§ 2.51 p.m.
§ Order of the Day for the Second Reading read.
§ LORD AMULREE
My Lords, in rising to move the Second Reading of this Bill, I should like for a short time to go back to 1939, just before the war, because in February of that year a rather similar Bill was introduced by the noble Lord, Lord Merthyr. The Bill was given an unopposed Second Reading by your Lordships and was referred to a Select Committee. They, unfortunately, had not completed their work when the war broke out, and so the Bill did not proceed any further. Considerable discussions have taken place since the war, because of various changes in the whole of blood-grouping knowledge. The Bill which I have the honour to present to your Lordships this afternoon is the result of these discussions which have been carried on for the last ten or twelve years.
During the year 1959 there were 4,996 applications for affiliation orders. Some of these were made by the mother herself. A certain number were made by the National Assistance Board when the mother applied for National Assistance and they found that she was not getting money from the alleged father. Of these 4,996 applications, 4,160 were granted by the courts. The number of those contested we do not know: it is not possible to obtain the figure. During 1959, too, 212 people were committed to prison for non-payment under an affiliation order. Some of these went to prison because they either could not pay or did not care whether they went to prison or not. But a certain number went to prison because they denied they were the father of the child; it was done on some kind of principle on their part. Once again, I am afraid I cannot tell your Lordships the proportions of the two groups.
This is a matter in which science can be of some assistance to the law, because a lot of work has been done and many steps have been made in the study of blood grouping, of which nothing at all was known until roughly 60 years ago. Blood grouping first came in some time before the First War, and it was used a good deal during the First War. The 1076 main purpose was to ensure that patients who required a blood transfusion were given blood that was compatible with their own blood and not incompatible, because if it was incompatible a patient would be killed, or would certainly suffer a severe illness. That is what occurred before these tests were discovered, and in fact a number of blood transfusions ended in disaster.
From that situation we have now advanced a good deal. It is now known that we have bodies, called genes, which convey from the parents to the children the qualities of the parents which are inherited by the children. By a profound study of these genes, and what can be done to test them and investigate them, we have now reached the stage where we can say that, if we know to what particular blood group the mother and child belong, we can say that the father must belong to one of a certain number of blood groups. One cannot put it very much more definitely than that. But one can say that if he does not belong to one of those groups he cannot be the father of the child. That is really the purpose of the Bill that I am introducing.
Blood grouping can be done in several ways. There are about live or six systems of blood grouping, but I want to mention only two because the others are not likely to be used to any great extent. In the first system, the blood is divided into two main groups called group A and group B. From that one can get blood containing group A and one can get blood containing group B; or one can get a mixture of the two, A and B, and blood which contains none of that at all and which is called group O. That group covers between 40 and 50 per cent. of people. To take an example, if you are dealing with the paternity of a child, if the mother and the child belong to group O it is quite impossible that the father should come from group AB. That has been proved by a large number of experiments into which I do not want to go in great detail.
The second system of blood groups which I should like to refer to is of those known as M and N. To these groups there are no exceptions. We have people who may be M; we have people who may be N; and people who may be MN, which is a mixture of the two. To take one example about 1077 the paternity of a child, supposing the mother was group M and the child was group MN, the father could not be from group M. That, again, has been proved by a very large number of experiments done both in this country and in various other countries in the world. I think it shows that the whole of the blood groups depends upon the inheritance and is governed by the Mendelian Law. This law, which was invented by an Austrian called Mendel at the beginning of the nineteenth century, was lost sight of for sonic time and did not come back into the scientific world again until the end of the nineteenth century.
One point was raised to me before I came down to the House. If you are going to test people, do you need to test the mother, as well as the father and the child? It was thought by some people that it might be a disincentive (to use an unpleasant word) if in these cases the mother were required to be tested. The answer here, I think, is that although in a few cases it might be possible to establish paternity by testing the father's blood and the child's blood, it would be impossible to tell, before the blood test was done, which those cases were, and in the vast majority of cases a satisfactory result would not be obtained from the test unless the test on the mother were carried out at the same time.
