HL Deb 05 December 1967 vol 287 cc530-47

2.57 p.m.

THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR SCOTLAND (LORD HUGHES)

My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received.—(Lord Hughes.)

On Question, Motion agreed to.

THE EARL OF SELKIRK moved, after Clause 6, to insert the following new clause:

Re-registration of birth of person legitimated under this Act

" . The Registrar General for Scotland may, on production of such evidence as appears to him to be satisfactory, authorise at any time the re-registration of the birth of a person legitimated under this Act and such re-registration shall be effected in such manner and at such place as the Registrar General for Scotland may by regulation prescribe:

Provided that the Registrar General for Scotland shall not authorise the re-registration of the birth of any such person in any case where information with a view to obtaining such re-registration is not furnished to him by both parents."

The noble Earl said: My Lords, at the Committee stage we had some discussion as to the manner in which legitimacy should be registered under this Bill, and since I put down my Amendment I have had a letter from the noble Lord, Lord Hughes, which goes a long way—I say this straight away—to meet the type of point that I had in mind. I think the House accepts quite fully the simple principle of this Bill. The ordinary case is one in which, shall I say, a bachelor interferes with a married woman; a child is born; the marriage breaks up and the bachelor is then free to marry the mother and to legitimise the child. That is quite accepted by the House and I think is quite straightforward. But noble Lords worried on two points: first, regarding the rights of third parties, which may or may not arise, and, secondly, how the third parties could enforce their claims. Particularly would this be the case where there was any fraudulent entry.

There are rather difficult things to establish: first, the illegitimacy of the birth; secondly, the identity of the parents, and thirdly the fact of the marriage. The last may be quite easy to establish. There is no reference in this Bill to registration except in one particular which is not relevant to what I am saying, that is in regard to re-registering adopted children. With that exception, there is no suggestion of how registration should be carried out. The noble Lord, Lord Hughes, has explained to me how this is done, and broadly, it is in this way. When there is any doubt the matter has to be referred to the Sheriff who will make a decision, and I presume that it would be possible to appeal from that decision. I think that is satisfactory so far as it goes.

There are, however, two questions that I should like to ask of the noble Lord. First, is there any obligation to register? In the Bill there is no reference to any obligation, and I do not know whether it is merely a convenience, or an optional course. No doubt it is advisable, but there is no obligation at all to register as there would be in the case of a newborn child.

The second question I should like to ask is this. As well may happen, if at the time the marriage takes place the child is either of age or at least of years of discretion, has he to be consulted before the birth is legitimated? I think that this might be a real point in certain cases, for instance, where a child has been brought up in a family, perhaps carries the name of that family and may wish to remain with the family or, alternatively, where he has no particular wish to be registered with the name of his father, who possibly may have a bad record.

I do not know whether there is any obligation or not. As I read the Bill, it simply states that where the parents of an illegitimate person marry that person shall be legitimated. I do not know whether the child will be entitled to consultation or not. Subject to these questions, I should be grateful if the noble Lord would recapitulate the method by which registration should be carried out. I beg to move.

Amendment moved— After Clause 6, insert the said new clause.—(The Earl of Selkirk.)

3.2 p.m.

LORD HUGHES

My Lords, the noble Earl, Lord Selkirk, has been good enough to refer to the letter I sent him recently on the subject of this Amendment and he has invited me to recapitulate the circumstances which I describe in that letter. Section 20 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 already makes provision for the re-registration of a birth in legitimate form. And the section contains provisions to ensure that the birth is only re-registered in this way by the Registrar General if he is presented with positive evidence of paternity of a nature laid down in the Act or, where this evidence is not available to him, if the sheriff court, after due inquiry into the circumstances, sanctions re-registration. This provision, which applies to legitimations under existing law, operates satisfactorily and is equally appropriate to legitimations under the Bill. No amendment of the law is necessary to apply it to legitimations under the Bill; so from that point of view, the Amendment tabled by the noble Earl, Lord Selkirk, is unnecessary.

