestly, in the way nearest to reality, and therefore it is best for those, pastorally concerned. "This is your child," we say to such a couple. "It was born out of wedlock, and that is an unalterable fact. You are now legally married, and that is an unalterable fact. What is the status of your child to be? The law of the land will best meet: your need and the child's need if by an act of legal legitimation you are allowed to take the full relationship to your own child of which you ought never to have deprived him by your own sin and the child can take his own assured place once more—for security matters everything to a child—with you as the child of his parents." If the law will enable that, it seems to me to be nearest to the realities of the situation and therefore 322 gives us who have to deal with these problems pastorally the best opportunities to do what we can to redeem these parents from their state of illegitimacy to a true relationship with one another and their child and society.
§ 4.13 p.m.
§ LORD CONESFORD
My Lords, this is the third time on which the principle of this important matter has been debated. I have studied the previous debates carefully. Though I find that in this matter I am opposed to many with whom I am normally in agreement, I find also that the more I study the matter the more I believe that the decision that we reached in Committee to leave out Clause 1 was right; and I must repeat the advice to the House to reject the restoration of either the original clause or a clause in the form of the Amendment moved by the noble and learned Lord, Lord Denning. I very much welcome the decision of the House suggested by my noble and learned friend the Lord Chancellor that the whole matter should be open and we should debate it in one debate.
May I remind the House at the outset of what seems to me a very important matter which recent Press controversy has tended to obscure? It is said in many of the arguments that we see reported that, whoever may be to blame for illegitimacy, it is certainly not the innocent child, and it is implied that that is an argument for the disputed clause. My Lords, it is not. If the innocence of the child were a ground for saying that it was legitimate, that would, I agree, be a cogent argument for abolishing illegitimacy altogether. It is not an argument for the clause either in its original form or in the amended form suggested by the noble and learned Lord, Lord Denning. The clause does not abolish or attempt to abolish illegitimacy. Under the clause there will still be two classes of children, legitimate and illegitimate, and the illegitimate child will be quite as innocent as the legitimate and quite as much in need of love and kindness. My Lords, I hope it is not necessary to assure the House that I find unkindness to an illegitimate child at least as revolting as does any noble Lord who takes an opposite view on the merits of this clause.
323 The problem before us is not whether some children shall be legitimate and others illegitimate. That will remain the case whether we pass the clause or not. The question this House has to consider is simply this: Is the criterion between the two classes of children rightly drawn under the existing law or will the disputed clause in either of its forms provide a better ground of discrimination?
The position under the existing law is well known. A child can be legitimated by the subsequent marriage of its parents, if at the time of its birth neither parent was married to a third person. If the parents were free to marry, the child can be legitimated. If they were not free to marry, the child cannot be legitimated. This principle of legitimation per subsequens matrimonium has a very long history. It has been the law of Scotland for centuries and it has been the law of England since 1926. I will not trouble the House with the one distinction between the laws of the two countries to which I drew attention on a previous occasion; but what I say, that they are now in substantial agreement, is correct.
I notice, by the way, one suggestion in a recent leading article that this House should not insist on the deletion of this clause unless ecclesiastical and legal opinion was virtually unanimous in favour of such deletion. I wonder whether that is putting the onus in the right way. Surely, if we are to make a quite fundamental distinction in the law of legitimacy between England and Scotland, there would be something to be said for having a preponderance of legal and ecclesiastical view in favour of the change before we made it. My Lords, if, as the most reverend Primate said in his earlier speech on Second Reading, legitimation is a legal fiction, at least under the present law it is a merciful legal fiction; beneficial to the child, and harmful to no one.
What is the effect of the new criterion that is now suggested? Under it, a child can be legitimated even if at the time of its birth the parents were not free to marry. The child of an adulterous union can be legitimated the moment that the parents who have outraged one marriage go through the form of entering another. My Lords, I find the words of my noble and learned friend Lord 324 Morton of Henryton, Chairman of the recent Royal Commission, and of the eleven members of the Royal Commission who agreed with him, convincing and conclusive against the proposal. I have quoted them in previous debates, and I shall not quote them now, because I see my noble and learned friend in his place, and I am delighted to know that he will intervene. I hope that, in the course of his speech, he once again will give the reasoned words of the conclusions of himself and his colleagues, because there may be noble Lords in various quarters of the House who were not present during previous debates.
As I have mentioned before—and my noble and learned friend Lord Denning has rightly mentioned it this afternoon—I have doubts about one argument used by the majority of the Royal Commission. I have never myself used, and do not propose to use, the argument of deterrence. But because I am not convinced that a man is deterred from adultery by the thought of the possibility of an illegitimate birth, it does not follow that the introduction of a principle in our law which will be shocking to many may not do actual harm. The law of this country is not merely a reflection of public opinion; in some ways it influences the creation of opinion. I know that it is said: why not cover this case, too, by a legal fiction? I thought that the reason was stated shortly and clearly by the right reverend Prelate the Lord Bishop of Exeter on July 2 at the beginning of his speech. Legal fictions have, I think, legitimate uses; but they bring the law into disrepute if they deem a state of affairs to exist which the same law declares cannot possibly exist.
May I remind the House once more of some words used by the right reverend Prelate on that occasion? He said [OFFICIAL REPORT, Vol. 217, col. 689]:I should like to support this Amendment and to oppose Clause 1, for the reason that it seems to me quite clear that this clause undermines the principle upon which English marriage law is based—that is to say, the principle of monogamy—and, indeed, is totally inconsistent with it. For by this clause the law will be made to say that it is possible for a man legally to beget children of two women during the same time. That seems to me to be completely inconsistent with monogamy. The clause will make the law say that the law can pretend by means of a legal fiction that a man married at one time to a 325 particular lady was nevertheless, for the purpose of the legitimation of a child, at the same time to be deemed to be married to another lady. That seems to me to be totally inconsistent with the principle of monogamy.My Lords, although this is in some respects a difficult matter and there are many points which can be argued only by lawyers, fundamentally I believe the issue to be quite simple, and one on which every noble Lord can make up his mind without difficulty. By the term "legitimate", people understand, and are intended to understand, a reference to the circumstances of the birth of the child. How can you, by law, deem a child to be the child of a lawful marriage if the same law says that even an attempt to enter such a marriage would have constituted a felony under the law against bigamy? It really is, in my submission, a logical and a moral impossibility.
By mentioning the right reverend Prelate the Lord Bishop of Exeter, I am reminded of one point that was made in the speech of my noble and learned friend Lord Denning. It made me think that my noble and learned friend Lord Denning had overlooked a rather important fact. The right reverend Prelate was taken to task for his example of Smith Major and Smith Minor, the sons of the baronet; and my noble and learned friend Lord Denning said that this was the result, not of the disputed clause, but of the law relating to title. The fact that he overlooked was that that particular law relating to title is contained in the 1926 Statute which the present Bill proposes to amend. The point made, and quite rightly made, by the right reverend Prelate was: if the promoters of the Bill were going to alter Section 1 of that Statute, why had they not gone on to deal with this question of title dealt with in a later section? To that, my noble and learned friend Lord Denning gave no sort of answer.
But let me return to a suggestion which has been made in this House on various occasions, and which I see has also been made in the Press. It has been said that this principle that legitimation should depend on whether the parents at the time were in a position to enter into lawful matrimony might once have been a good principle, but that I had overlooked, and those who agreed with me and the majority of the House in Committee had overlooked, the fact that 326 there is a law of divorce, and that people are now allowed to divorce each other. On that, I would make three comments.