When the earlier Bill was placed before your Lordships in 1939 one of the people who supported it strongly was the late Lord Dawson of Penn, and he quoted one set of figures which I should like to repeat now, because they are, I think, interesting. He said that a sample had been collected from several different countries, and from many observers showing the results of tests on 10,092 mothers, with 12,943 children. The object was to see whether the blood grouping system that I have talked about was completely valid in all cases. It was found that there was not one single discrepancy in that sample—and those figures have been confirmed by many more observations made since then. Therefore, it seemed as though there was a perfectly clear-cut case, and that nothing could go wrong. I must, however, be fair to your Lordships, and say that there is one 1078 factor, and possibly two, which may cause a little doubt in the system about which I have been speaking.
One is a factor called mutation. That means that there is a sudden change in the character of one of the genes I have been talking about. The gene undergoes a sudden change during the passage, or before the passage, from the parent to the child, and so one may find something peculiar occurring in that sort of way. One of the commonest types arises when a disease known as hæmophilia is present. That is a disease which, as your Lordships probably know, is transmitted by the mother but appears in the father. It cannot be transmitted by the father, and it cannot appear in the mother; but it is transmitted by the mother and appears in the father. That is caused by a change in one of the maternal genes. The number of cases in which that change occurs must be in the neighbourhood of 1 in 50,000 a year, because, if it were not so, the number of people in the country who suffer from hæmophilia would fall—they tend not to be a reproducing lot of people—whereas the number remains, roughly speaking, the same.
There was another quite big sample taken in Copenhagen not long ago, when the MN groups of more than 60,000 children were investigated. No irregularities were found until the 60,000 had passed; and then one case was found where the mother, whose blood group was M, had an N-group child. This, I think, is the one case where it has ever been known to occur, so I can say that it is quite unique and very rare. In fact, people who have studied the question much more than I have done tell me that it is unlikely that the genes of a blood group would show mutation on anything like the scale of the patients suffering from hæmophilia. The proportion might well be one in a million—or even less. Certainly no mutation of a blood group has been observed in the last four years; so, although I felt I must mention that fact to your Lordships, it is something which is extremely uncommon, and I do not think that we should pay too much attention to it. We should pay some, but not too much.
My Lords, there are various other extremely difficult practical matters which might crop up. One is in the 1079 development of a new sub-group somewhere among the known groups, but I believe that invariably that would be quite simple to detect, and I do not think that it should necessarily cause any alarm. Your Lordships may feel that justice might not be done because of some technical flaw of the type I have described. But one has to realise, I think, that there is no test in the world which gives results that are absolutely and invariably correct. In every test there is somewhere a flaw; but the numbers of exceptions to the principle is so extremely small that it does not affect what we feel about the value of the tests.
If this Bill were to become law, the following systems would be generally used for blood tests. First of all, there is the test for groups A and B; and, secondly, there is the test for blood groups N and M. Then there is a third group which I have not mentioned to your Lordships hitherto, which is called the rhesus test, which deals with four types of antisera and which has results quite similar to the ones I have mentioned. Those are the ones we would apply. If those systems were used for the tests, it is reckoned that 55 or 60 per cent. of the men wrongly accused of paternity would be exonerated; and I think your Lordships will agree that that is quite a satisfactory number.
The question then arises as to where these tests should be carried out. In my view, the best place would be in the forensic medicine laboratories attached to the universities. At the present time, they are carried out in four laboratories attached to the universities. They are done at Guy's Hospital laboratories, the London Hospital laboratories, at one laboratory in Sheffield and at another in Glasgow. One would not suggest. I think, that they should be done in the ordinary blood transfusion departments of the Ministry of Health, because the people who go to give their blood voluntarily would probably not want to feel that they might be mixed up in paternity cases. Furthermore, the normal laboratories under the Ministry are already pretty well occupied and would not take very kindly to any further burden being put upon them—and there I can quite agree with their point of view. At the present time, there are about 200 tests a year which are 1080 done under the voluntary system. So far as one can see—here again, it is very difficult indeed to prophesy a figure—they may go up to about 1,000 tests a year if the system which is envisaged in this Bill becomes law.