In practice, the Registrar General will authorise re-registration in any of the following circumstances: first, where both the natural father and the mother went to the registrar when the birth was registered in its original illegitimate form and both signed the register; secondly, where, within twelve months of the birth, the natural father makes a statutory declaration acknowledging his paternity and the mother makes a confirmatory declaration; or, thirdly, where a decree of paternity has been granted by a competent court. If such evidence of paternity is not available, the Registrar General cannot authorise the re-registration of a birth following the marriage of the parents, except with the sanction of the sheriff, granted on the application of both parents or the survivor or, if both parents are dead, on an application by or on behalf of the child and after due inquiry into the circumstances.

The existing law, in Section 29 of the 1965 Act, is more restrictive than the noble Earl's proposed new clause, in that it specifies more clearly the circumstances in which the Registrar General may authorise re-registration and leaves less to his discretion. But the existing law is not so restrictive as the proposed new clause in that it does not require both parents to provide information at the time of re-registration. It is possible under the existing law for the birth of a legitimated child to be re-registered even if both parents are dead. I went on to say to the noble Earl that the existence of a re-registered birth certificate in legitimate form, although of evidential value, was in no way conclusive evidence of paternity. The absence of such a certificate would be a hurdle that any claim to legitimation by subsequent marriage would have to overcome before it could be upheld.

If I may refer to the questions which the noble Earl put, he asked me whether there was an obligation to re-register. No, there is no obligation. This is a right which is being conferred. There is not, as at birth, a duty to re-register. The birth has already been registered and the State's purposes have been accomplished. There is a right to re-register when the opportunity is available for the record to be changed from the registration of an illegitimate birth to re-registration as a legitimate birth. Whether or not people elect to take advantage of this right is a matter for themselves.

The question as to whether a child, if of mature age, has the right to oppose registration is not so easy. The position is that legitimation is effected by the law automatically on the subsequent marriage of the illegitimate child's parents, and there is nothing that the child can do to stop that taking place. This Bill, when it becomes an Act, will have accomplished that. If there is no dispute about whether either one or other of the married couple is in fact the parent of the child, his registration as an illegitimate person is incorrect and no-one has a right to stop the re-registration of the facts. But the child, or anyone else with an interest, could make representations to the Registrar General to the effect that one or other of the married couple was not his parent. In such a case, the Registrar General would have to set on foot due inquiry before deciding whether or not he puts the entry into the register of corrections. Such inquiry might well result in an application to the sheriff in order that he might inquire and, if appropriate, sanction the entry.

It does not make possible the position, to which the noble Earl referred, of a man who had been living happily with parents who had adopted him or brought him up and did not wish to be associated with his real father because he thought him a disreputable person. Unfortunately, the Bill does not permit him to admit that the man is his father but to oppose the fact being registered. The only course open to him is to prove that this disreputable person is in fact not his father.

BARONESS HORSBRUGH

My Lords, may I ask the noble Lord a question? I am thinking of the case of an adopted child who is now to be legitimated. If a child has been adopted by law in a court, will the adopters be told that, if by any chance the parents of the child get married and the child is made legitimate, in spite of what has been arranged in court they will have to give up the child?

LORD HUGHES

No, my Lords; adoption will not be affected. It is possible to adopt a legitimate child just as it is possible to adopt an illegitimate child, so that adoption would not be cancelled by the re-registration of the child as legitimate.

BARONESS SUMMERSKILL

My Lords, if the child is re-registered as legitimate, then for the first time the child will learn who its parents are. Is that not so?

LORD HUGHES

My Lords, it could be, but it is possible that the child may be re-registered without the child knowing of it. This comes back to the point to which the noble Earl referred.

BARONESS HORSBRUGH

My Lords, may I ask the noble Lord one more question. If a couple have legally adopted a child who is called illegitimate, are they later to be told that because the father and mother have now married—it may be years after—and the child is legitimated it is lawful for the father and mother to insist on taking away the child from that couple who have adopted it legally?

LORD HUGHES

My Lords, this is a Bill to correct registry of what has now become a legitimate birth instead of an illegitimate birth. Adoption is an entirely different set of circumstances and has nothing to do with the registration of the child's birth.

BARONESS SUMMERSKILL

My Lords, could I put another point?—be-cause I think it has only just occurred to my noble friend. It is the point that when people adopt the child of an unmarried mother the child will not be told who its parents are in order that the child shall not be worried and shall have the maximum protection. Now, as a result of this, that can no longer obtain, because the child will know its parentage.