The first comment is this: that it is never stated how the possibility of divorce has in any way diminished the objections to the disputed clause which I have outlined. Secondly, the fact is that in 1926, when the subsection which it is now sought to omit by this Bill was made law, the law of divorce already existed—and, in fact, had had a recent extension. But finally, and most astonishingly, if the existence of the law of divorce constituted an argument against the subsection of the 1926 Act, why was that fact revealed to the leader writers in the Press, but somehow miraculously concealed from the Chairman, Lord Morton of Henryton, and the colleagues on the Royal Commission who supported him? My Lords, I can see nothing in the fact that divorce is now permitted that implies that we ought to adopt a clause so injurious to the existence of monogamy.
Another argument that I have heard from various quarters, which I confess rather shocks me, is that there would be a lot in what we say if we had said it some time ago, but that the institution of marriage is now so tarnished that we are really out of date. I am not suggesting that that is the way it is put by any Member of your Lordships' House or of another place, but it is not difficult to find the arguments that can be justly so described. If it were true that something so damaging to the institution of monogamy was the logical extension of the Act of 1926—and I believe it to be profoundly false—then the conclusion I should reach would be that we must go back and drastically amend the Act of 1926. That would be my conclusion, if I thought that this was the logical sequel. There is nothing logical in proceeding from a principle which has been common to so great a part of Christendom for centuries to a principle so dubious as the principle of the disputed clause Which I have explained, and which is described in the sentences of the right reverend Prelate which I have read.
I have been dealing with considerations of principle. Let me now say a word about the practical arguments. I know what can be achieved by the law of adoption. My noble and learned friend Lord Morton of Henryton and the majority of 327 the Royal Commission pointed out what could be done with the law of adoption. The most reverend Primate the Lord Archbishop of Canterbury, for reasons which may be good, did not like this use of adoption, but I was rather surprised when he referred to it as a "legal fiction". Whatever else adoption is, it is not a legal fiction: it is a legal fact. I do not think that we promote clarity in argument by calling fact fiction.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, I am sorry if I misused the phrase "legal fiction." What I meant was that in this case of adoption the child is theirs and I thought it a legal fiction where they say, "I will make my own child someone who is already my own." That is all I meant.
§ LORD CONESFORD
I am grateful to the most reverend Primate. If he ever thinks I misrepresent him in anything, I will always most willingly correct it. I think that he is wrong in what he says. I think that it is now generally known that a person can adopt his own child. Therefore, I do not think that there is any deception about it at all. What is achieved by legal adoption in such a case is avoidance of some of those legal hardships which my noble and learned friend Lord Denning pointed out. I was surprised to hear him again allude to the difficulties that would be caused if the father of an illegitimate child did not take the precaution of making an adequate will. We cannot guard against every folly.
I now turn from the theoretical to the practical consequences of the proposed clause. Section 1 (2) of the Act of 1926 says simply: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.If we contrast that with the new subsection which the noble and learned Lord's Amendment proposes to substitute, we at once see the consequences in two cases which I shall give to your Lordships.
The first case I ask your Lordships to consider is the case where the father of an illegitimate child is a married man and the mother is unmarried. In other words, the example I am putting before your Lordships is the case where a child is born as the result of the intercourse of a married man and his mistress. In 328 that case—and I beg your Lordships to consider this—the wife is entitled to seek a divorce, but she is not bound to seek a divorce. I have no doubt whatever that the most reverend Primate would say, and that here I am not misrepresenting him, that he desires such a wife, in every case, to do all in her power to save the marriage. As we all know, marriages can sometimes be saved; and, as again we all know, an injured wife who does not seek a divorce may feel compelled not to seek it by the most deeply held religious principles. She may be influenced also by other quite worthy motives. I am sorry that my noble and learned friend mentioned the possibility of spite. I do not deny that there may be cases where a woman may be actuated by spite, but there are many worthy reasons which may prompt a wife to do everything in her power to save her marriage.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, would the noble Lord allow me to interrupt him? It is rather inconvenient to be appealed to every now and then and to have my opinion declared. I would rather declare my own opinion. I certainly would do everything in my power to save such a marriage, but at the same time the wife has her legal rights. I have known cases in which the husband, without any sign of justice or charity at all, refuses to allow his wife to have her legal rights. I am now talking legally and not pastor-ally. I should find it difficult to say whether the husband has a right to insist always that his wife shall not have, or shall not avail herself of, her legal rights. As a matter of law, I think that that is very important.
§ LORD CONESFORD.
My Lords, I am sorry if the most reverend Primate thought that I was asserting the rights of the husband. Of course, I am not. What I was saying was that such a wife is entitled to seek a divorce but is not bound to seek it. She can have worthy religious, moral and other good arguments against it. She may be compelled, as she thinks, by the tenets of her religion not to seek a divorce. Secondly, she may think it best for the children of the marriage that she should try to save the marriage. Lastly, it is not impossible that she may still have love for her erring husband. And marriages are sometimes saved.
§ LORD CONESFORD
Well, my Lords, that is a great relief. I was under the impression that I had not in any way misrepresented the most reverend Primate, and I certainly said nothing in anyway derogatory of his view. What I ask your Lordships to consider is this. Do we really desire to diminish still further the chances of the woman in resisting the pressure brought to bear on her to seek a divorce? Is she to be labelled cruel because she tries to save her marriage and thereby, it will be said, condemns the child to illegitimacy?
The other case I would put before your Lordships is the case where the mother of the illegitimate child is herself a married woman. In earlier debates, I gave the example of the terrible case that could arise where a child born as the lawful child of the existing marriage of the mother was first bastardised and then, under the original Clause 1 of the Bill, which the noble and learned Lord, Lord Meston, seeks to restore, legitimated as the child of a different father. I quoted eminent legal authorities who mentioned this possible case in the Parliament of 1924. I mentioned the distinguished Lord Chancellors who had agreed. What I said was supported by the only ex-Lord Chancellor now sitting in your Lordships' House, my noble and learned friend Lord Simonds, who, I am, afraid, has not been able to come to this debate—I beg my noble friend's pardon: he is here.
§ LOUD CONESFORD
I am sorry that I made that mistake. My noble and learned friend the Lord Chancellor did not say that the case I put up was wholly imaginary or impossible. I think he thought that the particular case I put was unlikely, but his reply was that he thought that the courts would be able to sort the matter out. I said when I moved the deletion of the clause on the Committee stage that I had never questioned the ability of the courts. What worried me was whether this could possibly be said to be in the interests of the child.
My Lords, I do not know what the noble Lord meant when he referred to me and Clause 1. Clause 1 does not legitimate the child as the child of another father, but legitimates the child as the child of the putative de facto father if he comes to marry the de facto wife.
§ LORD CONESFORD
I do not intend to repeat the argument, but the noble Lord will find it all in the previous debates. The child in the case I am imagining will be born as the child of the existing marriage of the mother. There are a number of methods as a result of which that child possibly can be bastardised. Clause 1 of the present measure will thereupon enable it to be legitimated as the child of a different father. I pointed out that that bastardisaion was most unlikely to be achieved unless the mother gave evidence to produce that result, and that that was unlikely unless the bait were held out by Clause 1 of the present measure.
