§ 3.54 p.m.
§ Order of the Day for the Second Reading read.
§ LORD CHORLEY
My Lords, the noble Lord who has just obtained a Second Reading for the Bill which has been under discussion opened his remarks by saying that it was entirely a legal Bill. In one sense that is true of the Bill for which I am seeking a Second Reading. But this Bill, I think, touches more profoundly the social problem, or one part of the social problem, and it is concerned with an area where humanity is often found, as the saying is, rather "in the raw". The object of the Bill is to make a number of worth-while amendments in the law relating to legitimacy. There are five of these, which I hope to explain to your Lordships in a little more detail in a few minutes' time. Before doing that, however, I should like to make a few observations of a rather general character.
In the first place, as your Lordships will appreciate, this is a Private Member's Bill and it is a non-Party Bill. On its introduction in another place it was backed by the members of the Opposition and by Government supporters. That the proposer happened to be a member of the Opposition, and that the Bill is being moved in your Lordships' House this afternoon from these Benches is purely a matter of accident, in the sense that it was the result of the ballot. Therefore, I should like to start by emphasising the fact that the Bill is a non-contentious measure, in the sense that there is no Party matter at issue this afternoon. On the other hand, it would be quite wrong to say that the Bill is an uncontroversial Bill. There was some opposition when the Bill was 1180 going through another place, particularly in respect of the first of its clauses, and this opposition was pressed to a Division. But, as only four Members of another place could be found to vote against the Second Reading, whilst forty-five were in favour, I think the result must be regarded as an overwhelming vote in favour of the Bill; and it is significant that in the subsequent stages of the Bill there was no further opposition in the sense of any Division taking place. I hope, therefore, that your Lordships will feel able this afternoon to give the Bill a Second Reading without a Division, regarding any problem which may come up in respect of one clause or another as a matter rather for Amendments than for all-out opposition.
There is one further observation which I ought perhaps to make before asking your Lordships to look at the Bill clause by clause, and that is in respect of the attitude of Her Majesty's Government. The noble and learned Viscount who is to take part at a later stage will, of course, explain that in much greater detail; but I should like to say on behalf of the sponsors of this Bill, that they had great help from Her Majesty's Solicitor General and from the Home Office during the passage of the Bill through the other House, and there can be no question that as a result the Bill was vastly improved and is in a distinctly better shape than that in which it was when originally introduced. I hope that this may be taken as significant of at least benevolent neutrality, if not even warmer support, by Her Majesty's Government when the time comes for their attitude to be made known.
I come now to Clause 1, which is much the most controversial of the four main provisions of the Bill. It may, I think, be quite shortly said to be designed to legitimate the child of any legalised union, whatever the status of the parents at the time of the child's birth. That is the important point. Of course, the controversy over this matter goes back a long way—it goes back at least to the passing of the Legitimacy Act, 1926. Your Lordships may remember that that Statute, with one very important exception, legitimates bastard children when the parents subsequently marry. That, I think, has 1181 been the general rule, at any rate, in civilised countries in Western Europe, and it was rather a peculiarity of the English Common Law—and in my view one of its less satisfactory rules—that it refused to follow Continental opinion on this particular matter.
I believe that the first attempt to effect a change in the law by Parliamentary interposition occurred as long ago as the 13th century, when the Church was behind it and wished to secure a uniform system in regard to this particular matter; however, your Lordships' House at that time, in a famous declaration, said it did not wish to change the laws of England; and as a result of that declaration legitimation per subsequens matrimonium was not introduced into this country until the Act of 1926 was passed.
That Act, or the Bill as it originally stood, would have effected the change which it is proposed to make today, but when it came from another place to your Lordships' House it was amended so as to limit its provisions to cases where the parents were unmarried when the child was born—and this, of course, is the important exception to which I referred a moment ago. I believe it was the then Lord Archbishop of Canterbury who persuaded your Lordships that it would be a dangerous innovation to carry the proposed alteration in the law to the extent of legitimating those bastard children who were actually born in wedlock; and as a result of his advocacy the Bill was amended in that way. When it got back to the other place there was a great deal of opposition to that Amendment, and it is interesting that among its influential opponents were no fewer than four Members who afterwards became Prime Ministers—Ramsay MacDonald, Neville Chamberlain, Winston Churchill and the noble Earl, Lord Attlee.
The House was advised, however, that, in the legislative situation as it then stood, if they wanted the Bill they had better take it in its amended form, rather than try to get it back to its original form and then send it back to your Lordships' House. It was then getting towards the end of the Session and, as so often happens in a case of this kind, they were content to have half a loaf rather than no bread. It was in that 1182 quite familiar situation that the Amendment was accepted and the Legitimacy Act of 1926 was passed in the form in which we have it on the Statute Book to-day. I think it is fair to say that there has never been full acceptance of that situation, and there has been continuous agitation, or, at any rate, continuous pressure to get accepted the fuller measure which is brought before your Lordships this afternoon.
At the same time it would be wrong to suggest that there has not been substantial support for the views put forward by the then Lord Archbishop of Canterbury. I believe and hope that his successor, who I am particularly glad to see is to take part in this discussion, does not quite accept the views then expressed; but no doubt we shall hear from him exactly how far he is able to go in support of the Bill. It is right to observe that the recent Royal Commission on Divorce were divided on this subject. A majority of them, I believe, were against any alteration in the law in the sense of this particular clause in this Bill, though in other respects they advocated important changes in regard to legitimacy matters; and one, at any rate, of those is provided for in a later clause in this Bill.
The view of the majority of the Royal Commission, however, was emphatically not the view of the majority in another place when this Bill was considered there. I believe it was felt overwhelmingly that the essential element in the controversy is the interest of the child. However unreasonable it may be, there is still undoubtedly a stigma on persons suffering from illegitimacy of birth. It has always been a puzzle to me how strong this stigma is. So many men and women of great distinction have been illegitimate, starting from William the Conqueror, about whom every schoolboy knows, and going down to great men, like Prime Ministers and others. Nevertheless, the stigma is there; and it would be absurd to overlook the fact that it is a very serious stigma and something which is regarded as totally disgraceful on large numbers of people and which to-day has the effect of causing great suffering among many of our citizens.
1183 The arguments which have been adduced against this change seem to me to be weak and, at best, of problematical value when put against this great concrete fact of the stigma of illegitimacy; and that, of course, it is the main purpose of this particular clause of the Bill to remove. Although it is impossible to tell how many actual cases this clause will deal with, the general illegitimacy rate is very high and is continuing to rise. I have obtained the figures for 1955, when the total stood as 32,000, and for 1957 when it had reached as many as 35,500—an increase of 3,500 in two years. I am, of course, giving round figures. Quite a substantial number of these illegitimate children must have been born in wedlock.
It is well known, of course, that divorces are hurried on, and humane judges do all in their power to diminish the oppressive effect of the law as it stands by pushing cases forward and pronouncing decrees before children are born in order to evade the rigour of this particular aspect of the law. But it is certainly an injustice that the removal of the stigma of illegitimacy should so often depend on what is really the accident of whether or not a legal process can be got through within a limited time. There may be, and undoubtedly is from time to time, the extraordinary situation where one child in a family may be legitimated by the subsequent marriage of the parents because a divorce has taken place in time while an earlier child from exactly the same union may not be able to be legitimated because it was born long before the divorce went through. And at a later stage, of course, the parents having married, subsequent children are legitimate from the start.
I do not propose to reply in advance to the arguments which have been adduced in support of the law as it stands. As I understand them, and having read the debate in another place, I believe that they can be summarised under three heads. First, the present system discourages divorce. Secondly, that it is necessary to protect wives who might give way to the pestering of husbands who persuade them to petition for divorce because it would enable a child to be born legitimate—this is, of course, another rather more detailed aspect of the first point. Thirdly, that it is a 1184 general protection of public morality. It seems to me to be very doubtful whether these arguments do not work just as strongly the other way, but I shall leave it to those who propose to take part in this discussion to make those points, no doubt more clearly and intelligibly than they have been made elsewhere. That covers Clause 1 which, as I say, is the most controversial and perhaps the most important of the clauses in this Bill.
The second clause is designed to give legislative effect to a recommendation of the Royal Commission. There are cases where, for one reason or another, a marriage which on the face of it looks as if it were a perfectly good and binding one turns out to be void ab initio. Sometimes these reasons are of a very technical character. For instance, the church may be found not to have been properly brought within the ambit of the administrative precepts of the law in respect of this particular matter, with the result that a large number of marriages which have been solemnised there may be held to be void. That is just one example. Therefore, it is proposed in this type of case that the child born of a void marriage, provided there is no fraud on the part of the parents in that they knew perfectly well that what they were doing was to bring about a void marriage—provided there is no sort of weakness of that kind—shall be legitimated. That is Clause 2.