Then the question arises whether it would be an extremely costly business. My Lords, I do not think it would be very costly, because, at the present time, under the voluntary system, the fee paid to the laboratory is ten guineas plus another fee of two guineas paid to the doctor who collects the blood from the patient and sends the sample to the laboratory. That means a total of twelve guineas per test, which would work out—though I do not say that this is a figure of very great importance—at 1 per cent. of the total amount of money paid under an affiliation order. These are generally in the neighbourhood of 30s. 0d. a week and go for sixteen years, and one finds that twelve guineas is about 1 per cent. of the total sum involved.
One of the things which the Bill requires is that when the test is done the person who collects the blood, or the one who performs the test, does not necessarily have to appear in court, but the court will have evidence of the certificate signed by him, which will be produced in court and which will take his place. I was talking to one doctor who has carried out about 600 of these tests on the purely voluntary basis, and he tells me that he has been called to appear in court only three times, which shows that the bulk of the magistrates are prepared to accept this certificate given by the person who performs the test. The Bill, if it becomes law, might serve to cut down some of our prison population, so a certain amount of money might be saved there, because some of those fathers who have been sent to prison for non-payment under an affiliation order—when I say "those fathers", I mean those alleged fathers—might be proved not to be fathers. They would therefore not go to the prison, and their keep in prison would be saved, which would be something to weigh against the cost of the Bill.
I will be quite frank with your Lordships and say that there is nothing to help the women at all. The Bill is merely to help the men; but the fact that it helps one sex, not at the expense of the 1081 other but instead of the other, does not mean that that particular sex should not have justice done if justice can fairly simply be done—and that, I submit, is what this Bill does.
I should like to take a few more moments of your Lordships' time, because work of this sort is being done in quite a number of foreign countries. For example, in the United States, the State of New York made blood tests compulsory in 1935, and that has since been followed by ten other States making the same sort of provision. In Denmark, these tests have been compulsory since 1937; in Sweden, since 1933; in Germany, since 1937. In Switzerland, a test can be ordered at the discretion of a judge of the court; and the same applies in France, when in 1955 provision was made whereby a judge must order such test to be carried out if the defendant demand it. So there are a good many precedents in other parts of the world for the carrying out of these tests.
I would now refer briefly to the various clauses of the Bill. Clause 1 deals with the powers of courts to order a blood test. Subsection (1) says that the court shall require the test to be done if the mother or alleged father demand it. When we were drafting the Bill, we felt that we must put in the word "shall" so as to bring some kind of uniformity into the practice of the 900-odd courts in this country which might be called upon to deal with this kind of thing. The same subsection goes on to say that if the mother refuses to submit to a test, the court shall dismiss the application. Various representations have been made to me since this Bill was published, and I think one might accept an Amendment, or I might draft one myself, to provide for any case of conscience there might be. There may be people who genuinely feel that they could not, on their conscience, allow a blood test to be taken; and because of that I do not think they should be penalised. It would be for the court to decide whether such expression of conscience were genuine or not; but I think it would assist people if some provision like that were made. Furthermore, the court may adjourn the application if for any reason it so thinks fit. For example, supposing the child were sick and not able to have a blood test taken; the court would then adjourn the application in question.
1082 Clause 2 makes provision for the test to be carried out by an approved person at an approved testing centre. Furthermore, it says that the blood samples should be taken by a registered medical practitioner. The third clause deals with the admission of the certificate showing the result of the test in evidence in court, and it states that the certificate shall be commented upon in court only if it shows that the man could not be the father of the child. Once again, strong representations have been made to me that it should be possible for the certificate to be produced, whether it shows that the man could not be the father, or whether it shows that he conceivably might. That is a point which I should prefer to discuss with people interested, and if we can come to agreement about it I am prepared to move an Amendment on those lines when we come to the Committee stage.
