§ 3.57 p.m.
§ THE MINISTER OF STATE FOR COMMONWEALTH AFFAIRS (LORD SHEPHERD)My Lords, I have it in command from Her Majesty to acquaint the House that Her Majesty, having been informed of the purport of the Legitimation (Scotland) Bill, has consented to place her interest so far as it is concerned on behalf of the Crown at the disposal of Parliament for the purposes of the Bill.
§ THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR SCOTLAND (LORD HUGHES)My Lords, I beg to move that this Bill be now read a third time.
§ Moved, That the Bill be now read 3a.—(Lord Hughes.)
§ On Question, Bill read 3a.
§ Clause 1 [Requirements and effect of legitimation]:
§
LORD SALTOUN moved to add to the clause:
( ) For the avoidance of doubt it is hereby declared that nothing in this section affects or shall affect the succession to any peerage or dignity except a peerage of Scotland or a baronetcy of Nova Scotia.
§ The noble Lord said: My Lords, my noble friend Lord Iddesleigh has asked me to move this Amendment which stands in his name, which I hereby do. The underlying reason for this Amendment is largely in order that your Lordships may know what law we are at present making, because at the moment it is, I am afraid, far from clear. This Bill makes the law of Scotland diverge more than it does from the law of England and extends these rules of legitimation to cover questions of peerage. The question I want to get resolved, and which I think all of your Lordships ought to have resolved, is this. The new rules of legitimation will no doubt apply to peerages of Scotland. The question is whether they will also apply to the peerages of England, and, still more, to peerages created after the year 1707.
§ The point is this. A Scotsman residing in Scotland, or an Englishman who resides in Scotland, and who legitimises an heir under this Bill, and legitimises an 1388 heir (for the purposes of argument) whom he would not have been able to legitimise but for the passage of this Bill, falls heir to an English peerage or to a United Kingdom peerage or to a British peerage. The question is: does he receive a writ to that peerage? There is a difference in these cases. In Scotland, to a Scottish peerage it is quite understood, but the whole of the English peerages ended in 1707, and one had what the insurance companies call a "closed fund". The same applies to Scottish peerages, though not to Irish peerages. A United Kingdom peerage has its remainder defined by the Crown to heirs lawfully begotten, and presumably legitimated. But Scotland is part of the United Kingdom, and if a man falls heir to anything in Scotland under the law of Scotland, he surely should fall heir to something which affects the whole United Kingdom. In moving this Amendment I am in fact asking for information, and I should like to know what is the effect of the new rules about legitimation on peerages of the United Kingdom, and British peerages, and indeed of English peerages. I beg to move.
§
Amendment moved—
Page 1, line 13, at end insert the said subsection.—(Lord Saltoun.)
THE MARQUESS OF ABERDEEN AND TEMAIRMy Lords, I should like to add a few words to what my noble friend has just said. I happen to be a baronet of Nova Scotia, which is not always understood in England. In the course of the years of my ancestry we have also achieved a United Kingdom peerage, which was first given as a matter of convenience to my great-grandfather, who was a Member of this House and was at the same time Prime Minister, so it would have been very awkward if he had had only a Scottish peerage. This is one of those cases where I feel that a great deal of difficulty may arise. But I will say no more, except to support what my noble friend Lord Saltoun has already made so clear.
§ LORD MOWBRAY AND STOURTONMy Lords, I find myself somewhat affected in this case, living as I do in Scotland, and having English peerages. My Barony of Stourton, for instance, which is a Barony by Letters Patent existing, as opposed to the Baronies by Writ, is specifically created by the Crown 1389 to the heirs lawfully begotten in the male line, and we must realise that this Scottish Legitimation Bill is definitely altering the patent of this Barony created by Letters Patent by Henry VI. I think we ought to be sure that what we are doing here is to alter the Royal Letters Patent.
§ LORD HUGHESMy Lords, I must apologise to the noble Lord, Lord Saltoun, if I appeared to be anxious to deprive him of the opportunity of throwing fresh light on this matter. An interval having elapsed, I thought that he was not going to move the Amendment and that we were going to proceed.
I do not agree with the noble Lord in his basic remark that the purpose of this Bill is to make the law of Scotland differ from the law of England in relation to peerages. This is incidental. The purpose of this Bill is to remove a barrier to the legitimation of children in Scotland which does not exist in England: to remove an unnecessary stigma which is continuing in Scotland, although in England the justice of removing this barrier was recognised a number of years earlier. That is the primary purpose of the Bill, and there would have been no doubts about that at all if the noble Lord had not felt it necessary on Committee stage to move an Amendment concerning the incidental effect on peerages. But the subsequent discussion on Committee, at Report and now on Third Reading would have persuaded anyone who had ventured into the House that it was a Bill for the purpose of altering the succession rights to the peerage, and that the rights of other individuals were only incidental. I should like to make it perfectly clear what is the primary reason for the Bill and why the Government are not disposed to accept this Amendment.
The effect of this Amendment is to declare that the succession to all peerages or dignities—except those of purely Scottish origin—is not to be affected by the provisions of Clause 1 of the Bill. If it were accepted, then all persons legitimated under the law of Scotland in future would be prevented from succeeding, for example, to titles created after the Union of the Parliaments in 1707. As the Amendment is drafted the exclusion would apply both to persons of the class who may be legitimated under the law at present and to those of the class, 1390 the bar to whose legitimation is being removed by the provisions of the Bill.