Clause 3 introduces an important and, I submit, long overdue improvement in the law, in that it enables the father to have some say in respect of his illegitimate child. One of the most extraordinary things of our law as it has gone down through the centuries is that the illegitimate child was regarded as in no sort of relationship to the father. It was described as filius nullius. The mother was disregarded altogether, so it was almost equally objectionable from the women's point of view as from the father's, though the mother had the legal rights which the father was not given. The proposal in Clause 3 is, in effect, to bring in the father of an illegitimate child by means of the Guardianship of Infants Act, 1886. There are three subsections in the clause which effect this, and it is particularly in respect of this matter that we are grateful for the assistance we have received from the Home Office.
1185 Then in Clause 4 another useful little reform in the law is effected, in that a woman who was single at the date of the birth of her illegitimate child will be enabled to make an application for an affiliation order notwithstanding that she may have become married in the meanwhile. At present, as the result of a rather technical decision in the High Court, if she has married before commencing her proceedings she loses her right. I am sure that your Lordships will feel that it is only just that the woman should continue to have her rights in these circumstances, notwithstanding the fact that she may subsequently have married; and Clause 4 provides to that effect.
Clause 5 is perhaps a little more controversial. It provides that affiliation proceedings, and other sorts of proceedings under a number of other Statutes in which the same matter is involved—the matter of a bastard child—shall be "domestic proceedings" within the meaning of the Magistrates' Courts Act, 1952, which enables them to be tried by the magistrate out of open court. They will cease to be fully public in the way ordinary proceedings in a magistrates court are. I think most people would say that these domestic proceedings arrangements under the Magistrates' Courts Act, and under the earlier Act, have worked very well and have been a great advantage. It is true that some advantages are lost if legal proceedings are not held coram publico, but in this particular case it is felt that, on balance, the advantages are in favour of making these proceedings domestic proceedings and bringing them within this particular part of the Magistrates' Courts Act.
My Lords, I have attempted to give your Lordships a brief introduction to what is attempted to be carried through by the clauses in this Bill. I have great pleasure in commending it to your Lordships, and beg to move that it be read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Chorley.)
§ 4.14 p.m.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, before I say a word about illegitimate children I do not know whether I might be allowed to say a word about illegitimate news items. I received a letter from a correspondent 1186 asking to see me about this Bill. I replied that I was not prepared to see him and advised him to go to the Church of England Moral Welfare Council, and I added one or two observations that he might discuss when he got to the Moral Welfare Council. I was considerably surprised a little later to find my name on the news page of a daily newspaper, billed as being in favour of this Bill and prepared to defend it against the onslaughts of the Bishop of Exeter. I regard that as an illegitimate news item and I hope there will never be any Bill to legitimate that kind of thing.
May I begin by saying that I am not really so excited about this Bill as, apparently, my predecessor was. I am finding it is dangerous to come into this House for fear of what I may be told about what my predecessors have said, or even non-predecessors, such as Augustine of Hippo. I cannot regard this Bill as of supreme importance. I am not going to try to argue it, because, so far as I can see, any skilful person and any morally-moved person can make just as strong an argument in favour of the Bill as against it and the arguments are not really final. Therefore, all that I hope to do is just to express my own opinion on the matter without necessarily arguing it. I am sorry to have to say that I shall not be able to stay to hear the subsequent speeches as I have for some long time past been due in another place.
The purpose of the Bill is a very simple one and one that attracts our natural sympathy; it is to relieve some children, or perhaps I should say some more children, of the title and status of illegitimacy which they derived from the moral illegitimacy of their parents. They were born out of wedlock. Nothing can ever alter that fact. The fault of it is in no sense the fault of the children, but they are penalised by bearing the stigma of illegitimacy for what is not their fault. Is that to go on? The natural answer is to say "No". But two questions arise which excite the special concern of the Church. The first is this: their status can be altered only by some kind of fiction, a legal fiction, calling them or treating them as legitimate when in fact they were never legitimate. I regard it as always a dangerous thing to play 1187 about with truth and with facts. To legitimate these children is to deceive, or to attempt to deceive, society about the nature of their parenthood. I am myself satisfied that in this case the degree of deception involved is justified by the duty to serve the interests and wellbeing of these particular children.
But there is a second question: the status and integrity of marriage. The bonds of wedlock matter far more for the welfare of society as a whole than the particular status of illegitimate children given to them by law. Will this Bill weaken the standing of the marriage bond which is already under very severe strain? Will it deceive society by making people more inclined to think that illegitimacy and the birth of children out of wedlock does not matter and can easily be rectified by a legal process?
As your Lordships have been reminded, a majority of the members of the recent Royal Commission on Marriage and Divorce thought that it would weaken the status of marriage, and were against the proposal now contained in this Bill; and, as you have heard, my beloved predecessor, Archbishop Davidson, took the same view. There are others whose judgment I respect who agree with them—and I mention the name of the right reverend Prelate the Lord Bishop of Exeter. He is very strongly of that opinion, as are other leading Churchmen; and, but for a very unfortunate accident, I do not doubt that he would have been here to-day to defend his point of view. They may well be right; I am not going to say that they are not; but, on the whole, I take the contrary view—and that also with a great deal of support from leading Churchmen.
There are, I think, two main arguments against the acceptance of Clause 1. The first is that it destroys the accepted principles which have governed marriage law in the past, both ecclesiastical and secular, thus. As you have been reminded, if two unmarried persons, by fornication, become the natural parents of a child, and are married before its birth, then, by the common law of England, the child from its birth is legitimate. The principle is that because the parents could have been legitimately married when the child was conceived, since there was no bar to their being 1188 married, therefore, by a legal fiction, it can be supposed that they were married, or were intending to be married, and the child can be regarded as being legitimate.
Secondly, the same legal fiction can be applied if the natural parents become married after the child is born. They could have been married before, although they were not; but they have ben married since, therefore the child can be made legitimate. That is the rule of the old Roman Civil Law and of the Canon Law of the Western Church. It did not become Statute Law in this country until 1926, when the Legitimacy Act was passed. Your Lordships will have observed that the legal fiction is the same: the parents could have been married; therefore the child shall be legitimated as if they had been married. But, my Lords, to the provision of this Bill that kind of legal fiction cannot be applied. These children are born in adultery, not in fornication. The parents could never have been married when the child was conceived, except by a process of bigamy. The law cannot pretend that the child could have been legitimate; and, therefore, it may be argued, the law must not make the child legitimate now.
My Lords, I see the moral force of this argument, but I myself doubt whether it should prevail over the contrary moral considerations. The old Canon Law came into existence when divorce and remarriage did not exist, so that the dilemma we have to consider did not come into view. Now divorce and remarriage do exist, whether rightly or wrongly, and that must be taken into account. A situation can arise now that could not have arisen in older days. The defenders of Canon Law on this point say that no hardship is caused by sticking to the principles of Canon Law, since the natural parents, now married by process of divorce, can adopt their own child. But, my Lords, that is surely a legal fiction, too, and is meant to deceive society by the assumption that the natural child is not the natural child of the parents, but an adopted child brought in from outside. Personally, I think it is more straightforward, and therefore morally preferable, to drop the legal fictions of any kind and to argue as follows. This child was born out of wedlock and in adultery. The adulterous parents have, by divorce, set 1189 themselves legally free to marry one another. They, the natural parents, are now legally married. Therefore, let the child have the status which by nature belongs to him, and of which he has been deprived by the ill-doing of his parents; and let it be called, naturally and legally, the child of its parents—that is, legitimate it.
There remains the other argument: that the power thus given to the adulterous parents to secure legitimacy for their child will weaken the marriage bond yet further in the general esteem. My Lords, that is guesswork. You can argue it either way and can be convinced either way. But when respect for the marriage bond has been so much weakened, as it has been, I cannot believe that this measure will really weaken it any more to any serious degree; or that adulterous partners will be seriously encouraged by this Bill to break up a marriage which would otherwise have held good, in order to be able to convey legitimacy to the child of their adulterous union. Indeed, my Lords, I think that, on the whole, if this clause be passed, it may help Churchmen and others in our by no means unsuccessful attempts to restore the waste places of married fidelity and integrity; for we shall not be using a legal argument to prevent the bringing of relief to an illegitimate child.
For this child there is no place of repentance left, because he was never guilty of any wrong action of his own; but we shall be more free and confident in saying to the parents concerned: "You have once—nay, twice—offended against God and the well-being of society; first by adultery, and then by divorce. Nothing can help you but repentance, and for you a place for repentance is left—indeed, to be entrusted again with the full and acknowledged responsibility for your own child, which you had denied it by your own misdeeds; to help the child, and the family, and you, to overcome past evil by present good." I think we should then be more free to speak in sincerity to the parents, and to teach them how to fulfil their responsibilities both to the illegitimate and, if it be so, to the legitimate children of their new union.
The parents—and that is the basis of it; the parents, not the child—have 1190 offended against the integrity of marriage. Now, by this Bill, what was theirs by nature can again become theirs by law—the full responsibility for the moral training of their own child. And in that responsibility is their place for both repentance and for hope. So, for my own part, I support the Bill, for the sake of the children concerned and, I think, in some cases, for the sake of the parents concerned as well. But, while that is my opinion, I am giving it only as my own opinion, and I shall not be disturbed, or lose my equanimity, whether this Bill passes or does not pass.