With that example that I gave the Amendment of the noble and learned Lord, Lord Denning, purports to deal. As it has been drafted by so eminent a lawyer, it is with hesitation that I criticise or question it. Nevertheless, I am bound to say that I do not find it at all clear or certain in its effect. The House will, I know, wish to have the benefit of the advice of my noble and learned friend the Lord Chancellor about Lord Denning's Amendment, but perhaps I may express some of my own doubts. I do not know exactly what is meant by the word "accepted" in the Amendment. What words or conduct of the husband constitute acceptance? Does it mean acceptance by the husband when he knew of his wife's adultery, or when he did not know? That seems to me to be a rather important question. Does it mean accepted by the husband at any point of time, or must the acceptance continue up to the time when the legitimation would otherwise take place? On all these and other points that arise I hope that my noble and learned friend the Lord Chancellor will give us his advice. I can only say that, until I am advised by the Lord Chancellor, I cannot believe that the clause is satisfactory even in dealing with the limited class of case for which it is designed. It cannot diminish the opposition to the whole 331 principle of the clause which is felt by those of us who agree with the Chairman, Lord Morton of Henryton, and his eleven colleagues on the Royal Commission.
I should like to say a word, in conclusion, on our right, and indeed, our duty, to give our own honest decision on the merits of the clause. I have never doubted that, in the event of a direct and sustained difference of view between the two Houses, the view of the House of Commons should prevail. But that, my Lords, is no reason whatever why this House should not give its honest views on the merits of a clause the first time that it comes before it. It is the right and duty of this House, which it owes to itself and to Parliament, and owes not least to the House of Commons, to reach an honest conclusion on the merits and to vote according to its convictions. Nor will noble Lords accept the astonishing proposition that, while it is right for this House to express its views at other times, it should never be honest in July, because it is said that is too near the end of the Session. We do not control the date when a measure comes before us, and the date cannot affect our duty to deal with it on its merits. I ask the House to reject the disputed clause.
§ 4.46 p.m.
§ LORD MORTON OF HENRYTON
My Lords, I shall be quite brief, but I was unable to be here when this matter was first debated and, as the noble Lord, Lord Conesford, has said, I was the Chairman of the Royal Commission on Marriage and Divorce which reported in the year 1955. That Commission had to consider a proposal which is in effect the same as the original Clause 1 of this Bill: that all children born out of wedlock should be legitimated by the subsequent marriage of their parents. The Commission had a very full discussion of the matter; they had memoranda put in and evidence given, and in the end twelve of the members, including myself, thought that the proposal ought not to be accepted, and seven including my noble and learned friend Lord Keith of Avonholm, thought that it should be accepted.
The reasons of the majority for rejecting the proposal apply equally to the Amendment proposed by my noble 332 and learned friend Lord Denning and to the suggested Amendment of that Amendment, and, with your Lordships' leave, I propose to read three sentences from the Report which really sum up the opinion of the majority. There are three paragraphs of the Report containing their reasons, but I shall select three sentences only so that, for what they are worth, they may be in your Lordships' minds, when you consider this matter. We say:It is untrue to say that the principle underlying the present law is that of penalising the child or its parents. So long as marriage is held to be the voluntary union for life of one man with one woman, that conception is wholly incompatible with the provision that one or other of the parties can, during the subsistence of the marriage, beget by some other person children who may later be legitimated.We say, perhaps too boldly:It is unthinkable that the State should lend its sanction to such a step, for it could not fail to result in a blurring of moral values in the public mind.Then we say:The issue is fundamental, but perfectly plain. If children born in adultery may subsequently acquire the status of legitimate children, an essential distinction between lawful marriages and illicit unions disappears.I confess that it still seems to me wrong that a man should be able to beget, it may be even in one and the same week or month, a child by his wife and a child by another woman which may subsequently be legitimated.
I will add only one comment on the speech of my noble and learned friend Lord Denning. He drew a pathetic picture of four children of people who are now husband and wife: the eldest son was born at a time when they were not free to marry, but the other three were born after the marriage. In such a case, said my noble and learned friend, the eldest child is cut out from his father's inheritance, which is divided among the other three. I would desire in conclusion to point out that that result can be simply avoided by the father making a will in which he puts the eldest child in as good a position or, if he likes, in a better position than the younger ones.
§ 4.50 p.m.
§ LORD KEITH OF AVONHOLM
My Lords, I have not heard all that has been said in the course of this debate, but I have heard what has been said in 333 all the previous discussions that have taken place recently in this House on this matter. As my name is on the Marshalled List supporting this Amendment, may I be allowed again to speak and say a few short words? No doubt this Amendment is a compromise, and as such is open to some criticism, but it does meet and is intended to meet what I have always thought was a very unreal situation, a case which has, I gather, disturbed some of your Lordships. That is the case of a child born in wedlock and accepted by the husband of that marriage as legitimate. The clause will provide that in that situation the child should not lose his status as a legitimate child of that marriage. Now that, at any rate, secures one thing—it secures the legitimacy of the child, and the whole purpose of this Bill is, so far as possible, to make children legitimate. It cannot be done in all cases, but it certainly can be done in a very large number of cases if this Bill is passed into law. The Amendment may be criticised as illogical or biologically untrue, but it is, I suggest, a workable solution of a situation which has been criticised.
Something has been said about the form of the Amendment. What exactly does it mean? The Amendment follows entirely the words of the Legitimacy Act, 1926, down to the words:and who has been accepted by such third person as his child.That is the addition to the Legitimacy Act, 1926. I should not have thought that there was a great deal of difficulty in deciding, if it were necessary so to decide, when a child has been accepted by that third person—that is to say, by the husband of the marriage into which the child has been born. I think the clause has the advantage of not being too defined and limited. It might create difficulties if one were to try to introduce greater specification, but I cannot see what difficulty there would be in the courts, if the matter came before them—and I imagine that is the situation which would arise if this became a matter of controversy—deciding as a matter of fact whether a child that had been so born into such a marriage had been accepted by the husband of that marriage. That is the whole purpose of this Amendment. As I say, I think the situation is a very unreal one, and one that is unlikely to arise. But as the situation 334 is one which was a matter of comment in the previous debates in this House, my noble and learned friend, Lord Denning, the noble Lord, Lord Chorley, and I have thought it proper to put our names to this Amendment.
What about the child who has not been accepted as legitimate? These, I think, will prove to be far the greater number of cases. This clause, if passed, will legitimate him if his parents marry, Legitimation by subsequent marriage, as has been remarked several times, is a fiction. The fiction is that the marriage dates back to the time of the child's birth. Of course, that is not true; there was no marriage at the time of the child's birth. But that is a fiction which is used to support this doctrine of legitimation per subsequens matrimonium. If one wanted fictions, or wanted to use fictions—I am not recommending them—one could say that in the case here we should have the fiction that the parents of the child were not married at the date the child was born. Of course, that again would not be true. In effect, that is what this Amendment would come to.
But I do not rely on fictions. I do not want to repeat what I said on a former occasion, but I would give just one illustration. I gather that an illustration of this kind has already been given by my noble and learned friend, Lord Denning. This is much the same, but slightly different. It is actually taken from an illustration which was given in the Report of the Royal Commission on Marriage and Divorce. Take three children of the same parents—a couple who have married and have got three children. The first was born when the mother was married to another man. The second was born after the mother was free to marry, the previous marriage having been dissolved and when she was still unmarried to the father of the child. The third was born after she has married the father. As the law stands at the present moment, of course the third child is legitimate—it is a child of the marriage. The second child is legitimate because there has been a subsequent marriage of its parents. The first child is not legitimate; and the whole purpose of this Bill is to make that child legitimate.
