Lords Sitting of 22 February 1967

Preamble
The House met at half past two of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Bristol

LORD WOOLLEY
Sir Harold Woolley, C.B.E., having been created Baron Woolley, of Hatton in the County Palatine of Chester, for life—Was, in his robes, introduced between the Lord Netherthorpe and the Lord Beeching.

MAGISTRATES' POLITICS
2.47 p.m.
LORD BRAYE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government why, in a recent questionnaire sent to clerks of the peace, it was deemed necessary to ask the politics of serving magistrates, in view of the fact that the ballot in England is secret.]
THE LORD CHANCELLOR (LORD GARDINER): My Lords, the Royal Commissions on Justices of the Peace of 1910 and 1948 recommended that justices should be drawn from all sections of the community and that steps should be taken to ensure, as far as possible, that there is no unfair preponderance of justices from any one Party on any bench. In order to implement these recommendations it has been necessary for every Lord Chancellor to ask the committees who advise him on the appointment of justices to inform him of the political composition of the benches in their respective areas. The committees are required to give this information to the best of their knowledge, and of course individual justices are not obliged to disclose their political views.
LORD BRAYE: My Lords, while thanking the noble and learned Lord the Lord Chancellor for his Answer, may
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I ask him whether this question has been asked of magistrates before?
THE LORD CHANCELLOR: My Lords, Lord Chancellors have always left it to the advisory committees to ascertain the views of magistrates. It is a matter for them how they do it.
LORD LEATHERLAND: My Lords, is my noble and learned friend aware that in the county where I sit on the advisory committee we have asked this question for many years?
THE LORD CHANCELLOR: My Lords, this has always been a matter of some difficulty, because Lord Chancellors have thought it right to follow the recommendations of the two Royal Commissions, who had heard many witnesses and taken a great deal of trouble. The difficulty is how the Lord Chancellor is to see that the bench does not appear to be the perquisite of any one political Party unless he knows what are the views of the justices.
The Royal Commission of 1911 said:
"We are of the opinion that it is not in the public interest that there should be an undue preponderance of justices drawn from one political Party."
The Royal Commission of 1948 put my difficulty, I think, very clearly. They said:
"We think that too much attention in the appointment of justices has been paid to political opinions, but we do not think that a better practice can be secured by 'ignoring politics': in this field 'politics' means party politics and the existence and activities of political parties are facts which cannot be ignored. It may no doubt seem paradoxical to say that in order to avoid political appointments, the political affiliation of possible justices must be considered and a fair balance kept between the parties. If, because a bench has a preponderance of members of party A, it is thought necessary to add to it a number of justices who belong to party B, it must sometimes follow that appointments are not according to merit so much as to political views. Moreover the danger of political bargaining is a real one, and in some cases different parties represented on the advisory committee fill the vacancies in an agreed proportion, each accepting, with little or no inquiry, the nominees of the others. On the other hand, we are satisfied that if the Lord Chancellor and his advisory committees were to close their eyes to the politics of nominees for the bench, there would be no guarantee against the almost complete exclusion in some districts of persons of a particular political colour. Where that resulted, there would be a natural sense of grievance among members of the party affected, and a

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corresponding loss of confidence (however little justified it might be) in the impartiality of the bench."
LORD GLENDEVON: My Lords, if a magistrate changes his politics, ought he to let the advisory committee know?
THE LORD CHANCELLOR: No. The matter has never been pursued to that detail.
VISCOUNT ST. DAVIDS: My Lords, would my noble friend not agree that one of the difficulties from which he suffers in this matter is that there are some political Parties which believe that they are non-political?

TANZANIA: NATIONALISATION OF BRITISH ASSETS
2.51 p.m.
VISCOUNT BRIDGEMAN: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what information they have received as to the effect on British-owned concerns in Tanzania of the proposals for nationalisation recently announced by President Nyerere; and whether they are satisfied that full compensation will be paid for all British-owned assets expropriated.]
THE PARLIAMENTARY UNDER-SECRETARY OF STATE FOR COMMONWEALTH AFFAIRS (LORD BESWICK): My Lords, the Tanzania Government announced on February 6 the immediate nationalisation of all banks, including three British banks. Subsequently it was announced that 15 import-export firms and millers, some of which are British owned, were being nationalised and that a 60 per cent. interest was being compulsorily acquired in six other firms, four of which are British. British insurance interests, which are widespread, are, we understand, also affected. There was no prior notification of the Tanzania Government's intention to take these steps. Her Majesty's Government are in close and continuing touch with the banks and the other British companies which have been affected by these new measures.
Important questions arise as regards compensation and the future of the employees of these firms. In accordance
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with the usual requirements of international law and practice, compensation should be prompt, adequate and effective, and Her Majesty's Government have noted the Tanzania Government's public statement that full and fair compensation will be paid. We have asked the Government of Tanzania, through the Canadian Government who are the Protecting Power, urgently for information on the relevant legislative and administrative measures, in particular of the provisions and proposals relating to compensation and as regards the future of expatriate staff. The Tanzania Government have also been asked for confirmation of the reported statement that Mr. Jamal, the Minister of Finance, intends to visit this country soon for discussions with the Head Offices of the British banks concerned.
VISCOUNT BRIDGEMAN: My Lords, in thanking the noble Lord for his reply, may I say how important those who have interests in Tanzania consider it that Her Majesty's Government should keep in the closest possible touch with events in that country, more especially as reliable information as to the exact way in which these recent decisions of the Tanzania Government are being implemented is hard to obtain?
LORD BESWICK: My Lords, I quite agree with the noble Viscount, and I very much appreciate the ready way in which he has volunteered to give information which comes to him. As he knows, we are in close touch with the firms concerned. I saw the chairman of the East Africa and Mauritius Association yesterday, and any assistance we can give we shall, of course, be ready to give.
LORD RITCHIE-CALDER: My Lords, is my noble friend satisfied that, in the absence of diplomatic relations, the attitude of the British Government is fully understood in Tanzania?
LORD BESWICK: My Lords, the absence of diplomatic relations is one of the difficulties of this situation. I am grateful to my noble friend for giving me the opportunity of saying that we do not, and would not, challenge the right of Tanzania or any other country to decide the basis of its economy. But the procedure by which the property or the interest is acquired is obviously of vital

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interest to us and also to those who may have investment capital to offer in other parts of that continent. I would emphasise that it would be in the best interests of all countries in Africa that Tanzania fulfils her declared undertaking to compensate fully and effectively, and honour the undertakings to staff involved.
LORD TWEEDSMUIR: My Lords, can Her Majesty's Government give us the assurance that they will satisfy themselves, before they accept a settlement, that such compensation as is paid is freely negotiable outside Tanzania?
LORD BESWICK: My Lords, the noble Lord will recognise the phrase I used from international law on this subject, namely, that the compensation should be prompt, adequate and effective. If it is effective,that would fulfil the requirement to which the noble Lord calls attention.

LORD SHEPHERD: My Lords, my noble friend Lord Beswick will be making a Statement on Malta shortly after 3.30 p.m.

WELFARE OF ILLEGITIMATE CHILDREN
2.55 p.m.
BARONESS SUMMERSKILL BARONESS SUMMERSKILL rose to call attention to the law concerning and the welfare of illegitimate children; and to move for Papers. The noble Baroness said: My Lords, in the course of our debates on the modification of the divorce laws frequent reference has been made to the subject of illegitimacy and the immorality, in these days, of allowing the sins of the fathers to be visited upon the children. My purpose to-day is to focus attention on the law and the provisions made for the unmarried mother and the children born out of wedlock. In one sense, these children start level with legitimate children, in that no child is born of its own volition. Whatever may be said of the parents, a child is innocent of any wrongdoing. To discriminate against him, therefore, is to punish him for a wrong of which he is not guilty. It seems to me that unmarried mothers are still treated as scapegoats: scapegoats for social disapproval of the present greater
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permissiveness in sexual behaviour which characterises our time. By bearing a child the unmarried mother has produced evidence of sexual intercourse outside marriage, conduct which can be tacitly ignored where no child is conceived.
The public disapproval, and lack of adequate social and financial support, results in the posing of a tragic problem to the unmarried mother. Will her child's future be better if the child stays with his mother and his blood family, or will it be easier with a substitute family, under adoptive status, which to some extent masks the stigma of illegitimacy? This is the problem which faces 63,000 unmarried mothers. The illegitimate children born in England and Wales in 1964 represented 7·2 per cent. of all live births; and about 40,000 of these children were adopted. The maximum number of illegitimate births are to mothers aged between 20 and 24, but the largest single age group is of 19-year-old girls. So I think I can appeal to your Lordships' sympathy in this debate when I impress upon you that to-day we are considering the lot of the immature individual who very often finds herself a parent before her time.
We do not know how many children are brought up for long periods by mothers who remain single, isolated from their own families. But it is the group, which has no family backing that is the most socially vulnerable, and a check reported in the excellent pamphlet, Fatherless by Law, for which the right reverend Prelates are responsible, indicated that the greatest single factor causing children to remain in residential care is illegitimacy, and that income areas at least 50 per cent. of the children in care are illegitimate. My Lords, if the law contributes to thousands of innocent children being brought up in public care, this in itself is sufficient reason for the law to be reformed. The services provided for this very vulnerable group lag behind the services provided in less punitive countries. Consequently, the illegitimate child tends to start life handicapped, not only because of his status but because the community has failed to face up to its responsibilities.
I should like to pay a tribute to the statutory and voluntary agencies which have sought to advise and help these

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mothers, particularly the National Council for the Unmarried Mother and her Child, who, with the devoted assistance of their General Secretary, Mrs. Bramall, have set out the problems in a paper called Children on our Conscience. It seems to me that the unmarried mother shares with the widow and the divorced or deserted wife many of the problems arising from having the sole responsibility for bringing up her child without a father in the home: she has to supply economic and emotional security, not only for the children but for herself.
We have at various times tried to tackle this problem. The Affiliation Proceedings Act made few important alterations to the law—I am afraid there was not much change when I came to examine it—contained in the Bastardy Amendment Act of 1852, one of our laws still, which embodies the assumptions of the Middle Ages. The obligations of the father are still limited—limited to the payment of a small sum while the child is incapable of earning. The maximum amount was increased from 2s. 6d. to 5s. 0d. per week in 1872, to £1 in 1923, to 30s. in 1952, and to £2 10s. 0d.in 1960. This is the maximum which the girl can claim. However, certain minor reforms have been introduced which have helped to avoid embarrassment to the illegitimate child. The Legitimacy Acts made it possible for children to be made legitimate by the subsequent marriage of the parents; and an Adoption Act confirmed legitimate status on adopted children. I would, however, remind your Lordships that that is very little different from Roman times. The short birth certificate was welcome, but the real value is dependent on its use by a substantial part of the population; otherwise, of course, the illegitimate child cannot possibly disguise from an employer that it has a short birth certificate for certain reasons.
In 1962 a United Nations Sub-Commission recommended that illegitimate persons should be granted equal legal and social status to that of the legitimate, and they added that in those countries where this equality existed there was no indication that it had led to an increase in the percentage of illegitimate births. In
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Denmark, where a most enlightened policy has been introduced, the unmarried mother is treated almost as though her status were equivalent to that of the "legitimate mother"—and I really would say that, when one uses the word "illegitimate" in this connection, it is not the child who is illegitimate but the parents who are illegitimate. Denmark has pursued for many years a very enlightened policy. Yet, despite that, the illegitimacy rate has fallen.
The Continental practice is different from ours, for the amount of maintenance is not limited to a sum fixed by law. In Switzerland no limit is specified. Both parents are equally liable to maintain the child. In Germany the father is primarily liable. On the Continent, whoever brings affiliation proceedings is doing so on behalf of the child, whereas in England the child has no rights at all to claim maintenance; he is not even a party to the action.
I am afraid there is no legal system whereby one can ensure that a child born out of wedlock, or in wedlock for that matter, will not be abandoned by his father. However, a legal system can provide facilities for inducing "illegitimate fathers" to accept greater responsibilities. There are some major and minor reforms which could be implemented without further debate. Two years ago your Lordships gave a Second Reading to a National Assistance Bill of mine, designed to underwrite for married mothers the maintenance awarded to them by the court. This Bill had your Lordships' approval, but it did not meet with the approval of the Minister of that time. I hope, now that a little time has passed, and in view of this debate, and of what I hope my noble and learned friend who sits on the Woolsack will say to-night—at least perhaps he willshow his sympathy, if not going into too much detail—that the Minister of Social Security will now be able to accept the principle embodied in that Bill, if only within the limits of the Social Security grant. The Report of the Russell Committee dealing with inheritance and illegitimacy is generally welcome for the provision it makes for children in cases of intestacy, but I must say I regret that equal provision is not made for children who inherit from members of the mother's and father's families.
There are some further questions, of course, much wider questions, which must be examined by some committee of inquiry. I do not specify the nature of the inquiry, but I hope it will not be a Royal Commission, because Royal Commissions are notorious for sitting for so many years, and I think this is a problem which cannot wait much longer. I hope these other questions will be examined by a committee of inquiry to discover ways in which illegitimate persons can be assimilated and their legal position equated so far as possible with that of legitimate persons. It seems to me that wherever possible a legal relationship should be established between the child born out of wedlock and his father. There is a basic need for all of us to know our origins, and there is a general consensus of opinion that lack of knowledge of his father may hamper the emotional development of a child.
The Legitimacy Act 1959 illustrates the trend towards giving more responsibility to fathers. But this trend could be increased by legislation if we, for instance, adopted the Scottish approach. Scotland permits voluntary acknowledgment of children by fathers, and when filiation is established the father's name is inserted in the Register of Births. In Scandinavia it is the mother's duty to reveal the name of the father to a statutory authority so that proceedings can be taken. But I realise the full implications of that, and this question would have to be very carefully examined by a committee of inquiry.
One of the problems of the unmarried mother which many of your Lordships hear about when you hear complaints from people in the country is to get regularly the money to which she is legally entitled. There should be a standard fatherless children's allowance, vested in the child and payable to all illegitimate children; and, indeed, I believe, to all children of unsupported mothers. This should be recovered from the fathers to the full amount, or up to the amount decided by the courts, and paid through the Post Office in the same way as family allowances. The procedures for maintenance and affiliation certainly call for radical reform. I think that their unpopularity with unmarried mothers is evidenced by the fact that, in respect of the 63,000 illegitimate births in 1964, only 7,169 affiliation orders were+
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granted. A woman barrister, Mrs. Olga Aikin, said
"There is a definite stigma attached to affiliation proceedings, and the burden of proof which the mother must discharge to show paternity is heavy and similar to that of prosecution in a criminal case".
I believe that the answer is to establish family courts for the hearing of maintenance and affiliation proceedings and, of course, other matters connected with the family. The rights should be vested in the child, and where his mother is unable or unwilling to act a best friend should be appointed on his behalf. I understand that a Committee under the Chairmanship of Miss Jean Graham Hall is considering the present maximum allowance, and I am hoping that the maximum will be abolished, and that, if fathers can pay more, then the court will award more. Again, there is the 12 months' time limit after which affiliation proceedings cannot be brought. I regard this as totally unfair to a young mother, who needs much longer to recover from an overwhelming emotional experience. The Ministry of Social Security exercise their right to bring proceedings within three years, and a United Nations Sub-Commission went much further and recommended that no time limit should be fixed.
There is another point. Courts vary. In many courts the clerk is a wonderful man—understanding, sympathetic, treating these young women as though they were his own daughters. But, of course, the attitude in courts varies, and I feel that it should be the duty of all clerks to act on behalf of the mother in arrears proceedings, when she is in the greatest difficulty. Parents of children horn out of wedlock often prefer voluntary agreements (and we can all understand why that is), rather than affiliation proceedings, and I believe that these should be registrable with the clerk of the court and thus given the same status as affiliation orders.
I understand—and I am glad to hear this—that the Government are consulting Commonwealth Prime Ministers about extending the scope of the Maintenance Orders Act 1920 to cover affiliation orders. I hope that we shall soon hear of a satisfactory outcome, and that on these matters there will be a reciprocal arrangement between the Commonwealth

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and this country. We are accustomed to seeing designations which are offensive or hurtful to those to whom they are applied changed, and there is a strong case for substituting for the words "bastard" or "illegitimate" in Acts and official documents some other term. Where it is necessary to distinguish between the status of children, the words "in wedlock" or "out of wedlock" should be substituted.
It seems to me that a mother should be given a free choice to decide whether or not to keep her child; and, of course, this is possible only if provision is made to enable her to make a decision in her own good time. I think the best arrangement would be the establishment of a comprehensive local authority service which could provide advice and practical help, including the care of the children while the mother is at work, for the day-nursery provision is quite inadequate. There is an urgent need for both temporary and permanent accommodation for the mother and child, and the growing numbers of local housing committees which accept unmarried mothers on their lists are deserving of our praise. Before this is done, prejudice rears its ugly head, and prejudice does not respond to a rational argument. The fact that the mother and the child need a home is not enough: society feels that the mother must be punished; and in punishing the mother it penalises the child.
The most poignant problem, of course, is that of the schoolgirl mother. She presents a special problem. These girls need help to see that the pregnancy is not a final disaster; that it does not completely destroy their lives. So a girl is entitled, and should be encouraged, to complete her school and more advanced education. In the four large urban local authority areas surveyed by the Department of Education and Science, it was found that, of 216 schoolgirl mothers, 141 received no education during pregnancy. I believe that we should aim to see that all unmarried mothers are placed in the best possible economic position, so that they can properly support themselves and their children if they wish to keep them.
Law reform should be based on the principle that all children are of equal value, and they should be granted all the rights and privileges which their innocence merits. The contention that family
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life would be threatened does not seem to rest on any solid social or ethical foundation. It would seem, therefore, that the time has come for a major review of the social and legal position of the illegitimate child and his parents; to examine ways in which illegitimate persons can be assimilated and their legal position equated, so far as possible, to that of legitimate persons. My Lords, I beg to move for Papers.
3.18 p.m.
LORD DERWENT: My Lords, I am sure we are all grateful to the noble Baroness for raising this important subject. Many people probably do not fully appreciate just how important it is. Your Lordships must be becoming rather bored with me getting up in debates of this kind and saying, first of all, that I am not an expert; secondly, that the debate deals widely with questions of law and that I am not a lawyer. In this particular case, from a technical point of view I cannot (so far as I know) declare an interest, but anyone who has been a Minister at the Home Office must take an intense interest in this subject, because it is now generally agreed that one of the important causes of juvenile delinquency is in fact illegitimacy. It is quite understandable. The child grows up feeling that it does not really belong and that it is rather different from other children. The child gets a grudge against society, and where this happens juvenile delinquency may well start. This subject is therefore important in the public interest, quite apart from the interests of the children, because anything we can do to decrease juvenile delinquency is very much in the public interest.
In so far as the illegitimate child is concerned, unlike the noble Baroness I prefer the word "bastard". I do so for the same reason that she does not like the words "illegitimate child", because I agree with her that it is the parents who should be called unlawful. But for the sake of convenience I shall refer to "illegitimate children", because that is the modern parlance. The difficulties of the illegitimate child are twofold: there are social difficulties and legal difficulties, and although they impinge on each other they are not quite the same. May I deal first with the social difficulties? These have altered somewhat in the last 150