§ 4.29 p.m.
§ LORD DENNING
Your Lordships are asked this afternoon to set your seal on a great change in the law of England—or, rather, on the last step in it—because for a thousand years the law of England was clear and distinct: a child born in lawful wedlock was legitimate; a child born out of wedlock was not legitimate. But the Roman Law was quite different. It said that a child born before marriage could be legitimated by the subsequent marriage of its parents and be rendered just as legitimate as one born during marriage. That Roman Law descended into the Continental systems but was never brought into this country.
In the year 1236, at the Parliament of Merton, your Lordships' House was asked whether it was willing that our law should be changed so that a child born before marriage should be just as legitimate as one born during marriage, and it is recorded that your Lordships, with one voice, said in Latin: "Nolumus leges Angliae mutare"—we are not willing to change the laws of England. And it was not until 1926 that the law was changed, whereby children born before marriage were legitimated by subsequent marriage.
What are the merits of the two rival views of law? The old English Common Law was clear, distinct and certain. You knew where you were. A child born during wedlock, even though conceived beforehand, was legitimate—a rule of great value when lands descended to the heir and it was desirable to know truly and distinctly who was heir at law. As Blackstone said of the child born before marriage, one could never be sure who 1191 was the father. That was the merit of the old English law. But it had this great demerit: that it was unjust and unfair to the child, because under old English law the bastard was the child of nobody. He had no relatives: he could not succeed to lands or property; he was an outcast. It was to remedy that injustice that in 1926 your Lordships' House brought in the law legitimating by subsequent marriage—but with this one exception: that a child born of adultery by one or other parent who was married was not legitimated. That view was supported by Lord Morton of Henryton's Commission by a majority of twelve to seven.
I venture to suggest that this exception, too, is unjust to the child, not only by reason of the stigma, to which the noble Lord, Lord Chorley, referred, but for other reasons. Let me give your Lordships actual cases that have occurred. Fifty years ago a man married his lawful wife. They had no children. After a few years he left her, lived with another woman and brought up three children; but his lawful wife would not divorce him. Eventually, after some forty years, his lawful wife died and he married the woman with whom he had been living and made a will leaving his property to be divided among his children. Note the word "children". The law held that that gift was ineffective: the man had no children of which the law took count. The three children were illegitimate, and the Judge held that they took nothing, because in the eyes of the law when "children" are referred to in a will, it is taken to mean only legitimate children. Although in this case it was quite obvious what the man intended, those three children took nothing.
After the war I often tried cases in which soldiers at the war had gone away after a week of marriage and came back, after four years of war, to find their wives living with another man and with two or three children. How glad one was to be able to grant a divorce to such a soldier! The wife would marry the man with whom she had been living and have other children. When that mother dies, leaving no will, all her property goes to the legitimate children born after the marriage and not to those born illegitimately during the war. If the 1192 grandmother dies leaving no will, in descent on intestacy the illegitimate children will not take anything. Apart from the question of stigma, these are practical instances of the way illegitimacy affects the child in point of property.
It is said that this difficulty can always be overcome by way of adoption. Can it or does it? Does every couple think of the possibility of adoption, or consider it necessary or go to the expense involved? Moreover, someone over 21 cannot be adopted. So in order to remedy an actual injustice, this amendment of the previous law is necessary. If there were anything in it which would encourage adultery, I would say differently; but when married people commit adultery they do not sit down to consider the possibility of having children, and even less to consider whether the children will be illegitimate or legitimate. They are carried away by their emotions, justifying themselves by the plea that love conquers everything, or at least excuses everything.
If the law were consistent, there would be something to be said for it. But children born as the result of adultery are legitimated every day. Every day the courts are ready to expedite a divorce decree in order that a child may be legitimated by subsequent marriage. In one case it has been held that when a divorce was declared absolute, one day, and a child was born on the same day, but an hour or two earlier, the child was nevertheless not born during the marriage and could be legitimated by subsequent marriage. So the present law is inconsistent and does not operate fairly.
In the present day, we have divorce and people can re-marry. When the union is made lawful by marriage, the fruit of that union, either before or since, should be rendered legitimate, too. The only argument one can find against it is the old Common Law argument: how can one be sure that the child born before marriage is really the child of those two parents? In the vast number of cases there is no difficulty. The parties themselves well know, and there is never any challenge to it. In the rare case where there is difficulty, the law comes to aid. There is a presumption that the child is the lawful child of the 1193 husband, and that presumption would no doubt prevail and solve this difficult case. So, on balance, I support the first clause of the Bill. It is the last but logical step of the change made in the law in 1926.
Having said that in support of the first clause, may I mention the others? I almost fail to understand the way Clause 2 will work. Perhaps I ought to explain that it deals with what lawyers call void marriages, as distinct from voidable marriages. I think the best way to explain the distinction to your Lordships is to give some example. This is an example of a voidable marriage. A couple are married and the husband may not he able to perform the sexual act completely. Nevertheless, by artificial insemination or in some other way, they have a child. In this case the marriage is voidable because of the incapacity of the husband to complete the sexual act: the wife can get a decree of nullity, because it is a voidable marriage. Nevertheless, by law the child is legitimate. There was an Act passed in 1949 for that very matter, so that it has now been cleared up.
This clause deals with what we lawyers call a void marriage, and the best instance I can give your Lordships of that is ordinary bigamy. A married man deceives a girl into thinking that he is unmarried and goes through a form of marriage with her. Well, of course, it is no marriage; it is void; it is a bigamy. But the girl did not know of it. They have a child. She can go to the court and get a decree of nullity, saying that it is a void marriage, a bigamous marriage. As I read this clause, it is going to be said that that child is a legitimate child. But they have never been married. I find it diffcult to see, in the case of what we lawyers call real void marriages—marriages that have never been, such as a bigamous marriage—how it can be said logically, or indeed at all, that that child is legitimate. I can understand the position with regard to voidable marriages; but when there has never been a marriage, I should like to hear the explanation of what is proposed. I know that Lord Morton of Henryton's Commission recommended that unanimously, but I should like to hear what the explanation of it is.
1194 Clause 3, I suggest, is incomplete. In law the father of an illegitimate child was not recognised at all; he could not apply for custody, or access, or anything of the kind. True it is a good thing that he should have the right to apply now. But there are many cases where the father of an illegitimate child does not take any notice of it; he takes no responsibility for payment and does not acknowledge the child at all. Under this clause, as it stands, he can still apply for custody. Even if the mother disputes that he is the father, he can ask for the matter to be determined by the court. Under the rules of adoption the father of an illegitimate child has no standing unless he has paid for the child, or been under an order to pay for it, when the paternity is established. I suggest that this clause would be much better if it were confined to those fathers who have paid for and recognised the paternity of the child, or to cases where an order had been made against them in regard to it, so as to bring it into line with the adoption law.
Clause 4 is excellent, but Clause 5 introduces yet another point of principle. Here we have cases which have come down hundreds of years in our courts, bastardy cases, where the woman or the man commits perjury. From the court of first instance, the magistrates, there is an appeal to quarter sessions, who hear the case all over again—they have not any domestic proceedings. What is suggested in this clause is that those proceedings are to be made akin to husband-and-wife cases. They are to be dealt with by three magistrates in semi-privacy; the names can be published and so forth, but the public cannot enter, nor can the evidence be recorded in the newspapers and so on. It is a fundamental principle of our English law that every subject of the Queen has the right of access to the Queen's courts, and it would be a very serious thing to whittle down that great principle unless your Lordships were quite clear about it.
This sort of case is not like a husbandand-wife case. So often the girl is attacked. Often it is said: "What other men have you been with?". It may be suggested that she has been with boys all round the village; and her honour is at stake. With the man, it may be the employer whose honour is at stake, the 1195 woman having put up a trumped-up case against him hoping to get money out of him for the child. Perjury is rampant in such cases as this. Lord Atkin, in this House in 1937, took exception to the idea that they were like domestic proceedings, and held that they should be like ordinary proceedings—a seduction case, a breach of promise action, or a charge of having carnal knowledge of a girl under the age of sixteen. The question of the publication of names is still there, even with domestic proceedings.
We must, I suggest, stand firm by the principle that the proceedings in our courts of justice must be in open court, because, as Bentham says,Publicity is the security of securities.If the people are admitted, and the judge or magistrates have to do their work in the face of an open court, they are there on trial and it can be seen that they behave themselves properly. With secrecy and behind closed doors, what trouble may arise! I would ask your Lordships to think long before, in this Bill dealing with illegitimacy, you break in upon the principle of open courts. Subject to those qualifications on the points of principle in the Bill, I welcome it and support the Second Reading.
§ 4.47 p.m.