LORD HUGHES

Not necessarily.

THE EARL OF SELKIRK

My Lords, I thank the noble Lord for a very useful statement, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 7 [Savings]:

3.11 p.m.

LORD SALTOUN moved to add to the clause: ( ) Nothing in this Act shall affect the succession to any dignity or title of honour or render any person capable of succeeding to or transmitting a right to succeed to any such dignity or title.

The noble Lord said: My Lords, I have no hostility to this Bill. I take issue with it only on one point. As a matter of fact, I look on it in a way as a piece of sentimental legislation, because it is going to legitimise only those children born where parents who are not in a position to marry subsequently marry. That legitimates only a small portion of what I might call a large class. The object of the Bill is to take away from the child the stigma of illegitimacy. While I have not the smallest hostility to the Bill, I think this is rather a fanciful thing. One hundred and thirty years ago Pam did not find being illegitimate in the least an obstacle; and 900 years ago William the Conqueror found it no obstacle. I think it is only a piece of what I vulgarly call bourgeois Victorian prejudice which makes it a stain on a man.

If you look in an old edition of Who's Who you will find, luckily at the beginning of the alphabet, one "AB"; you will find more than half a column of his literary productions, and you will find the name of the lady he married. The next item is "CX", I will call him, "son of AX", not by B but by D. There are quite half a column of his productions. Then you go on. There are five entries, I think, and only the fifth is the son of the original gentleman and his lawful married wife. In the case of that family, being illegitimate has not been a bar to advancement of fortune or to reputation; and I do not think it is. That is merely to the general proposition.

On the last occasion, however, I pointed out that the Bill extends to the Peerage, and I think that is not a proper part of a Bill on this subject because the Crown has always very carefully defined the method of devolution of any Peerage granted, and this extends that order. It is perfectly true to say that it extends it by only very little; but, after all, the housemaid's baby was excused because it was a very little one, but it was none the less a baby. It is perfectly possible to point to a hypothetical case which is covered by this Bill and which extends the method of devolution of the Peerage concerned. I say that that is without precedent in the practice of your Lordships' House, and it ought to be carefully considered by your Lordships. It was for this very reason that I did not press this Amendment in the Committee stage.

Your Lordships have often taken quite extreme action in matters of Peerage. Those who read your Lordships' Standing Orders will remember that King Charles I created a certain Lord Banbury, and because he was an old man and a special friend of the King, the King asked for him to be given precedence over all the other Peers that he had previously created. Your Lordships reacted with extreme violence and steadfastly refused to grant Lord Banbury the precedence asked for him by the King; and eventually Charles I promised that he would never do it again. Your Lordships established that point. But that had nothing to do with the terms of devolution of that Peerage.

There is another case. Queen Anne, wishing to make a little more interest in your Lordships' House, created the Duke of Hamilton (I am glad to see my noble friend Lord Selkirk sitting beside me, because he can correct me if anything I tell your Lordships is not right) Duke of Brandon. The House thereupon promptly refused to accept him as Duke of Brandon. They said that he was a Scotsman and a Scottish Peer, and he must come as a Representative Scottish Peer or not at all. And when he came as a Representative Scottish Peer, your Lordships refused to receive him because he was an English Duke, the Duke of Brandon. I think your Lordships were quite wrong. That is one of the reasons why I referred on the last occasion to your Lordships' 18th century manners. It was not for many years that that difficulty was overcome. And your Lordships maintained that position, in spite of the Duke of Argyll, who had an English Peerage, too. That was excused because he had that Peerage before the union of the Crowns in 1707.

But your Lordships still have never interfered with the Royal Prerogative, in so far as to extend it in a general fashion like this, especially without any particular authority to do so, and simply at the dictation of Government. It is perfectly true that the noble Lord, Lord Hughes, on the last occasion said that he had been assured that the Royal Prerogative had not been touched in any way by this. The noble Lord, Lord Hughes, can give an expert opinion, and it may have great weight with your Lordships; but I do not think it can have weight against the facts. It is perfectly possible for me to show a hypothetical person who becomes under this Bill an heir to a Peerage and who, if this Bill did not pass, would not have done so but would have been excluded by the terms of that Peerage. That is an extension of the Royal Prerogative. That, I think, should not be done without a definite decision by your Lordships' House for which your Lordships would be responsible.