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years, and, in my view, for the worse in so far as the child is concerned. Up to the beginning of last century there would appear to have been little social stigma as regards the bastard child, so far as one can make out. The mother was made to suffer, but to be a bastard child was considered no fault of the child, and, as we all know, in certain cases it was rather a smart thing to be if the father was suitably smart. I do not think there was any real social stigma at that period. As I say, the stigma attached to the mother, and it also attached to a large extent to the father. It came about, I think, because communities were small, and social conscience is apt to be more fully developed in a small community than it is in a large one. So, as I say, in those days things were, if anything, from a social point of view, better for the child.
I am not referring to what took place in the large cities. London in those days was almost, though not quite, the only large city, and the whole system of living was different. If a father in a small community was unmarried he was expected to marry the girl, and if he did not marry the girl he probably had to leave the neighbourhood; indeed, as a rule the marriage took place before the child arrived and the child was never illegitimate. It did occur, of course—I am speaking of those days—that it was occasionally socially impossible (I think that is a proper phrase to use) for a man to marry the particular girl, but he was still expected to provide financially for her and for the child. In those small communities if the father was a married man it was well known who he was, and again he was normally expected to provide financial aid for the mother and child. Again he was severely blamed, if no worse, if he did not undertake this duty; and where it happened that the father was not prepared to undertake this duty it frequently happened that the mother and the child were brought up by the mother's family.
This still goes on in small rural communities; at least, it does in England proper—I use the phrase "England proper", as your Lordships realise, for that part of the United Kingdom that lies between the Trent and the Scottish Border. In the country districts, certainly in the North, and I imagine also in
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the South, it is unusual in the small communities for a girl who is having a baby to be "cast off", to use the old phrase. In the towns it is different.
Then at the beginning of last century the Industrial Revolution started, with a new, large, get-rich-quick middle class. The automatic effect was that communities became larger, and, in my view, social conscience over many years became less pronounced. What were then known as the upper class and the lower class were, traditionally, I think, always kinder to their own than were the new middle class. The upper classes of those days were quite a small community and looked after their own, and the poor looked after each other rather better than some of their richer neighbours, because if they did not look after each other and stick together nobody else was going to do it for them. But as this new industrial middle class formed larger cities, for the first time, I think, the word "bastard" became a term of abuse. All that they were interested in—not all of them, of course; many were very charitable people, but by and large as a community—was getting on in the world. Then in the latter part of the last century we had the appalling Victorian hypocrisy which had grown up, and the only thing that mattered was to avoid a scandal. That has to some extent persisted to this day, though I think things are getting rather better from the social point of view as regards the illegitimate child.
May I come now to the legal side, which has been slightly touched on by the noble Baroness? In those earlier times the mother had very few legal rights, but particularly during this century she has gradually acquired a few more, though not very many. In those days the bastard child had no rights. In so far as his position as a bastard is concerned, he has no rights to-day. He is no better off now than he was then. The last thing that ought to occur, if it can be avoided—I do not want my words misunderstood—is that the child should be taken into care and sent to a home, whether it is a local authority home or a voluntarily run home or a hostel. I know it is frequently absolutely necessary, but that is the last thing that ought to happen to any child if possible. It gives him or her no family at all.

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Good foster parents are one stage better; they give him or her a home, but they do not really, except in very rare cases, give a child a proper family background. Adoption, when it can be carried out, is probably rather better again. But the best thing for the child is for it to be brought up if possible by its mother, even if she is not very good at it, unless, of course, in certain circumstances the illegitimate child can even be brought up by the father and mother. That is what we have to aim at. I would suggest that it is in this sphere that alteration in the law might well be speeded up and is necessary. In so far as the social stigma is concerned, there is nothing we can do by legislation, though legislation may help.
I want to deal with only two of the matters already mentioned by the noble Baroness—two legal matters. One is the question of affiliation and maintenance. As the law is at present—and I always find myself saying that phrase when the noble and learned Lord the Lord Chancellor is going to speak later—the affiliation order is for the mother; the maintenance is for her. She need not, in law, spend a penny of it, when she has got it, on the child, if she does not want to; the child has no rights whatsoever. They do things better on the Continent. There—I will use the phrase "affiliation order"—the affiliation order is the right of the child. The child can claim against the father. It is usual, or frequently happens, that the mother acts on behalf of the child and claims the maintenance, the money; but it is not in the least necessary, and if the mother is either unable or unwilling to claim, then the court or the appropriate local authority, depending rather on which country it happens to occur in, appoints a guardian for the child and that guardian acts for that child. The right of maintenance is the child's, and that is asked for either by the mother or the guardian who is properly appointed.
I should not have thought it difficult to alter our law to come into line with the Continental habit, which seems to be much better. It has two advantages. If the mother dies, the child still has its own maintenance money. Even more important, if the father dies the main-
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tenance money is a charge against the father's estate, because it is the child's right to have that money up to a certain age. So I would suggest that that is the first way the law might easily and profitably be altered.
The other matter that I think should be looked into in regard to changes in the law is the question of what is known as recognition. In English law the father has no legal right at all to his own illegitimate child. He is not in law expected to assume full paternal responsibility for his child—in fact, he is seriously hindered from so doing by lack of any possibility of voluntarily putting himself in a legally recognised relationship of father to the child. That is the position in law in this country. On the Continent—this varies again from country to country—the father can legally recognise his own illegitimate child. The effects of that recognition vary from country to country, but the main effect of the father's voluntarily recognising the child is that the father then has the same legal responsibility towards that child as he has towards his legitimate children, even in some cases as regards property, though I think what corresponds to entailed property is never brought in to the illegitimate child. But the father then is responsible for that child in the same way as he is for the legitimate children.
It may be considered a strange thing, but fathers are quite prepared to do this. There seems to be an encouragement to them to do it voluntarily. As a result, the child, even though not living with the father, has a complete family background. He is the same as other children; he has a father and mother. He has a legal father and mother. This, I believe, is most important. Although it is a new concept in English law, I would suggest that the law might well be altered to bring it into line with one or more of the Continental countries, who I think are ahead of us in this matter. I have spoken long enough. I would merely ask the noble and learned Lord, the Lord Chancellor, when he comes to reply, to say whether the Law Commission have yet examined either of these two matters, recognition and the Continental system of affiliation orders; and, if not, whether they will have time in the near future to go into these questions.
3.34 p.m.
THE LORD BISHOP OF EXETER: My Lords, I am at once surprised and gratified to find that at last I have discovered a subject on which I am substantially, if not completely, in agreement with the noble Baroness; and I am most grateful to her for having introduced this subject and for the proposals which she has made concerning it. For anyone like myself, who has a background of extremely happy and secure childhood, it is very difficult to think oneself into the position and the feelings of an illegitimate child. I do not myself believe that the stigma of illegitimacy is the gravest part of the problem. It may have been in older times, say, forty, fifty or sixty years ago, but I doubt whether that is the case now. Where, for example, illegitimate children are brought up by their natural parents, along with brothers and sisters in a home which is relatively secure and affectionate, I greatly doubt whether the children suffer any great damage by reason of their illegitimacy alone. After all, such children know who their parents are, and they are in a continuing and factual relationship with both of them.
It would appear that these are the two greatest needs for all children. Of course, adopted illegitimate children have this latter need satisfied, in that they are in continuing factual relationship with both a male and a female parent. But the child of the unmarried mother who is being brought up by the mother alone has neither of these two satisfactions. It neither knows who is its father, nor is it living in a factual relationship with a married couple. These deprivations have a lasting effect upon the child as it passes from infancy to childhood, from childhood to adolescence and so to maturity. The present law, by regarding an illegitimate child as legally fatherless, is therefore itself a severe contributing cause of this dissatisfaction and unhappiness in the life of the illegitimate child. Therefore, I fully support the suggestion which has been made both by the noble Baroness and by the noble Lord, Lord Derwent, that our law should provide for some kind of voluntary registration in the form of a legal document by the father of the illegitimate child, whereby he would incur both responsibilities and rights as regards the child.
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I agree also that the present system of affiliation orders should be altered, so that maintenance payable by the father should be the right of the child and not the property of the mother; and that there should be provision for a guardian of each illegitimate child to take action on the child's behalf if the mother is unable or unwilling to do so. In other words, I think that what one has to try to do is to create a situation in law whereby the bastard child is in precisely the same position vis-à-vis its maintenance and its parents as is the child of divorced parents; and that the attitude of society towards the bastard child should be based on the same principle; namely, that the primary consideration is neither the convenience nor the embarrassment of either parent, but the true well being of the child.
Again, it is, I think, of immense importance that the affiliation order or maintenance order, or whatever it is to be called, should not, as at present, be limited to the derisory figure of 50s., which is calculated as being roughly equivalent to the cost of maintaining the child by the public authority, but should be based on the child's welfare and the parents' means. When one considers for one moment the almost insuperable difficulty with which an unmarried mother is faced if she has to care for her own illegitimate child on 50s. a week, especially when she must herself go out to work and must presumably therefore employ someone to help with her child, is it in any way surprising to find that in so many cases the young unmarried mothers, who have started with every intention of bringing up their children themselves, have in the end had to abandon them and that the children have had to go into public institutions? The number of illegitimate children who are in public institutions for almost the whole of their childhood is immensely greater than the number of legitimate children. I have some up-to-date figures in relation to Dr. Barnardo's Homes. The numbers of children who have been in care for 12 to 14 years are: 41 legitimate, 108 illegitimate. As to those who have been in care for 10 to 12 years, the figures are 54 legitimate as against 134 illegitimate, and so on. These are things which ought not to be.

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It has been argued that to show any special consideration for the interest of illegitimate children, to do anything to bridge the gap of privilege between the legitimate and the illegitimate child must to some extent prejudice the stability of marriage. It must, so it is said, lessen that sense of importance which people are now assumed to have not to procreate children before they are married. But if this thesis is true, the Illegitimacy Acts, whereby the subsequent marriage of the parents makes the children legitimate, must, one would have thought, have produced already a very strong diminution of the stability of marriage. But, so far as I can see, there is not the slightest evidence of that.
It is, of course, true, that some such system as voluntary registration of the father, or more extensive application for recognition of the fatherhood by the man, might put some strain on some marriages because there would be a revelation of a concealed adultery. But I should have thought that for such marriages, if they were already happy and stable, the shock would be survived. For others, which were unhappy and fragile, this perhaps might be the last straw. It is also sometimes argued that it is unjust to the legitimate children to divert from them any of their parents' property to which they might think themselves to be lawfully entitled. Of course, it is true that whatever you give to illegitimate children, you must take away from legitimate children. If you like you may say that that is unjust, but it is not nearly so unjust as is the present law in relation to illegitimate children.
Human weakness, lust, treachery, disloyalty, passion, have their tragic consequences, and more often than not these consequences fall, not upon the offenders, but upon innocent bystanders; and again, more often than not, among those bystanders, they fall upon small children. Things are what they are, and their consequences will be what they will be, and in these situations unhappiness, even injustice, cannot be entirely avoided. It is our duty to see that everything possible is done to alleviate unhappiness and to reduce it to the minimum, so that everything possible is done to secure fairness and justice all round, and so that the situation is rendered as little tragic as human persons can arrange.

MALTA: DR. OLIVIER'S VISIT TO LONDON
3.45 p.m.
LORD BESWICK: My Lords, with permission, I should like to repeat a Statement which has been made in another place by my right honourable friend the Minister without Portfolio. The Statement is as follows:
"I have sent a message to the Prime Minister of Malta welcoming the communication I received from him at midnight in which he informed me of his readiness to hold early negotiations in London with the British Government. I invited him to come to London early next week for these negotiations about the phasing and consequences of the rundown of British forces in Malta.
"As the House will have heard, Dr. Borg Olivier, in a statement to the Malta Parliament last night said that the Malta Government would not proceed with the amendment of the Visiting Forces Act. This, as I have informed Dr. Borg Olivier, is a welcome and helpful development. During my visit to Malta I explained to Dr. Borg Olivier that we could not agree to negotiations if the administrative measures against the British Forces were to continue. The Maltese Government were not able to give me a final reply on this point and are still considering the matter. I very greatly hope that, to enable the talks to take place, the Malta Government will be prepared to ensure that normal conditions for our Forces will be restored."
LORD CARRINGTON: My Lords, I thank the noble Lord, Lord Beswick, for having repeated that Statement, and for the moderately good news it brings with it. I am sure your Lordships will very much hope that it will be possible for this meeting to take place in London next week. At the same time, I hope the noble Lord will also take note of how very strongly we on this side of the House feel that the Malta Government and the Maltese people should be treated not only fairly but generously.
Loan BESWICK: My Lords, may I thank the noble Lord for his moderately kind words. I would ask him also to

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bear in mind that, whereas we wish to treat the Malta Government generously, it would be a good thing if people in this country were to recognise that so far we have not been ungenerous in this matter.
LORD OGMORE: My Lords, we on these Benches are very pleased indeed that the Malta Government have agreed not to proceed with the amendment of the Visiting Forces Act. We also welcome the fact that Dr. Borg Olivier is coming to London shortly to resume negotiations. May I ask the noble Lord, Lord Beswick, whether it is a fact that there will be no conclusion to the negotiations unless normal conditions for our Forces are restored? Secondly, may I ask him again, as I have asked on previous occasions, whether he will do his best to see that aid is given to the Malta Government with regard to the water desalination plant, since water, as I see it, is the main problem of Malta?
LORD BESWICK: My Lords, in regard to the point about administrative measures which have been taken recently by the Malta Government against the British Forces, what I tried to make clear was that, not only will negotiations not be concluded but they will not start unless these harassing measures are ended. May I also emphasise that we have put to the Malta Government, fairly and properly, that we on our part will be prepared to suspend the action on the run-down while at the same time they suspend action on the administrative harassment. With regard to the desalination possibilities this is entirely a matter of economics. It requires examination by technicians, and this is one of the matters which may well be looked at by the mission which it has been proposed should visit Malta in relation to the economic development of the Island.
LORD GRIMSTON OF WESTBURY: My Lords, as a matter of information, could the noble Lord tell us what was the amount of money to be saved by the run-down as originally envisaged by Her Majesty's Government?
LORD BESWICK: Yes, my Lords. The expenditure is running at the rate of £12 million and would come down in annual stages to £6 million. Ultimately we shall be saving £6 million a year.
THE EARL OF GLASGOW: My Lords, could the noble Lord please say whether the Government are now prepared to consider an extension of the time for the run-down beyond four years?
LORD BESWICK: My Lords, it was put to the Malta Government by my right honourable friend that, as one of the examples of our readiness to be reasonable on this matter, if they came here and sat round a table to discuss the phasing of the run-down we should even be prepared to run it into the fifth year.
LORD FARINGDON: My Lords, I wonder whether my noble friend realises that many of us are deeply disturbed, as I am sure he is, too, by the situation in Malta, and that we should not wish that any of what I think he called the harassments should be allowed to stand in the way of these negotiations.
LORD BESWICK: My Lords, I quite agree with my noble friend, and the fact that the Prime Minister, Doctor Borg Olivier, who I am quite certain wishes to see a successful conclusion to these negotiations, has undertaken to come to London is something which should give us satisfaction. Nevertheless, I trust very sincerely that there will still be no difficulty over the suspension of these harassing tactics.
VISCOUNT MONTGOMERY OF ALAMEIN: My Lords, may I ask the Minister a question? Within the strategic concept of the West in East/West relations, is it considered necessary that British armed forces should be maintained in Malta? In other words, are they there for military reasons, or are they there for political reasons, or are they there to keep up the economy of the Island—which of those three?
LORD BESWICK: My Lords, I suspect that the noble and gallant Viscount knows the answer to his questions as well as I do.
VISCOUNT MONTGOMERY OF ALAMEIN: My Lords, I have my own views on the matter, but I want to know what the Government think.
LORD BESWICK: My Lords, the Government's views have been set out quite clearly for those who read these matters, and I am certain that the noble

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and gallant Viscount does read these matters. What we have said is that in the context of the Defence Review it is not necessary to keep the number of troops in Malta that are now there. We could properly, within the context of our Review, run them down to the number which I originally put to the Malta Government in August of last year. But now, largely to help the Malta Government, not in order to fulfil any military commitments but in order to help the economy of the Island we are prepared to consider the slowing down of the run-down.
VISCOUNT MONTGOMERY OF ALAMEIN: My Lords, could I have an answer to my question?

WELFARE OF ILLEGITIMATE CHILDREN
3.53 p.m.
Debate resumed.
BARONESS SEROTA: My Lords, I rise to-day, with considerable trepidation and, indeed, some diffidence, to address your Lordships' House for the first time. By strict definition, I should imagine that a maiden speech on the subject of illegitimacy is in itself perhaps controversial, if not unsuitable. But I trust that your Lordships' traditional courtesy and forbearance on an occasion such as this will allow me to make just a few remarks on a subject which I regard as one of considerable public and urgent importance.
All of us, both inside this House and outside, are deeply grateful to the noble Baroness, Lady Summerskill, for initiating this debate to-day. I myself shall not follow her and those noble Lords who have spoken on the much-needed reforms in the law relating to the status and the rights of the illegitimate child. I will rather, in these few remarks, confine myself to the welfare of these children and to the social attitudes, the social policies, and the social services which affect their well being; and to the much-needed changes in these altitudes, policies and services if we are to promote their greater happiness as individual children in our community not merely for their own sake but for the general good health of the community as a whole.
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As the noble Lord, Lord Derwent, said, we have moved a long way from the days when foundlings were looked after by the Poor Law and the parishes, when unmarried mothers did public penance and when one could walk through the streets of our capital city and find murdered infants in its parks and open spaces. I think that all of us would praise the pioneering work of Josephine Butler at the turn of the century, and the Moral Welfare Movement which developed in the Church of England from the time when she managed to persuade people that the best hope of a happy life for an illegitimate child was to stay with its mother.
The introduction of legal adoption much later on offered yet another opportunity to many thousands of illegitimate children to have happy and stable homes with their adoptive parents. Indeed, our attitudes to the rights of children generally, whether born in or out of wedlock, have suffered major changes, and I think major improvements, in these last fifty or sixty years. Yet, as noble Lords have already indicated, society's attitude to illegitimate children is still ambivalent and confused, and I believe the causes of this lie deep in human nature itself.
All of us who are Archer fans were very happy last week to hear Doris Archer, the grandmother of Jennifer Archer, speaking on the impact of Jennifer's pregnancy on village life in Ambridge. She summed it up in her own inimitable way: "A baby is a baby and that's all that matters"; and her daughter-in-law, Peggy, answered with feeling, "I wish everyone felt like that". I think all of us would wish to congratulate the B.B.C. on its courageous and sensitive portrayal of Jennifer's problems during her pregnancy; Doris Archer expressed the true attitude on which our social policies and social provisions for all children should be based, regardless of the circumstances into which they are born and over which they have no control.
The social services as organised to-day, based on the major social legislation of the post-war period, have brought great improvements to the welfare of children, be they legitimate or illegitimate. The