That is the first point to which I wish to draw your Lordships' attention; namely, that the persons who can succeed to titles at the present time, as the law on legitimation now stands, would be debarred from succession if this Amendment were to be accepted. I greatly regret the illness of the noble Earl, Lord Iddesleigh, which prevents him from being here to-day to move his Amendment, but he was kind enough to write to me about the matter and I read his letter with great care. I wrote to him, giving him the reasons why the Government would not be able to accept the Amendment.
Perhaps I should say first of all, as I have said before (I think this is now the third time of saying it), that we are not seeking in this Bill to alter the rights to which legitimated persons are entitled under the existing law. On the contrary, our intention is, and the Bill was framed to ensure, that persons legitimated under it will have the same rights as those enjoyed by persons legitimated before it reaches the Statute Book. This is because we are working on the basis that it is not anything which the legitimated person has done which makes a distinction between them, and therefore there should be no distinction in the results. This is equally the intention in relation to rights to succession to titles and dignities as it is in relation to other rights, Provisions about rights which appear in the Bill in Clause 3, for instance, are for clarification, rather than alteration, of existing law.
As your Lordships know, however, the Bill does amend existing law in quite another respect; that is, it provides for the legitimation of children whose parents were not free to marry when they were conceived or born and who under existing law are barred from legitimation. This is the extent to which we are coming into line with the more advanced position in England and Wales. When I received the noble Earl's letter I was not certain whether he was seeking, for the purposes of succession to titles, to discriminate between legitimated persons who could be legitimated under the present law and persons whose legitimation would be made possible for the first time by the Bill. In my reply I told the 1391 noble Earl that the Government could not accept any Amendment which made a distinction between the two classes of legitimated persons, but even if the purpose of the Amendment is not to seek to discriminate in the way I have mentioned, and his Amendment is designed merely to clarify the existing law, I am afraid that I am still unable to accept it, because I do not think it is by any means clear that that is what its effect would be.
It is common ground between the noble Earl, Lord Iddesleigh, and myself that his Amendment would not alter the rules of succession to purely Scottish titles and dignities. Indeed in this respect his Amendment would not exclude the new class of legitimated persons to whom Clause 1 of the Bill applies. Such persons could succeed to a Scottish peerage—provided, of course, that the terms of the grant so permitted. To complete this part of the picture, however, I should point out that neither would the Amendment exclude from the succession to any title such of the new class of legitimated persons as are legitimated directly by Clause 5 of the Bill; that is to say, children conceived or born at a time when their parents were not free to marry and whose parents have subsequently married each other before the passing of the Bill. To that extent therefore it would be anomalous.
It is on the question of the law relating to the succession to post-1707 Great Britain and United Kingdom dignities that I would depart from what has been said by the noble Lord. Whatever may be the position about English peerages or English baronetcies created before 1707, it is possible that the law of Scotland may apply to the succession to certain post-Union peerages and baronetcies—for instance, those where the territorial designation relates to Scotland and where the last holder was domiciled in Scotland. And if Scots law does so apply, of course, legitimated persons are entitled to succeed to such peerages and baronetcies under existing law, and ought to continue to be able to succeed under the law as it is restated in this Bill. Whether in any particular case the specific terms of the grant of the title would permit such a person to succeed is another matter altogether. What I 1392 am arguing is that there is nothing in the general law to exclude him from the succession.
In these circumstances, and given that we are concerned in this Bill with codifying the existing law, it would in the Government's view be totally wrong to accept an Amendment which would alter that situation. Such rights as persons legitimated under present law enjoy in this respect should be left intact. Further, since it is a cardinal principle of the Bill that there should be no discrimination between persons legitimated under the present law and the new class of legitimated person created for the first time in Scotland by the Bill, the latter should enjoy whatever rights are possessed in this area of succession by the former. For those reasons, I must strongly urge your Lordships not to accept this Amendment.
LORD SALTOUNMy Lords, I listened with great attention to the noble Lord, Lord Hughes, and I am very glad that he came to the point at the end. The point I was putting before your Lordships was whether the people who were legitimated under the Bill, and who would not have been legitimated before the passage of the Bill, if they fell heir to a United Kingdom or British peerage would, in fact, by virtue of the change in Scottish law, succeed. The noble Lord's answer to me, if I understood him right, was that they would so succeed. I think that this is a peculiar Bill. I am told that by moving an Amendment to prevent a change in the law affecting the peerage I am thereby imperilling the present position under the law in Scotland, and if that is the real effect of this Bill I think it is not a very nice trick to play on Parliament, to bring in a Bill in such a form that we cannot amend it without wrecking the law of the land as it at present exists. The point I am really on, I think, is this: that in England, Legitimacy Bills do not refer to peerage, and in Scotland they do.
The point before your Lordships is this. As the noble Lord, Lord Hughes, has said, this Bill affects peerage. You can get by residence in Scotland title to a United Kingdom or British peerage which you would not otherwise have got by the law of England. I did not intend to press this Amendment, because 1393 I moved it, at the request of my noble friend Lord Iddesleigh, to obtain clarification, and I did not expect to find Lord Iddesleigh speaking against me through the lips of Lord Hughes as well as through myself to your Lordships. But if any one of your Lordships wishes to press this Amendment (I see that most noble Lords here are English Peers, and they are much more affected than I am) I will of course divide the House. Otherwise, I will ask leave to withdraw the Amendment, having got as much clarification as I think possible this afternoon.
§ Amendment, by leave, withdrawn.
§ LORD HUGHESMy Lords, I beg to move that the Bill do now pass.
§ Moved, That the Bill do now pass.—(Lord Hughes.)
§ On Question, Bill passed, and sent to the Commons.