Clause 4 deals with costs, and whether either party should pay the whole or only part of the costs, or whether the costs should be met from public funds. Clause 5 deals with appeals, and empowers a court of quarter sessions, if they see fit, to order a new test. Clause 6, I am afraid, places yet another burden on the shoulders of the noble and learned Viscount on the Woolsack, but I am sure his shoulders are broad enough to take it. The clause authorises the Lord Chancellor to make rules dealing with the selection of approved persons and their duties, the taking of the blood, fees, and other matters necessary to the proper working of the Bill. Clause 7 deals with the appointment of a body which has rather a strong name; it is called the "Blood Tests Board". Some people have asked: does not this mean a very expensive set-up, with a big secretariat and premises? Not at all. But this matter may be further discussed in Committee. I think the expenses of the Board will not be more than their travelling expenses, and therefore I do not think one need be frightened that this means a great deal of money.
The next clause, Clause 8, is the penalty clause. It has been suggested to me that the penalty involved is far too low, particularly for people who try to impersonate either the child or the father. It has been suggested that that figure might 1083 be raised fairly considerably. There is perhaps some substance in that, and it is a point on which I shall be prepared to bring in an Amendment at the Committee stage. Clause 9 gives the definitions; Clause 10 says that the Bill shall not apply to Scotland or Northern Ireland; and Clause 11 gives the Short Title of the Bill.
My Lords, I feel that this is a useful and practical little Bill that will do justice to a few people who at present are suffering from an injustice. The Bill does nothing to take powers away from the court when the test is not positive, or to interfere with what the court can do, on evidence collected from other sources, with regard to making an affiliation order. It merely serves to clear a certain number of men from the charge of being the father of a child by their proving that they could not be the father. I trust that what I have said will be sufficient to enable your Lordships to give the Bill a Second Reading, and I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Amulree.)
§ 3.18 p.m.
§ BARONESS SUMMERSKILL
My Lords. I am sure we have all listened to the noble Lord, Lord Amulree, with great interest, but I was surprised to discover—and I listened to him very carefully—that he devoted the major part of his speech to the technicalities of the Bill. This Bill deals with a tragic human figure, the unmarried mother, and there are certain provisions in this Bill which, if not carefully examined, will bear very hardly upon her. The noble Lord who has just spoken, except for mentioning two Amendments which had been suggested to him by the National Council for the Unmarried Mother and her Child, did not deal in any one respect with what could be the inhuman repercussions of this Bill. I confess that when I knew that this Bill was coming before your Lordships' House, I was inclined to support it because I was under the impression that any opposition which it received before it was brought to your Lordships' House would be due to the fact that there was some misunderstanding of the technicalities of the procedure. However, on more careful examination of the Bill, I have taken an entirely different view of this measure.
1084 In the first place, let me impress upon your Lordships that this Bill is of very limited value. It is not disputed that in two-thirds of these cases which will be subject to blood test no inference of any kind as to paternity can be valid. As I said, the Bill is therefore extremely limited, and I would ask your Lordships to listen to what I have to say in the light of that fact. I feel that it does not weigh the scales of justice fairly between the man and the woman. The noble Lord, Lord Amulree, so admitted. May I remind your Lordships of what was said when the matter came before you on the last occasion? The noble Lord, Lord Gorell, said [OFFICIAL REPORT, Vol. 111, col. 697]:The noble Lord said that he introduced the Bill without any wish to favour either party, but at the same time he was obliged to admit that if the Bill did in fact become law, it would really favour the defendant. It can in no circumstances, I suggest to your Lordships, benefit the applicant. It is a Bill framed from a man's point of view. From the point of view of the woman, which is that with which naturally my Council is primarily though not exclusively concerned, the time is not yet ripe for the passage of this Bill.If the provisions of this Bill are examined impartially, I think that it can be held that their limited value to society cannot compensate for the undoubted hardship which they inflict upon unmarried mothers. During a previous debate the noble Lord, Lord Merthyr, argued that the number of men in prison for non-payment on affiliation orders would be greatly decreased, and the noble Lord, Lord Amulree, also appeals to your Lordships to consider that, if this Bill were passed, the prison population might be reduced. But surely this presupposes that many men in prison are not fathers of illegitimate children and consequently, rather than pay, prefer to go to prison. I suggest that this is an over-simplification of the situation.