It is true, too, that before the Bill leaves this House I am sure the noble Lord, Lord Hughes, will say that Her Majesty has sent a Message to say that she will not put the Royal Prerogative in opposition to anything that your Lordships decide in this Bill. That, as your Lordships know, is purely permissive. It has happened on many occasions, and means merely that the Crown is submitting itself to the decision of Parliament in the matters affected. It does not dictate what that decision shall be.

There is another reason for rejecting the inclusion of Peerage in this Bill, and that is because your Lordships did not include it in the Bill affecting English Peerages. That may also seem a small point, but it is not without a certain amount of weight. In the first place, Scottish Peerages descend in a different manner from English Peerages. This will make the difference greater still. It is quite possible that the noble Lord, Lord Hughes, will say that we have always been in advance of England and he does not see why we should not keep that advantage and still remain in advance. To move from the same position is not necessarily to advance, and in this case I do not think it will be an advance. One thing we do not want to do is to increase the difference between the two countries more than we absolutely need, for this reason: it may be a very convenient thing to an individual in his personal family circumstances to come to Scotland and to try to acquire a residence there in order that those circumstances may be governed by Scottish law instead of by English law; but however convenient it may be for a person it is not a particularly reputable thing for the country as a whole or for the legal system of the country.

In this matter I am suffering front a certain disadvantage. In the old days your Lordships used to meet at 4 o'clock in the afternoon, and after the last war, when we were asked whether we would retain the practice of meeting at 2.30 in the afternoon or go back to 4 o'clock, I said that although it would make my life very difficult we ought to go back to 4 o'clock. My reason for saying that was one which would be useful to me at this moment, because after 4 o'clock we get our Law Lord colleagues in this House and I should have received the support of some of my Law Lord friends on this last point. I think both these points are worthy of your Lordships' consideration, and the first point is one which ought not to be decided upon by your Lordships other than by a Division. I beg to move.

Amendment moved— Page 5, line 28, at end insert the said subsection.—(Lord Saltoun.)

3.22 p.m.

THE EARL OF DUNDEE

My Lords, I am in a little difficulty about this Amendment. I must confess that my sympathies are in favour of it because it is making a change in the law of Scotland in relation to the succession to Peerages. Our difficulty is this: always in Scottish law illegitimate children who have been legitimised by the subsequent marriage of their natural parents can succeed to Peerages. This often happened. In one case the King of Scotland succeeded to the Crown although he had been an illegitimate child but his parents had subsequently married, and from him our present Royal House is descended. So there is no question about that.

The difficulty is that in 1926 the English changed their law and approximated it to that of the rest of Europe, including Scotland, and an Amendment was inserted in identical terms to the Amendment now being moved by the noble Lord, Lord Saltoun, which provided that nothing in that Act should affect the succession to an hereditary Peerage. So the English in 1926 thus created a very marked difference between the laws of England and the laws of Scotland, in that while all other illegitimate children born of unmarried parents who subsequently married could succeed to all the rights of legitimate children, that did not apply to the case of hereditary Peerages. But it always had applied in Scotland, and that has been the difference from 1926 to the present time. Then in 1959 the English proceeded to legitimise children who were born at a time when their parents were married to somebody else. I remember we had a lively debate about it in which the right reverend Prelate the Bishop of Exeter spoke about the difficulties at school between Smith Major and Smith Minor when they had both been born from different marriages of the same parents. At the time there was a great deal of feeling about it, which seems now to have subsided.

I am not objecting to this Bill bringing, the old law of Scotland—the first time we have changed this law of Scotland—into similarity with the law of England on this subject, but I would like to know from the noble Lord, Lord Hughes, exactly what sort of proof is required if someone who believes that he is the son of a man who is married to someone not his mother, and his mother is married to someone not his father, claims that he may be the heir to the Peerage of his putative father, who was not in fact his legal father at the time of his birth? I think that is an important point.