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development of the National Health Service alone has meant that being born illegitimate is no longer as great a hazard as it was, and the death rate among illegitimate children in their first year has been halved by the development of that great Service. Here I think that doctors and nurses, health visitors and midwives are truly to be thanked by the nation for their great work in this field.
I wish, however, that one could say the same of the development of social provision in the health field for unmarried mothers and their children. I am sure that noble Lords who will be coming after me in this debate, particularly the noble Lord, Lord Soper, will speak on this subject with feeling and with knowledge. He has done such great work in the field of the provision of hostels for unmarried mothers and their children. There is still a great need for a further extension of this kind of residential provision, for flat lets for unmarried mothers who wish to keep their children, for housing associations to build homes in which these women can live with their children. We also need a far greater extension of the provision of day-care for all children in this country, including the child who stays with his or her unmarried mother.
All children similarly have benefited from the improved developments since 1948, following the passing of the Children Act, for those who, for one reason or another, for short or long periods, have to come into the care of the local authorities or the voluntary societies. Mention has already been made of the large numbers of children who are illegitimate and are in the care of local authorities or voluntary societies. Many of these children do not come into care because they are illegitimate, as the numbers for whom it is the precipitating cause are relatively small. But the total numbers in care who are, in fact, illegitimate are an indication that these children are predisposed at moments of crisis, by lack of family support, to come into care, often for longer rather than shorter periods. The case histories of our children's homes, our remand homes, our approved schools, our child-guidance clinics and, indeed, our adult prisons are undoubtedly rich in source material on the effect of
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illegitimacy and the predisposition to delinquency that the conditions in which these children are brought up have on their future lives and future prospects.
In the field of social insurance and social security, too, all mothers and all children benefit equally from the services provided by the State. But, as the noble Lady has already indicated, there are many who are deeply concerned to-day about the level of social security as it affects certain large groups of our community, which includes children. These groups include those large families where the fathers are low wage-earners, where the mothers are deserted, separated or divorced, and finally, the category of the community that we are considering here to-day—unmarried, unsupported mothers. These are, according to the researches of Professor Peter Townsend and Professor Brian Abel-Smith, the poorest of all in the vulnerable groups. We know from Questions and Answers in another place that the Government are at present reviewing the range and scope of their social security provisions, and I would add my voice to the pleas which have already been made, both here in this debate to-day, in another place and outside this House, that the Government should take urgent action to make proper provision for these families, including unsupported mothers with illegitimate children, so that they can have the kind of upbringing that all children in our society should have.
My Lords, in a debate of this kind one cannot help wondering whether this is a problem which is going to stay with us for ever and is going to continue to increase at the vast rate at which it has been increasing in these past ten years, or whether, perhaps, it would be wiser that social effort, social action and public money would be better spent in preventing this problem from ever occurring, rather than try to safeguard the children after they are born. Earlier policies, far back in our history, have already indicated that punitive treatment does not stop illegitimate children being born. Nor do I believe that forced marriage or earlier marriage would be a healthier or happier solution, for such marriages would in themselves contain the seeds of their own dissolution and further unhappiness for future generations of children.
There may be some who believe that divorce should be easier, and others who

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believe that a wider spread of the knowledge and availability of contraception, or the reform of our abortion laws, would be the proper solutions; but I fear that I should be trespassing on your Lordships' indulgence much too far to-day in a speech of this nature if I were to pursue these particular solutions to the problem further.
I would conclude by suggesting to your Lordships that we might perhaps all agree that there is one slow but nevertheless, I believe, very sure way of solving this problem in the future, and that is for all children and young people to be brought up in the happiness of their own home with loving parents. It is in this way, indeed, that they will truly realise that the family home is the best nursery for children.
4.4 p.m.
LORD SOPER: My Lords, I am able and happy to be the first to congratulate and felicitate the noble Baroness, Lady Serota, on her maiden speech. Of course it was an excellent speech—but, then, what did your Lordships expect? I had the privilege of serving under the noble Lady for a little while on the old London County Council, when she was in charge—and magistral charge it was—of the children's department. I wish that that apprenticeship could have been longer, but as soon as I became a member of the London County Council the Government of the day brought in a Bill to get rid of the London County Council; and although it is not necessarily presumptuous of me to suggest that it was a case of post hoc ergo propter hoc, I still have my suspicions in that respect. But I am the more grateful that your Lordships will now have the opportunity of listening to words so happily and cultivatingly expressed, and of appreciating the experience so long culled and so widespread; and, without any fulsome adulation, I should like to say, I am sure on behalf of every one of your Lordships, how much we have appreciated this first speech, and how ardently we look forward to many others.
My Lords, this is a topic which presents an almost irresistible cue to a parson for a sermon. I shall resist that particular temptation, and shall confine myself to the general observation that, in matters of sexual promiscuity, I am against it. I do that for, I think, a much more impor-
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tant reason than just to prevent myself from boring your Lordships with a number of moral assertions about the necessity for chastity and the dangers—and, indeed, the wrongdoing—of immorality. It is that the introductory words of the noble Lady, Baroness Summerskill, in this particular debate have been so couched as to concentrate on succouring the innocent rather than on chastening the guilty; and I would confine myself to that particular field of inquiry and suggestion.
I want to add a word to what has already been said about the execrable use of the words "illegitimate child". When I was a child I was told, "Sticks and stones may break your bones, but words will never hurt you". I never believed it then, and I have every reason to doubt it now. I happen to know, out of the practical experience which I have been able to acquire over the years, of the kind of unhappiness and the kind of contumely that belong necessarily to those words when attached to particular people, especially young people, who feel very deeply about it. I hope that we can get rid of this execrable use of a phrase which is not true, because, as the noble Lady, Baroness Summerskill, pointed out quite accurately, there are no illegitimate children; there are only illegitimate parents.
There are three fields in which principles have been set forth (I will not rehearse them) and in which it is necessary, as it seems to me, for action to be taken. The first is the field of the child born out of wedlock. Your Lordships have already heard how desirable, how peremptory, it seems to me, it is that we should endeavour to provide for the child an equivalence of legal status to that already enjoyed by the child born in wedlock. The concentration of effort upon the legal status of the child, its economic possibilities and the necessary advantages which it ought to enjoy—this is a principle of which various propositions have already been derived, and I will not weary your Lordships' House by reiterating them.
The second is the field of the father. I yield to none in my conviction that even a poor and unsatisfactory father may prove a consolation and a blessing to a child. I was vastly entertained by the excursion into history of the noble

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Lord, Lord Derwent. He painted with a very large brush, and I think some of the paint got on to the wrong canvas. Nevertheless, his heart is in the right place, and I am certain that what he said is absolutely true: that there is a real and viable place for a father, even if that father is not married to the mother. This has been proved again and again in our experience in the work with which I am associated. The voluntary association, the voluntary recognition—yes, admirable. I am a little dubious about the statutory requirement whereby, as in Scandinavian countries, a mother is required, if she knows it, to state the name of the father. I think this is a proper matter for the commission of inquiry, whatever its title happens to be.
There are a great many peripheral problems here which cannot be solved by generalisations. On the whole, it must be added that the Scandinavian experiment seems to have worked very well. I am quite sure that where the father can be brought in, even to an unsatisfactory relationship, what was said so eloquently by the noble Baroness is quite true: that there is some hope and substance in the belief that a family relationship, even imperfect, is better than the loneliness of one parent.
The third field, of course, is a field in which there is a very great deal more, it seems to me, to be done. It is the field of the mother herself. I listen regularly to the stories of unmarried mothers who seek affiliation orders; who go long distances to what they regard as unsympathetic courts; who are constantly delayed and sometimes prevented from securing what they believe to be their rights by the anomalies of the law, by the provisions which make it necessary that the particular affiliation orders should come within a year of the actual occasion of the birth of the child. I believe that the principle should be that, so far as possible, the State should take over some of these responsibilities and relieve the mother of the agonising problems which are associated with her attempt to find a way to make a living in circumstances in which she is already cruelly handicapped. These matters have already been set forth.
I want to turn for a few minutes to another aspect of the case. I will intro-
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duce it by saying that yesterday I was talking to an unmarried mother who in the last three days had knocked on 19 doors in order to get accommodation, and was turned away from every one. There are three sorts of accommodation which I believe are necessary, and which I know the noble Lady who has just spoken would ardently support; and her wealth of experience in this field is much greater than mine, and much greater, possibly, than that of many noble Lords.
There is, first of all, the need for short-term accommodation in hostels such as, if I may name it, the one at the West London Mission, Hopedene, where we care for about 20 unmarried mothers and their babies, and where on the same premises we have a fully-equipped nursery. This is short-term accommodation, and it provides a period of cushioning and an opportunity for rehabilitation, both mental and physical, for unmarried mothers and their babies. The optimum time is about two years, and it is the belief of the Warden—and I questioned her vigorously as to whether her conviction was strongly based on evidence—that the majority of the unmarried mothers or girls who come into this hostel have, by the end of two years, found some other and more suitable accommodation. The stimulus of knowing that they ought so to try is a very good and therapeutic measure.
It is most important that the children should be cared for. There is a vast extension of the opportunities for annexes to nurseries; and if it be true that in some areas there is a woeful lack of crêches, it is also true that in some London areas there is almost a proliferation of crêches. The extension of the crêche system as part of the short-term accommodation of the hostel is, I think most important—with one proviso: that we ought not to think of it as a hostel. It is interesting to see what the television set has done to the public rooms of hostels. It is even more interesting to realise that the hostel system, as such, is outdated, and that very much better results would be found in the provision of "bed-sits" in which a far larger area of self-sufficiency is offered under a Mother in Israel to the girls and little children. This is one very great need. The Catholic Housing Aid Society have

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represented, and have in their efforts set forth, a partial answer to another great need, that for long-term accommodation in suitable hostels or places where such mothers and their children can find the kind of equipoise and serenity needed by so many who, in the hurly-burly of trying to find accommodation elsewhere, find themselves inadequate and break down. I shall not say much about that, except to point out that it is a necessary part of intelligent and enlightened public administration to suggest through voluntary associations and by appeal to local authorities, the stimulation of long-term accommodation of this kind.
Finally, it seems to me that, within the general orbit of the large council estate, it would be an excellent thing if certain premises, tenements, buildings, houses and rooms, should be set apart for unmarried mothers and their babies. It is, after all, hard enough for the unmarried mother to care for her baby anyhow; it is almost intolerably hard when, superimposed on the natural exigencies of her case, she has housing insecurity, which I have every reason to know has brought disaster even to those to whom initial benefits have been offered.
I would add as a postscript a word about pregnant girls. We try to care for them in a hostel. Many of them are younger than 16. I cannot for a moment imagine the kind of traumatic effect of discovering yourself to be pregnant. What I do know is that in many cases, even within a loving family relationship, it would be better if that girl for the time of her pregnancy were not at home. Paradoxically, it is almost as bad in some cases in a loving and indulgent home as in an intolerable and hardhearted one. There is ample evidence, as the noble Baroness, Lady Serota, will know, of a need to provide places, not necessarily in large numbers, to which, in the early period of the recognition of pregnancy, and up to the time when the little girl is able to go into a place of accouchement, these girls can go and where they can begin to understand in a congenial environment something of the responsibilities they have to face. Here they can be encouraged to make up their minds, while being protected at this time from indulgent or dominating mothers, or social or religious environ-
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ments which are, in many cases, deleterious to their true judgments.
My Lords, these are some of the practical things which I am sure need to be done. I will permit myself a final comment. To see the awakening of hope and, indeed, the emergence of penitence in many cases; to see the emergence of a new sense of responsibility; and, perhaps best of all, to see a young unmarried mother saying to herself, "Whereas I thought that I would ask for adoption, now I believe that, with help, I ought to and should like to take care of my child", is ample reward. It is the kind of reward that we ought to look for in the furthering of the project to which the noble Baroness, Lady Summerskill, has invited our attention today.
4.17 p.m.
BARONESS SWANBOROUGH: My Lords, I should like to thank the noble Baroness, Lady Summerskill, for once more having stirred us to talk of something about which we feel deeply and do not always air in the way we should. The manner in which she has put the whole problem seems to me not only deeply thoughtful but deeply feeling. This is perhaps why the whole of the debate, so far, has been on so high a note.
It is usual in your Lordships' House to pay tribute to anyone who has made a maiden speech, but I think it would be difficult to find words with which to say anything adequate to the noble Lady who has just made her maiden speech and who has, by doing so, taught us all something not only in the direction of speech-making but in many other directions as well. The noble Lord, Lord Soper, said that he had had the honour of serving under her. I am no longer young; but I still hope that some day I may be privileged to do the same. I look to that hope with the real belief that perhaps if I lobby enough I may achieve my ambition.
I want to speak this afternoon about the unmarried mother who has decided to keep her child. I feel that this is something we ought all to think about in the very simplest way possible. The girl has so many problems. I speak as one who is interested in the running of a mother and baby home where mothers are taken in before the baby is born—a

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good two months before—and where they return for three months after the baby is born. As the girl goes out, having decided to keep the child, she has not only the problem of the baby itself, but the liability, both financial and physical. She has, in addition, the problem of where to live, and I am sure the odds are that every single minute of her waking hours is taken up in trying to cope with these ordinary day-to-day problems.
She is involved, as we have already heard, in problems with regard to where to live and (perhaps the most difficult of all the problems) how to provide for two people, not one; how to placate a difficult landlady, who seemed quite easy until the baby started teething. The result is that she is overwrought and over-tired, very often; often very bad-tempered. She finds herself constantly in a dreadful mess. She cannot easily understand what she should do to safeguard the interests not only of her child but of herself. A girl in these circumstances has great difficulty in understanding any explanation which might be given her, and I would plead, as did the noble Baroness, Lady Summer-skill, for some person who can take the necessary steps on her behalf.
My Lords, I am quite sure that when we look at the number of affiliation orders applied for by unmarried mothers we find that it is pitiably small in relation to the whole problem. This is so because very often the mother who needs an affiliation order feels that she wants nothing more to do with the man responsible for her child. I do not say that this is right, but it is frequently the pattern that when an unmarried girl goes into hospital to have her baby, the child is born under false pretences. The mother wears a wedding ring and makes explanations for the absence of the father. But the poor girl is in a dreadful state as she watches other girls being visited by relatives, happy fathers, and sees the great rejoicing. That is perhaps the most bitter moment of all for her. If the father has not given her any support she probably decides that she never wants to see him again. Not only that, but she is fearful that, were she to get an affiliation order against the father, it might give him some rights over the child.
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Later, when a mother is faced with financial difficulties, she may begin to wish that she had done something in order to make the father contribute; but by then she is not in touch with anyone to advise her about how to apply. As was suggested by the noble Baroness, Lady Summerskill, the period during which she can apply must be, and should be, extended to as long as possible. The girl should be encouraged and helped in every way to refer to a social worker who knows how to undertake the different steps which have to be taken. At the home with which I am associated a great number of fathers pay the fees for the unmarried mothers. If the father is friendly and seems responsible, the girl, if she has the slightest hope of marriage, does not wish to go to the courts, because she does not wish to alienate the father. Therefore, it would be a tremendous safeguard if agreements to pay, signed by fathers, could be registered with the right authority and carried the same power of enforcement as an affiliation order.
My Lords, it is not only financial aid that is needed by a mother who has decided to keep her child. Accommodation also is needed, and day-time provision for the baby, as was stated by the noble Lord, Lord Soper. Above all, such a mother needs someone to whom she can turn as a friend. It takes tremendous strength of mind on the part of a young girl to stay at home, night after night, with a young baby; to spend the greater part of what she earns on the baby and not on herself, and to know how to manage when the baby is ill. I am sure she should have a real link with someone who could take up her case and act on her behalf. Would it not be possible for her to obtain the necessary results without having to undergo the tension of having to appear before Authority, with a capital "A", whether it be to sign a deposition or for any other reason? What can be done to alleviate her distress and to help her to help herself regarding ordinary day-to-day anxieties?
One of the great difficulties is that the friendly support of the mother is not always easy to establish. The unmarried mother is apt to leave a home in a mood of independence. Would it be possible for doctors, health visitors and others

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who understand the situation to put the mothers in touch with those who would help on a voluntary basis, and who would be only too willing to help continuously? Otherwise, all too often a girl gets into trouble—with debts or illness, or something of that kind—and the baby ends up in the care of a local authority. The mother may refuse to consider adoption because she hopes to be able to have the child back, and the baby is brought up in circumstances which we all know are not nearly so good as in a family atmosphere.
We all want to see the position of the unmarried mother improved, but she must not be put into a position where other mothers striving to bring up fatherless children are in greater need, and she herself becomes an object of jealousy. It is important that her legal position should be strengthened and that her rights should be such that they can be used to good advantage.
4.26 p.m.
LORD WILLIS: My Lords, I should like to join with those noble Lords who have congratulated the noble Baroness, Lady Serota, on a brilliant, clear, concise and very moving speech. Once more, I think, was emphasised the growing ascendancy of the noble Ladies in this House over the noble Lords, and we shall have to "watch it". I should also like to congratulate the noble Baroness, Lady Summerskill, for putting down this Motion. For many reasons I am a great admirer of the noble Lady. Many years ago, when I was a boy of 12, it was rather expensive to go to a doctor and one could not always afford to do so. Then a very beautiful young lady doctor opened a surgery at the bottom of our road. We called her "the 'tanner' doctor"; and so I had the honour, at the age of 12, of going before this remarkably beautiful young lady doctor and taking off my shirt for her to examine my chest.
My Lords, the wheel turned full circle some time later, when she was my sponsor in your Lordships' House. The one thing I have learnt in all these years about the noble Lady is that she is undefeatable. She is one of that small group of Members of your Lordships' House—the noble Lord, Lord Silkin, and others belong to it—who continually bring up issues of this description and never recognise defeat in these matters. They keep coming back
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to them time and again, and I believe that the noble Lady is a model for us all. I thank her for many things over many years, and not only for putting down this subject for debate to-day.
I cannot pretend (and here I am perhaps in rather the same boat as the noble Lord, Lord Derwent) to be an expert in this matter; nor can I say, perhaps to my shame, that I have been involved in any of the practical work such as I know the noble Baroness, Lady Swan borough, carries out and with which the noble Baroness, Lady Serota, and the noble Lord, Lord Soper, are associated. I can therefore talk only in the most general terms, and add my voice to the pleas which have already been made. I believe that there are two important things. First, I beg the Government to put into operation immediately the recommendations in the Report of the Russell Committee and make some practical gesture along these lines guaranteeing mothers the maintenance awarded them by the courts. Secondly, I would raise my voice in support of what was asked for by the noble Baroness, Lady Summerskill: the setting up of a Committee of Inquiry—not a Royal Commission—to go into this general question.
I think it true to say, as has already been said in this debate, that there is an improvement in the general public attitude on this question; that we have grown more tolerant and understanding, and the idea that a girl is ruined by becoming pregnant outside wedlock is perhaps dying. My Lords, it is easy to "kid" ourselves in this respect and become terribly complacent about it. I believe that deep in many stratas of society it is still regarded as a shame and that to be illegitimate still carries a stigma; that there are still amazing pockets of prejudice, and even some prejudice within ourselves if we have the honesty to try to look for it.
If there is a greater tolerance, it is not yet reflected in our laws or in our welfare services. It would be unjust to describe our laws in this area as mediæval, because in many ways they were then much more tolerant than they are now. I believe that they are Victorian in the very worst sense, and that they are rooted in hypocrisy. The welfare of the mother and the child is secondary. The main purpose still seems to be to punish and brand