A man who is reluctant to marry a girl he has seduced is often subject to bitter attack by the unhappy girl, and at that time his family, or even another woman, may urge him to repudiate her. The end of this little tragedy is for the stubborn man to refuse to make affiliation payments, with the inevitable result that he is sent to prison. Of course, it is precisely this man, who has already been proved to be the father of the child, 1085 who will take full advantage of the provisions of this Bill and demand a blood test in the event of the court deciding against him. He will have nothing to lose and will be able to delay a final decision, a course which must inflict further hardship on the unmarried mother.
Again, there are many simple girls who may be unfortunate enough to be involved in these proceedings and who, as the noble Lord, Lord Amulree, has mentioned, may strongly object to blood being taken from them or from their babies—it may be on religious grounds. Clause 1 empowers the court to dismiss the application of a mother who refuses to submit to a test. Surely, my Lords, we are establishing a precedent by denying justice, if a women refuses to have her blood or her baby's blood taken. I have read the Report of the Select Committee that was set up after the Bill came before your Lordships on the last occasion and I was impressed by what Mr. Dunne, a stipendary magistrate, said with regard to this. He said:Surely this is an interference with the liberty of the subject.The National Council for the Unmarried Mother and her Child are prepared to accept this Bill only under certain conditions. They recommend thatsome provision should be made to protect the persons who refuse to allow blood for a test to be taken from themselves or from the child on religious or other grounds, providing he or she could satisfy the court that the objection was a reasonable one.I take it that this was the Amendment to which the noble Lord referred. I would ask him to envisage the scene. If he inserts that Amendment, it means that a simple, ignorant woman will be compelled to formulate a rational argument in her defence; otherwise in a court of law her application will be dismissed.
Clause 2 provides for sample blood tests to be taken by general practitioners. The only humane note I have observed in the Report of the Select Committee was where it said:We must recognise that some of these young women be nervous at the thought of their blood and their baby's blood being taken and should be allowed to go to their own general practitioners.I confess that the Report seemed to me a little harsh, almost mediæval, and this was the only humane note. A woman may go with her baby to a general prac- 1086 titioner and have a test made: but what is to prevent a man, who knows that he is guilty, from sending a close friend to a doctor for a sample to be taken? The blood has to be sent to a pathologist. It seems to me that there would be a grave risk of confusion, and if a fraud is perpetrated—and the noble Lord did not rule this out—then the victims are the woman and her child.
It will be argued that if this Bill is approved these tests will be made by people with the greatest skill and experience. Can this be assured? Is there a chance that no mistakes will be made? I would remind your Lordships that the Lord Chancellor who opposed a Bill similar to this in 1939 said that he did not think it was an impossible view that mistakes might be made [OFFICIAL REPORT. Vol. 111, col. 710]:…inasmuch as the eminent pathologists who have been advising the Home Office have suggested that when tests taken by one of the approved persons under Clause 2 of the Bill have shown that the blood of the alleged father is such that he cannot have been the father, then it will he desirable that there should be a further sample of the three bloods taken and sent to another institute to obtain an independent check.In other words, having considered the Bill objectively and impartially, the Lord Chancellor felt (and no doubt he was advised by experts) that there was a danger, a risk, of a mistake being made. The Select Committee have ruled against a second test because, if a second test were introduced in this Bill it might cast doubts on the whole proceeding. If an eminent pathologist suggests that there might be a risk of a mistake, one is led to the conclusion that the first test by an approved person might be unreliable. I would emphasise that by accepting this Bill, it might be that we are putting into motion machinery which, so far, the scientists cannot say is perfect. If there has to be a second test, then the expense and delay and inconvenience will be greatly increased, and again the chief sufferer will be the unmarried mother.
Clause 3 of the Bill provides that the results of the test must be notified to the court by certificate only, unless the court or either party require that the expert who made the test shall attend. As Clause 4 states that only the certificate which is favourable to the man shall be produced, the only party who 1087 will demand further evidence must be the girl, who can be called upon to pay the expenses of a highly paid professional man or woman. Surely this is quite inequitable. I am not surprised, therefore, that the National Council for the Unmarried Mother and her Child recommend that all the certificates should be admitted as evidence and comment allowed upon them, rather than create an air of mystery about an inconclusive certificate. I feel strongly about this, and I believe that on this issue your Lordships should hesitate before giving it support.