One point which the noble Lord, Lord Hughes, has made clear is that this will not affect the right of heirs apparent, that is to say, children of the father, because the seniority does not take effect until the putative parents are subsequently married. So the adulterous birth will not cut out the original legitimate birth, even if the former is older, because his seniority dates from the time of the marriage. But he will cut out heirs presumptive, say a brother or a nephew, and as the noble Lord, Lord Saltoun, has pointed out this might be a temptation to some ambitious young widow to marry a Peer and look after him in his old age, on the understanding that he would falsely declare that all her children already born were his children. I should like to know what standards of proof are required.

I would much prefer the law of Scotland to be left as it is and let the English do what they like, but now that we are going to alter the law of Scotland this is a real difficulty—whether we should introduce into this Bill the Amendment which the English carried in the 1926 Act, as well as the 1959 Act, that we should say that nothing in this Bill should affect the succession to hereditary Peerages. I feel a little uneasy about this matter, and I should like to hear what the noble Lord, Lord Hughes, has to say about it.

LORD HUGHES

My Lords, I hope I shall be able to remove the unease which the noble Earl feels, although I am equally certain I shall not change in any way the opinions which have been expressed by the noble Lord, Lord Saltoun. I have endeavoured to do so twice in letters, the only success attending my efforts being that the noble Lord arrived at the conclusion (which I must admit I share) that the offer of a meeting this morning should not be taken up, on the basis that he did not think it would be worth while.

LORD SALTOUN

My Lords, if I may interrupt the noble Lord for a moment, I came to that conclusion because I did not think we should get any further. It is always worth my while to meet the noble Lord, Lord Hughes.

LORD HUGHES

My Lords, I was talking in terms of concrete results rather than any other forms of satisfaction. But one of the reasons why I do not really have great hopes of converting the noble Lord at this late stage is because of the nature of the arguments he has put forward. At the last stage he put forward three reasons for amending the Bill, and he has now brought in four people in support—William the Conqueror, Lord Banbury, the Duke of Hamilton and Brandon—

THE EARL OF SELKIRK

Oh no, he was not illegitimate—please!

LORD HUGHES

My Lords, neither, so far as I am aware, was it suggested that Lord Banbury was illegitimate, but he was brought into the argument. The fourth person was the housemaid. If I understood the noble Lord, Lord Saltoun, correctly, he more or less implied that if certain things were good enough at the time of William the Conqueror it was not necessarily an advantage to have changed them in the interval. If your Lordships had accepted that argument frequently in the past, at least the Statute Book would not have needed so many Consolidation Acts in the interval.

I should like to go back to what was said in Committee stage, because I think that what both the noble Lord, Lord Saltoun, has said and what the noble Earl, Lord Dundee, has said makes it worth while and necessary that I should recapitulate the full situation. As I explained in Committee, the effect of Lord Saltoun's Amendment is to prevent per sons who cannot be legitimated at present by the subsequent marriage of their parents from succeeding to dignities and titles of honour. I said then that the Amendment might have the further effect—and I want to stress the fact that I am not going beyond "might"—of preventing all persons who are legitimated by subsequent marriage in future, including those who can be legitimated under the present law, from succeeding to titles. This in fact is a change in the Scottish law with a vengeance, because it is going to stop something which, as the noble Earl, Lord Dundee, pointed out, has been the law of Scotland for centuries.

The reason why I say that it might put the clock back all these years is because the noble Lord has adopted the wording from the Legitimacy Act 1959. The 1959 Act was an ordinary amending Act confining itself, so far as legitimation was concerned, to amending the existing law to extend legitimation to those persons who could not previously be legitimated because of the operation of the bar. The words in the 1959 Act were therefore appropriate for the purpose of ensuring that those to whom the Bill extended legitimation could not succeed to titles. But the present Bill, following the recommendation of the Scottish Law Commission, is not an amending Bill; it is a codifying Bill. It restates and replaces all the main provisions of the existing Common Law on legitimation as well as amending the law in certain ways.

If your Lordships will look at Clause 1, you will see that it covers the whole law on legitimation, both the law relating to present legitimation and the extension of the law to legitimate those at present subject to the bar. If the noble Lord's Amendment is read with Clause 1, its effect may well be not to leave present legitimations to the existing law. The existing law is being absorbed into the present Bill; the effect of the noble Lord's Amendment might therefore be that it is held that persons who can be legitimated under present law, and whose legitimation will in future be under this Act, will not be able to succeed to title. It is, I submit to your Lordships, a possible ambiguity which could not be permitted to stand, and this is an added reason for the Government's not accepting the Amendment.