I put the question: Is that a situation that should be allowed to continue? I am heartily in support of the clause that 335 has been put forward. For that matter, I am not against the clause that has been put forward by my noble and learned friend, Lord Meston, but for the moment I am supporting the clause put forward by my noble and learned friend, Lord Denning.
§ 4.58 p.m.
§ THE MARQUESS OF SALISBURY
My Lords, the ground has already been so effectively covered by previous speakers who have taken part in this debate that I propose to speak only very shortly, but having had some experience of these matters, I feel I really must say something in support of what has already been said by the noble Lord, Lord Conesford, about the constitutional issues which, quite unnecessarily I feel, and as I am sure many other noble Lords feel, have been imported into the public discussions on this Bill. It has been implied that the House of Commons having passed this Bill in a certain form, it is constitutionally wrong for your Lordships' House to subject it to any serious amendment. I really do not know from whence that doctrine has been derived. It may, of course, very well be argued that it would be politically unwise in certain circumstances for your Lordships' House to reject or seriously amend a Bill which had been sent up to them from another place. That is a situation which has had constantly to be faced by those of us who were Members of this House during the period of Labour government from 1945 to 1951. But as to the constitutional propriety of doing what we think right in a matter of this kind I should have thought there was no doubt whatever.
And particularly is this so in the case of a Bill such as the one at present before the House. This, I would remind your Lordships, is not a Government Bill; it is not even a Bill sponsored by the official Opposition. It is a Private Member's Bill, and it is a Bill, too, upon which the Government has specifically asked that the House should express its view: and I am quite certain by that that the Government must have meant its collective view. For a number of declarations of opinion, possibly widely differing from each other and representing only the judgment of each individual 336 Peer who took part in the debate, would be of no use to the Government whatever. What they want is the collective view of the House, and in such circumstances, on a subject on which many noble Lords feel extremely strongly, is it really suggested that the House should be debarred from coming to its own view on one particular clause of a Bill, merely because it is thought that this may happen to differ from that of Members of another place?
It is not only in my view our constitutional right but our constitutional duty to examine this Bill, like every other Bill, to improve it where we can, to strike out objectionable features if we think them objectionable and to send it back to another place for further consideration; and that, and only that, is what we are doing. I hope, therefore, that your Lordships will not—I am quite certain you will not—allow yourselves to be intimidated by the Press or anyone else into abdicating your constitutional functions and duties in this matter. That would be accepting in effect the principle of single-Chamber Government, and we have not got there yet.
Having said that, I should now like to come, very briefly, to the Amendments which have been moved by the noble and learned Lord, Lord Denning, and the noble Lord, Lord Meston. I entirely realise—as I think do all of us who take the view that I do—that the noble Lord and those who have been associated with him have done their best to meet the objections some of us felt about the original Clause 1 of the Bill. For that I think we should all be extremely grateful to them. But in spite of the moving plea which the noble Lord, Lord Denning, made to the House this afternoon, I am afraid that the new Clause does not seem to me to be materially different from the old one. The only concession, as I understand it, that it seems to make is this: that in a case where Mrs. X, who is married to Mr. X, has a child by Mr. Y, and Mr. X accepts the child as his own, it will not be possible at a later date, when Mr. X has died or has been divorced and Mrs. X is married to Mr. Y, for what I believe is now called the biological parents—that is Mrs. X and Mr. Y, who are now married—to bastardise the 337 child as the child of X and legitimate it as the child of Y. That is the new factor that has been introduced
But that is surely very unlikely to happen. For the child will never, from its birth, have had the stigma of illegitimacy, which is the main fons et origo of this Bill. X will always have recognised it as his own. Why should anybody, Mrs. X or Y or anyone else, try to alter that happy situation? Yet, as I understand it, that is the only difference between the new and the old clause. Unless X decides to recognise this child as his own, the court may still be required solemnly to declare something which everybody knows not to be true. In plain words, it may be asked to lend its authority to the statement that at the time of the birth of the child the natural parents were joined in lawful wedlock, in spite of the knowledge of everybody concerned that, at that particular date, they were not only not wedded to each other but one at least, and possibly both, was married to somebody else, and the child was, as everybody knew, the fruit of their adultery. The most reverend Primate in his speech this afternoon used the following words—I took them down: "There is one clear issue before us, to keep the law as closely in touch as possible with the truth". But, my Lords, in my view that is exactly what this clause does not do. It asks the court to declare that these people were married when they were not married.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, I am grateful to the noble Marquess for giving way. He has put his finger on a point that has been worrying me the whole time, as though the law of monogamy was involved. X is married to his own wife and X has a child by somebody else. The child is born out of wedlock. There is no supposition that X is married to two people at once; he certainly is not. He is married to one but fathers a child by another. That seems to me to be a question of biological fact. The subsequent question is whether in the end the two actual parents marry and legitimacy is possible.
§ THE MARQUESS OF SALISBURY
With all deference to the most reverend Primate, that is not what the court is 338 asked to declare. The court is asked to declare that the child was born in lawful wedlock between Mrs. X and Y. Otherwise, by the laws of legitimacy as understood in this country, it could not be a legitimate child. It is that which personally I find so shocking.
The noble and learned Lord, Lord Denning, seemed to think—at least so I understood—that there was no material difference between the situation which I have just described and the situation which was dealt with by the Act of 1926, under which both the parents were unmarried at the time of the birth of the child and they merely, as it were, anticipated the ceremony. But to me at any rate, there is all the difference in the world between the two cases. In one case both were free to marry each other; in the other one or both was solemnly linked at the time in wedlock to another man or another woman. How is it possible for the court to ignore that fact? If I may say so with all deference—and this is a great impertinence—some lawyers always seem to think that by adding the adjective "legal" to the word "fiction" it makes it much more respectable, just as in politics when a Government wants to do something which is manifestly unjust to some section of the community it thinks it makes it sound better by calling it "social" justice. In both cases, the addition of the adjective is intended to produce a different and more agreeable atmosphere. But to the ordinary man, such as most of us in this House are, a fiction remains a fiction, whatever adjective is attached to it; a lie remains a lie even though it is condoned by the law.
If the proposal had been—and here I agree with the noble Lord, Lord Conesford—that legitimacy, as it has always been understood in this country, should be done away with altogether and that henceforth children should frankly be regarded under the law as the offspring of their natural parents, whether those were wedded or not, I could understand that. I do not know if it would be practicable but it would be at any rate logical. But this Bill asks the law solemnly to declare something which is contrary to the known facts, and in spite of all the noble Lord, Lord Denning, and other have said, surely that cannot be right.
339 If we accept this clause, where shall we stop? To my simple mind, it would be just as easy to go one step further and declare, by the use of a similar legal fiction, that the natural parents never committed adultery at all. One can well imagine the arguments that would be used by the promoters of such a Bill. It would be said that, after all, those parents were very young at the time—they were young and they were impulsive, with all the hot blood of youth. Was it fair, now that they were older and married and were respectable, that the stigma of that earlier fault, so long ago, should stick to them, all through life? And how hard, it would be added, on the children. Surely it would be better, and more in accordance with the spirit of the times, if, by a legal fiction, the courts were empowered to assume that the persons in question had never committed adultery at all, but had actually been joined in lawful wedlock at the time when what would be called the biological connection took place. And it would be argued with great force that the Legitimacy Act, 1959—that is, the Bill that we are at present discussing—had already practically conceded the point; and in fact that would be true.