§ THE EARL OF IDDESLEIGH
My Lords, I am not asking your Lordships to reject this Bill on Second Reading; indeed, I am looking forward to the Committee stage when we shall hear much valuable legal argument regarding the later clauses of the Bill. I was much impressed by the criticisms which the noble and learned Lord, Lord Denning, has just made, and I look forward to their full ventilation and discussion. Of those later clauses I would say only that, on the face of them, it seems to me that the principle underlying Clause 3 might make the administration of the Children Acts somewhat more difficult than it is at present, since more consents will be necessary. To that extent, I regard that clause with some suspicion. I would add that since Clause 4 protects the unmarried mother, even when she is married, it has my strongest sympathy.
But I must voice most heartfelt opposition to Clause 1, and I shall beg your Lordships when we come to the Committee stage to totally reject that clause. 1196 In saying that, I hope I shall not be accused of insensitivity to the interests of illegitimate children. I am, and have been for some years, a member of the Children's Committee of a large and progressive local authority, many of whose children in its care are illegitimate, and I am perhaps as fitted as most of your Lordships to sympathise with them. Indeed, I would make the point of the pathetic position of the children whom this Bill will leave illegitimate. Imagine two little girls in an orphanage and one says to the other: "Aren't I lucky? My mother's husband is dead, so now my mother can get married and I will be legitimate." But the other girl says: "Oh, lucky you! My mother is dead, so I can never be legitimate." I do not know which of those two will excite your pity most. If I have learnt one thing from my children's work it is this: to value the institution of marriage and the normal married home. I believe that no one can engage in this work without feeling more and more keenly, with all our good will and all our efforts, the impossibility of compensating most of our children for what they have missed.
It is because this Bill seems to me to assail marital fidelity and the normal home life that I am opposed to it. After all, what are the legitimacy laws for? Why do we have them at all? I expect that in my lifetime we shall see those laws challenged in toto, and it seems to me that the proposals of this Bill make so great a breach in the whole principle of legitimacy that the remaining legitimacy law will have very little justification. You may say if you like that the legitimacy laws are harsh, unfeeling and cruel. They draw a distinction between different children who are equal in innocence. But it is the experience of mankind, since the earliest periods of history, that these laws are a necessary safeguard to protect and strengthen the observance of marriage vows. We are not boys here. We know that those marriage laws do need protection; that they need reinforcement, and that they are not so easy to observe. Above all, we know that the wife is in great need of protection from her husband's infidelities.
Now consider the position which a wife holds under our present legitimacy laws. She has an unfaithful husband, and she 1197 can say to him, if she will: "Go to the other woman if you will. Give to her the children which are my right to bear, if you must. But remember this: I, and I alone, can give you your children. These children that you beget in adultery will be the children of your concubine. They will not be yours, and they will not bear your name." How a man longs for children who will bear his name! The wife may say, "You will pay for them, but you will not have a father's right over them." Are we now to take away that stronghold of the legal wife's position? Is that a right and just thing to do in this age when marriage is so much assailed and so much more difficult than it ever was before?
I want your Lordships to consider another case, a case which I think will move you, and that is the case of the barren wife. I think there is no human being to whom we would give more sympathy than to her. There is a woman, who, above all, needs sympathy, support, fidelity and constancy from her husband. Thank God! by the laws that we have made in our own time she may be a little comforted by the possibility of adopting children she cannot bear naturally. Nevertheless, how much she should be considered! Now look at her husband. All normal, natural men want children. I often think of a line from George Bernard Shaw's play, Man and Superman, when the characters in the last act, I think it is, are discussing marriage, as is so usual in Bernard Shaw's plays, and one of them cries:Children! Ah! that clutch hurts and holds. Is there a father's heart as well as a mother's?There you have the father desiring children, and you are making it easy for him to have legitimate children which his wife cannot bear. He will come and say to the wretched woman: "Give me a divorce, not for your sake—it will do you no good—and not for my sake, but for the sake of the children which I have and which you could not bear me." Is not that a cruel position? Is that not a cruel clutch at her heart?
This is the clause which your Lordships will be considering in Committee and which has the support, alas! of the most reverend Primate. I gather that Her Majesty's Government are at least adopting a neutral, if not benevolent, 1198 attitude towards it. They are a Conservative Government. I do not know what they conserve, but I know that a Conservative Government has great influence in your Lordships' House. There are some people who say that your Lordships' House does nothing but register the will of Conservative Governments. If that is so, that has changed very much from the House which I have known for more than thirty years, because I know that this is a House with an independent judgment, and we can make up our minds for ourselves. I beg your Lordships to come to Committee stage and to act in accordance with your own thought-out views in this matter. I hope that your Lordships will not be less firm than your ancestors of the thirteenth century.
§ 4.58 p.m.
§ BARONESS WOOTTON OF ABINGER
My Lords, I hope your Lordships will forgive me this afternoon if, for once, I speak from premises that are not my own. For my own part, I find it quite unthinkable that any child should be made to suffer because it happened to come into this world in circumstances which were not approved by the legitimacy laws for the time being in force in this country. I know from extensive experience in our juvenile courts that children do suffer from this, however much we may do to try to reduce the stigma of illegitimacy. They suffer often in ways which adults may find illogical and unreasonable, but, nevertheless, their sufferings are real. For my own part, I would think that it should be both our duty and our pleasure to welcome into this world every child who arrives here, to make it feel welcome irrespective of the method by which it came, and make it feel, so far as is humanly possible, proud and happy to make its own peculiar contribution to that world.
But this afternoon I wish to forget all this and to try to see this problem through the eyes of those who take a very different view from my own. As I understand it, the legitimacy laws of this country are intended to do two things: first, to maintain the integrity of the family and therewith to discourage the practice of adultery; and secondly, to take care of some practical problems concerned primarily with inheritance and kindred matters. The 1199 second is now largely looked after, in default of legitimacy, by the possibility of adoption, and I do not propose to say more about it.
As I understand it, the objection to this Bill, particularly to Clause I, is that it is likely to encourage adultery. I have thought a great deal about this, but I cannot think of a single case in which, merely because this Bill may have become law, a single person is likely to commit a single act of adultery who would not otherwise have done so. If we are realistic, we know that people do not refrain from adultery because a child may result and because that child will be prevented from ever being legitimated. At the very most, this Bill might affect the question whether, or more probably the question when, people who are going to commit adulterous acts take the risk of those acts resulting in the procreation of a child. But anyone who is prepared to take that risk will certainly not be deterred by the additional risk that, should such a child result, it will permanently be illegitimate.
Moreover, I have always understood that the sin, if there is one, is the sin of adultery, and I know of no religious teaching which permits the act of adultery but proscribes the procreation of a child by an adulterous union. I could understand, though I do not share, the horror that might be felt at the idea that any child conceived in an adulterous union might subsequently be legitimated or that any child conceived out of matrimony might subsequently be legitimated. But I cannot understand the attitude which permits a proportion of children conceived out of matrimony and indeed a proportion of children conceived in adulterous unions to be legitimated while denying that possibility to a number of others. After all, the proportion is itself completely arbitrary. The law takes account not of conception but of birth, and nature has her own whims. In these days a very considerable number of prematurely born children survive to maturity, and the position now is that of two children who are conceived in exactly the same circumstances in adulterous unions, one which is prematurely born may be precluded from ever being legitimated and 1200 the other which is born at full term may be subsequently made legitimate by the marriage of its parents. This seems to me to be a totally unjustifiable distinction.
I should like to say just a word about the argument for the protection of the wife. I imagine that most of us have known cases where a man uses the emotional blackmail of saying to his wife. "You must now divorce me because my mistress is going to have a child"; and it is also true that there have been occasions when two partners in an adulterous union have deliberately allowed a child to be conceived in order that that weapon may be used. For that we make no defence. But anyone who is prepared to use that weapon is very unlikely to want to sharpen it by the additional point that should that child be born it cannot ever become legitimate.
I submit, therefore, that this Bill is merely intended in Clause 1 to give to a small number of unfortunate children the same rights as have been enjoyed over some thirty years by other children whose conception was equally sinful but who are permitted to acquire legitimacy by the subsequent marriage of their parents. The numbers involved cannot be very large. I understand that something like 3,000 children a year are at present legitimated under the law as it stands to-day. I imagine that the number involved if this Bill becomes law would be something of the same order. The number is not very large, but to these few children the issue can be, and often is, enormously important.
§ 5.8 p.m.
§ LORD CONESFORD
My Lords, we have heard speeches of great persuasiveness and sincerity and it is obvious, as indeed was admitted by the noble Lord who introduced this measure, that some of the clauses are acutely controversial. I take a diametrically opposite view of the merits of Clause 1, but I hope that nothing I shall say will make it possible for those who take different views of this difficult subject to doubt one another's sincerity.