At Committee stage the noble Lord, Lord Saltoun, adduced three reasons in support of his Amendment. First, he said that the rights of heirs presumptive will be affected by the legitimation of persons who cannot at present be legitimated. Secondly, he said that the legitimation of such persons will open the door to fraud. Thirdly, he pointed out that the Bill might invade the Prerogative of the Sovereign. I gave my answer to the first of his points at Committee stage. I agree without hesitation that the rights of heirs presumptive will be affected by the legitimation of persons who cannot at present be legitimated. But the rights of heirs presumptive have always been affected by legitimation under the present law, by the legitimation of a son who becomes heir apparent. It is a general principle of the Bill that all children legitimated by the subsequent marriage of their parents should for all purposes be treated similarly, whatever the circumstances at the time of their conception or birth, over which, of course, the child has no control. It seems to the Government that there is no more justification for discriminating between legitimated persons in the matter of titles than in any other area of succession. As I said in Committee, and as I have said to-day, it is not an act of the child which differs in the two cases, and I think it is fair that the children should be treated in the same way.

Lord Saltoun's second argument concerns the possibility of fraud. It would be possible, he said, for an elderly Peer who is none too honest to get himself a housekeeper and oust an heir presumptive by persuading a young widow to marry him and care for him on condition that he will acknowledge paternity of her son so that he will succeed to the title. The Government are satisfied that this is not a ground for discriminating against those who are legitimated under the Bill. To give the Government's reasons I must explain once again the safeguards against fraud and why the provisions of the Bill do not increase the exceedingly remote chances of such an attempted fraud succeeding. As I said in Committee, if the persons who are the parents of an illegitimate child subsequently marry each other legitimation is automatic on that marriage. But the Registrar General is not empowered to re-register a birth in legiti mate form unless he is satisfied as to paternity; and this in practice means that if there is no entry relating to paternity in the original registration of the child's birth or in the Register of Corrections, or if there has been no finding of paternity by a competent court, re-registration is permitted only with the sanction of the sheriff after due inquiries.

Further, an entry in the Register or in a birth certificate is no more than evidence in its favour; there would be nothing to prevent a person from proving that an admission of paternity on which the entry is based is false. And, as your Lordships will know, the Lord Chancellor must be satisfied as to the succession to a Peerage before he issues a Writ of Summons. If he is not satisfied, stringent inquiries are made which involve the Lord Advocate and the Committee for Privileges. I have, as the noble Lord, Lord Saltoun, said, written to him setting out in fuller details the safeguards which are provided; but I think I can assure your Lordships that they are such as to make the chances of success of the kind of fraud which he has described extremely remote indeed.

I pointed out to the noble Lord at the last stage that such an attempt at fraud is already a possibility under the present law; the Peer may marry an unmarried woman with a child—not his mistress, as the noble Lord understood it, but a woman with whom he has had no closer previous acquaintance than with the hypothetical widow of whom the noble Lord spoke. And if he were to, his chances of success, negligible at any time, are certainly greater than if he married a widow. The reason for this is that a child born during the widow's previous marriage is presumed by law to be the child of her husband; and this is an additional hurdle which would have to be overcome in attempting to establish the Peer's paternity. This hurdle would not exist if, under the existing law, he attempted the fraud by marrying an unmarried woman. I can therefore categorically state that there are adequate safeguards against such fraud and that the risks of fraud are not increased by the extension of legitimation in this Bill. If, therefore, any of your Lordships are looking for an ingenious way of finding a housekeeper, I do not suggest you are influenced by what the noble Lord, Lord Saltoun, has said, although I do not wish it to be read that finding a single woman with an illegitimate child is any easier a way of seeking to spite an heir presumptive whom you do not like.

Then there was the question of the Royal Prerogative. I informed the House that the Government had considered this point and we took the view that it did not infringe the Royal Prerogative. On reconsideration, however, we have come to the conclusion that, a doubt having been expressed, it would be safer to take the view that indirectly the Bill might affect the Prerogative. We have therefore acted on this view, and I am pleased to inform your Lordships, as the noble Lord, Lord Saltoun, predicted I would, that Her Majesty's consent will be signified at the appropriate stage.