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those who have sinned against the code, the code being, as Thomas Hardy once said in effect, that for a man marriage is the price he has to pay for sex, and for a woman sex is the price she has to pay for marriage.
Some years ago I did research for a film on the unmarried mother, and I was very fortunate to meet Mrs. Margaret Bramall and Mrs. Pauline Crubb of the National Council for the Unmarried Mother and her Child. I was tremendously impressed, encouraged and inspired by the wonderful work that organisation is doing. In the course of that research, I was shocked by the attitude which still persisted among some people that to help an unmarried mother would only encourage the idea of sex outside marriage; that to help a girl and her baby would be tantamount to pinning a medal on the breast of sin.
Pregnant girls and women arrive at the headquarters of the National Council for the Unmarried Mother and her Child, carrying their pathetic little suitcases, at all hours of the day and night. Most of them, I found, are in flight either from intolerant parents, narrow-minded neighbours or those sanctimonious humbugs who are prepared to help only if the girl confesses her sin and promises to reform. It is on this point that I would take issue with my noble friend Lord Soper when he used the word "penitent". This is a word which I do not think should be brought into this particular area. We can talk of a greater sense of responsibility or greater understanding of their function in society, yes, but I do not think it is for any of us to require another human being to be penitent in this area of human relationships. There is no one among us who can afford to cast the first stone in this respect.
A remarkable achievement of the National Council is that not one girl is turned away. I would emphasise that not all unmarried mothers, as has been mentioned in this debate, are unlucky and have to flee. Some are lucky enough to find a sympathetic headmistress or priest or parent or friend and get real help. There is much genuine kindness, which is warming. But it should not be a matter of luck; it should be a matter of common justice—and that is what it is
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not at the moment. Soup and blankets at Christmas are no substitute for a regular job, as we found many years ago, and kindness and charity in a crisis of this description are no substitute for a proper place in society.
It is a matter of shame that our society—our so-called compassionate society—should force hundreds, even thousands, of girls to leave their homes and friends and crawl away to have their babies elsewhere, like rejected creatures. But this is what is happening every day. I remember, in the course of my research, meeting one girl from a small village, and her tears as she told me that her brother was coming the next day to take her home with her baby. He had persuaded the family to accept her back and to face what she regarded as the hostility of the people of that village. We hear a great deal about young girls, about schoolgirls, who are made pregnant. I think that the saddest cases I found were those women in the late thirties and early forties who had become pregnant. I was terribly moved by their mixed feelings. They showed how proud they were of their babies, but also how terrified they were of the future that stretched ahead.
Even when our laws mean well, they are often incredibly clumsy and insensitive in operation, and weighted inevitably against the mother and child. I do not want to be frivolous, but in these circumstances so far as our laws are concerned it is a case of "the man that gets the pleasure and the girl what gets the blame"—and the shame. In particular, the child, who is not responsible for the situation in any way, is literally given a life sentence. It is difficult for many people to realise all this, because statistics only tell half the story and figures do not have a heart.
Some time ago there was a B.B.C. programme called "Born out of Wedlock", in which the interviewer, Tony Parker, said:
"…only three out of 55 people I talked to said that being illegitimate meant little. To all the others it mattered. To two, in fact, so much that when we started to discuss it they burst into tears and couldn't continue, although both had volunteered to talk…"
He continued:
"There is no obvious pattern which suggests one kind of background to illegitimacy

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is either better or worse than others. It is being illegitimate that matters. To some it is a small but unmoving cloud…to others a dark shadow…the degree varies, but the feeling that it matters does not…"
There came into my hands last week a manuscript compiled by a worker in this field, in which she records the views of a number of illegitimate people who had grown up and lived with this problem. Throughout the entire book, this feeling of being deprived and of being in some way different, persisted. One young woman of 19 wrote as follows:
"I become tongue-tied when people ask about my father. In the course of general conversation with strangers there comes the question, 'What does your father do for a living?' Of course, I say he is dead. Some people just mumble apologies and switch to another topic. Others, who think they are well meaning, probe deeper and ask how he died. This is when I panic."
Another young woman of 22 wrote:
"I feel guilt—horrid, deep, dirty feelings of guilt—guilt at being a mishap, a mistake, an unwanted inconvenience—guilt at only feeling half a person, anger with my mother for allowing this to happen to her, anger with my father, whoever he is, for indulging himself and then avoiding all responsibility for his action…"
This is a young woman who has lived with this for 22 years.
A woman of 41 wrote:
"I don't know whether it is a general trait, but I always felt that I had to hide this thing…and consequently the whole subject has great ramifications of pain and guilt buried within it."
Again she wrote:
"You feel that you are not up to scratch socially, that you are socially defective. And nothing can be done about it. It is not the kind of handicap that you can tackle and overcome because you can't alter the circumstances of your birth."
A man of 48 wrote:
"I can still remember the forlorn, lonely, forsaken feeling of not being wanted by anybody, cast off and rejected for no reason which could be understood by a child."
A woman of 50 wrote:
"All through life you have the awful feeling of not belonging anywhere, of being rootless and unknown."
I could go on. The theme which comes through again and again, after years of this kind of life, is loneliness and rootless ness. It is significant that in this group of people the rate of suicide is considerably higher than in all other groups.
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The Church Assembly report, Fatherless by Law, mentioned earlier by the noble Baroness, Lady Swan borough, says that
"…deficiencies in family relationships suffered by illegitimate children cannot he remedied by law reform."
Of course, this is true; but at least we can bandage the wounded. If we cannot compensate, we can show at least in practice that we care. We might do a lot worse than look at the Children's Rights Laws of Norway, pioneered as long ago as 1901 by Johan Castberg. The basic principle of the Castberg Charter is that
"A child whose parents have not entered into marriage with each other has, subject to certain exceptions, the same legal position in regard to its father as to its mother."
When he introduced his Bill of Rights into the Norwegian Parliament, Johan Castberg used the following words, which I think sum up this subject perfectly, and which we all ought to take to heart. He said:
"We must abolish the outrageous and unnatural fiction that an illegitimate child has only a mother—that legally it has no father.…The child is excluded from his family, from his name and from his inheritance.…The mother must work for the child and bring it up. The disproportion between the responsibility placed upon the man and the woman is outrageous. It is not only a wrong done to the mother and child, but it is a demoralizing institution, as it frees the man from his natural responsibility. It breaks down man's respect for women, brutalises his view of the relations between parents, and between parents and children, and in this way repudiates the ethical basis of marriage.
"At the same time, this legalised irresponsibility of the man, his legally protected anonymity, exposes the child to want and disgrace, and contributes to the feeling that these children have of being singled out and disowned, and causes so many of them to go down in the struggle for life."
My Lords, that, I believe, is the truth of the matter in a nutshell, and the proof is in the results. The Castberg Laws were passed into Norwegian law in 1915, and the rate of illegitimacy was then 7 per cent. In 1961 it had dropped by almost half.
If we are serious about building a compassionate society, then we must deal with this problem urgently, and in depth. I urge the Government to consider the setting up of a committee of inquiry; and I urge that, even before then, they should put into operation these small steps that have already been considered and are obvious, in order to bring some relief to

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these girls in particular, and to their children. I would remind your Lordships that the laws I have mentioned have been in operation in Norway since 1915. In that respect, we are at least 50 or 60 years behind them. In conclusion, in King Lear there is this speech:
"…why bastard? Wherefore base?
When my dimensions are as well compact
My mind as generous and my shape as true
As honest madam's issue? Why brand they us…?
My Lords, we may not be able to remove the loneliness, but we surely can remove the brand.
4.43 p.m.
THE EARL OF IDDESLEIGH: My Lords, it is a great pleasure to join with other speakers in congratulating the noble Baroness, Lady Serota, on a maiden speech of quite unusual force and character. So many just compliments have been paid to the noble Lady that I shall confine myself to saying that her name has long been well known in the world of child care, and that she brings with her invaluable experience which we hope will be often available in your Lordships' House.
I was greatly moved when listening to the speech of the noble Lord, Lord Willis. With most of what he had to say I am in entire agreement, and I am glad that he ended with a quotation from Shakespeare, which was also in my mind. I would also remind the noble Lord of Shakespeare's play King John, in which the bastard is the hero. I feel, however, that, as a footnote to that speech, I should remind your Lordships that when we talk about the poor girl who is going to have an illegitimate baby we are all inclined to think of a girl who has made a single slip, and we treat her with every consideration, gentleness and love. But those who are familiar with child-care work will recognise that you sometimes meet another type of young woman, who has had three or perhaps four illegitimate children by different fathers. These are problems which it is not so easy to solve, and about which it is not possible to feel quite so tender. In those cases, at any rate, a little penitence would perhaps have some social value.
Last autumn we celebrated the ninth centenary of a great and, indeed, the
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crowning achievement by one who was known to his contemporaries as William the Bastard, and it is fitting that he should be remembered on this occasion. I, at any rate, feel some satisfaction to remember that Duke William sailed to England under the blessing and support of the contemporary Pope. There was a good deal of controversy in Rome about the action of the Pope in giving his blessing to that illegitimate person. Some of the more straitlaced Cardinals thought that he was going too far. Nevertheless, the Pope had his way. He had the support of a great churchman of that time, one Hildebrand, and the blessing was duly given.
It is not part of my functions to present the noble Baroness, Lady Summerskill, with a blessing, a banner and a relic-holding ring, but I should like to assure her that among my co-religionists there will be much sympathy for the proposals which she had made in her speech, and for the proposals contained in that most interesting document, Fatherless By Law?. I have had the advantage of discussing this question with the authorities of the Westminster Crusade of Rescue, and they feel, as the noble Baroness and all speakers do, that the arrangements over affiliation orders are by no means satisfactory. For instance, the amount of the affiliation order appears to be quite insufficient in these days; and we know that many girls have great difficulty in obtaining the money which the court has awarded to them. I hope very much that this question will be thoroughly investigated and reforms instituted.
Then, like all people who have any connection with child care, my friends of the Crusade of Rescue are well acquainted with the desire of all normal children in care to know who their parents are, and, if possible, to make contact, even if only once, with those parents. The Crusade, therefore, are in favour of giving some legal precision to the status of the illegitimate father. For one thing, the status of that father appears at present to be somewhat uncertain. The Legitimacy Act 1959 gave him certain rights but I gather (and I speak as one totally unversed in legal questions) that there is some uncertainty as to exactly what are the rights which the father possesses under that Act. It will be remembered

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by some noble Lords that I strongly opposed that Act, and I am not surprised to hear that it is in many respects extremely unsatisfactory. There is, therefore, a great need for clarification of the paternal rights given by that Act.
I am also in favour, and my friends also are in favour, of adopting some procedure on the lines of the Continental procedure for filiation; that is to say, the assumption of responsibility by the father. It is a curious fact that our bastardy laws in this country are, and have always been, very much more severe than the Continental law and the law of the Church. In 1234, the Bishops asked lay Peers to sanction legitimation by subsequent matrimony. The lay Peers of England refused. In nearly all other countries that principle, that merciful and just principle, was accepted.
I think that in this day and age we have very much to learn in this matter from Continental systems and law, not only the Scandinavian systems but those of most other countries. In saying that, and in making the general case for filiation, I would add that there are many difficult problems to be solved: problems which have been solved in different European countries in various ways. As is recorded in the pamphlet, Fatherless by Law?, the law of France differs from the law of Switzerland; the law is different again in Italy and many other countries; and in Germany, again, there are some very different provisions from those in other countries.
We take it for granted that as a result of this debate Her Majesty's Government will set on foot an inquiry into the matter. I would urge that that Committee, Working Party, Commission, or whatever it is, should spend a great deal of time on the Continent of Europe inquiring not only into what the law is in the different countries, but also into how that law is working. It would seem desirable that a committee of lawyers and sociologists should proceed to the various European capitals and discuss the matter fully and frankly with their opposite numbers in those foreign countries. By those means, we may arrive, through the careful use of the experience which European countries have in this matter, at a just and workable law.
4.54 p.m.
LORD WELLS-PESTELL: My Lords, I should like to apologise to the noble Baroness, Lady Swanborough, and to my noble friend Lord Soper for not being in the Chamber during the time they were making their speeches. I can only plead that I was at a Committee within the precincts of your Lordships' Chamber. I should also like to pay my tribute to my noble friend Lady Summerskill for having initiated this debate upon a matter which I think most of us recognise deserves consideration.
I think it is one of the several social problems about which little is known by the community and one, like that of the discharged prisoners, which tends to alienate rather than gather sympathy and understanding. The community—and I think we have to face this fact—still tends to look down it's nose on the matter of an illegitimate child; and while the community may not be aware of it, nor even wish it, some of its disapproval rubs off on the child itself.
The noble Baroness, Lady Serota, who made such a remarkable maiden speech, referred to the radio programme, "The Archers". Many of your Lordships, I am sure, have heard it, and I think, too, that the B.B.C. are to be congratulated on dealing so intelligently with this rather serious problem, in which it sets out the feelings of both sides very clearly. I think that few people realise the problems of the sociological implications stemming from illegitimacy.
My noble friend Lady Summerskill gave certain figures for 1964. I would prefer to refer to 1965, not that it materially alters the situation, but in 1965 about 7 per cent. of all live births were illegitimate. In fact, there were 66,132 live illegitimate births, and 862,290 live legitimate births. Although we are concerned in the debate with illegitimacy, it is worth noting that of the live legitimate births (that is, the 862,290), nearly 8 per cent., or in other words, 67,933, were born within seven months of marriage. This means that about 15 per cent. of all births are conceived outside of marriage. I mention this merely to draw attention to the size of the problem and to the sociological implications involved. For, apart from the problem shown up by illegitimacy, we have also to face the fact that there is a very high

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casualty rate in marriage among those who marry because they are pregnant outside of marriage.
I do not feel either competent or qualified to participate in the discussion on such complex matters as the illegitimate child and intestacy and inheritance, and the several other complicated matters associated with the problem. However, as a magistrate and as a chairman of a domestic court—where I deal with a fair number of applications every year and try such applications for affiliation orders—I should like to refer to some aspects of law as they affect the magistrates' court.
As many of your Lordships will know, the law relating to the identification of the father of an illegitimate child, and the maintenance, is to be found in the Affiliation Proceedings Act 1957. That Act imposes certain burdens of proof on the child's mother. In addition to proving that she is in fact a single woman within the meaning of the Act, she naturally has to prove that she has had a child, and then she has to prove that the defendant is the father. She is required—and I want to emphasise this in the hope that the noble and learned Lord on the Woolsack may be able to comment upon it—to produce evidence which corroborates—and here I quote—
"in some material particular the evidence which she gives in support of that claim."
I may be quite wrong about this, but I believe that this is the only civil matter in which there is a legal requirement of corroboration. I realise that there is a similar requirement regarding certain sexual offences, but with great respect, I hold them to be criminal matters as distinct from the civil matter of affiliation proceedings. Yet the single woman is required to provide corroboration "in some material particular".
I do not know the reason for it, but as my noble friend Lady Summerskill said, in the year 1964 there were 63,340 illegitimate children and only 7,167 affiliation orders were made. In other words, there was only one affiliation order made in nine illegitimate births. I cannot think that all the rest of the children were adopted, or that the putative fathers made adequate financial provision for their illegitimate children. I know that a fair
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percentage—I believe in the region of 40 per cent.—were in fact adopted, but that still leaves a large number of some thousands of illegitimate children for whom no orders were made. Perhaps the question of the kind of proof required in affiliation proceedings could be the cause of so few orders. In any case, I feel that the procedure of the proof that is needed should be looked into.
I should now like to refer to another requirement. As I understand the position, if the mother's complaint is made to the magistrates more than 12 months after the birth of the child—and I believe my noble friend Lady Summerskill suggested that proceedings could not be brought after 12 months but, if I may be permitted to say so, this is not the case—with a view to obtaining an order, she can do so, but she is required to prove that the defendant has made money payments in support of the child during its first year of life. In this situation I think it follows automatically that, even if the defendant is known to admit paternity but has not paid money for the child's support within the first 12 months after its birth, the court cannot, on the mother's application alone, make an order. My interpretation may be wrong, but I think this is the case. This is another point which is peculiar to affiliation proceedings, and which in my view needs looking into.
Your Lordships will know that the enforcement of an affiliation order is the same as for orders made under the Guardianship of Infants Act, and under the Matrimonial Proceedings Act 1960. The defendant can be brought before the court by the issuing of a summons or by a warrant. His means can be examined, an attachment of earnings order can be made on his wages, or a committal order can be made committing him to prison for up to six weeks for being in arrears. This order can be suspended if he undertakes to pay regularly each week on the order, with so much off the arrears as well, or the case can be adjourned.
The point I want to make is that what finally happens will depend upon the insistence (and I believe that to be the right word to use) of the mother and, of course, the magistrates. If she is in receipt of National Assistance (although we no longer refer to it by that name) she can often get help to pursue the

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matter—although at this stage I must be quite frank and say that I sometimes wonder whether as much is done now to help her to obtain her rights as was done when we had what used to be called Public Assistance, as distinct from the present arrangement. I believe that many courts could do far more to help, and I am surprised that more of them do not make more attachment-of-earnings orders. It may well be that this power of the court to make an attachment-of-earnings order is not sufficiently well known. Indeed, my experience is that this procedure is not so widely known as it should be. I believe I am right in saying, too, that magistrates' clerks have permissive powers to take proceedings on behalf of the woman to enforce payment, if she makes a request to the clerks to do so. Again I would ask: how many of the courts do this? As a result of one of my activities I deal with a very large number of letters every year from such women, who complain that they cannot get their orders enforced unless they attend at the court in person. Apart from the possible emotional upset (an aspect that was dealt with by my noble friend Lady Summerskill) that may be caused to the mother of an illegitimate child who has to go to court, and in some measure advertise why she is there, it means taking time off from work; in some cases it means losing a day's pay, and indeed in some cases her job itself is at risk if she has to take too much time off, applying for the summons and attending the court.
Efforts are being made to encourage mothers to keep their illegitimate children. How can they, unless they can get process to see that the order is enforced, simply and effectively, without the need for them to go and do it? Many of them do keen their children, under considerable difficulties, social and financial, and in my view the procedure of enforcement should not be permissive on the part of the court to deal with it in the woman's absence. I believe it should be part of the duty of the court to do so.
Reference has been made to the Legitimacy Act 1959, which came into force in 1960, enabling magistrates' courts to be concerned for the first time with the custody of, and access to, the illegitimate child. The father of an illegitimate child now has the right to apply to see the
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child at regular intervals or to have the legal custody of that child. Difficulties arise, however, if the mother wishes to have it adopted, and I should like to emphasise a point made by the noble Earl, Lord Iddesleigh, for he is quite right when he says that adoption societies are not yet certain of the extent to which the putative father should be consulted if the child is being considered for adoption.
It may be that they have not clearly and properly interpreted the Act, but the fact remains that adoption societies are by no means clear in their minds. If the putative father is paying maintenance under the order or agreement, he has the right to be heard. We know that; but we do not know the full extent of his rights. I wish it were more clearly and widely known that a putative father can apply for the custody of the child and, I presume, also adopt it. If this were more widely known, it might result in more putative fathers asking for the custody of their children; and this, in turn, would mean fewer adoptions by strangers.
THE EARL OF IDDESLEIGH: My Lords, the noble Lord will perhaps not disagree with me that custody by the putative father may not always be in the best interests of the child.
LORD WELLS-PESTELL: My Lords, I would not disagree with the noble Earl. What he says is perfectly true. All I am saying is that the Act provides for the putative father to apply to the courts for the custody; but obviously he must show good cause.
Furthermore, it is a duty on all courts—the inferior magistrates' courts and the superior courts—to do what they consider to be best for the child. This is the acid test. And while I would agree with the noble Earl that it might not in all cases be a good thing, I think that in many respects it might be desirable for the child to go into the custody of the putative father, if he is a fit and proper person to have the child, rather than to be adopted by strangers. Adoption is not necessarily, I think, the best thing for an illegitimate child if his mother cannot keep him. I should like to see more encouragement given to the putative father