It will be recalled that on the last occasion the National Council for the Unmarried Mother, who surely know most about this matter (it is a very fine body) had a large meeting, with some hundreds of people present, and rejected this suggestion. I was surprised to learn, on making further inquiries, that an ad hoc meeting was arranged on March 10 at 66 Lincoln's Inn Fields to discuss this Bill, and representatives of the National Council for the Unmarried Mother were there. But when I came to examine the composition of the committee, which I think your Lordships would agree could well represent an unmarried mother, I found that only seven people were present, and of these only one was a woman. The Committee of Management of the National Council consists of 25 people, of whom 16 are women. The members of the Council total 125, and the great majority of them are women, but on this subject (the noble Lord, Lord Amulree, will correct me if I am wrong) a decision was made by a majority of men, to support a Bill which, if it becomes law, will favour the man.
My Lords, I would accept that in this society of ours men may have a monopoly in many fields, but I think your Lordships will agree with me that a matter which concerns the unmarried mother and her child should be considered by a majority of women.
§ BARONESS SUMMERSKILL
Perhaps the noble Lady has little knowledge of the subject. The noble Lord has, I think, agreed with me here that this decision was made by a majority of men. I plead the case of the unmarried mother, who 1088 I believe should evoke our compassion. It is she who will be punished throughout her life for her fault. Should we deliberately add to her burden, when she is desperately in need of our help and sympathy?
§ LORD AIREDALE
May I take it that in referring to the speech of the Lord Chancellor the noble Lady was referring to the late noble and learned Viscount, Lord Maugham, who was Lord Chancellor in 1939?
§ 3.33 p.m.
My Lords, I hope that I may be forgiven for intervening in this debate and for speaking entirely personally, but it arouses in me, for reasons which have been mentioned, some rather nostalgic memories. As the noble Lord, Lord Amulree, has said, in 1939 your Lordships gave a Second Reading, without a Division, to a Bill which I then introduced on very much the same lines as this Bill. I might, as a matter of interest, mention that in 1939 the Bill was supported strongly by two very doughty supporters: on the medical side by Lord Dawson of Penn, and on the legal side by Lord Atkin. I think it will be agreed that if the noble Lord, Lord Atkin, found it possible to support a Bill from a legal point of view, it cannot have been, to put it mildly, a very bad Bill. The Bill, as the noble Lord, Lord Amulree, said, was referred to a Select Committee. But the noble Lord made a slight slip when he said that the Select Committee had not finished its business when the war broke out. In fact, the Select Committee, as the noble Baroness, Lady Summerskill, has indicated, had reported favourably upon the Bill; had made some minor Amendments to it, and asked that it should be allowed to proceed. It was at that point that the war stopped further progress.
The only opponent who came forward on that occasion was the noble Lord, Lord Gorell, then, as now, the President of the National Council for the Unmarried Mother and Her Child. Then the Council, unanimously, I think, opposed the Bill, and noble Lords voiced their objections. Perhaps I might relate that I think the bravest thing I have 1089 ever done in my life was to attend the annual general meeting of the National Council, in a room in Piccadilly (I think it was), where there were about 200 ladies present and only one other man in the room. The politeness and courtesy which I received on that occasion was matched only by the hostility with which my Bill was received.
I must tell the noble Lady a little of what happened after that. I think your Lordships will agree that one of the best signs of true greatness is to change one's mind, and I must relate that in the year 1954 (I am not referring now to 1961) the National Council announced that they gave warm support, in principle, to the Bill, believing that the Bill would assist the administration of justice. That was a magnanimous decision and a magnanimous change of mind, and I should like to give the fullest credit to the National Council for changing their mind. That is typical of the very high standards which this public body has shown over a long period of years, and I think the country is greatly indebted to the Council, who have worked so hard, entirely charitably, for such a long time for a good cause. I may say that I am proud to be a member of it.
§ BARONESS SUMMERSKILL
Perhaps I may interrupt the noble Lord. I agree that it is a very fine body. But does not the noble Lord agree that there was an ad hoc meeting of the Council to discuss this Bill, the matter we now have under discussion, on March 10, when seven people were present of whom only one was a woman?