I hope your Lordships will forgive me for having dealt at such length with the Amendments. Although I am in complete disagreement with what the noble Lord, Lord Saltoun, has said, it seemed to me it would be completely unfair if I did not react to the complete sincerity with which he raised the point, and give him an answer which I hope will persuade your Lordships that the principle at stake in this matter is such that we are reasonable in declining to accept the Amendment which the noble Lord, Lord Saltoun, has put forward. Even if it did not have the effect which we believe it is likely to have, by the act of putting the clock back several hundred years by removing a right from children who presently have it, we should still be of this opinion. That is an added reason for rejecting the Amendment which the noble Lord has put forward.

LORD SALTOUN

My Lords, if no other noble Lord wishes to speak I should like to say a few words in reply. The

noble Lord, Lord Hughes, replied at great length to the speech I did not make, at any rate this afternoon. He expressed a fear that my Amendment would go too far and would alter the law of Scotland as it is at present. The wording of my Amendment is: Nothing in this Act shall affect the succession to any dignity or title of honour or render any person capable of succeeding to or transmitting a right to succeed to any such dignity or title. The fact that the early part of this Bill recites what is the law at present surely does not repeal that law if, later on, we put into the law that "Nothing in this Act shall" alter the law as it stands at present. Surely that is a clear case? Otherwise, I should be in doubt, and I do not think there can be any doubt about that.

As I had hoped, the noble Lord, Lord Hughes, has brought the usual Royal and gracious Message, that Her Majesty is willing to abide by the decision of your Lordships' House. The question before us at this moment is, what is that decision to be?

My third argument was not touched upon by Lord Hughes at all, and it is one upon which my legal friends put most stress: that the Bill extends further the existing difference between the law of Scotland and the law of England with regard to peerage. That is my answer to the noble Lord, Lord Hughes. As I was afraid would happen, we have not convinced one another. That does not affect my regard in other respects for Lord Hughes; but I am afraid we must differ on this.

3.44 p.m.

On Question, Whether the said Amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 32; Not-Contents, 55.

CONTENTS
Albemarle, E. Fortescue, E. [Teller.] Nunburnholme, L.
Amherst, E. Fraser of North Cape, L. Ogmore, L.
Amulree, L. Greenway, L. Rea, L.
Asquith of Yarnbury, Bs. Henley, L. Rowallan, L.
Balfour of Inchrye, L. Horsbrugh, Bs. St. Oswald, L.
Beachamp, E. Iddesleigh, E. Saltoun, L. [Teller.]
Blackford, L. Ilford, L. Sempill, Ly.
Brentford, V. Kinloss, Ly. Strathclyde, L.
Byers, L. Margadale, L. Stuart of Findhorn, V.
Forbes, L. Milverton, L. Wedgwood, L.
Monsell, V. Ypres, E.
NOT-CONTENTS
Addison, V. Hall, V. Rathcavan, L.
Arwyn, L. Hankey, L. Robertson of Oakridge, L.
Balerno, L. Harvey of Tasburgh, L. Rowley, L.
Beaumont, Bs. Henderson, L. Royle, L.
Beswick, L. Hill of Wivenhoe, L. Sainsbury, L.
Bowles, L. Hilton of Upton, L. [Teller.] St. Davids, V.
Brockway, L. Howard of Glossop, L. Selkirk, E.
Buckinghamshire, E. Hughes, L. Shackleton, L.
Champion, L. Hunt, L. Shannon, E.
Chorley, L. Hurcomb, L. Silkin, L.
Citrine, L. Kilmany, L. Sorensen, L.
Clwyd, L. Latham, L. Stonham, L.
Crook, L. Leatherland, L. Strang, L.
Douglass of Cleveland, L. Lindgren, L. Strange of Knokin, Bs.
Falmouth, V. Molson, L. Swanborough, Bs.
Gardiner, L. (L. Chancellor.) Noel-Buxton, L. Tayside, L.
Glasgow, E. Phillips, Bs. [Teller.] Wells-Pestell, L.
Haddington, E. Raglan, L. Williamson, L.
Younger of Leckie, V.

On Question, Motion agreed to.