The provision in the 1926 Act which Clause 1 seeks to abolish is based on the view that there is a real and important difference between promiscuous intercourse between unmarried people and adulterous intercourse where one of the 1201 persons at least is married. Let me say at once that I agree with noble Lords who have already spoken that this Bill does several quite independent things, and therefore it should undoubtedly receive a Second Reading this afternoon. But it may be convenient that those of us who take strong views of one or other of the clauses should make our opposition quite clear this afternoon. This essential difference between promiscuous intercourse of the unmarried from which a child is born and an adulterous union is not being debated this afternoon for the first time in this House. Since before the Committee stage it may be convenient for noble Lords in all quarters to look up the most material debates, I shall in the course of my remarks give their dates. The noble Lord who introduced the Bill this afternoon made, I think, one slip, of no great importance, when he talked about the Amendment introduced by the then Archbishop as though the debate in which he intervened was on the measure which is now on the Statute Book. I think he will find the Archbishop's speech in a debate on a precisely similar measure introduced rather earlier.
The three debates which noble Lords will find it convenient to look at, I think, are the debate on February 21, 1924, on the Second Reading of one of Lord Buckmaster's Bills. On that occasion the most reverend Primate, the Lord Archbishop of Canterbury, welcomed the Bill but gave notice that on the Committee stage he would introduce the Amendment which he considered essential, and which is in substance the provision of the law which Clause 1 of this Bill seeks to remove. The next debate to which I would refer was on March 6, 1924, on the Committee stage, when the Archbishop carried that Amendment on a Division by a majority of 54 to 18, the Archbishop of Canterbury and the Bishop of London voting with the majority. Subsequently, a new but substantially the same measure was introduced, and on July 17, 1924, on the Committee stage of that Bill, in the unavoidable absence of the Archbishop, Lord Cave, supported by the Bishop of Southwark, introduced into our law the provision now constituting the subsection which Clause 1 would do away with. In the crucial Division on July 17, 1202 1924, this provision of our law was carried by 77 votes to 38, and there voted with the majority the Bishops of London, Norwich, Rochester, Sheffield and Southwark.
So much for the opinion of the House in 1924. As other noble Lords have reminded the House this afternoon, we have received more recent advice, from the Royal Commission on Marriage and Divorce, the topic being dealt with at pages 303 to 306 of their Report. Perhaps I might read an extract from the recommendations of the twelve who took the majority view, that the subsection which it is now sought to omit should not be omitted. I am reading from paragraphs 1179 and 1180. Paragraph 1179 says:The basic argument against the proposal that in all cases children should be legitimated by the subsequent marriage of their parents is that it would result in a serious weakening in respect for marriage. It is no doubt possible to cite particular cases in which, when viewed in isolation, the present law may appear to work harshly against the children. But against the benefit which relief might afford to existing cases of hardship must be balanced the possible effects of removing the present impediment. Measures designed to relieve present hardship may result in future social evils which far outweigh any immediate and temporary benefit which they create.Then, paragraph 1180 says this: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. This, indeed, is the essence of the objection to the proposal. Legitimacy is the status held by a lawful child of the marriage. Any departure from that conception can only be made by ignoring the essential moral principle that man cannot, during the subsistence of his marriage, beget lawful children by another woman.That is a more recent statement of the general principle which commended itself to a majority of this House in the debates to which I have referred.
I do not think that anybody this afternoon has done so, but I think it is material to refer to the law of Scotland. At the present moment, if we do not pass this Bill, the law of England and the law of Scotland are in substantial agreement on this point. The law of Scotland makes a similar exception to that made 1203 in the subsection which Clause 1 proposes to abolish, the difference being that the law of Scotland makes the material date when the parties must be unmarried the date of conception and not the date of birth. Nevertheless, there is at the present moment, subject to that slight difference, conformity between the law of England and the law of Scotland on this point. One most curious effect of what is now proposed is that not only is the view of the majority of the Royal Commission that the present law should be maintained overridden, but, likewise, so is the view of the minority, because the minority proposed that both the law of England and the law of Scotland should be modified by the deletion of the two exceptions which I have mentioned.
I remember the problem as it faced us at the time when the 1926 Statute was going through Parliament. I was a supporter of the measure. I was not actively in politics at that time, but I supported and approved of its principle. The reason was that it improved the position of illegitimate children without adversely affecting or harming other persons. It was quite clearly, in my view, in the interests of the children who were to be legitimated. I do not think that the same can be claimed to-day about this measure. Certainly, the interests of others can be adversely affected, as I shall seek to show your Lordships; and I take the further view—a view that nobody, either in another place or in this House this afternoon, has yet taken—namely, that it is by no means clear that the clause would always benefit the very children whom it is hoped to help.
In order to consider this matter, let me take two different cases to which slightly different considerations apply. If Clause 1 becomes the law of this country, these are the two cases that I wish to consider. The first is where the mother of the child concerned is an unmarried woman but the father is married; the second is the case where the mother of the illegitimate child is herself a married woman. Let me take those cases in order. The mother is unmarried but her adulterous union with a married man results in her bearing a child. The wife of the father is entitled to seek a divorce, but she is not bound to do so. I have very little doubt that the most reverend Primate 1204 and many of the Bench of Bishops would strongly urge that the Christian duty of the wife may well be to do everything in her power to maintain the marriage, and she may not be willing to seek the divorce to which the law of this country entitles her. Do we really want her to be subjected to the pressure of others saying, "Are you not being rather cruel to the children in not seeking a divorce?" I want to ask another question of the supporters of this measure. Do they think that the legitimacy of the child ought to depend on the wife's decision? The noble Baroness, whose speech very much interested me, indicated at the beginning of her speech that she would have preferred to adopt much more robust arguments, with which I might have been in a great deal more sympathy.
I will come later to the remedy for the evils that have been described, but let me pass, for a moment, to the other case I mentioned, where the mother is married but a third party—an adulterer—is the father of the child. The child will then be born the legitimate child of the subsisting marriage of the mother, but it will then be possible, if this Bill with Clause 1 becomes law, first of all to bastardise the child and then to legitimate it by the subsequent marriage. This seems to me so fantastic that I feared that if I told your Lordships this, I should be accused or suspected of having taken an erroneous view of the law or invented an example. I propose, therefore, to quote what a Law Lord said in the debate of 1924; and I may say that the validity of the point appears also in two speeches of previous Lord Chancellors—namely, Lord Finlay and Lord Cave. To show that I am not giving any imaginary example, let me read what was said by Lord Phillimore in the debate of February 21, 1924 [OFFICIAL REPORT, Vol. 56, col. 260]:Let me show your Lordships, purely on practical grounds, the objection to the Bill as it stands in that respect. A child is the fruit of an adulterous union, the woman being married. The intrigue is not known. The parties go on and the husband dies in ignorance of the intrigue, and then the guilty couple marry. What is the position of a child procreated by the paramour and the adulterous wife? Is he then to be the legitimated child of his actual parents? Is he to be bastardised from being what he has always grown up in the belief that he was? He has always supposed that he was the son of the husband of his mother, he has lived with his brothers 1205 and sisters in that belief, and has enjoyed all the comforts of the family. Is he then to find that his real parents are going to say that he was their child, and therefore he is to be legitimated as their child, and necessarily bastardised as regards the position he has always been in before?The noble and learned Lord went on to suggest that those who had drafted that Bill had not thought out all the implications. I believe that that is still true. What did the noble and learned Lord, Lord Buckmaster, say about the point? He said, as I understood my noble and learned friend, Lord Denning, to say in effect this afternoon, that such a procedure—first to bastardise and then to legitimate—was highly unlikely; but neither of the noble and learned Lords said it was impossible, and, in view of what was said by two previous Lord Chancellors, I shall be very much surprised if my noble and learned friend on the Woolsack this afternoon says that the evils to which I have drawn attention are wholly imaginary or impossible.
Now I come to what I know is uppermost in the minds of the very well-meaning supporters of this measure—they all have in mind the interests of the child. I think probably most of them have in mind (and I am certain that when the 1926 measure was going through Parliament most people then had in mind) a young child or a baby. Under the existing law it is normally a young child who will be benefited and legitimated: but not under this Bill. Under this Bill years and years may pass and no legitimation may be possible until the injured party to the marriage dies. The child may be an adult, perhaps even trading in his own name, the name in which he has grown up. Many people may have completely forgotten, if they ever knew, that the child was illegitimate. The natural parents then marry and it becomes the duty of the Registrar to alter the register and to change the name of that person. Is it seriously contended that that must be in the interests of that person? If it is really intended to pursue this measure further, I hope that those who are responsible for the Bill will consider the insertion of a clause giving the child, or somebody on behalf of the child, an opportunity of being heard in his objection to being legitimated in this way.
I believe that the intentions behind this first clause are wholly admirable but that 1206 the provision is, in fact, entirely muddleheaded. Those who have drafted it have been unable quite to make up their minds whether they think marriage of little importance or very important. It would seem to me that they underestimate the importance of marriage when they say that an adulterous union can produce a legitimate child just as easily as promiscuous intercourse between unmarried people. But, on the other hand, they seem to exaggerate the importance of marriage when, having done that, in my view, essentially wrong thing, they go on to suggest that the only people who are to benefit are some illegitimate children and not all.