I am sorry, but I cannot say, because I know nothing at all about that meeting. But I have been informed in the last day or two that the National Council are of the same opinion now as they were in 1954. I might mention that in the interval between 1939 and now the matter has not been entirely forgotten. During the 'fifties a series of meetings took place in a Committee Room in this House, at which an unofficial body of medical and legal people, drawn from all over the country, met on frequent occasions, their sole purpose being to make the Bill better, if it could be so made. In fact, 1090 very little alteration has been made to the Bill, but it has been brought up to date. We do not think that it is perfect yet, but we shall continue, if your Lordships will allow, to try to make it so.
May I now invite your Lordships' attention to the position of magistrates who have to try these cases? The noble Lord, Lord Amulree, has already said that there are about 5,000 of these cases every year before the courts; that is, something like 150 every working day. Most of these cases—not all, because in some the only question is how much the man ought to pay—are bitterly fought. They are, after all, of great importance to the parties. Although the noble Lady may say that this Bill is not of great consequence, it is an important matter to the mother, and to the alleged father, who is going to be asked to pay for the upkeep of a child—perhaps 30s. a week for sixteen years. Somebody has got to keep this child: the mother, the State or some man.
In my experience of these cases, apart from one other class—namely, fish-poaching cases—there is no class of case in which there is a greater degree of perjury in the courts. In the cases which are fought at all there is always a flat denial by one side or the other of the facts at issue. Can it be wondered, therefore, if magistrates will clutch at any straw in the wind to enable them the more readily or the more easily to administer justice? I believe that this modest Bill will be of some considerable assistance to the courts in this matter, and I think it will be agreed that they need it.
May I just remind the House that the law of this country (I speak subject to correction by those with greater experience than I have) is different in this regard from that in Continental countries? In England, the question is not: Did this man have intercourse with this woman? That is not the point, or not the primary point. The question is: Has it been proved that this man, to the exclusion of all others, is the father of this child? That is where our law differs in a material respect from the law of some Continental countries, particularly the law of Norway, which is very go-ahead in this matter but which has a different law from ours. In this country, therefore, unlike Norway, the promiscuous woman cannot obtain a paternity 1091 order. I should also like to mention that there is the group of cases where the man admits having had intercourse but denies that he is the father of the child. He challenges, so to speak, the court, or the applicant for the order, to prove that he is the father. He says, not unnaturally, "Unless it can be proved that I am the father I am not going to pay, whether or not I had intercourse". The noble Lord has already told us that in 1961, it is claimed—and I think rightly—that over half of the number of men who are wrongly charged can actually be cleared by a system of blood tests. In 1939 I was able to put the proportion only at one-third. Now it is raised to over one-half. It may be that in years to come the fraction will be greater still.
Some will say—indeed, some have said; the noble Lady has said—that this Bill cannot help the unmarried mother. My Lords, that is true. But whilst agreeing with her on that point, I must challenge some of the statements which she later made. If it cannot help the unmarried mother, I say that the Bill cannot hurt her; it cannot harm her, I maintain, in any way unless, of course, her case is either fraudulent or mistaken. Then it can harm her. But does anybody really seriously claim that in that event she should not suffer? It is said that this means a compulsory operation because it is a compulsory blood test. So it does. But we must really get to grips with the question of what this blood test is. The noble Lady, being a doctor, will be able to tell us. I am informed that in many hospitals—and I have found out this as respects one of the teaching hospitals in London—a blood test is a routine for every pregnant woman admitted to the hospital. If that is so, if a woman has a blood test before having a baby, can it really be a hardship to have one afterwards?
In case it is assumed—wrongly, it would be—that I am speaking against the woman and in favour of the man, may I say this? Most of the cases that come before the courts are genuine cases, where the mother is in the right; and one hopes that justice will be given her. Most of the cases are good cases, and in all of them the mother will suffer no harm whatsoever, except possibly some slight delay. The noble Lady spoke of 1092 delay. If a child is going to be kept for sixteen years, is the delay of a few weeks really material? In any event, when a paternity order is made it can be antedated to the date of the birth of the child.