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to assume the responsibilities of parenthood than is given at present. It may well be that their rights under the Act to which I have made reference are not so widely known as they should be.
BARONESS SUMMERSKILL: My Lords, if I may intervene, I should not like there to be any misunderstanding. The fact is that the putative father certainly has a right to apply, but before he can succeed it has to be proved that the mother is an unsatisfactory mother.
LORD WELLS-PESTELL: My Lords, my noble friend is quite right—unless the mother agrees. I have made custody orders—not often, it is true—to putative fathers because the natural mother has agreed to the child's going to the putative father.
Those of us who have worked in the field of delinquency know that many of the delinquents are illegitimate. I am sorry that the right reverend Prelate the Bishop of Exeter is not in his seat. I may have misunderstood him, but I understood him to say that the stigma of illegitimacy these days did not fall so much upon the child and that the community were much more tolerant. I think this is true. But, whatever the view of the community may be, the fact remains that there is still a problem, so far as the child is concerned, and we find a very high percentage of illegitimate children among juvenile delinquents, and, for that matter, subsequently among adult delinquents. Many are able to accept the situation of their illegitimacy, but even if they are adopted by kind and understanding couples, this problem within them still remains.
I think it was my noble friend Lady Summerskill who said that we all feel the need to know our origin, and this is an ever-present urge in—I cannot say the vast majority, for I do not know, but certainly in a very large number of illegitimate children. "Who is my father?" or "Who is my mother?" is a question frequently put to children's officers. I know this because I serve on a children's committee, am a member of a county children's committee, and frequently this question arises. There is a boy going out of care, or a girl going out of care. They ask to see the children's officer with the inquiry: "Can you help
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me to find out who my mother is? Can you help me to find out who my father is?" Only a few days ago, in discussing this matter with the children's officer of my own particular area, I was told of an adopted child who is now an adult who, when asked, "What do you resent most of all, illegitimacy or adoption?", replied "Adoption."
I believe that we need to do more to make it possible for mothers to keep the illegitimate child, and to see that she gets more help to enforce the maintenance order. If necessary, I would go so far as to say that we should subsidise her from the public fund, which in the long run is much cheaper than having the child go into care and being kept in a local authority home. I am not unmindful of the plight of the legitimate child who is fatherless or motherless, but I think we must face the fact that it is not quite the same to have had a normal father or a normal mother and to have lost one of them, and not to have had, so far as the community is concerned, a normal father.
The Report of the Board of Social Responsibility of the Church of England draws attention to the fact that, although the Children's Department of the Home Office produces a wealth of statistics every year, we do not know the number of illegitimate children in long term care. But it does say this:
"Children's Officers who have done a spot check suggest that between 40 and 50 per cent. of the children in long term care at any one time are illegitimate, and this figure, if true, is sociologically very significant."
I would hope that the time is not far distant when perhaps the Home Office could provide, year by year, the kind of figures which I think would be helpful. So many questions arise from this particular problem: the sexual behaviour of mentally deficients, the mentally retarded and the feckless, and whether, in the interests of the off-spring, it is desirable from any point of view to let them continue to reproduce. But I realise that these are problems outside the scope of this debate.
In conclusion, I would urge parents of the unmarried mother and the putative father to have more understanding when the baby is on the way, particularly the girl's parents. From my own knowledge of this situation—and again I would

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remind your Lordships that I speak as a former probation officer and now as a magistrate—I am sure that fewer children would be put out for adoption, or put into care, if the girl could feel that she had the sympathy, understanding and co-operation of her parents.
5.17 p.m.
LORD RAGLAN: My Lords, I should like to congratulate the noble Baroness, Lady Serota, on her remarkable speech and add that she and the noble Lord, Lord Soper, are the only two Members of your Lordships' House I have seen making a maiden speech without notes; and I wish I were half so fluent. Unlike the noble Lord, Lord Derwent, I can declare an interest, or a part interest, in this debate because my family is illegitimate. John of Gaunt, whom Shakespeare called "Time-honoured Lancaster", had several illegitimate children who were later legitimised, one being the famous Cardinal Beaufort. Another had two sons; one was the grandfather of Henry VII, and the other had an illegitimate son from whom I am descended. So not only were two of my ancestors illegitimate, but the fact is proclaimed on my Coat of Arms, which is surrounded by a silver and blue border, denoting bastardy. The heralds describe it as "Quarterly France and England, all within a bordure compony arg. and az." So I am illegitimate and obviously meant to be proud of it.
There are, I understand, several other of your Lordships who sport an illegitimate ancestor or two, and it does not worry you in the least. As the noble Lord, Lord Derwent, said, it was considered smart to be descended from royalty or nobility, and for some reason such persons are not, or used not to be, thought to be bound by ordinary standards of behaviour—rather in the way that film stars and pop stars attract interest and not stricture by their unconventional behaviour. Secondly, there have been times—and this is where I disagree with the noble Baroness, Lady Summerskill—when even Popes had their mistresses and when illegitimate children were socially accepted in a way they are not to-day. But there are several reasons for that.
BARONESS SUMMERSKILL: My Lords, I do not recall saying that Popes had not mistresses.
LORD RAGLAN: I was trying to say there was a time when illegitimate children were socially accepted, and I think the noble Baroness said that in the Middle Ages they were not.
I think there are several reasons why illegitimate children are not so socially accepted to-day, and one of them is connected with the present high status of marriage. I found it interesting to read the Lord Chancellor's remarks on moving the Matrimonial Causes Bill, because the idea of dressing up county court judges as High Court Judges for the day would not, I think, occur to people who were not concerned about the status of marriage. This view is confirmed by a letter to The Times last week from a woman, albeit a married one, who complained that it was wrong to put the trying of divorce cases on the same level as the collection of debts. I think one must see her point.
The opinion that marriage confers a higher status on a woman is very widespread and firmly held, and this in its turn has something to do with the possession of property and the status of property holders. I suggest that except in matters of hereditary titles there is no reason to get married unless property or income is involved. Your Lordships know that West Indians, on the whole, do not trouble to get married, but Americans do. I just do not know whether it would be possible to exist in unmarital Jamaican bliss in a monied society. A woman would not be able to claim a severance fee from a rich man unless she had a legal claim through marriage, nor would she have any claim in intestacy. And I do not know how one could make legal provision for a child by a woman who might at the time be cohabitating with another man. It would need more than our present knowledge in blood testing to sort out that sort of case. It certainly seems practical that, because marriage is the only legally recognised bond, the children of that bond, or those born in that bond, are the only ones to be legally recognised.
Putting illegitimate children on a par property-wise with legitimate ones is really, I suppose, a contradiction in terms. There are bound, too, to be snags in the working of such a provision, because a family could have a

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couple of 50-year old claimants turning up at father's funeral, having not been heard of for years, or perhaps not even known about. The Report of the Committee on the Law of Succession in Relation to Illegitimate Persons says, at page 5:
"In the material field any extension of rights against a person's estate in favour of those outside his legitimate family may be considered to diminish to some extent the material value of the rights conferred by marriage."
I think there would also be an outcry, especially from women, that such a provision would be devaluing the status of marriage.
Unmarried mothers and their children could be given much less of a raw deal financially than they get to-day. Yet I am not sure which would rank first in the child's mind—and all your Lordships have agreed that it is not the child's fault that it is illegitimate—more money or acceptance in society. In their Annual Report, the National Council for the Unmarried Mother and her Child talk of trying to protect a child during its vulnerable school years, I suspect from the taunts of its schoolfellows. But children usually only reflect their parents' views, and, as your Lordships know, social attitudes are hard to change, as they are prejudices instilled from birth. The Council say that "born out of wedlock" is a better term than "bastard" or "illegitimate". But "born out of wedlock" might come to carry exactly the same stigmatic overtones. It is improper because it offends against the propriety of marriage. "Natural" is another euphemism, and "love child" might be popular, or it might not be.
All the time, as I see it, one is up against two big obstacles: the status of marriage deriving from its legal convenience, and the status of marriage as the socially and morally correct form of cohabiting. A more tolerant attitude to illegitimacy is not easy to obtain when it is a legal inconvenience and the child is a personification of the parents's social aberration. In my belief, the State itself could help here a little by its example, and upset but few people in the doing of it though, as so often there is more money involved. It would surely be only humane to pay unmarried mothers at the same rate as widows. I think it is fascinating to learn that doing this
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lowered the illegitimacy rate in Denmark. I have an idea that if it were made more respectable to have an illegitimate child fewer might be conceived. Some girls have babies to get away from home—
BARONESS SUMMERSKILL: Oh, rubbish! I am sorry.
LORD RAGLAN: —because they know that their parents will push them out. I think there are other reasons like this which it would be useful to investigate. But in this connection I have a criticism of the N.C.U.M.C. Annual Report, which carries a table concerned with pre-maritally conceived legitimate babies. This has been mentioned several times in the debate to-day. With respect, I think that such information is misleading. I know several girls from what I know your Lordships would call highly respectable families who have got to the altar only just in time, but they had had no doubt for maybe a year or two that they would be marrying the father of that child. I believe that it used to be a general custom, and still is to an extent, for girls not to get married until they were sure they were going to have a baby. It may be said to be a curious custom, or it may be a quite sensible test of fertility. I think this custom is still widespread, though perhaps the fact is not well enough understood. I myself see nothing in the practice to be worried about, and far less to be sanctimonious about. More money from the State would help, more money from affiliation orders would help. Lots of things would help, but nothing, I think, will help, in the long run, as much as talking about it.
The noble Lord, Lord Willis, mentioned that it was through the insistence and persistence of the noble Lord, Lord Silkin, that the Abortion Bill went through this House. Your Lordships may not all agree about the provisions in that Bill, but it was most noticeable how, in the six months it was going through the House, the climate of opinion about abortion changed just by talking about it—and the talk is still going on. A similar debt of gratitude is due to the noble Baroness, Lady Summerskill, for raising this subject and getting it talked about, so that what is going on may be more generally realised and so that the matter is no longer swept uneasily away

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under the carpet, with strictures and sanctimony and pretending that it does not exist.
It has been pointed out that illegitimate children will always be with us. If such a large section of our society continues to reject the moral and social rules which are attempted to be imposed upon them, it seems to me, like the noble Baroness, Lady Serota, that we must wonder whether those rules need to be changed, because it is the rules which cause the distress. What must be decided is whether the advantages obtained from those rules are worth the distress that they cause.
5.29 p.m.
VISCOUNT BARRINGTON: My Lords, I hope I shall not keep your Lordships long and I hope, to use a ministerial term, I shall be forgiven if I do not follow the noble Lord who has just spoken into all his last remarks, because we do not want to stay here longer than the seven minutes, at the most, for which I want to speak. I have two very pleasant things to do. The first is to say, without any hypocrisy, how enormously I enjoyed the maiden speech of the noble Baroness, Lady Serota. She said that illegitimate children might be a controversial subject for a maiden speech. I think that it might be a paradoxical subject such as marriage might be; but a less controversial debate than this one I have rarely heard, and certainly a better maiden speech I have never heard. I hope that we shall hear many more from the noble Lady.
The other thing is that I have, more reluctantly, to follow the right reverend Prelate the Bishop of Exeter in saying how sorry I am that I found so little to disagree with in what was said by the noble Baroness who introduced this debate, for I have always found myself in disagreement with her. It has provoked that charity and her maternal instinct in an astonishing way, and although I tried hard to scribble down a few points as she was speaking, I could find only two things which I could even quibble with. The first was her remark that she was appealing to the House for sympathy for all immature individuals. Some of us might disagree as to where immaturity began. The other thing she said was that all children were of equal value. That is a matter of definition as
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to what is a "child". Otherwise, I find it difficult to find anything in the noble Baroness's speech with which I disagreed.
I agreed with her most strongly on a point which other speakers have mentioned, that the term "illegitimate child" is very unfair, and I think that if the noble Lord, Lord Cones ford, were here he would say it was an almost ungrammatical term. For that reason I shall in my remarks use the word "bastard", partly because I notice that in the Russell Report, which I have not read as well as I should have done, the Committee take the same view. On page 2 they say:
"Partly for the sake of brevity, and partly to avoid confusion in eye or ear between legitimate and illegitimate, we refer to an illegitimate person as a bastard—a correct legal description. Reference to bastards as males must be taken as including females unless the context otherwise requires."
In that way it seems to me a word rather like "Peer", which can be used offensively; but it is a simple word and one knows what it means.
I believe that it has another advantage over "illegitimate child", and it is one that was brought out in something which the noble Lord, Lord Willis, said. I thought it was a little unfortunate that, in order to illustrate one point, he quoted some lines of Shakespeare in which a very embittered young man says: "Bastard?…I am as good-looking at you. I am better in every way. Why should I be done down", and then proceeds to behave as the villain of the play. There is always a danger of anybody, whatever his advantages or disadvantages, becoming bitter in society. The whole object of this debate is to try to find ways of preventing people from feeling bitter. "Bastard", in Shakespeare's time, had a different sense, and the young lady who talks about flowers when she is handing them out, "Streak'd gilly flowers", which some call "Nature's bastards", had no bad intention at all. It was simply a word to use. It has already been pointed out that in the Middle Ages reference to the "Bastard of Orleans" in Joan of Arc's time was not considered discreditable to him, whatever it might have been of his mother.
To come to later times, the Russell Report mentions the practice in some other countries. One country mentioned is Australia, which has a capital city of

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Melbourne called after a Prime Minister who was in fact illegitimate. Therefore, he did not suffer thereby. The reason was that he lived in a privileged society. If we could get our society as privileged as that, so that people took illegitimacy for granted, whatever was thought about the father or the mother, so that no stigma would be attached to the child, I think we should have done something very worthwhile, whatever our views as to how well Lord Melbourne's father may have behaved.
That brings me (I am only trying to find points in this debate with which I have slightly disagreed) to the point made by the noble Lord, Lord Soper, that it is better to have a bad father in the house than no father at all. I am not an expert on that, because I have only had an unusually good father in my house and I am not a father myself. But sometimes I wonder whether Lord Melbourne would have had as happy a childhood, though he had an unhappy youth—he became to the most respected Queen, whatever one may think of her politics, a very good adviser—if he had had a father of his own instead of a man who stood in? That is a debatable point. That brings me to what I feel is of vital importance, and that is that the word "bastard" does not mean anything base. It means something to do with a travelling salesman, somebody who cannot be found—a peddlar's son is the nearest one can get.
That brings me to the point of comparison with other countries. When it is said that we are a long way behind Norway and Denmark (as we are in many ways), I believe that it is not quite as easy, as was suggested by noble Lords opposite, to say that all we have to do is to declare that a bastard or illegitimate child should be in exactly the same position as any other child. The question of intestacy is dealt with in the Report, which is the one and only point to be considered, but certainly I am not a person to go into that point, and perhaps the noble and learned Lord the Lord Chancellor will give us his views when he comes to speak.
On a very cursory reading of this Report, it struck me that it was very wise in saying that we certainly ought to implement its recommendations in the case
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of the intestacy of a mother. If a mother dies in testate, I see no objection whatever to illegitimate children receiving, because one knows who the mother is. If that is to apply to the father, it is slightly more difficult, for one has to find him. He is quite likely to be a man without anything. It is necessary to decide whether, as is recommended in the case of the mother, it should be made reciprocal: that if a mother dies in testate some money shall go to her son or daughter born out of wedlock; and, if the son or daughter dies first, some shall go to the mother.
I can imagine a number of illegitimate fathers (that is the only term I can use for these men—apart from words like "roué" or "libertine", which do not carry the same conviction—although there ought to be an abusive word, as there is an abusive word for a mother who has children out of wedlock, and the abusive word "bastard"for the child: but some of your Lordships may be better informed than I am) who might abuse such a change. I can imagine the kind of father who, having lain low all his life, when his illegitimate son has started up a bicycle factory and turned it into an armaments factory and been blown up and left several millions in testate, might appear and put in a very good claim by producing proof of his identity. That, no doubt, is one of the possible abuses. I think I am right in saying that this Report recommends that the intestacy of a mother should put illegitimate children on the same terms, but not the intestacy of the father.
Lastly, I entirely agree with what has been said about the Middle Ages; that they were more open, as the noble Lord, Lord Raglan, said. I admit that I always thought a sign of bastardy was what Mitchell called a bar sinister. But that means nothing: it is a bend sinister. To comfort the noble Baroness, I may say that that means that it begins at the left, and as it gradually declines goes to the right—not in political terms but down the machine, which she will no doubt find adequate.
But I think it is true that in Victorian times there was a great deal of hypocrisy. The saddest story I ever heard was of a housemaid or kitchen maid in a very large house which belonged to a lady of the highest and most upright principles and

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family, and of a great age. I shall not mention any name, though the story is entirely to her credit. In those days, the housemaid lived in conditions which would not be tolerated at a public school or in a dog kennel. She became slightly ill and disappeared to her bedroom for two days. About a fortnight later, for various reasons, they investigated the house and they found a dead baby. The housemaid was then sent for by the lady who was the owner of the house, who was by that time nearly blind but still very formidable; and when the housemaid was shown into the room the lady held out her hands to her and said, "Come here. My dear, why did you not tell me?"
That is the sort of tragedy of misunderstanding which I believe is going about to-day. I believe that many of these people who are ashamed are taking quite a false view of what society thinks is forgivable and what is not forgivable. If this House can do anything to suggest that charity is a better quality than prudery, and it is worth doing that, there is nobody more capable of doing it than the noble Baroness, Lady Summerskill, and I should like to thank her very much for raising this subject.
THE EARL OF CROMARTIE: My Lords, my name is not down on the list to speak, and I am intervening for only a minute or two for one reason, that is, that I do not think anyone has spoken from these Benches, and that from the Front Bench only my noble friend Lord Derwent has spoken. One reason why I did not put my name down to speak in this debate is because, as the noble Baroness said, our law in Scotland is different in a great many respects—and sometimes one says, "Thank God it is!" But I should not like the noble Baroness to feel that she did not have the very full support of, so far as I can see, everybody on this side of the House, and certainly of the Scottish Peers of whom I am one. Having said that, I should like to add my tribute to the very wonderful maiden speech which we heard to-day. I assure the noble Baroness, Lady Summerskill, that, so far as we are concerned, we are with her 100 per cent.
5.46 p.m.
THE LORD CHANCELLOR: My Lords, I am sure that I can speak for the whole House in thanking the noble
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Baroness, Lady Summerskill, for having initiated this debate to-day. If I may say so, I entirely agree with my noble friend Lord Willis as to her indomitable character and the fact that she not only never takes No for an answer, but that in the end she gets things done.
As so often, the great value in a debate of this kind in your Lordships' House is in the remarkable depth of personal experience and interest in the field of those taking part in the debate, among whom has been my noble friend Lady Serota, with what, if I may say so, I thought was a remarkable maiden speech. For some time I had the pleasure of sitting in the row immediately behind her in County Hall, and now that your Lordships have heard her you will know why I was so pleased to hear that she was joining us in your Lordships' House. We shall certainly want to hear from her again.
I am not a sufficiently good social historian to follow the noble Lord, Lord Derwent, on his historical review, nor, I think, am I sufficiently expert in nomenclature to follow some of the observations so interestingly made by the noble Viscount, Lord Barrington. If I may come to the first question to which the noble Baroness quite rightly gave prominence, the legal consequences of illegitimacy, of course the legal consequences of illegitimacy have certainly changed, and changed for the better, during the lifetime of many of your Lordships. I need not conduct a historical review of that, or repeat a detailed account of the legislation which, starting in particular since the Act of 1926, has reflected the steadily growing view that, so far as possible, the law ought to accord to children born out of wedlock the same rights and the same protection as it does to their more fortunate brothers and sisters. The history of our legislation is, I think, most admirably summarised in the document to which the noble Lady and my noble friend Lord Willis referred, published by the National Assembly of the Church of England. I would commend to any Member of the House who is interested in the development of the law, a study of Chapter 3 of that document.
I think this debate has shown that there is now only one field in which illegitimacy has legal consequences which are seriously