I would suggest to the noble Baroness—and I felt, from the beginning of her speech, that this might be not entirely out of sympathy with her idea—that if we are thinking of the innocent child, and if the innocence of the child is sufficient reason for saying that it is legitimate, then, rather than benefit some illegitimate children, we ought to deal with all illegitimate children simply by abolishing illegitimacy. There is nothing legally impossible about that. I have myself had a shot at a one-clause Bill which would run somewhat as follows:As from the passing of this Act every person shall be deemed to be the legitimate child of its natural parentsThat does abolish illegitimacy, though no doubt we should have to go on with various subsections dealing with adoption and so on; but if we really mean to abolish illegitimacy, it can be done.
But this Bill does not do it. My noble and learned friend Lord Denning said that, quite apart from illegitimacy, there were various unfair legal consequences. Very well; there is nothing impossible about removing those legal consequences without going against the considered view of this House in the debates to which I have referred and the recommendation of the twelve members of the Royal Commission. I say. my Lords, that this clause is not only wrong in principle. I profoundly believe that in its working it would cause more misery than it cured, and I beg to give notice now that when this Bill goes into Committee I propose to move to omit Clause I in order that this House, when in Committee, shall come to a decision on this point; and I hope that when this 1207 point is reached we shall have the advice of the Bench of Bishops.
I come now to Clause 2. Clause 2, as my noble and learned friend Lord Denning pointed out, is in accordance with the unanimous advice of the Royal Commission. It has puzzled many lawyers, even before my noble and learned friend Lord Denning mentioned his doubts this afternoon. It was subjected to very vigorous criticism by the Solicitor-General in Committee in another place. But, nevertheless, it can be claimed that Clause 2 is in accordance with the advice of the Royal Commission.
Let me say what I believe could be, or would be, the effect of Clause 2 in its present form. Mr. X is married to Mrs. X and they have several children, but all the children are daughters. Mr. X then deceives a girl with whom he contracts a bigamous marriage and she gives birth to a son. That son, under this clause, will be legitimate and will be his eldest legitimate son. His lawful wife forgives him, the marriage continues and she bears him a son. Mr. X then succeeds to a Peerage and after a short time he dies. The next Peer will be, under this clause, the son of the bigamous marriage and not the son of the lawful marriage. That I believe to be the effect of Clause 2 as it now stands.
I would say to this House that Clause 1, whatever your Lordships may think of it, does not in any way affect the right of succession to this House, because Section 10 of the principal Act, the 1926 Act, to which Clause 1 is an amendment, makes it clear that succession to a title is not affected. But that is not so, of course, as regards Clause 2. I think the House will be very anxious to hear the explanation of Clause 2 by my noble and learned friend the Lord Chancellor and whether he thinks, supposing that it is partially right, that it will need some amendment.
The only other clause to which I wish to refer is Clause 5, and I would express my agreement with my noble and learned friend Lord Denning. It is a very long time ago when I was practising at the Bar, but I still remember very well two cases in which I was engaged on bastardy summonses. I remember appearing in one case for the mother 1208 and in another case for the man alleged to be the father. They made such an impression on my mind that I remember the cases in considerable detail even to-day. I agree with my noble and learned friend Lord Denning that in no class of case is it more likely that one or other party, and not impossibly both parties, will commit perjury. I believe that a hearing in open court lessens the chances of perjury. Among the most distinguished judges whose friendship I have enjoyed was the late Lord Atkin. My noble and learned friend Lord Denning has referred to a speech he made in this House on this point. I think that when we come to Clause 5 in Committee we shall certainly want to consider whether anything has happened to make what Lord Atkin then said less applicable.
My Lords, in conclusion I would say this: on Clause 2, which I think will have to be amended, and on Clause 5, I wish to hear argument, but as at present advised I think they both need amendment. But on Clause 1 I am absolutely convinced that it is not only wrong and contrary to principle but that if we enact it it will cause far more misery than it cures.
§ 5.36 p.m.
§ THE LORD CHANCELLOR
My Lords, I am sure that all your Lordships will agree that we have had a most interesting discussion on this Bill, so clearly placed before your Lordships by the noble Lord, Lord Chorley. It is interesting, arid I think necessary, to have in mind that this Bill consists of five substantive clauses which deal with separate and unrelated matters, though underlying them all is the desire to do whatever is practicable to reduce the unfortunate effects of illegitimacy, a status which is conferred on a person through no fault of his own. One ought to have that in mind in one's approach to the Bill.
I have heard all the speeches, and I understand that no one desires to press that your Lordships should reject this Bill on Second Reading. So I think the most helpful thing I can do is to place before the House, as objectively as I can, the arguments on the most important points, because they raise very important aspects of our social life. Of course, the most important clause in the Bill, the one that has attracted most controversy, 1209 is Clause 1. That is the clause which seeks to remove the restriction at present contained in the Legitimacy Act, 1926, and to make it possible for a person to be legitimated by the subsequent marriage of his parents, in spite of the fact that both or either of them was married to a third person at the time the child was born.
Your Lordships have heard a great deal of the history of the law of marriage this afternoon, but it is an interesting fact, which has to be borne in mind, that the possibility of legitimation by a subsequent marriage was something unknown to the English Common Law. Although it has been the law of Scotland for centuries, both before and after the Reformation, it was introduced into the law of England only by the Act of 1926. We are, therefore, dealing with something that is still relatively new to those who have been brought up on the English Common. Law. That is, I agree, a reason for giving it consideration; but it is not a reason for rejecting it if we think there is a real benefit to the child.
As my noble friend Lord Conesford has pointed out, when the Bill of thirty-five years ago was before your Lordships' House there was strong feeling that it should not be possible for anyone to be legitimated if he was born as the result of an adulterous union. A provision to that effect was accepted by the House of Commons, as the noble Lord, Lord Chorley, has pointed out, in face of the opposition of a substantial minority. That opposition came not only from the four famous names he mentioned as having occupied the office of Prime Minister—namely, Ramsay MacDonald, Neville Chamberlain, Sir Winston Churchill, and Lord Attlee—but also my noble friend Lord Swinton, who voted with that minority. So, my Lords, as far as the balance of opinion is concerned, this provision is not something that can be lightly dealt with if, thirty-odd years ago, it attracted such a remarkable concatenation of support as it then did in the House of Commons.
Several attempts have been made to deal with this matter; and, as my noble friend Lord Conesford said, it was against that background that it had to be considered afresh by the Royal commission on Marriage and Divorce. And in the circumstances it is perhaps 1210 not remarkable that they did not reach agreement. As your Lordships have heard, twelve members, including the Chairman, my noble and learned friend Lord Morton of Henryton, were opposed to any alteration in the law, while seven members, including my noble and learned friend Lord Keith of Avonholm, thought that the time had come for a change.
There is one point which I think it is important that your Lordships should consider, and that is the effect on the composition of your Lordships' House; and I ought to make clear my views on these various clauses before I deal with the general argument. I want first of all to make clear that in my view—and I gather that my noble friend Lord Conesford agrees with me—Clause 1 of the Bill will make no difference whatever to succession to dignities or titles of honour. The Legitimacy Act, 1926, which, as I have said, first introduced the possibility of legitimation by subsequent marriage, expressly provides that nothing in that Act is to affect the succession to any title or honour, or render any person capable of succeeding or transmitting a right to succeed, Exactly the same principles apply to Clause 1 of this Bill, which proceeds by way of amendment of Section 1 of the old Act.
Let us now consider the basic difference of opinion—and again I will try to state it fairly. The argument which commended itself to the majority of the Royal Commission—what they described as the basic argument against the proposal for a change in the law—was that the alteration now proposed by Clause I of this Bill would result in a serious weakening of respect for marriage, and that if the law were to be altered it could not fail to result in a blurring of moral values in the public mind. If, said my noble and learned friend Lord Morton of Henryton and those who thought like him, children born in adultery are subsequently to acquire the status of legitimate children, an essential distinction between lawful marriages and illicit unions disappears. It was said, too, that if the law is altered it will be a direct encouragement to the parents of the illegitimate child to put pressure on the other party to the marriage to agree to a divorce, so that the parents 1211 of the child may subsequently marry and make it legitimate. That was an argument which my noble friend Lord Iddesleigh developed this afternoon.
Those who take the other view say, first, that not only does the present law create hardship (and my noble and learned friend Lord Denning reminded your Lordships of the hardships involving property which might result) and lead to unhappy distinctions between one child and another in the same family, but, secondly, that it is illogical (and the noble Baroness, Lady Wootton of Abinger, developed that point this afternoon) and is no real deterrent to an adulterous union. It is no deterrent, so the argument goes on this side, because, in fact, as my noble and learned friend Lord Denning said—and I think the noble Baroness said the same—people do not stop to think, before they engage in adultery, what the status of any child may be. Then the fourth argument is that, in any event, such children can always be given legal status by the simple process of adoption.