That, at any rate in my view, is the slippery slope on which we shall be embarking if we pass Clause 1 of this Bill, even as modified by Lord Denning's Amendment. I am, therefore, afraid that I, at any rate, if the noble and learned Lord or the noble Lord, Lord Meston, decide to press their Amendments to a Division, shall feel compelled, though with great regret—because I fully appreciate how hard they have tried to meet us—to vote against them.
§ 5.12 p.m.
My Lords, I speak from this place with the customary indulgence of my colleagues and certainly only for myself. I have great sympathy with the proposers, one of them an old friend of mine in another place, another the noble Lord, Lord Chorley, with whom I have found a great affinity in so many attemps to secure social justice, if I may take on that mantle in spite of the strictures passed by the noble Marquess. I certainly share the desire of the movers to diminish any preventable suffering, especially man-inflicted suffering, and 340 above all unnecessary suffering inflicted on innocent children. At least we are all at one in agreeing on that point: that the illegitimate children are not in any way to blame for their condition.
But whereas I voted with a heavy heart perhaps, and drooping legs, with the noble Lord, Lord Conesford, on the last occasion, I shall vote to-night, if I am here (and there is a danger, if this debate continues for much longer, that I shall not be), with a very much easier mind, because it seems to me that this whole subject has been clarified since our last discussion by a letter that was written to The Times, and which I do not think has been referred to, though the issue has come out more than once this afternoon—I refer to a letter which comes from some great champions of the Bill, the Marriage Law Reform Society. I would venture to remind the House of the last sentence or so in that letter, where they say:We are puzzled by the desire of some members of the House of Lords to restrict the avenues to legitimation which can in any case be more effectively, though more expensively, achieved by the process of legal adoption.So that when we are thinking in terms of the great suffering which is being imposed at present if this clause does not go through, we should realise that already to-day, without this clause, this suffering can be more effectively disposed of by legal adoption. The letter says "more expensively." If that is the main trouble, then let us make the process cheaper and let us discuss it on that basis. It would seem that the great suffering which can be removed by this Bill can be got rid of at present.
I apologise to the most reverend Primate if my intervention was too abrupt. When it comes to bitterness, I know that he is incapable of bitterness, and I think that most sane people would be incapable of bitterness against him. The most reverend Primate brought this to a perfectly sharp issue. He said that in practice there are these two courses: either legal adoption or legitimation; and he decided in favour of legitimation. I will not dwell on his arguments at any length, but I was greatly surprised by his line of argument. He considers that adoption involves more concealment than legitimation. I should have thought that, so far as the children are concerned most of us are anxious to conceal that 341 matter as much as possible. I have in front of me half a dozen specimen copies of birth certificates, and no one could say, if he looked at the one I have in my hand, for example, which is for the re-registration of the birth of a legitimated child, whether that child was in fact legitimate or otherwise—in fact the process of legitimation effectively conceals, or goes a long way to conceal, the real origin of the child. I am not objecting to that. It is, in fact, the situation to-day. The most reverend Primate thinks that equally it attaches too much importance to what he calls the superior concealment of adoption.
THE LORD ARCHBISHOP OF CANTER-BURY
May I say that there is equal concealment with adoption, is there not?
My Lords, I do not want to weary the House with these documents, but if you look at a birth certificate you can see that the child has been adopted; but if you look at a legitimacy certificate you cannot tell that the child was legitimated. You can tell that it was a late entry, but that is all. You can tell only in a very subtle way, which is known only to the officials and would not appear to the ordinary man.
Whilst I feel enormous respect for the most reverend Primate I feel that if he rests his case for legitimation on the ground that it is a much more open process, in the first place I must say that I think it is a very difficult argument, because I do not think that one wants the full facts to be blazoned before the world, and it does not correspond to the situation at present. I feel that great progress has been made in the matter of what perhaps the most reverend Primate would call concealment. I have here the short certificate of birth which is valid for most purposes to-day. The short certificate of birth effectively conceals the question of whether a child is legitimate, illegitimate, legitimated or adopted. It is available and valid for obtaining a passport, for the Civil Service Commission, and, I believe, for most other purposes. Indeed, it is the only certificate I possess. When I told that to a noble Lord he looked at me in a distinctly funny manner which I was inclined to resent. I welcome all steps which do good, so long as we do not take the particular step—what seems to 342 me the heinous step—that is proposed to-day.
We come to this question of a fiction. I do not mind all fictions if they are simply what may be called euphemisms. We live in an age of euphemisms. We change names very easily. We decide that all our third-class carriages should be called second-class carriages, and overnight they become second-class carriages. In regard to education, all the elementary schools in the country catering for pupils over the age of eleven become secondary schools; our friends the prison warders become prison officers, and masseurs become physiotherapists. Last week we were dealing with the Mental Health Bill, and we cease to be certified, if that is our lot, and we become compulsorily detained. This is an age of progressive euphemisms, and I say that, within limits, it is no doubt a friendly process. Here, however, we are asked, it seems to me, to do something very much more fundamental. If, as the proposers would have us do in regard to adultery, we refuse to pay any attention to the question of whether a birth does or does not flow from adultery, we shall be understood to be saying that there is no fundamental distinction between lawful and adulterous union; we shall be contending for and encouraging adultery for all the world to see and for all our people to imitate. That is my fundamental objection. I am not discussing here the more limited argument from deterrence. I am not prepared to say (and the noble Lord, Lord Conesford, has always made it plain that this is his position, too) that any particular individuals contemplating adultery are restrained by the decision such as we might reach, one way or the other, this afternoon. I am talking of the fundamental issue of whether adultery is to be what is called "all right after all".
I hope I am not out of order, but many years ago I heard a story that will no doubt be familiar to many noble Lords. Someone had a dream that he was on a great staircase leading up to St. Peter at the Last Day, and there were many people in front and many people below him. Suddenly a great volume of cheering began in front and was taken up and swept down miles below him; and when he asked, in his innocence, what it amounted to, someone told him, "They have just decided that adultery 343 does not count." That, it seems to me, is the fundamental question before the House this afternoon. I am most anxious, and I think everyone here is anxious, to do what we can for the unfortunate children, and I would go in every possible direction towards removal of discrimination and towards euphemism. I should be perfectly happy to see the word "illegitimate" abolished altogether, as suggested in the Tablet, and the word "natural" substituted. But there must be one line drawn, the line between adulterous and unlawful begetting of children.
May I say this in conclusion to my noble friends?—and the majority of them may be likely to vote for the clause to-day: I have no means of knowing, but it was so last time. It may be that the opinions I hold on divorce, which are of course by no means peculiar to myself, or to one Communion, or to this House, are not those held at present by the majority of our people. But it is just as clear, I would hope, that the vast majority of our people to-day are convinced, as I am, of the sanctity of the marriage tie and view with horror any departure from Christian monogamy, and regard adultery as grave sin. If I were told, by friend or foe, that my Party, the Labour Party, was less sound in these respects than other political Parties I should regard that as a shocking libel. What comparisons will be drawn after to-day I have no means of knowing, but in case the majority of my colleagues decide to support this Amendment, I say, with all humility to them and the causes we serve in common, that it may be no disservice to those causes if, when it comes to a Division, one or more from among our number goes into a different Lobby from theirs.
§ 5.23 p.m.