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to the disadvantage of the child concerned, and that is the field of inheritance, on which the noble Lady laid some stress. I may say in passing that it was not without interest that I noticed that almost the last citadel of legal distinction between the illegitimate and the legitimate was that which was for such a long time defended in your Lordships' House. I was glad to read Section 8 of the Clergy (Ordination and Miscellaneous Provisions) Measure 1964 which, for the first time, made it clear that the child born out of wedlock is as suitable a candidate for ordination as anybody else. I congratulate the right reverend Prelate the Bishop of Exeter and his brethren on having at last accepted to the full the principles advocated by the Bishops in 1234 and rejected by the Lords Temporal until 1926.
My Lords, may I return to the question of the rights of succession? The Committee under the chairmanship of Lord Justice Russell has recommended that to all intents and purposes there should be no distinction between legitimate and illegitimate children when it comes to the right to succeed to the estates of their parents on the latter's intestacy, or to support out of their parents' estates. I should like, if I may, to express my gratitude, and that of Her Majesty's Government, to Lord Justice Russell and his colleagues; and I should also like to reassure the noble Lady that I am in favour of implementing the Russell Report. In saying this, I would not wish to commit myself to approval of every detail, because this would involve embarking upon some rather specialised fields of Scottish law with which I am not familiar. But, by and large, I and my right honourable friend the Secretary of State for Scotland agree with the Russell Committee that we ought now to give the illegitimate child the same rights in the estate of his parents as are enjoyed by the legitimate child.
I am aware that, at any rate as regards the relationship of father and child, this may be controversial. If one accepts the principle that the law of intestacy should reflect as closely as possible what most people wish to happen to their property when they die, then I agree that one can argue that there is not sufficient evidence that most men wish to benefit their illegitimate children when they have not
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treated them as members of their family. But I think we have to some extent departed from this principle already, because for thirty years now English law has accepted considerable curtailment of complete freedom of testation, and Scottish law, as appears from the Russell Report, has never accepted such complete freedom. Under the Inheritance (Family Provision) Act 1938, in England a man's dependants can claim reasonable provision out of his estate whether or not he has made a will, and in Scotland there are the well-known rules governing legitim. This shows that to some extent we recognise a duty to make provision for our families, and I think that this duty extends to illegitimate children.
My own view, therefore, is that not only should the benefits of that Act be given to illegitimate children, but that the law of intestacy itself should be altered in the way the majority of the Russell Committee recommended. That is my view of what ought to happen, and the Secretary of State for Scotland agrees. I think I owe it to the House to explain that I had hoped that it might be possible to make the necessary amendments to the law of England in the Family Provision Act which came into force at the beginning of this year, but this did not prove practicable. I cannot at this stage say when the Government will be in a position to introduce legislation, but I should not like to leave the House under any mistake about our intention. It is our intention to put such legislation on the Statute Book.
Next, may I say something about formal recognition—a topic upon which a number of your Lordships have spoken? Apart from rights of succession, I do not think there is any great legal disadvantage now stemming from illegitimacy. Of course, the noble Lady made it clear in her speech that she is not concerned only with legal disadvantages; and one of the points which she made was that there ought to be some machinery for the father formally to recognise his illegitimate child. This, of course, is a suggestion strongly pressed in the Report made by the National Assembly of the Church of England, to which I have already referred. It is perfectly true that in some countries there is such machinery, but the fact of the matter is that we already have such machinery here. It is

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perfectly possible—indeed, it is very common—for an illegitimate child to be registered on the joint information of both parents. According to the records of the General Register Office, more than one-third of the illegitimate births registered in England and Wales are in fact so registered. Although there is no statutory provision giving to such joint registration any particularly solemn effect, the truth is that it is accepted as almost conclusive evidence of the fact of paternity, and I am not clear that any other form of machinery would produce any more effective results.
As I have said, apart from inheritance there are no legal results which need to be produced, and if the object is that the child should know who his father is and should have concrete and indisputable evidence of this, the joint registration achieves that object. However, I have been much struck by the emphasis which has been placed on this by the noble Lord, Lord Derwent, by the right reverend Prelate the Bishop of Exeter, and by the noble Baroness, Lady Swanborough; and, in view of their knowledge and experience of the subject, I will ask my colleagues to reconsider the question of joint registration. So far as birth certification is concerned, as your Lordships know there is a short birth certificate which does not refer to parentage, and I do not think there has been any complaint about that.
Of course, the noble Lady has said a good deal on the subject of affiliation proceedings. This is a procedure designed to make a man pay a good deal of money for something for which he may or may not be responsible. It is a serious issue of liability, and he is entitled to have it determined judicially and not to be made to pay unless the court is satisfied that he is the father of the child. I have always been glad, in a cowardly way, that I have not had to determine questions of paternity. It seems to me, from my experience as counsel in such cases, that in many cases—I do not say in almost any case, because some are quite clear—either one is going to do a cruel injustice to the girl, if she is in fact telling the truth, or one is going to do a cruel injustice to the man if he is telling the truth. My noble friend Lord Wells-Pestell rather complained, as I think one other of my noble friends did, that cor-
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roboration of the mother's evidence should be required. He said, "It may be so in criminal cases, but it is not, so in any other civil case". If I may say so with respect, that is not quite right, because corroboration is necessary in breach of promise actions; and if the only evidence is that of the plaintiff or petitioner, then under Scottish law, as I understand it, corroboration is always required, even in civil cases. This, no doubt, is a matter which could be further considered, but I think we must always remember that this allegation is very easy for a girl to make, but a very difficult one to disprove. Furthermore, although, as the noble Baroness knows, I am usually on the side of women and not of men, one must remember there are plausible and promiscuous women as well as plausible and promiscuous men.
There has been, I will not say unanimous criticism, but certainly criticism from the noble Lady, the right reverend Prelate the Bishop of Exeter and the noble Earl, Lord Iddesleigh, of the 50s. a week—and, of course, none of us would dispute that. But a committee has already been set up which has now been working for, I think, a few months, under Miss Graham Hall who is one of the stipendiary magistrates. It is not my committee: it is a Home Office committee. I know that the committee has received evidence from the National Council for the Unmarried Mother and her Child, and I am sure they will take into account what they have been told. Those members of the committee whom I know are extraordinarily sensible people, and I hope we shall get a Report from them with which we shall all be able to agree.
A good deal of criticism was expressed of the rule that proceedings must be started within 12 months of the birth. That criticism came from the noble Baroness, Lady Summerskill, from the noble Baroness, Lady Swanborough, and also from my noble friend Lord Soper. My Lords, it is not an absolute rule, because it does not apply if the putative father has accepted responsibility or has been abroad; but its object, of course, is to ensure that proceedings are brought when the evidence is fresh. Generally speaking, I should have thought it was desirable that the rule should be retained, and my right honourable friend the Home

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Secretary would need evidence of hardship caused by the present rule before initiating a change. However, in view of the experienced opinion which has been expressed to-night, I will convey those views to my right honourable friend, and we can reconsider the position together.
Then the noble Lady referred again to the enforcement of arrears—we know that this is a difficult subject—including that of attachment of debts. As far as attachment of debts is concerned, a Committee on this subject has been sitting under Mr. Justice Payne for some months. I hope to get a Report from them sometime between April and July. Then the noble Lady referred to the enforcement of affiliation orders in the Commonwealth. I think we all agree that that is important, and I was glad to see here to-day (although he is not here now) Sir Hugh Wooding, Chief Justice of Trinidad, who next week will be the first Judge from that part of the world or from Africa to sit judicially in the Privy Council. He had not seen an introduction to your Lordships' House until to-day. I took the chair for part of the time at a meeting of Commonwealth Law Ministers and Attorney Generals from about 22 different Commonwealth countries in April, when we explained to them the sort of thing we wanted to do in the field of reciprocal affiliation orders and there was no disagreement with them. This, I know, is a subject of negotiation at the present time.
There was some discussion as to the orders being effective after the death of the putative father. Any system of the State as it were taking over all the liabilities of all the fathers, I think presents very considerable difficulties. I agree entirely with the proposal that if a committee is appointed to review the whole of this branch of the law they should consider foreign law and, if it would help, should visit foreign countries. But I am told that the Society of Public Teachers of Law have just decided to start a large-scale review on the whole of the law of legitimacy and illegitimacy. They, of course, would be well equipped for that purpose.
My Lords, on the subject of adoption, my right honourable friend, I know, has been considering whether the time is
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ripe for a general review of this branch of the law. Any such review could be undertaken profitably only if sufficient information about the working of the current Acts were available. My right honourable friend's view is that he needs further information about this before coming to any decision. I can tell the House that steps are being taken to acquire this information: the Home Office Research Unit and the Social Survey Division of the Central Office of Information are engaged on a statistical survey, while the National Bureau for Co-operation in Child Care is conducting a more detailed study of adoption based on a national sample of 8-year old children. This investigation is supported by a grant from the Home Office. In addition, the Advisory Council on Child Care, together with its Scottish counterpart, has appointed a committee to consider guidance on adoption practice, and that committee's work may well reveal practical difficulties in the working of the present practice. While these bodies are still conducting their inquiries, it would be premature to form any conclusion about the need for a general review; but I should like to take this opportunity of saying that those concerned would welcome any information about the extent and nature of difficulties currently being experienced.
It may be, as my noble friend Lord Wells-Pestell and, I think, the noble Earl, Lord Iddesleigh, suggested, that the father's rights are not as well known as they should be. This is one point which those committees might well consider. I do not know that much has been said about young fathers or that I need to say anything special about that subject. The noble Lady raised a number of issues which fall within the scope of social security. She really wants, first, a sort of fatherless children's allowance, payable to mothers of illegitimate and other unsupported children; and, secondly, that the Ministry should guarantee the amount payable under an affiliation order, whether it is paid or not. The House will probably be aware that the suggestion of a fatherless children's allowance was put to my right honourable friend, then Chancellor of the Duchy, by the National Council in October, 1965. Like the Chancellor, I can make no promises, but the Government are, in their review

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of social security provisions, paying particular regard to the difficulties of women, and it is expected that some information about fatherless families will be available when a recently completed survey of family circumstances has been analysed. This will, it is hoped, be published this summer.
This is, I realise, not a very satisfactory answer to the noble Lady. But the House should remember that, under the current system, the existence of children, legitimate or illegitimate, makes a considerable difference to the amounts payable to the mother under our social security legislation, where there is no father. It would take too long to go through the provisions in detail, but they include, under National Insurance benefits, dependency increases, child's special allowance, and guardian's allowance; and then there are industrial injury benefits. To all these, the existence of children can make a difference. I hope I shall not be asked for the figures, but the unsupported child is not ignored.
I now turn to the suggestion that the Ministry of Social Security should underwrite court orders. Of course, we all remember the noble Lady's National Assistance Bill, and I do not want to go over all that ground again, but I think it just worth while looking at the extent of the problem. There were about 36,000 unmarried mothers receiving National Assistance up to the end of 1965, the latest date for which figures are available. A breakdown of the figures shows that, of these, some 17 per cent. had no hope of ever getting a court order; some 35 per cent. had not been able to prove entitlement (mainly because the man, though identified, could not be got at); in some 3 per cent. of the cases there was no arrangement for payment because there was obviously no money available. This leaves 45 per cent. of the total, and of these 32 per cent. were getting regular payments, 4 per cent. irregular payments and 9 per cent. no payments.
Where there is an order and the mother is receiving assistance, the Commission in substance does very much what the noble Lady asks. In 1965, £10·4 million in assistance was paid to mothers of illegitimate children and £2·6 million was recovered by the Board, as it then was. It is the practice of the Commission,
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where payments are being paid only in part, or spasmodically, or not at all, to give the mother supplementary benefit in the ordinary way and themselves collect such money as is paid under the order to the court. Thus, she has a regular and dependable income and does not have to go to the court each time. If there is no court order, the Commission tries to trace the man and get him to meet his obligations, and can sometimes help the mother to get an order; on occasion, it applies for an order itself, as it is entitled to under the Act.
But what the Commission ought not to be asked to do is to become a debt collector. Their function is to assist people in need, but the proposal seems to go further than this; it would require the Commission to make payments related to no scale to people in no need. Besides, it is a fundamental principle that benefit is not paid to people in full-time work, and if this principle is to be breached for one class, then it could not be maintained for others. Thirdly, it would he very expensive, both in direct cost and in the extra burden imposed on the Commission. It is for these reasons, which I thought it right to explain fully, that the Government cannot accept this suggestion. Whether for both those in need of supplementary benefit and those who are not there might be some more effective way of enforcing orders, is another question. As I have said, it is under examination by the Payne Committee and the Government will have to consider it in the light of such recommendations as that Committee may make.
My Lords, as to health and welfare, there is not, I think, a great deal that I need say. The number of illegitimate births in England and Wales is something over 66,000 a year, and it is right to say that the infant mortality rate for them was, at the latest date for which I have figures, 28·5 per 1,000, compared with 17·5 per 1,000 for legitimate children. So there is that difference. I agree, of course, with what was said by my noble friend Lady Serota about the whole of the work which is now done in the whole of the National Health Service field, and which was simply not done before we had the National Health Service.
We have, also the responsibilities of the Children's Departments—and again

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I need not, I think, go into any detail as to what is done in that field—and there is, of course, the work of the local authorities in local health departments. We must all appreciate the need there is for clinics and hostels and foster-parents; and no doubt also for bed-sitting rooms. There are some 150 mother-and-baby homes in England and Wales, of which about one-sixth are provided directly by the local authorities, the remainder being supported by voluntary bodies; and in this connection I should like to acknowledge the contribution made by the Churches, the Salvation Army and other non-denominational bodies.
Then there are the day nurseries which local authorities provide for children under 5. There are approximately 450 such nurseries, with accommodation for over 20,000 children. These nurseries are intended to supplement the provision of nursery schools and classes for those children whose mothers, for one reason or another, have to go out to work. Obviously, these must include a comparatively large proportion of unmarried mothers.
My Lords, I have replied, in what I fear has been some detail, to nearly all the points raised in the debate. It has been a very wide ranging debate, and a great many points have been raised. In conclusion, may I come to the final suggestion for the setting up of a Committee of Inquiry? I think I ought shortly to express the view of the Government about that proposal, and the difficulties they see. When one is told that there are between 60,000 and 70,000 illegitimate births a year in England, one may form a false impression of the number of children whose illegitimacy gives rise to the, problem which we have been considering this evening. Very many of these 60,000 children are the products of stable and permanent unions. One cannot give precise figures, but it is significant that, for example, in 1963, when there were just under 60,000 illegitimate live births, nearly 24,000 were registered on the joint information of both parents.
Secondly, where there are such stable unions, and possibly in some other cases, there is a very real prospect of the children being legitimated. A striking effect was produced by the Legitimacy Act 1959 which did away with the old
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rule that there could be no legitimation where at the time of the birth one or both of the parents was married to somebody else. After this rule was abolished in 1959 it was found that, whereas before that date the number of children whose births were re-registered on legitimation was about 2,000 a year, in 1959 the figure rose to over 2,900; and it has risen steadily ever since. The latest figure I have is for 1963, when the total number of re-registrations was 9,896.
Then there is adoption. A sample 20,000 of illegitimate births in the period between 1959 and 1963 was taken by the General Register Office, and it was shown that of these some 3,500 had been adopted. Then there are those children of stable unions who are not adopted and cannot be legitimated, and others who are brought up by their relatives and present no problem. My Lords, I am not for a moment saying that the balance is not large, but we must remember that we are not dealing with anything like the full 60,000 illegitimate children when we are considering these problems of welfare and social security.
It is suggested, first, that a Committee might be appointed to examine ways in which illegitimate children could be assimilated and their legal position equated with that of legitimate children. I would say that certainly some things can be done by amending the law, particularly the law of inheritance. But unless one abandons altogether the institution of marriage and the legitimate family, one cannot get away from the fact that some children are born to mothers who are not married to the fathers and who never do marry them.
Secondly, it was proposed that a Committee should inquire into how illegitimate children could be compensated for any possible disadvantage from their lack of normal family relationship. My Lords, I do not see how one can compensate a child for not having a complete family; and while the more knowledge there is the better, I am not myself clear how a Committee would help on this point. It has been suggested that the Committee should assess and provide for the various needs of unmarried, expectant mothers and unmarried mothers with their children. There may well be a useful purpose to be served here, but

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the National Council's survey of residential accommodation has yet to be completed. There is also the inquiry into family circumstances which is being conducted by the Ministry of Social Security. It may well be that when we have the results of these inquiries we shall find that there is room for some further inquiries. But here again I think we shall find that the problems raised are not peculiar to unmarried mothers and their children, but extend to widows, divorcees and deserted wives.
Fourthly, my Lords, it was suggested that the Committee would help to ensure that illegitimate children were not unnecessarily parted from their mothers and their mother's families. I do not see how an inquiry could help in this respect. What is needed is advice and assistance from social workers who can look at individual cases. The solution here lies in extending the services, but it would be idle to pretend that there is an unlimited source of supply of social workers.
Lastly, it has been suggested that this Committee might consider a service to meet the needs of all unsupported mothers and their children. This is a very wide-ranging proposal. As I have already said, our social services do treat all fatherless children with whom they deal according to their individual circumstances, and do not discriminate between legitimate and illegitimate children. Local authorities' personal social services are already under examination by a Committee concerned with their organisation. That, I think, is the Committee set up by the previous Chancellor of the Duchy of Lancaster. Local authorities already have very wide powers, and the question for each authority to decide is how to exercise those powers. I have indicated the way in which they are in fact exercised, but it is for the local authorities, in the light of individual circumstances, to decide what to do. No doubt more could be done if greater facilities, in particular more social workers, were available; but, as we all know, there are limits to any facilities, and we know what are the demands on social workers.
My Lords, I cannot conclude without acknowledging the contributions which are being made in this field by the voluntary bodies, and at the risk of making myself vulnerable to a charge of discredit-
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nation may I, in particular, pay tribute to the National Council for the Unmarried Mother and Her Child. They have featured so much in this debate that nobody who has listened to it can be in any doubt about the importance of their work. I know that my right honourable friend the Minister of Health is greatly appreciative of the work which the Council have done. The Government make an annual grant to the Council, and I know that my honourable friend is even now considering sympathetically how, and to what extent, that grant can be increased.
It may be that when the various committees to which I have referred have reported, and when we know all the facts, we can again review the field. I have been struck in this field, as I have been struck in the field with which I am more immediately concerned, by the low level of our statistics. I certainly do not know more than about one-tenth of the facts relating to judicial administration which I ought to know if I am to do my job properly, and on this subject, too, there seems to be a good deal less knowledge of the facts than there ought to be. Let us hope that some progress can also be made in this field. Having done my best to explain the attitude of the Government on the various questions which have been raised in the debate, may I again say how grateful I am—and I am sure the whole House is—to the noble Baroness for having raised this subject again to-night.
6.22 p.m.
BARONESS SUMMERSKILL: My Lords, I have no intention of making another speech. I only want to say how grateful I am at the generous response that I have received from all quarters of the House to-day. I suppose that not many years ago my speech would have evoked hostility, hatred and prejudice, but to-day I find an understanding and sympathy, for which I am very grateful. May I say to my noble friend Lady Serota how delighted I was with her speech? As a parliamentarian, I can only say this to her. If she can hold us so well in a non-controversial contribution, we look forward with pleasurable anticipation to hearing her when she is able to speak her mind.
Finally, may I say this to a very important person, my noble and learned

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friend who sits on the Woolsack. Next year I shall have been in your Lordships' House and in another place for thirty years, and never before in the whole of my Parliamentary career have I had such a detailed reply to a speech of mine. It was not only the speech which your Lordships have just heard that showed my noble and learned friend's outstanding sympathy towards and understanding of this problem, but also the fact that he has occupied the Woolsack during the whole afternoon and evening without moving. To me, this expresses more than his words that he has this cause at heart. I was delighted to hear him say that he is going to get the recommendations of the Russell Report on to the Statute Book as soon as possible, and that the other points I raised will be considered. At this stage, I am only too happy to leave the matter in his capable hands. I thank your Lordships, and beg leave to withdraw my Motion.
Motion for Papers, by leave, withdrawn.