My Lords, as has been pointed out by the noble Lord, Lord Chorley, this is not in any sense a Party matter, or even a political matter. When this Bill was before another place the Government spokesman said that the question was pre-eminently one for the consciences of individual Members, and was a matter on which the Government would desire to be guided by the wishes of the House. My Lords, I still take that view, and I put that view to the House. I think it is right, on a matter of this kind. It is not an abdication of their function or a weakness on the part of the Government; it is right that, on measures of the kind I have described, they should be prepared to act on the view of the House. But, so far as your Lordships are concerned at this stage, the Bill was given a Second Reading in another place by a substantial majority, and that is a consideration which I think your Lordships would wish to bear in mind—and certainly have borne in mind in expressing the view that it should be given a Second Reading to-day.
Having said that, I should add that, in the view of the Government, Clause 1 of the Bill as it stands will work satisfactorily as a piece of legal machinery. 1212 Undoubtedly difficulties may arise as to the exact status of a child apparently born in wedlock but whose father is in fact not the husband of the marriage. But, my Lords, such difficulties are capable of arising to-day so far as legitimacy or illegitimacy is concerned. I agree with my noble friend Lord Conesford that the problem will be complicated by the possibility that the child may subsequently be legitimated as a member of another family. However, I think that these problems can be worked out by the courts as they arise, and that in themselves they do not afford a reason for opposing Clause 1 of the Bill.
My noble and learned friend Lord Conesford made a most eloquent attack on the working of this part of the Bill. I do not think that he put enough importance on the question of the future of the children. It is always possible, and right, to investigate the difficult cases which the Bill brings out, but I should have thought that whether action would be taken in a number of the cases which my noble and learned friend postulated would depend on whether that action was for the benefit of the children. In other cases, it may well be that we shall never be in a position in which sleeping dogs will be allowed to lie, but the matter may arise in the future when the benefit of the children's children may come into consideration. Therefore I must advise the House that I do not think that the difficulties are insurmountable, or that in themselves they afford a reason for rejecting the clause.
I come to Clause 2, which deals with the children of a void marriage. As the noble Lord, Lord Chorley, said, this clause is based on the recommendations of the Royal Commission on Marriage and Divorce. But, of course, it has a far older history than that. It is important that we should consider this matter objectively, in view of the criticisms that have been made. The effect of Clause 2 is to legitimate the child where the parents have gone through a ceremony of marriage, notwithstanding that a decree of nullity is made subsequently, provided that one or both parents were ignorant of the impediment to the marriage—that is to say, if one of the parties to the marriage that was no marriage was innocent, then the child is legitimate.
1213 The interesting thing is that, so far as my researches go, not only is this the recommendation of the Morton Commission, but I understand—and I asked my noble and learned friend Lord Keith of Avonholm to check on the matter—it has been the law of Scotland for hundreds of years, before and after the Reformation: it was Canon Law governing the countries under the Church of Rome from time immemorial, and still is. Therefore, I do not think that we can laugh off, as a reductio ad absurdum, something which within the countries of Europe and in my own country has operated successfully for hundreds of years. That is the position, and the Morton Commission, having looked at that, suggested that we should bring our law into line. Of course, to us nurtured in English Common Law, it is a really remarkable conception, the hypothesis that where there is no marriage because one of the parties is already married and where the other party is innocent, the child shall be legitimate, but in my view something which has such respectability of ancestry cannot be laughed off.
But it will be necessary (I hope the noble Lord, Lord Chorley, will agree) to see that the clause is amended on Committee stage so that it does not have retrospective effect in regard to succession to property—that is to say, that it does not disturb existing rights—and also amended in order to make proper provision for succession to titles of honour. There are two ways in which this can be done. Again I should be grateful if noble Lords would consider this question between now and Committee stage. On the one hand, we could provide that Clause 2, like Clause 1, should not apply to titles of honour at all, so that a child of a void marriage, like the child who is legitimated by his parents' subsequent marriage, will never be in a position to succeed to a title. That is one possible way of dealing with this. On the other hand, it may be said that there is a clear distinction between someone who is treated as legitimate under Clause 2 and someone who is legitimated, either under Clause 1 or under the old Act, by his parents' subsequent marriage, in that the former is treated as being legitimate throughout while the other remains illegitimate until the marriage.
1214 We now come to the difficulty that on this view it would be illogical to distinguish between the child of a void marriage and the child of a voidable marriage. May I remind your Lordships, in the briefest terms, which marriages are void and which are voidable? A void marriage is one which is bigamous; where there has been a mistake of the parties as to the nature of the ceremony; where one is of unsound mind, which is found by investigation; where the parties are within the prohibited degrees; or where the parties are not of age, or it is a sham marriage. A voidable marriage is one where there is impotence; where the marriage has been solemnised under threats or fear or duress; where the marriage takes place while one of the parties is in a state of intoxication; where there is wilful refusal of intercourse; where there is unsound mind not found by investigation; where there is venereal disease or where the woman is pregnant by another man.
In all that group of voidable marriages, the position, as my noble and learned friend Lord Denning said, is that a child born before the proceedings have been taken to void the voidable marriage is now legitimated under the Act of 1949. So there is no doubt that in that case, the case where there is a voidable marriage which is afterwards annulled, and annulled in the form that it should be treated as never having taken place at all, the child of that marriage is legitimate and can succeed to a peerage or any other title of honour. That is the real difficulty which I see with regard to this matter; and that is why I would ask your Lordships to consider whether it is not fairer, having that in mind—that is to say, the position of children of voidable marriages—that the Act should apply only to children born after the Act comes into operation and should not have any retrospective effect. I am sorry to have taken up so much time, but this is an immensely important point. Your Lordships' House is the only place that is likely to be interested in the composition of your Lordships' House in this field, and I think it is right that we should consider it. I have ventured to explain it in order that on the Committee stage we may have the views of noble Lords from all parts of 1215 the House, which I shall very much welcome in dealing with this point.
The only other clause on which I propose to say anything is Clause 5, which provides that affiliation proceedings in magistrates' courts are to be treated as domestic proceedings. As I understand it (my noble and learned friend Lord Denning will correct me if I am wrong), the restrictions on publicity in domestic proceedings still allow that newspaper reporters shall be present; that newspapers may publish the names, addresses and occupations of the parties and witnesses, the grounds of the application, a concise statement of the charges, defences and countercharges, submissions and decisions on any point of law and the decisions of the court and any observations made by the courts in giving them. A similar provision in the Summary Procedure (Domestic Proceedings) Bill, 1937, was, as we have heard, rejected on the Motion of Lord Atkin. Lord Atkin was a great friend of mine and, in my respectful view, the greatest judge before whom I have ever had the honour of appearing. Therefore I could not approach the dictum of anyone with more respect. The only point is that in fact affiliation cases are not widely reported. It is possible to report them to the extent that I have said.
There is another aspect which I think it right to bring to your Lordships' attention. Since 1937 we have had over twenty years' experience of domestic proceedings, and that experience does not give us any reason to suppose that the restrictions on publicity I have mentioned or on the size of the bench have encouraged perjury. I am told that Clause 5 of the Bill is supported by the Justices' Clerks Society and also by the Council of the Magistrates Association. In these circumstances, again there is a difficult point for your Lordships to consider: on the one hand, the expression of opinion of great weight some twenty years ago, and, on the other, the experience we have had ever since.
The points I have drawn to the attention of your Lordships are difficult ones. I have tried to set out the conflicting arguments that we shall have to consider on the Committee stage. I shall be most interested to have the views that are 1216 held by your Lordships and very much assisted in my own thought by the reasons on which those views are grounded. We have always a double duty. We have to adhere to the principles that we hold. On the first clause there is a division of opinion, and your Lordships have heard the views on either side; and on the other clauses there are not so much differences of principle as differences as to what is practicable and what is desirable. I have endeavoured to put the points to your Lordships, and I hope that what I have said may be of some assistance in forming the views which we shall have to consider on the Committee stage. It is rare, as your Lordships know, for me to come to your Lordships without expressing a strong view of my own on a subject, but here I feel that the occupant of the Woolsack has a special duty to put not only the difficulties but the absence of difficulty before your Lordships. There is no doubt that to-day the House wants to give this Bill a Second Reading, and it is in that spirit that I have ventured to address your Lordships this afternoon.
§ THE MARQUESS OF SALISBURY
My Lords, before the Question is put, there is one question I should like to ask my noble and learned friend on the Woolsack. I have listened carefully, as I am sure the Whole House has, to the speech he has just delivered, but I am still new clear what view the Government take upon this Bill. I understood my noble and learned friend to say that they did not regard it as a political question, but as a purely legal one. But this is not only a political assembly, but also, as I understand it, the highest court of law in the country, and I think we ought to have some guidance. It is, after all, an important change that is proposed in Clause 1 of the Bill. Under it, as I understand, a child who had previously been regarded, or might previously have been regarded, as the legitimate offspring of one man can be legally made the legitimate offspring of another man. That is a considerable legal change. I am not saying that it is a proper or an improper change, but I feel strongly that the House ought to have guidance from the Government of the day on a point of this importance. I know it is impossible for my noble and learned friend to give it to-day, but I hope that, for the 1217 assistance of those of us who feel that important legal and moral questions are involved in this Bill, the Government will be able to give us some guidance when we come to the Committee stage.