§ THE LORD CHANCELLOR
My Lords, your Lordships have heard me on several occasions during the passage of this Bill, and therefore I want to be extremely brief to-day. I intervene only because my noble and learned friend Lord Conesford asked me to deal with any legal difficulties which arose on the Amendment of my noble and learned friend Lord Denning. There are two difficulties which I see and which I should like my noble and learned friend to consider.
344 The first is that my noble and learned friend's Amendment is seeking to take out of the general legitimation the case where there is a woman who has a child and that child is accepted by the hushand. I quite agree that in the case where there may have been some doubt or even deception the presumption of legitimacy carries the matter almost conclusively. But the case that has worried me is where there is no doubt about the legitimacy. We get the case where the child has been born after the husband has been overseas for a couple of years, or similar cases which my noble and learned friend can well realise. Then you are in the position that the husband accepts the child and makes up for the trouble and they go on living together. The wife goes off again and he then brings divorce proceedings, and in these divorce proceedings the illegitimacy of the former child—because the adultery is, of course, revived—may be established. On this Amendment there would be no method of establishing the legitimation of that child by subsequent marriage. Again, like the noble and learned Lord, Lord Denning, I abominate taking extreme examples in order to deal with a general point, but here he has tried—and the whole House, as my noble friend Lord Salisbury said, is indebted to him for trying—to bring the dissentients together. That is one difficulty.
The other difficulty I advance with great diffidence in face of the support of this clause by lawyers of great distinction, such as, if I may say so, my noble and learned friends Lord Denning and Lord Keith of Avonholm and Lord Birkett. But I find some difficulty as regards the word "acceptance". It does not say whether it is acceptance with knowledge or without, and therefore it must include acceptance without knowledge of the adultery. It does not say the period for which there has to be acceptance or whether it is for the whole of the marriage. It does not say whether the acceptance is to continue for any time or whether there can be subsequent repudiation. I hope that my noble and learned friend will not think I am trying to find difficulties; that is the last thing in my mind. But it is my duty, as I was asked, and as I feel I should, to put to the House these points. The logical result of that, as the noble and learned Lord, Lord Denning, was not reluctant 345 to face, is that one comes back to the restoration of the clause which the Amendments of my noble friend Lord Meston would achieve.
As I have said, I am not going into that point again, but it has been repeated to-day that this is a matter which the Government regard as a matter for the House. I was asked at an early stage to give my own view and I gave my view; and I only want to say this evening that, although I have listened with great care to every word that has been said, the view I expressed on Committee stage remains completely unchanged. If the most reverend Primate will allow me to say so, I base that view very largely on what he said, and I am reinforced by what he said to-day.
Therefore, I want to make only one or two remarks. Although I have had, as everyone has had, to look at the difficult cases, the case which we have to consider is the case where the first marriage has gone completely wrong and there has been separation, and where, in that period of separation, intercourse has taken place with a third party. In these circumstances, when the marriage has failed and then intercourse has happened (I am not intending to make, and I hope I am not making, a debating point) what have we now to consider? First of all, there is the good of the child. I think that in considering other matters we have rather allowed our minds to be deflected from the effect of bastardy.
It is, of course, easy to recall, as noble Lords have done, William the Conqueror and other people; but let us consider one's own experience of life. What else causes a bigger "chip" right through society than bastardy? I always find that to be my experience, and that is something which I would do a very great deal to avoid, as all your Lordships would, simply from the point of view of kindness and a desire to help the person involved. Now the answer to that is: the price is too high. You will do great harm to the institution of marriage—and the right reverend Prelate the Lord Bishop of Exeter told us that if you want your standards, then it must continue as part of life that the sins of the father shall be visited on the children.
THE LORD BISHOP OF EXETER
My Lords, I was very careful not to use the phrase, "The sins of the father shall 346 be visited on the children", because that is commonly misunderstood as involving a moral judgment and punishment upon the children. What I in fact said was that the father has eaten sour grapes, and the children's teeth are set on edge. What I meant by that was that the consequences of the parents' actions, for good or evil, fall often, if not always, upon the child.
§ THE LORD CHANCELLOR
Of course, I am grateful for that distinction. Whether it makes a profound difference, I should have to consider. But, my Lords, whether we use "visited on" or "the teeth are to be set on edge", that is the real point, and it is not a point one can brush aside. It is a point one has to consider. Is that an important element in retaining moral standards? My Lords, this is a difficult matter for a layman to pronounce upon. I can only say that, if I could avoid it as a condition precedent of good moral standards, I should be very happy. All I can say—and I say it with great respect, for I have the utmost respect for the right reverend Prelate—is that I hope it is not necessary.
Then let us consider the balance of the institution of marriage. The view which has been put forward is that if you allow the children of an adulterous union to be legitimated you are undermining the institution of marriage. There is the other point of view—and this is what the most reverend Primate and I have both tried to put—and that is that this whole clause depends upon a subsequent marriage. We are regarding, from the point of view of marriage: what are the chances of that marriage likely to be? Are the parents likely to reform and live as good people after they are married again? Is it more likely that if you say that after their marriage the child of the adulterous union is going to be legitimated and they will be allowed to live in a respectable family, it will give not only the child but them a better chance? That is the difference of view. I cannot say any more about it, because that is the view that attracts me.
My Lords, I am very conscious that I am speaking for myself, and this is a matter entirely for your Lordships; but one or two noble Lords have mentioned to me, simply because I have the honour 347 to sit on the Woolsack, that it would be very undesirable if we found ourselves in the position of letting so much time go on that it was difficult for your Lordships who have other arrangements—trains to catch, and so on—to remain to vote. My Lords, it is very easy to propose a self-denying ordinance when one has just spoken oneself, but I would suggest to your Lordships that, if you could come to a decision within a reasonable time, it would be a decision which would include most of the House. I hope your Lordships will not take it amiss, because it is not a matter on which I can rule; it is a matter for your Lordships; but I think it would be a much happier position, whatever our views, if this was a decision taken with a large vote of the House and not a small vote.
§ 5.35 p.m.
§ VISCOUNT SIMONDS
My Lords, I did not hear all that the noble and learned Viscount the Lord Chancellor said, but I did hear his last words, in which he appealed to noble Lords not to speak. I spoke on the last occasion upon the Committee stage of this Bill and I do not want to repeat what I said on that occasion, though I said it in a very small House. I had come down intending to speak to the whole clause and to Lord Meston's Amendments to-day; but, partly in response to the noble and learned Viscount's appeal, and partly because I feel I owe an apology to the House in that I was not here when my noble and learned friend Lord Denning moved his Amendment, or when the most reverend Primate spoke (so I have not had the advantage of hearing any argument in favour of the Amendment, but only most powerful speeches against it), I have decided to say no word upon the main part of the Bill except to beg your Lordships to bear in mind constantly—for it is, I believe, a tenet of our Christian religion, although that does not appeal to those who do not accept that religion or to those who have no religion—that adultery is not the same as fornication. In fact from the argument that I heard from many people in the House on the previous occasion, and that I have read in letters addressed to me and in letters that I have read in the papers, it would appear that many people consider 348 adultery as but the logical extension of fornication. My Lords, that is not the view of our religion or of our social ethics: and I beg your Lordships, when considering your vote in this matter, to bear in mind always the radical distinction which exists between those two things, and, as I believe also, the consequences of those two things upon our social structure.