Now, I must deal shortly with the question of costs, because I apprehend that some of the most potent criticisms that may be made against this Bill will be on this question. This matter is dealt with in Clause 4. It is said—indeed, the noble Lady said it—that the man, even if he had a hopeless case, would ask for a test, just out of mere spite. She may not have used those exact words: but other people have done so. Will he ask for a test frivolously? My Lords, he may. But the answer is that he can then be ordered to pay the whole of the costs of the test, and I believe that in those cases he will be made to do so. The clause of the Bill which deals with costs, leaves, I think rightly, a complete discretion to the court in this matter. That follows a precedent, and I am sure the noble and learned Viscount will agree when I say that in almost all criminal cases the court has a complete discretion in awarding costs—and I believe that is right.
The court can, under Clause 4, award costs to either party, or to none or it can order the costs to be paid out of local funds. That may be a matter of criticism, but I would remind the House that that can be done to-day in almost every criminal case, and there is nothing new about that: it is not unusual. I believe that it can be claimed that, generally speaking, magistrates do not now abuse those powers. If that be so, I have no reason to think that they will do so in the future. As to whether the costs will be great, the noble Lord, Lord Amulree, dealt with that. In any case, what will these costs be compared to the amount now spent on legal aid in this country? If it is right, as I believe it is, that litigants should be legally aided where necessary, is it not right that in a few of these cases, which are also civil cases, the litigants should be aided, by the order of the court, at the expense of the public?
I should like to deal with one or two of the points which the noble Lady made in her speech. She said that there would be inhuman repercussions. I hope that question has been dealt with. I have tried to show what is the maximum hurt 1093 that will come to the woman, the mother of the child. It is nothing more or less than having her blood tested. I do not believe that it is more than that. The noble Lady said that this Bill was of limited value, and I am not disputing that. But if it is of any value at all, I would ask your Lordships, in the absence of really weighty objections, to pass it into law. The noble Lady said that it would be an interference with the liberty of the subject. That is a time-honoured phrase. Of course it is an interference with the liberty of the subject, exactly as is the rule of the road which compels us to drive on the left of it, instead of, when we want to, on the right. The noble Lady said that a simple, ignorant woman would not be able to plead her cause. In almost every one of these cases, in my experience—and, I believe, in the experience of all people concerned with these matters—the women are legally represented, at least by a solicitor. In fact, I do rot know a class of case where it is less common for the parties to appear in person than in paternity cases, for the simple reason that there is so much at stake.
Then the noble Lady raised a point which must be properly answered, and I think it can be. Her point was: What is to prevent impersonation? That is a serious matter; and I admit it. But I believe that the Bill as drafted, and the rules that will be made under it, will properly take care of that point, so far as it can possibly be done. No one can deny not only that mistakes might possibly be made but that there might be impersonation, just as there now is when a man applies to pass the test to drive a motor car. There is sometimes impersonation, but it is looked after and guarded against, and I believe that it will be with this Bill.
Finally, the noble Lady said that the Bill, if it becomes law, will favour the man. The answer to that is simply this: that it will favour the man, but only if he has been wrongly charged with the paternity of the child. Only in that event, and in no other circumstances whatsoever, will it favour the man. My Lords, is that a fair test? I suggest that it is.
§ THE EARL OF LONGFORD
My Lords, before the noble Lord sits down may I, as one who comes here quite 1094 ignorant of all this, with an open mind, put this question? If a woman objects to undergoing such a test, would he allow her to plead some kind of conscientious scruple and just dismiss her from the case?
My Lords, that is more a matter for the noble Lord who introduced the Bill, and he has already dealt with it in his speech. As I understood the noble Lord, Lord Amulree, this afternoon, he indicated that he might be prepared to consider an Amendment which would introduce a conscience clause. I would rather not say anything further. The subject has been newly raised. But I am quite certain that the noble Lord in charge of the Bill would be prepared to consider it. He has told me so and he told your Lordships so, did he not this afternoon? But I would point out this: if there is a conscience clause I think there must be plenty of safeguards to it, because otherwise it will be a loophole through which the mother will be able to escape. I believe that there can be proper safeguards to some such clause.