HOUSING (FINANCIAL PROVISIONS, ETC.) (SCOTLAND) BILL
Brought from the Commons; read 1a, and to be printed.

THE CASE OF MR. LESLIE PARKES
6.25 p.m.
VISCOUNT DILHORNE VISCOUNT DILHORNE rose to ask Her Majesty's Government whether they will state why there was a delay of seven months in arresting Mr. Leslie Parkes on a charge of desertion after a bench of magistrates had refused to hand him over to the military authorities; on what grounds it was decided and by whom it was decided that the arrest should be made after such a delay; whether the summary of evidence disclosed a prima facie case, and whether the Minister of Defence gave instructions that the charge should be withdrawn; and to move for Papers. The noble and learned Viscount said: My Lords, I think I should begin by making it clear
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that in moving this Motion to-night, I do so solely on my own responsibility. I do not speak for anyone but myself. I tabled the Question because I feel very concerned—and there are others who are very concerned—about the way in which the Government and the military have dealt with the case of Mr. Leslie Parkes. I converted the Question into a Motion by adding the words, "and to move for Papers", not because I have any intention of dividing the House—and I should like to say that now to relieve the Government Chief Whip of any undue anxiety—but to give me a right to reply and an opportunity to say, "Thank you" to the noble Lord who is to reply, if there should be any reason to do so. I have felt it right to raise this matter to-day in order to give the Government the opportunity (for which I hope they are grateful, although I rather doubt it) to explain certain matters which I find extremely puzzling, and to allay anxieties.
So far as I can ascertain—and I hope that the noble Lord, Lord Shackleton, will correct me if I am wrong—Mr. Parkes left his unit in Germany on or about December 25, 1965. He asserts that he left on completion of a three-year engagement, and that his discharge papers were to be sent on to him. If that is right, he must have entered on that three-year engagement late in 1962. According to two Sunday papers, the Army say that he joined in July, 1963, in which case he would not have completed a three-year engagement by December, 1965. I should not have thought it a matter of great difficulty to find out whether Mr. Parkes is right about this. If he is, he must have been in receipt of pay between the end of 1962 and the time in July, 1963, when the Army say he joined. However this may be, the fact that he left his unit in December, 1965, is not, I gather, disputed.
He was not arrested by the civil police until June 23, 1966—six months later—on the ground that there was reasonable cause to suppose him to be a deserter. Now there can be no doubt that that arrest was lawful. No one can dispute that the civil police were entitled, by Section 186 of the Army Act, to do that. Subsection (4) of that section provides that any person arrested on this ground must be brought before the

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magistrates as soon as practicable. Section 187 says that unless the allegation of absence is admitted, the court has to consider the evidence, and if satisfied that he is subject to military law and that there is sufficient evidence to justify his being tried for desertion, it must either hand him over to the military or commit him to prison for them to collect him.
When Parkes was brought before the court, he was discharged. Presumably the Army had failed to satisfy the court that he was subject to military law, or that there was sufficient evidence to justify his trial for desertion. Which it was, I do not know. It has been reported that an officer concerned with the case has said, "We never had a chance to put forward our evidence against Parkes". The opportunity to do so was there in June, 1966, but apparently was not taken. If the evidence was not then immediately available, surely an adjournment could have been obtained. But there was no adjournment, and Mr. Parkes was discharged.
It has been stated in another place, in the Press and on television, that this discharge of Parkes was a finding of innocence. It was no such thing. Magistrates do not try persons for desertion. Their task, when an alleged deserter is brought before them and if he does not admit his illegal absence, is to consider the evidence and hand him over to the military if they are satisfied that he is subject to military law and that there is sufficient evidence to justify his trial.
The case is not tried by the magistrates. As my noble and learned friend Lord Goddard, whom I am glad to see here to-night, said in giving judgment in a case when he was a Lord Justice in a Court of Appeal, in 1942:
"If the court is satisfied of those matters it cannot sentence a prisoner, any more than it could sentence a person charged with an offence beyond the jurisdiction of justices to hear and determine. It commits him to military custody for the purpose of his trial by military law, just as a civilian prisoner would be committed to assizes or quarter sessions."
After this discharge Mr. Parkes could have been brought before the magistrates the next day, the next week or the next month; and the magistrates could then, if sufficient evidence had been brought before them, have handed him over. But that was not done.
One of the odd, and perhaps one of the oddest, features of this case is that Mr. Parkes was not again brought before the magistrates. For seven months after this discharge nothing was done to secure his arrest. Why such delay? I know that it has taken the Minister of Agriculture seven months to inquire into allegations of cruelty in connection with the slaughter of animals, but why should the Army take so long? What is the explanation? Presumably, they had a case in June, 1966. Perhaps some further bit of evidence was required. Surely that should not have taken seven months. In these days it cannot take seven months to get Army witnesses from anywhere in the world. The Under-Secretary of State said on February 13 in another place that part of the delay was due to having to call witnesses from Germany. I do not understand that. It takes hours, not months, to travel here from Germany. And it cannot have taken seven months to decide whether the Army had a case to bring.
But at the end of this time, who decided that a further attempt should be made to bring Mr. Parkes to trial by court-martial? Was that decision reached by the Army alone, or was any Minister or the War Office consulted about it? I should like to know. I think that whoever made that decision must have felt, rightly or wrongly, that the Army had a very strong case. If it appeared to be a weak case, surely they would not have gone on with it after all that time. Presumably they knew after June, 1966, that Mr. Parkes was saying that he had completed his service in December, 1965. Did it really take seven months to find his attestation form and see what it was dated? Did it take seven months to find out whether he was in receipt of pay between the end of 1962 and July, 1963?
I think that a full and frank explanation must be given for this delay, and I ask that we should be told who was responsible for initiating the arrest of Mr. Parkes on February 9, over two years after he had left his unit. He was, apparently, induced to enter a police station, and was there arrested—this, I think, is significant and important—by the military. There is a special Part of the Army Act headed:
"Provision relating to deserters or absentees without leave."

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Section 186, which I have already mentioned, is the first section in that Part. Subsection (1) of that section provides for the arrest of a suspected deserter by a constable. Subsection (2) provides for the arrest of such a person by the military. And I ask your Lordships to notice these words particularly:
"…arrest by the military where no constable is available."
Was there no constable available in the police station? When an alleged deserter has been arrested, whether it be by a constable, by the military or by anyone else, Section 186 requires, as I have said, that he be brought before the magistrates as soon as practicable. That, as I have said, was done when Mr. Parkes was arrested in 1966. Why was it not done when he was arrested in 1967?
This procedure is a considerable safeguard to the individual. I think I am right in saying that it has existed for a very long time—it may be even from the days of the press gangs; and I think I am right in saying that up until this case it has almost invariably, if not invariably, been used for the apprehension of deserters and absentees without leave. Were it not for the procedure provided by these sections, anyone, after years of life as a civilian, might suddenly find himself arrested by the military, kept in military custody and facing trial by court-martial, without ever coming before one of the ordinary courts of the land.
This is a question that I would particularly press the noble Lord to answer: Why was not the same procedure followed in 1967 as had been followed in 1966? If it had been, the Army would have had an opportunity of putting forward their case before the magistrates. If Mr. Parkes's arrest was effected under Section 186, then that section was not complied with in two respects: first, he was not arrested by a constable, when one was clearly available; and secondly, he was not brought before the magistrate.
But the noble Lord may say that he was arrested, not under Section 186, but under Section 74 of the Army Act. That section gives a general power of arrest by the military of persons subject to military law reasonably suspected of having committed a military offence. But it could be contended that these general powers in Section 74 do not override the
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special provisions of Section 186 and 187 for dealing with deserters and those absent without leave. In view of those special provisions, it is, I think, open to doubt whether the arrest of a deserter by the military under Section 74 is lawful. If it is lawful, then Sections 186 and 187 lose much of their effect and importance. When an alleged deserter is arrested under Section 74 there is no need to bring him before the magistrates.
The military having failed to get the magistrates to hand Mr. Parkes over in 1966, was it deliberately decided to try to by-pass the magistrates this time by effecting the arrest under Section 74? If so, are we not entitled to know who decided to adopt these tactics? On the information now available, it certainly looks as if it was deliberately done this way for this purpose, and I hope the noble Lord when he comes to reply will say under which section of the Army Act the arrest was effected. If it was under Section 74, then it seems to me that there is a case for amending the Army Act to make it clear that in future, in this country, when a man is arrested for desertion or absence without leave he must be brought before the magistrates, as Section 186 requires, and not be deprived of his rights of appearing before one of the ordinary courts of the land.
When Mr. Parkes was in military custody photographs were taken of him handcuffed to a soldier in uniform, with another soldier armed with what looked like a pickaxe handle walking behind him. I am sure that that is not ordinarily the treatment to which an alleged deserter is subjected in the Army. No doubt the noble Lord can confirm that this is so, and I hope he will do so. Such treatment could only be justified when there existed very special reasons for it.
My Lords, Mr. Parkes was charged with desertion. It may be that, before that charge was preferred, things were done, both by the civil police and by the military, which ought not to have been done. But if that is the case it does not follow at all that the preferment of the charge was unjustified. No doubt those responsible for the prosecution thought they had a good case; otherwise, as I have said, after such delay one assumes they would not have gone on with it. Mr. Parkes may have, for all I know, a good case. Sometimes cases which appear

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so good before trial do not appear so good when they are gone into at the trial.
When a charge is preferred, whether it he of a criminal or of a military offence, it must be dealt with in accordance with the law. If the charge is of a criminal offence the Attorney General can stop the prosecution going forward by entering what is called a nolle prosequi. That is very seldom done, and only for very good reasons. If that is not done, then a charge of a criminal offence can be withdrawn only with the leave of the court; and it is done in open court, and the reasons for the withdrawal are made public. Has the Minister of Defence any powers given to him by law similar to those possessed by the Attorney General, powers which the Attorney exercises on his own responsibility and without regard for political consequences or to political pressures? I think the answer is, No. Perhaps the noble Lord will confirm that.
The position of a commanding officer when a man is charged with desertion is analogous to that of a magistrate hearing an indictable offence with a view to committing it for trial. His duty is to consider whether the summary of evidence discloses a prima facie case, and if he thinks it does he will remand a man accused of the serious military offence of desertion for court-martial. I wonder what would be said if the Home Secretary came down to the House of Commons and declared that, because of the circumstances surrounding a case—I ask your Lordships to note that phrase: "because of the circumstances surrounding a case"—he had formed the opinion that it should not go on and had told the magistrates of his view and persuaded them to dismiss the charge. If that happened, we should all, I am sure, regard it as very wrong and as a gross interference by the Executive with the administration of justice. But, my Lords, is not that exactly what the Minister has done in this case? It is this part of this case that worries me, far more than any other aspect of it, and I hope the House will forgive me if I spend a little time upon it.
Once a charge has been preferred, whether it be of a criminal or of a military offence, there are limits to what can lawfully be said about it. Nothing must be said that is likely to prejudice the
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trial in favour either of the accused or of the prosecution. The same rules apply in relation to both military offences and criminal offences. I doubt whether they have been observed in this case. After Mr. Parkes had been charged, I saw a programme on television which, if I were now the Attorney General, would have caused me great anxiety, for I should have felt it my duty to consider whether I ought not to institute proceedings for contempt. I think it is very important—and I trust your Lordships agree with me—to maintain the rule that trials should not be prejudiced either in favour of the accused or in favour of the prosecution.
There was a great deal of fuss about this case in the Press and in another place. Then, on February 15, the Minister of Defence made a Statement in the House of Commons. He said—and I quote his words [OFFICIAL REPORT, Commons, col. 617]:
"After considering all the circumstances surrounding the arrest of Mr. Parkes last week, I have come to the conclusion that he should be released from custody. His commanding officer has formally dismissed the charge of desertion made against him."
And later he said:
"I informed the Commanding Officer of the conclusion I had reached and he decided to dismiss the charge."
So there can be no doubt that the charge was dismissed solely on account of the Minister's action. Did he instruct the Commanding Officer to take that course? It is in any event clear that that course would not have been taken but for the Minister's action.
I do not know whether the taking of the summary of evidence had been completed when this action was taken. If it had, did it disclose a prima facie case of desertion? If it had, and did not do so, then we should have been told that that was the reason for the dismissal. But we were not told that. The Minister has throughout carefully refrained from saying that Mr. Parkes was innocent of the charge. He reached his conclusion "after considering all the circumstances surrounding the arrest." I ask that we should be told what were the circumstances which led him to form his view and to take the action he did. The Minister alone knows what they

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were. They have not been made public. I hope he has told the noble Lord who is going to reply. I can see no reason why he should not have been able to do so, and I hope that we shall hear them to-night.
Then I ask specifically whether one of the circumstances he considered was the fact that on the previous days there had been trouble in another place about this case. If this question is not answered, one can only assume that this was one of the circumstances, and perhaps the major circumstance. I wonder what was said to the Commanding Officer to persuade him—if that be the right word—to dismiss the charge. Section 77 of the Army Act gives him power to do so, where he has investigated the charge, if in his opinion it ought not to be further proceeded with. The clear inference from that section is that he should decide not on what anyone has said to him, but on what the investigation has revealed. And I stress the fact that the power to dismiss given by the section is exercisable only where the charge has been investigated.
I know that there is a Rule of Procedure, No. 12, which says that a Commanding Officer may dismiss a charge at any time if he is of opinion that it should not be proceeded with. But the Rules of Procedure cannot amend the Army Act, which provides that a charge can be dismissed only where there has been an investigation—not during it—and so the validity of this rule may be open to doubt. However this may be, there is nothing that I can find in the Army Act, or in the Rules of Procedure, which lends support to the view that a Commanding Officer can be instructed to dismiss a charge, either by a superior officer or by anyone else, even the Minister of Defence. And, if the summary of evidence discloses a prime facie case, it would seem very wrong if the Commanding Officer was told or persuaded to dismiss the charge.
My Lords, it may be that if the Army had a case it should not have been brought after such delay. I express no opinion on that. But I note that Parliament has provided in the Army Act that, with few exceptions, charges of breaches of military law cannot be brought more than three years after the
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alleged commission of the offence, but that this time limit does not apply in relation to desertion. So Parliament, when it passed the Army Act, obviously thought that desertion was such a serious offence that a man might be charged with it even three years after the desertion was alleged to have taken place, and here the period is not even two years.
But even if the charge should not have been brought in this case, that does not in any way justify the action of the Minister. What right had he to interfere? It does not matter to what pressure he was subjected in Parliament, in the Press or on television, or that he was invited to step in and stop the case, even if that invitation had been extended to him by the Prime Minister. What right had he to do so? On the facts as they appear to me it would seem that he had no right to act as he did, and that his action in telling the Commanding Officer to dismiss the charge was just as improper as would be the action of the Home Secretary in telling a bench of magistrates to do so. The Minister of Defence holds a high executive office in the Government. Am I right in thinking that no part of the duties of that office are judicial, or even quasi-judicial? He is a member of the Defence Council and of the Army Board, but his membership of those bodies gives him no right, surely, as an individual to interfere with the course of justice. If the noble Lord maintains that he was entitled to do so, then I ask that he should state from what section of what Act the Minister gets the power to do it.
In this country we have always set our faces against interference by the Executive with the administration of justice, and I hope we shall long continue to do so. Some years ago your Lordships may remember a prosecution was instituted with the consent of the then Attorney General, and later withdrawn on an application being made in the courts, on his instructions, for leave to withdraw. Then there were allegations that the prosecution was withdrawn as a result of political pressure. The Liberal Party proposed that a Select Committee should be appointed to ascertain the facts. That was resisted by the Government. On that occasion the Conservatives voted with the Liberals (unlike last night) and the Government was defeated—and so ended that Labour Government. I refer of course to the Campbell case, and I think