I am not going to say another word about that, but I do want to say one word about this Amendment which stands in the names of Lord Denning, Lord Keith of Avonholm, Lord Chorley and Lord Birkett. The noble Marquess, Lord Salisbury, who referred to it, was far too polite. I believe this Amendment to be the greatest nonsense that was ever put upon the Paper—any paper. If your Lordships will take it in your hands you will see that it says:Nothing in this Act shall operate to legitimate a person whose mother was married to a third person when the illegitimate person was born and who has been accepted by such third person as his child".Now, my Lords, I have tried to write that out according to what I conceive to be the intention of the draftsman in a way which gives some effect and meaning to it; and if your Lordships would be good enough to look at it, you will see that it can mean only this:…a child whose mother was married to a third person"—and I substitute—when he or she was born but who has been subsequently bastardised but nevertheless has been accepted by such third person as his child".It cannot mean anything else, because the presumption of legitimacy to a child born in wedlock is indeed rebuttable, but rebuttable with difficulty. You are dealing with a child who is born in wedlock, and therefore is legitimate. Now that child cannot be recognised by the third person unless, in the interval, that child has been bastardised first. So, being the legitimate child of A and B, he is then bastardised, and he then becomes the legitimate child of A and C. My Lords, have you ever read such nonsense as that?
Is it to be supposed that, where a child has solemnly been bastardised, the father will then accept him? Because it is not a matter of the gossip of the market place or the tittle-tattle of the club or drawing room. A person is bastardised 349 not because everybody says, "We all know he is a bastard", but only by a solemn pronouncement after relevant proceedings in court. That is the position in which a child must be placed before this proposed clause can come into operation at all. My Lords, is it really likely that, where everybody knows that a child has been bastardised in relevant proceedings taken in a court, the father will accept him as his child?
What does acceptance mean? Every variety of conduct my be seen in a father of the child of an adulterous union. I have heard it recently said, in a case something like this, that "the courts will work it out." The courts will not be able to work it out unless Parliament has given some guidance about what is meant by "acceptance". If I may say one word more, and then sit down, it is this. I have devoted my life, so far as I could, to making the law clear. There is nothing more important in the law, whether one is administering it in a court of justice or legislating, than that it should be clear; that persons should know where they stand so that they can act according to what they believe to be I the law. If the law is obscure there is very grave danger. Here there could not be a clause which created greater confusion than that which stands on the Marshalled List in the name of my noble and learned friend in whom we all have great confidence and respect. I overheard it said the other day that "Lords of Appeal are very odd people." It may be that the speaker was right; it may be that I do not know to whom he was referring. But I do think that it may be said than nothing odder has ever emanated from anybody than the Amendment which stands on the Marshalled List today.
§ 5.42 p.m.
My Lords, I had not intended to intervene in this debate, but I should like to say that if one agreed with only part of what the noble and learned Viscount has just said, and believed that the Amendment would create difficulties which we should be unable to overcome, I think that that would be a reason, not for refusing to accept the Amendment but for accepting the Lord Meston's Amendments to the Amendment.
§ LORD DENNING
My Lords, may I say a word on this Amendment, which 350 has been so severely criticised? It was put in as an attempt—it may be an unfortunate attempt, if you like—to meet the point of the noble Lord, Lord Conesford, about bastardisation and legitimation. I always thought that that was a fantastic case, a nonsensical case. If the clause is nonsense, it is because it is an attempt to meet a fantastic case, which could not arise. I agree that your Lordships may sweep out this Amendment. Nevertheless, I would invite your Lordships to set this clause right again by accepting my noble friend's Amendments to the Amendment. Keep the intention of the initial Bill which came before us and treat the case where marriages have absolutely broken down and where one side lives with another woman or man for years. Why should a part of that family be illegitimate and part of it legitimate? Common justice demands that the clause should be reinstituted as it was, and I ask your Lordships to do it.
THE LORD BISHOP OF EXETER
My Lords, if I had to choose between the two Amendments, I should choose reluctantly that of the noble and learned Lord, Lord Denning, not because that Amendment is not bad—because I think it is—but because it does try to provide for what I think is a very common case. At any rate, the civil law of France has found it necessary to have a provision of this kind. I do not know whether the noble and learned Lord, Lord Denning, had a look at the French law when he was drafting his Amendment, but it puts this matter in a more positive form. If I can remember the French law of 1941, it says that the child of an adulterous union shall be legitimated by a subsequent marriage in all cases where the father was the adulterer. In cases where the mother was the adulteress, the child will become legitimated by the subsequent marriage of its parents only if the mother at the time of conception or birth (I am not sure which) was living in separation from her husband by a legal decree and/or the child has been repudiated by the husband. I hope that your Lordships will not too readily vote for the Amendment to the Amendment, because I really think that the Amendment of the noble and learned Lord, Lord Denning, perhaps in some other form, would be much better and wiser for the country.
My Lords, I thank all noble Lords who have spoken in this debate, and I should particularly like to thank the most reverend Primate the Lord Archbishop of Canterbury and the noble and learned Viscount who sits on the Woolsack for their powerful and completely cool, calm, collected and cogent speeches. Speaking for myself, I would not go any conceivable distance in order to do away with illegitimacy; but I would go a long way, and I would certainly vote in favour of the original Clause 1. Has this ever struck your Lordships? An illegitimate boy is made legitimate by virtue of Clause 1. In years to come he does what every boy hopes to do; he marries some nice woman and has a child. It is a boy. I know all about them—I have two. That boy behaves badly one day and the father smacks him. If your Lordships follow me into the Lobby in five minutes, that little child will not be able to say to his father, "Governor, you are an old bastard."
§ LORD GODDARD
My Lords, I should like to say a few words. As this debate has shown, it is exceedingly easy, on a subject of this sort, to put forward arguments both for and against by giving illustrations of the absurdities, hardships, anomalies and so forth that may result from the legitimisation of the fruit of adulterous union. For that reason, I came down to your Lordships' House somewhat doubtful about which way I should vote, and the more I listened to this debate the more I came to the conclusion that it is a great pity that this subject should have been raised at all, because already in the process of adoption we have a method by which the future and welfare of these unhappy
§ children can be safeguarded. It is a very cheap proceeding to get a child adopted by proceedings in the county court.
§ We have had the picture put before us of the way a child may easily be deprived of a share in his father's property if the father does not make a will. If he does not make a will, it is probably because he has not sufficient property to be worth it; and if the father has property worth making a will, then he has enough to pay the small sum of money for adopting a child. If we leave the law as it is and the Bill as it came out of Committee, parents who have produced a child as a result of adulterous intercourse can adopt that child and give it all the privileges that adoption will confer upon it, which are every bit as much as this Bill will confer upon it. For that reason, I think that we should keep the Bill as it came out of Committee.
§ THE LORD CHANCELLOR
My Lords, it has been represented to me that there is some doubt about the matter before the House, and that I might make it clear. The Question before the House is whether your Lordships agree with Lord Meston's first Amendment to the Amendment. The effect of that Amendment, with his second Amendment to the Amendment, would be to restore the clause cut out in Committee: that is, to put this clause in the same position as when the Bill came up from the House of Commons.
§ On Question, Whether the said Amendment to the Amendment shall be agreed to?