§ THE LORD CHANCELLOR
I do not know whether my noble friend Lord Salisbury was here when I dealt with this matter. What I said at an earlier stage in my speech was that this was a question where the Government were most anxious to get the views of the House. The words I used were: "When this Bill was before another place the Government spokesman said that the question was pre-eminently one for the consciences of individual Members and a matter on which the Government would wish to be guided by the wishes of the House." That was the attitude of the Government, which I have repeated k to-day; and before my noble friend arrived in the debate, it was pressed, I think by my noble friend Lord Iddesleigh, that this was a matter where the Government should allow your Lordships to express independent opinions and not make it a matter of persuasion. That was the view which I expressed. But I also endeavoured to make clear in what I said that the changes did not, in my view, raise any points that it would be legally impossible to carry out.
I was very anxious that we should get the view of the House on this matter, and I shall take note of what the noble Marquess has said. I hope that not only shall I get a question from the noble, Marquess, but that I shall get his view on this matter. It is exactly the view of someone who has such great influence over the views of the individual consciences and opinions of Members of the House that I should like to hear. I hope I am not differing from him, but I think it is right that on a matter of this kind the House should form an independent opinion, provided that I am there all the time to give the help that I can on any legal aspect of the matter. I assure the noble Marquess that I shall be there, and I shall unhesitatingly give the help.
§ THE MARQUESS OF SALISBURY
My Lords, it is always open to noble Lords in this House to give an independent view, and I hope they always will. It is one of the great merits of this House. But I think it puts the House in a certain difficulty if the Government express 1218 no view at all. I listened to every word of the noble and learned Viscount's speech, but all I understood him to say was that there were no legal impossibilities about implementing Clause 1. I appreciate his guidance given to the House to that extent. But on whether it is a good thing to do this or not we get no guidance at all. As I understand it, the view of the noble and learned Viscount—and, I suppose, the view of the Government, because he represents the Government—is that they have not any definite view at the present moment. They would rather hear what the House has to say about it. They are right to want to hear that, but the House would like to have some expression of view from the Government.
§ THE LORD CHANCELLOR
I will certainly convey what the noble Marquess has said to my colleagues. I would remind him that this is a Private Member's Bill, and not a Government Bill. Although my experience in Parliament is short compared to that of the noble Marquess, I have been in this building now for nearly a quarter of a century, as have many others in this House, and I would say that it is by no means unknown that on a Private Member's Bill the Government, while weighing the arguments, leave the matter to the House. I understand that the noble Marquess thinks that we should not do it in the case of this Bill. I will pay every attention to his view, as I always do, and consult my colleagues about it. But I am surprised that the noble Marquess is surprised that the Government should take that attitude on a Private Member's Bill. I have seen it done, I should have thought, certainly dozens, if not scores of times, in the twenty-five years I have been in this building. But I will bring my noble friend's opinion, which I value very much, to the notice of my colleagues.
§ LORD SILKIN
My Lords, may I say that I certainly respect the view of the noble Marquess, but there are some of us who feel that this is a matter of high moral importance and one upon which we are perfectly competent to form a judgment without the advice of the Government. Of course, on legal and practical questions we are delighted to hear the advice of the noble 1219 and learned Viscount, but on a moral question we are all competent to form a judgment, and I hope that the House will be free to do so when this matter comes up again.
§ 6.15 p.m.
§ LORD CHORLEY
My Lords, perhaps I might say a word on that last point to start with. I have probably, as a Back-Bencher, had more experience of Private Member's Bills than the noble Marquess, and it falls to my lot not infrequently to be asked to steer Bills of this kind through your Lordships' House. My experience invariably has been that the Government express this sort of neutral position with Bills which are non-political. The most that the sponsors can hope for is a certain amount of benevolence, which I asked for in my opening speech and which I should like to claim that I obtained, because the noble and learned Viscount has made it perfectly clear that there is no particular difficulty from the legal angle in administering Clause 1 of the Bill. The courts are perfectly competent to handle the sort of problems to which the noble Lord, Lord Conesford, devoted so considerable a part of his speech. That being so, is it not obvious that we have to decide this matter as a matter of moral principle? It is on that basis that I am asking that these unfortunate children should have the advantage of legitimation through the passing of this measure.
I do not want to take up a great deal of your Lordships' time at this late hour. I should like to thank all those who have taken part in this discussion, especially those who have assisted my point of view, who have been the great majority, and also the noble and learned Viscount the Lord Chancellor, who has, as he almost invariably does on this type of occasion—in fact I might excise the word "almost" brought his legal knowledge and, what is more important, his judicious mind to bear on these problems. I am personally very grateful to him for the analysis with which he has provided us and obviously some of the points which he raised, particularly in connection with Clause 2, are ones which need to be carefully considered. If in consultation with him or his advisers anything can be done to clear up the situation 1220 in advance of the Committee stage so that we may handle it in a more efficient way, I shall be exceedingly glad to take part in it.
I think the noble and learned Viscount has shown the unreality of the arguments put forward by the Royal Commission against this proposal. They are hypothetical. They are just as capable, in my view—and this, quite obviously, was the view of the most reverend Primate—of being turned in favour of this proposal as against it. On the other side, weighing down the balance and weighing it down with a real bang, if I may suggest it, is the concrete fact that we shall remove this disability, this stigma, these legal deficiencies in the present law which the noble and learned Lord, Lord Denning, particularly analysed with such logic and force. I thought, if I may say so, that he answered in advance the noble Lord, Lord Conesford, or most of his arguments. The noble Lord had obviously worked them out very carefully in advance. I think that if he looks at the speech of the noble and learned Lord, Lord Denning, in Hansard, he will see that most of his points are in fact answered in that speech.
The noble Lord, Lord Conesford, is an old friend of mine. I have always admired the complex, subtle, almost intricate quality of his thought, and it was only too evident to-day. I thought the argument was so legalistic that, as the noble and learned Viscount on the Woolsack said, he really overlooked the position of the unfortunate illegitimate child, the whole object of this Bill being, of course, to put that right. I hope your Lordships will not be too much impressed with the arguments he put before you. In the same way, I thought the very sincere argument put to your Lordships by the noble Earl, Lord Iddesleigh, had also been answered in advance by the most reverend Primate, whose statesmanlike speech I very much appreciated.
I will not take this matter any further. I was a little surprised that the noble and learned Lord, Lord Denning, objected to Clause 2. I think his argument, if I may say so, was essentially a logical one. Logical arguments are not always valid in law even, and certainly not in politics, and the fact that this has worked perfectly well for 1221 hundreds of years in Scotland surely is a complete answer. After all, this is shown by the case of the bigamous marriage which he mentioned: an innocent woman there bears a child. Why should not her child be legitimated? Why should not that unfortunate baby who came into the world in that way be made legitimate just as much as the child covered by Clause 1? I think the noble and learned Lord, if he considers it, will see that this is not a case where logic should be pursued to the extent of destroying a great deal of happiness in the way that it would if this clause were taken Out of the Bill.
§ LORD CONESFORD
May I put one point to the noble Lord. If he treats the law of Scotland with such respect when he comes to Clause 2, why does he treat it with such contempt v. hen he comes to Clause 1?
§ LORD CHORLEY
The noble and learned Lord knows quite well that it is a sort of convention that matters of this sort shall be dealt with first of all by Bills relating to England, and then the Scottish Members of Parliament, who have a very proper regard for their own rights and the position of their country, if they think fit can introduce similar Bills in relation to Scotland. I am sure that if we had introduced a Bill relating to Scotland as well there might have been considerable objection to it. I am accepting the noble and learned Lord's contention that if this thing can work perfectly well in Scotland for hundreds of years, and, indeed, throughout Europe, as it has been shown it does, the logical argument against it is one which ought not to be allowed to prevail.
I appreciate that in Clause 5 there is a real difficulty, as I said in my opening remarks, as regards the administration of justice in open court, which is obviously of great value and which in every ordinary case I should certainly wish to defend. But there are cases, as experience over the last twenty years has shown in connection with children's courts and in other ways in which domestic matters of this kind are in question, in which that administration of justice in the full glare of publicity is not a good thing. On the whole it seems to the sponsors of this Bill that this type of case falls into that group. 1222 It may be that it is a near thing, but I think the noble and learned Lord has shown that while, when this type of domestic hearing was introduced some twenty or so years ago, there was a great deal of opposition to it by men whose experience of the law was great and whose opinions were of great weight, on the whole those forebodings have not been validated by the experience which we have had of the working of these Acts. I would suggest that this particular matter will fall into that group. I do not wish to take up any more of your Lordships' time. I hope you will now give this Bill the Second Reading for which I ask.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.