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that the circumstances of this case, and in particular the conduct of the Minister of Defence, warrant the appointment of a Select Committee. It would find out whether he acted solely on his own initiative, and it no doubt would go into the matter very thoroughly.
I note that on February 13 an undertaking was given to investigate the circumstances of Mr. Parkes's arrest and the reason for the delay in arresting him, and to inform another place as soon as possible. It is now February 22. The investigation of the circumstances of his arrest should not take long. Are they not known already? Nor should it take long to find out why there was that delay. Indeed, the Under-Secretary of State seems to have known the reasons for it on February 13, when he said that part of the delay was due to having to obtain witnesses from Germany.
I note, too, that the conduct of the civil police is being inquired into, and it may be that when the noble Lord comes to reply he will say that the inquiries are not yet complete and that he cannot answer some of the questions I have asked. I hope that will not be the case, for I should have thought that by now he would be in a position to answer them, or most of them. But some of the questions I have asked do not appear to come within any of the promised inquiries and do not require an investigation to provide the answer. For instance, the noble Lord surely should be able to say whether Mr. Parkes was arrested under Section 74 or Section 186 of the Army Act, and whether the Minister of Defence has any power to stop the prosecution of a military offence once a charge has been made, and also what precisely were the circumstances to which the Minister had regard.
If the noble Lord cannot answer all the questions I have asked I hope he will at least give an undertaking that they will be answered in the near future. I make no apology for raising this matter to-night. If the facts be that the Minister interfered, as a member of the Executive, with the administration of justice when he had no legal right to do so, then one should surely draw attention to his conduct and condemn it. The noble Lord may be able to throw a different light upon the matter. He may be able to show that there was no impropriety of
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conduct. But whether there was or not, I fear that what the Minister has done has caused great damage to the Army.
Owing to the action of the Minister the truth will never be determined by the court entrusted under our law with the task of determining whether or not Mr. Parkes was a deserter. Owing to his action the Army cannot show that they were justified in preferring this charge. I think that the Army have just cause for complaint, if they are not able publicly to justify the preferment of the charge, and they appear to have been condemned unheard. Also, owing to the Minister's action Mr. Parkes cannot show that he was found innocent of the charge. True it is that he has now been discharged from the Army. He says that he was discharged in 1965. The fact that he has been charged with desertion is known throughout this country; owing to the Minister's action he cannot say that he has been found not guilty. These appear to me to be the consequences of the Minister's action. I do not doubt for one moment that the Minister acted with the best of intentions, but good intentions do not warrant interference with the course of justice, and I hope the noble Lord will say whether I am right or not in thinking that these are the consequences of his action. I beg to move for Papers.
6.58 p.m.
THE MINISTER WITHOUT PORTFOLIO (LORD SHACKLETON): My Lords, the noble and learned Viscount has deployed in solemn language a powerful statement which is bound to have carried some weight—indeed a good deal of weight—with your Lordships' House. When I saw him earlier he was good enough to say that he did not necessarily expect me to deal with every point that he raised, but that he was anxious to set these points on the record to ensure that they should receive due consideration. I can certainly give one general answer before I go on to deal with some of the particular points. These matters are receiving consideration, they are being inquired into, and they will be reported upon.
I will give answers to a number of points which I think will go some way to explain to your Lordships the unusual

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nature of this case and the special difficulties that confronted my right honourable friend. I am grateful for one thing. Although the noble and learned Viscount levelled heavy charges at my right honourable friend, he in no way impugned his personal honour or his good intentions in the matter, and in this respect there is a great difference between this and the Campbell case.
We are debating this question at a time when there is a departmental inquiry in being, and I must say straight away that I was unaware that the noble and learned Viscount was going to suggest that there should be a Select Committee. However, I shall not comment on that suggestion to-day. This departmental inquiry is looking into a number of events. This is a picture of a whole series of interlocking events and procedures and, if I may say so, even accidents, connected with the arrest of Mr. Parkes. My right honourable friend is extremely anxious to establish exactly what happened at each stage of the case and what lessons should be learned from it, and he has given a personal undertaking to report upon this in another place.
The second general point I must make is that for reasons that will be apparent—and I do not think the noble Viscount will disagree with me in saying this—I have to be circumspect in what I say about the merits of the case itself. The charge against Mr. Parkes was never brought to trial, and it is certainly not my intention, nor do I believe would your Lordships wish it, that I should use the privilege of your Lordships' House to develop arguments either for the prosecution or the defence in a trial which never took place—and indeed this was part of the burden of the noble Viscount's complaint, that the trial never took place. I shall try to be as brief as possible about the history, and to say only what is factual and, I hope, acceptable. I acknowledge that there are points of law and of judicial procedure to which the noble Viscount attaches importance upon which I am not qualified to pass judgment. Subject to those reservations, the story is as follows.
According to the enlistment documents held by the Army, Mr. Parkes enlisted in the Army in July, 1963, for a term
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of nine years. At the end of 1965 he was serving as a Private soldier with the 10th Ordnance Field Park in Germany. On December 23 he—and here I use a neutral expression—departed from that unit and made his way back to England under his own arrangements and did not subsequently return to it. About a month later, Mr. Parkes was formally posted absent without leave. The civil police were notified in his home town of Stoke-on-Trent. They did not see him for some time because he was employed elsewhere, but eventually they did interview him at his home, and he told them that he was not an absentee because he had been discharged properly from the Army before he left Germany. He said that he had no papers but was taking steps to obtain them. This account was reported back to the authorities, but the Record Office insisted that Mr. Parkes was an absentee, and in July last year he was arrested by the local civil police and brought before the magistrates.
The arrest was made under Section 186 of the Army Act 1955 and the magistrates' hearing was under Section 187. If the arrested person does not admit that he is illegally absent—and let us face it, in a very large number of cases of deserters and absentees there is no denial—the magistrates have to consider the evidence and any statement made by him. If they are satisfied that he is subject to military law and that there is enough evidence to justify his trial under the Army Act 1955 for desertion or absence without leave, they must deliver him into military custody. If they are not satisfied, they must discharge him. The procedure employed by the magistrates is much the same as the procedure employed by examining magistrates in determining whether a charge for an indictable offence should go for trial at either quarter sessions or Assizes.
Where an arrest is made by the civil police the Army authorities have no status of any kind in the matter. They are not parties to the proceedings. So far as there can be said to be parties, the parties are the police on the one hand and the arrested man on the other. The military authorities cannot be represented in the proceedings. On one or two occasions where it might appear that the Army legislation and regulations might need to

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be explained to the magistrates, the magistrates have permitted a representative of the Treasury Solicitor to be present in court, but solely as amicus curiæ. He does not represent the Crown or the Ministry of Defence.
In this case, while the police were producing their evidence—mainly, of course, evidence provided by the Army authorities—to the court, it became apparent that Mr. Parkes's solicitor was proposing to make a contention of an unusual kind, which appeared to involve consideration of the provisions of the Service legislation and regulations, particularly those relating to enlistment and discharge. The Treasury Solicitor accordingly instructed an agent, a solicitor at Stoke, to appear as amicus curiæ in the proceedings, if the court would permit it. The court did in fact permit it, but in that capacity it was not possible for the solicitor himself to produce evidence except at the court's invitation. At the resumed hearing Mr. Parkes gave evidence that he enlisted in 1962 and not 1963. He further said he enlisted for three years and not nine years. He gave evidence of the circumstances in which he left Germany, from which it might be inferred his absence was not without leave. I do not know whether it was contended that he had been discharged.
The enlistment papers held by the Army were put to him in court, and he said they were not those which he had signed. His wife was called and gave evidence that she had understood he was due for discharge in December, 1965. His sister and a friend of his gave evidence that they had seen him in uniform in 1962—that is, before the enlistment papers produced in court showed him to be enlisted. Since the police case had closed, the magistrates court would not allow evidence in rebuttal of Mr. Parkes's evidence to be given. Their decision was: "The prosecution have not proved the case to our satisfaction. The defendant will be discharged." I am sorry to have spent so long on this, but I thought it important to set it out. I am not going to say more about the magistrates' hearing. It is, of course, one of the points in the Departmental inquiry in which it is necessary to establish whether the matter was competently handled by the Record Office as regards the evidence they provided for the police.
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The civil police then withdrew. They issued a statement, which was carried in The Times, that they were taking no further action but that they understood the military authorities had power to arrest and court-martial Mr. Parkes if they wished. This was indeed the view held by the Army. They relied on a footnote—and I agree it is a footnote to Section 187 which is printed in the Manual of Military Law and represents an opinion of military lawyers which I am bound to say has stood the test of a long time. The footnote says:
"The proceedings before the magistrates do not amount to a trial for the purposes of Section 134, and the person discharged may be subsequently re-arrested under Section 186 or under Section 74 and tried if there is evidence to justify it."
I am bound to point out to the noble Viscount that the High Court has held that under the corresponding provisions of the Army Act 1881 there was power to re-arrest a deserter, notwithstanding under this section a previous discharge by magistrates.
VISCOUNT DILHORNE: My Lords, I never challenged that—indeed, it was one of the main parts of my speech that he could have been brought back before the magistrates the very next day and further evidence adduced. What I am saying and querying is this: when there has been a failure to get him committed by the magistrates, is it right then to have recourse to Section 74, which does not give him any right of appearing before the magistrates at all?
LORD SHACKLETON: My Lords, the purport of what I have been saying is that it was permissible, and indeed has been accepted by military lawyers for a long time, that, notwithstanding appearance before magistrates, a person may be arrested under either section. The noble Viscount was, of course, Attorney General when the 1955 Act was passed, and this has been in the Manual of Military Law, and he must surely have been aware of it.
VISCOUNT DILHORNE: My Lords, the noble Lord really must not seek to place upon me responsibility for the accuracy of footnotes in the Manual.
LORD SHACKLETON: My Lords, I think it is almost inconceivable that a matter of such importance to lawyers

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should escape attention. I am surprised that it should have escaped the attention of the noble Viscount, or indeed of his advisers. But I do not wish to make much of this; it was he who was making much of it. I am only stating that this is the law as it has been interpreted for a long time. I am not suggesting that this footnote has the force of law, but I am saying that there are good grounds for regarding it as sound.
The key word, of course, is "evidence". There must be evidence to justify further proceedings. The military police then set about collecting that evidence. The noble Viscount asked me whether there was evidence as to whether Mr. Parkes was paid in the time in which he claimed he was in the Army, and in which the Army authorities claimed he had not joined. I have not that evidence. It would, of course, be negative evidence. But I will say a little more on evidence. It is a fact that throughout his engagement he was paid at the rate of a soldier on a nine-year engagement.
The military authorities took a long time, several months, to collect their evidence. They collected statements from 45 witnesses, both civilian and military, in this country and abroad. Having built up what they regarded as a cast-iron case, and having taken legal advice, the military authorities arrested Mr. Parkes, relying for power of military arrest on Section 74 of the Army Act. He was subsequently taken to the Royal Army Ordnance Corps Depot at Black down, and charged with desertion, contrary to Section 37 of the Act.
Before I go on, there is one thing that I should like to dispose of, and I am sure your Lordships would wish me to do so. That is an accusation that has been made—not in your Lordships' House—to the effect that the Army hounded a man vindictively and unnecessarily instead of accepting the magistrates' decision. Certainly this is no part of the noble Viscount's case, whatever the legal position may have been. I do not have to await the final inquiry before rejecting that view. There is a plain duty to enforce the law, and whether the police are civil or military they are bound to go on if the law permits and if they have evidence. The Army Act is as much part of the law of
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the land as any other Statute enacted by Parliament, and it is not for the police to pre-judge the trial. Throughout this matter the Army acted deliberately and in good faith and, whatever the outcome, this much at least should be on the record.
I should also refer briefly to the way in which Mr. Parkes was arrested. The military police asked for the assistance of their civil colleagues when they arrived in Stoke-on-Trent. There has been a good deal of public discussion about the means by which Mr. Parkes was induced to go to the police station where the military arrested him. It is the subject of a Home Office inquiry, and your Lordships will not expect me to say more about it to-day. I need not remind your Lordships of the sensation and public concern aroused by the arrest. Mr. Parkes had the benefit of the energetic support of his Member of Parliament, and the newspapers were in full cry. Black down Camp has no perimeter fence—in fact a public road runs through it; so there was a double hazard of too much opportunity to escape and too much exposure to Press photographers.
This was the situation which presented itself to my right honourable friend the Secretary of State early last week. I do not think I am breaking the doctrine of Ministerial responsibility when I say that, although he had not heard of the case before then, of course he accepts his responsibility as a Minister; and the noble Viscount will not expect me to answer his questions as to who specifically was responsible or carried out the executive action. There is, of course, a great deal of disciplinary traffic in the Service Departments, and I think it is rare for proceedings to be authorised at a high level. Whether this was the sort of case which should have been considered on a higher level is one of the matters under investigation.
My right honourable friend had a great many factors to consider. I have made it plain that the Service had acted scrupulously over each separate stage in the procedure. But that is not the whole picture. There were a good number of unusual features, not all of them free from doubt. There was the delay, to which the noble Viscount has referred, six months before the first arrest and seven months before the second. Again

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I will not discuss whether the delay was avoidable or not—it is under investigation—but it is an important matter in a case of this kind. Then there was the magistrates' decision, and two important questions which followed: whether, despite what I have said, the footnote in the Manual was right in saying that there could be further proceedings; and whether, in fact, it was right to make a military arrest under Section 74, rather than ask the civil police to repeat the procedure of the first arrest. Was it right, indeed, to make a military arrest in a police station? These are points both of law and of propriety. They are being considered, and my right honourable friend will say what he finds.
Thirdly, there were the events surrounding the arrest itself, and the trick by which it was accomplished, whatever one's judgment of the motives. Then there were the conditions in which Mr. Parkes was held in custody, the handcuffing and so on, to which the noble Viscount referred. Fifth, there was the publicity from photographs, which would hardly be conceivable in the corresponding time before a civil trial and which might in themselves be prejudicial to Mr. Parkes's interests. Finally, it was known that preparations for a court-martial might in the ordinary course take at least a month after the arrest, and it would be necessary to keep the man in close confinement for that additional time. All these points were considered by my right honourable friend, and together they led him to decide that it would not be right to proceed further.
This leads us, I believe, to the last controversial point, which is the question of the Minister's power to intervene at that stage in the ordinary process between the charge and the court-martial. I will take this as far as I can to-day, and although I shall not be able to give full satisfaction on all the points, I hope that I shall establish a measure of agreement. We need only look at the Secretary of State's constitutional position in relation to the Armed Forces, and to Her Majesty's Letters Patent which took effect on April 1, 1964. It was under these Letters Patent that the Defence Council was constituted. It was given command, under the Queen, of all the Armed Forces. Incidentally, perhaps I may correct the noble and learned
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Viscount on one point. In certain circumstances there is a quasi-judicial, or indeed judicial, role in the matter of petitions which amounts almost to an appeal court, but this is not significant to the case he is arguing to-day.
VISCOUNT DILHORNE: That is a function of the Defence Council.
LORD SHACKLETON: I was, in fact, speaking about the Defence Council. It was given command, under the Queen, of all the Armed Forces. Accordingly, the Defence Council can give orders to any member of the Armed Forces. The Letters Patent provide that any duties of the Defence Council may be performed by any two members. Noble Lords who have had experience as Service Ministers will be well aware of this arrangement.
If the proceedings against Parkes were to be dropped and he was to cease to be a soldier, three things were necessary. First, he must be released from custody; secondly, he must be discharged from the Army; and, thirdly, the charge of desertion against him must be dismissed. Taking a person into custody under Section 74 is an executive act. It is open to any superior officer to order his release from custody. The dismissal of a charge by a Commanding Officer, however, is not something which he can be ordered or instructed to do. The authority rests entirely with him. The fact that Mr. Parkes had been discharged from the Army did not mean that the court-martial could not have gone on. The Commanding Officer is empowered by the Rules of Procedure to:
"dismiss a charge at any time during his investigation if he is of the opinion that it ought not be proceeded with further."
The noble and learned Viscount cast doubt on this particular Rule of Procedure No. 12, and questioned whether it was ultra vires. I can only say that it is a statutory rule, made in 1956 under powers conferred by the Army Act of 1955. None the less, the point he has made is one which I have noted and which, clearly, will need to be further considered. In exercise of the power under Rule of Procedure No. 12 the charge has been dismissed before the formal investigation; that is to say, the taking of a summary of evidence was concluded. I shall not miss the noble Viscount's final point.

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That is what happened—subject, as I have said on two or three occasions, to checking at the inquiry which is now in progress. I have endeavoured to ensure that what I have said to your Lordships has been entirely accurate; though I must confess that there has not been very long to check all the points. On the one hand, it was an ordinary, and as it was thought, routine procedure of a Special Investigation Branch investigation leading to an arrest. On the other hand, the culmination was a collection of unusual and controversial circumstances which, taken as a whole, led the Secretary of State to the conclusion that there were serious doubts about the justice of proceeding further. I think he was justified in reaching that view, and that it was in fact a courageous act on his part.
Let me reaffirm that the means by which the release was effected (and, incidentally, although this may not cut much ice with the noble and learned Viscount, my right honourable friend was, of course, advised to do so by a right honourable gentleman, learned in the law, the Member for Marylebone, who is well known to us, speaking in another place), and Mr. Parkes was discharged from the Army, were, according to the advice I have had, and in my own view, constitutional and did not in any way exceed the powers provided by law.
My Lords, I recognise that there are some aspects of this case, including one to which the noble Viscount devoted a great deal of attention, which I have not been able to cover in full, and the noble Viscount has conceded that this is inevitable at this stage. I will ensure that my right honourable friend will take all these things into account, including the points raised about the method of dismissal of the charge and the important judicial and legal aspects of that. I am sure that he will take fully into account everything the noble Viscount has said to-day, and that there will be a full explanation given of his action in what, clearly, has been a most difficult case, in which I am sure it has been his intention—and certainly this has been my view from studying the facts—to act in accordance with the law and the proper procedure. But this is an opinion which will subsequently have to be studied when he gives a full explanation of these events.
7.26 p.m.
VISCOUNT DILHORNE: My Lords, having put down a Question I converted it into a Motion for Papers in order to have the opportunity of making a reply and, as I said in my speech, saying "Thank you" to the noble Lord if there was something to thank him for. I think there is, and I am grateful to the noble Lord for the very full reply, as full as he could make it, to the questions I have asked. I am also grateful to him for his undertaking that questions which I have raised will be carefully considered. I assume it follows from that that in due course, and I hope it will be as soon as possible, they will be answered.
There are only two matters to which I should like to refer. The first is that I have never suggested that Mr. Parkes could not have been rearrested. So far as that is concerned I am in entire agreement with the footnote. I myself have never known the procedure of using Section 74 for the arresting of deserters in this country or people absent without leave, and I think it raises a serious question.
LORD SHACKLETON: My Lords, may I interrupt the noble Viscount to say that there are, I am told, a number of cases where it has been used even after the previous arrest.
VISCOUNT DILHORNE: That may be so. All I was saying was that I had not known of such cases. I think that the policy of using Section 74, whatever the legal position may be, when there are those express provisions compelling his production before the magistrates, the civil court, before he goes into military custody certainly ought to be reviewed. I myself think that it is certainly open to doubt whether, in view of the existence of Section 186, an arrest of a deserter is lawful under Section 74.
With regard to the conduct of the Minister, the noble Lords said that he could not deal with that fully, and I quite understand. But I am grateful to him for his disclosure of the reasons for which the Minister acted, which were expressed by the Minister in the word "circumstances" I will consider them. I will express no opinion now on whether those "circumstances" in any way justify the withdrawal of this charge. The second question, on which I must admit I am not

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satisfied at present, is whether, even if they did, the Minister had the right to take the action he did. The noble Lord has referred, as I did, to the Defence Council. Of course, two members can act for the Defence Council. But the noble Lord did not go on to say that this was action taken by the Defence Council. Indeed, the Minister in another place made it quite clear that it was his own personal conclusion on which he himself had acted. I do not want to pursue this matter now; opportunities no doubt will arise in due course. I feel that the raising of this matter has been thoroughly justified, and I conclude by again expressing my thanks for the way in which the noble Lord has answered me, although I know that in regard to some of the questions I raised he had only short notice, and I agree that some of them would be extremely difficult to answer in the course of a debate. I beg leave to withdraw the Motion.
Motion for Papers, by leave, withdrawn.