§ Their Lordships divided: Contents, 83; Not-Contents, 64.353
|Aberdare, L.||Cadman, L.||Fraser of North Cape, L.|
|Addison, V.||Canterbury, L. Abp.||Geddes of Epsom, L.|
|Albemarle, E.||Chichester, L. Bp.||Glyn, L.|
|Alexander of Hillsborough, V.||Chorley, L. [Teller.]||Gorell, L.|
|Ammon, L.||Cohen, L.||Granville-West, L.|
|Amulree, L.||Colyton, L.||Hambleden, V.|
|Amwell, L.||Cranbrook, E.||Hampton, L.|
|Archibald, L.||Crook, L.||Harmsworth, L.|
|Astor, V.||Darwen, L.||Harvey of Tasburgh, L.|
|Attlee, E.||Denning, L.||Henderson, L.|
|Boothby, L.||Devonshire, D.||Huntingdon, E.|
|Boyd-Orr, L.||Douglas of Barloch, L.||Jellicoe, E.|
|Braintree, L.||Douglas of Kirtleside, L.||Keith of Avonholm, L.|
|Bridgeman, V.||Dovercourt, L.||Kenswood, L.|
|Broughshane, L.||Elliot of Harwood, Baroness||Killearn, L.|
|Burden, L.||Faringdon, L.||Kinross, L.|
|Latham, L.||Milford Haven, M.||Sinha, L.|
|Lawson, L.||Monckton of Brenchley, V.||Stansgate, V.|
|Layton, L.||Montagu of Beaulieu, L.||Stonham, L.|
|Leconfield, L.||Ogmore, L.||Strang, L.|
|Lloyd-George of Dwyfor, E.||Ponsonby of Shulbrede, L.||Swaythling, L.|
|Lucan, E.||Rea, L.||Swinton, E.|
|Macpherson of Drumochter, L.||Rootes, L.||Taylor, L.|
|Margesson, V.||Rothermere, V.||Williams, L.|
|Massereene and Ferrard, V.||Rusholme, L.||Wilmot of Selmeston, L.|
|Maugham, V.||Shackleton, L.||Wise, L.|
|Merthyr, L.||Shepherd, L.||Wootton of Abinger, Baroness|
|Meston, L. [Teller.]||Silkin, L.|
|Airedale, L.||FitzAlan of Derwent, V.||Moyne, L.|
|Atholl, D.||Freyberg, L.||Pakenham, L.|
|Auckland, L.||Furness, V.||Radnor, E.|
|Balfour of Inchrye, L.||Gisborough, L.||Reid, L.|
|Birdwood, L.||Goddard, L.||Remnant, L.|
|Braye, L.||Grantchester, L.||Robins, L.|
|Carnock, L.||Grenfell, L.||Salisbury, M.|
|Cholmondeley, M.||Hawke, L.||Sandys, L.|
|Clitheroe, L. [Teller.]||Hereford, V.||Sempill, L.|
|Conesford, L. [Teller.]||Howard of Glossop, L.||Simonds, V.|
|Cork and Orrery, E.||Howe, E.||Soulbury, V.|
|Craigmyle, L.||Iddesleigh, E.||Strathcarron, L.|
|Craven, E.||Jessel, L.||Strathspey, L.|
|Crookshank, V.||Limerick, E.||Swanborough, Baroness|
|Davidson, V.||Long, V.||Tenby, V.|
|Denham, L.||Lothian, M.||Terrington, L.|
|Derwent, L.||McCorquodale of Newton, L.||Tucker, L.|
|Digby, L.||Mancroft, L.||Tweedsmuir, L.|
|Dynevor, L.||Milverton, L.||Twining, L.|
|Ebbisham, L.||Morton of Henryton, L.||Winster, L.|
|Elton, L.||Mowbray and Stourton, L.||Ypres, E.|
|Exeter, L. Bp.|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Amendment to the Amendment agreed to accordingly.
My Lords, I beg formally to move the consequential Amendment to the Amendment standing in my name.
Amendment to Amendment moved—
Line 4, leave out from ("birth") to end of line 9, and insert ("is hereby repealed").—(Lord Meston.)
§ THE LORD CHANCELLOR
My Lords, we now have to take the substantive Motion: that is, that the original Amendment, as amended, be agreed to. That is really the same point again, but it has to be done in this way. Lord Meston moved it as an Amendment to the original Amendment and that has now been carried. Therefore, I have to put to your Lordships that the original Amendment, as amended, be agreed to.
§ Clause 1 [Legitimacy of children of certain void marriages]:
THE LORD CHANCELLOR moved to leave out subsections (3) to (5) and to insert instead:
(3) This section, so far as it affects the succession to a dignity or title of honour, or the devolution of property settled therewith, applies only to children born after the commencement of this Act.
(4) This section does not affect any rights under the intestacy of a person who died before the commencement of this Act, and does not (except so far as may be necessary to avoid the severance from a dignity or title of honour of property settled therewith) affect the operation or construction of any disposition coming into operation before the commencement of this Act.
(5) In this section the following expressions have the meanings hereby assigned to them, that is to say—
'void marriage' means a marriage, not being voidable only, in respect of which the High Court has or had jurisdiction to grant a decree of nullity, or would have or would have had such jurisdiction if the parties were domiciled in England;
'disposition' has the same meaning as in the Legitimacy Act, 1926;
and any reference in this section to property settled with a dignity or title of honour is a
reference to any real or personal property, or any interest in such property, which is limited by any disposition (whether subject to a preceding limitation or charge or not) in such a way as to devolve with the dignity or title as nearly as the law permits, whether or not the disposition contains an express reference to the dignity or title and whether or not the property or some interest in the property may in some event become severed from it.
§ The noble and learned Viscount said: My Lords, the Amendment which I am now moving is little more than a drafting Amendment. It is necessitated by an unintended conflict between subsections (3) and (4) of Clause 1 of the Bill. The object of subsection (3) as it stands at present is to ensure that the legitimation of a person to whom the clause applies is not to have retrospective effect in relation to dispositions of property or succession on intestacy, while the object of subsection (4) is to enable persons legitimated by Clause 1 and born after the commencement of the Act to succeed to dignities and titles of honour and to property settled to devolve therewith. But under subsection (3) an existing settlement of property is unaffected by a person's legitimation so that property already settled to devolve with a title will not pass to anyone so legitimated but will continue to pass as if the successor were illegitimate.
§ This defect is cured by the new subsection (4), the effect of which is (by virtue of the words in parenthesis) that where a person born after the commencement of the Act succeeds to a title with which property is settled to devolve, he also takes the property even though it may have been settled under a pre-existing settlement. This is not the clause which your Lordships have been considering, but the next clause. The Amendment is purely drafting for the purpose of clarifying that position. I beg to move.
§ Amendment moved—
§ Page 1, line 15, leave out subsections (3) to (5) and insert the said new subsections.—(The Lord Chancellor.)
§ LORD CHORLEY
My Lords, might I for one moment have the opportunity of saying that we entirely accept this proposal. I really rise to thank the noble and learned Viscount for the assistance which he and his staff have given to those of us who have been working on this Sill throughout. Without it, I am sure 356 the Bill would have been much less satisfactory than it is going to be, and I thank him very much.
§ Clause 5 [Extent, short title and commencement]:
§ THE LORD CHANCELLOR
My Lords, the object of this Amendment is to place it beyond doubt that the Bill does not affect the succession to the Throne. However unlikely it may be that the circumstances contemplated by Clause 1 will in practice be met with in the line of succession, it is essential in the view of the Government that the Bill should leave no room for argument or speculation upon this matter. I beg to move.
§ Amendment moved—
Page 3, line 28, at end insert—
("(4) It is hereby declared that nothing in this Act affects the Succession to the Throne.")—(The Lord Chancellor.)