§ 4.23 p.m.
§ LORD HUGHESMy Lords, I beg to move that this Bill be now read a second time. As the Explanatory Memorandum points out, this Bill is based on the Report of the Scottish Law Commission Reform of the Law Relating to Legitimation per subsequens matrimonium, published in April of this year. I am sure your Lordships would wish me right at the outset to express appreciation to Lord Kilbrandon and the rest of the Commissioners for the trouble they took in preparing this excellent survey of the law on this matter and for the clarity with which they expressed their proposals for its reform. This is the first substantial Report of the Scottish Law Commission to be published, and I hope that noble Lords will give the Government credit for taking this early opportunity to introduce the Bill. It should be seen as a token of the Government's determination, with the help of the Law Commissions, to effect necessary reforms of our laws as quickly as possible.
The main change in the law recommended by the Commission and effected by the Bill is the removal of a restriction which, in certain circumstances, at present prevents an illegitimate person from being legitimated by the subsequent marriage of his parents. The Law of Scotland has always accepted the principle that a child Dorn before the marriage of its parents is legitimated when the marriage takes place. But to this principle the law admits a major exception. If the parents, because of some impediment to marriage, could not have married at the time of the child's conception or (though there is some doubt about this) at the time of its birth, then their subsequent marriage does not legitimate the child. The most common impediment is, of course, that at the time one at least of the parents was married to someone else. The Legitimacy Act 1959 removed the comparable bar to legitimation under the law of England and Wales. The Bill removes the bar for Scotland.
The arguments in favour of removing the bar are set out in the Law Commission's Memorandum and a brief reference to them here will, I hope, suffice. 870 First, there is the general social argument that to allow certain children, but not others, to be legitimated by the subsequent marriage of their parents is neither logical nor just. If parents of illegitimate children—and here I should like to say that I think the correct term, though not the legal one, is the illegitimate parents of children—are willing to regularise their own position by marriage it seems reasonable to allow the position of the children (who have, after all, no control over the circumstances of their conception or birth) to be regularised at the same time.
Secondly, there is the question of legal policy. This is a field in which I, for one, should be loth to claim to speak with authority. I am glad, therefore, to say that the Law Commission have made it possible for me to avoid the need to do so by giving it as their considered view that there are no considerations of legal policy which would argue against the removal of the existing bar. Thirdly, the Commission have made a comparative study of the law of legitimation by subsequent marriage in a number of countries outside Scotland. As they have shown in their Report, in the majority of countries which recognise this form of legitimation (including England and Northern Ireland) the bar does not exist.
The Government fully accept the views of the Law Commission on this matter, and Clause 1 of the Bill gives effect for the future to the change in the law which they have recommended. The Registrar General has estimated that the effect of this clause, if it becomes law, would be to permit the legitimation of about fifty children a year the marriage of whose pa rents would not, as the law stands at present, allow them to be legitimated. Clause 5 of the Bill regularises the position of persons who because of the existence of the present restriction are not regarded as legitimated, despite the fait that their parents have married at some time in the past. The Registrar General has estimated that there may be up to 3,000 potential applicants for the re-registration of birth that would be made possible by this clause.
As your Lordships will recall, however, the Scottish Law Commission did not confine themselves to a simple recommendation that the present law should be amended in the matter of the removal 871 of the existing bar to legitimation by subsequent marriage. They noted in their Memorandum that there were a number of unsatisfactory features about the present Common Law in relation to legitimation by subsequent marriage, and they made in their Report a number of very useful proposals with a view to the law, amended as they proposed in relation to the removal of the bar, being restated in a comprehensive way. It is with this amendment, restatement and clarification of the law of legitimation by subsequent marriage as a whole that the remainder of the Bill is concerned.
As your Lordships will see, these provisions of the Bill are necessarily very detailed, but since much of it is a restatement of the existing law I propose to confine my remarks, at this stage, at any rate, to the main changes effected in the present law. The main change to which I would draw your Lordships' attention is the removal of the present legal fiction in Scots law that legitimation confers legitimate status retrospectively with effect from the child's date of birth. The fiction finds its origins in the Canon Law which offered as a doctrinal justification of legitimation by subsequent marriage the view that the marriage took effect retroactively by a fiction of the law from the date of conception; and thus the children were regarded as legitimate from their birth. As the Law Commission point out, however, this is nowadays little more than a legal fiction. The Scottish courts have criticised the fiction and have held, for example, that property rights of third parties cannot be affected by the fiction of retroactive legitimation.
Since the publication of their Report the Law Commission have in fact told us that further study has led them to the view that at present the fiction of retroactive legitimation has no practical effect whatsoever and has confirmed them in the view expressed in their Report that it should be abolished. This is effected by Clause 1 and Clause 3(1) of the Bill which, broadly speaking, provide that a subsequent marriage will legitimate children of the parties with effect from the date of the marriage.
Secondly, the Bill clarifies the existing law on the question of domicile. There is no doubt under Scots law at present that for a child to be legitimated by the 872 subsequent marriage of his parents his father must have been domiciled at the time of the marriage in a country in which legitimation by this means is permitted by law. There is doubt, however, whether the father must in addition have been domiciled in such a country at the time of the child's conception or birth. This is a highly technical question, but the view which the Law Commission came to in their Report was that for the purposes of determining whether a person is regarded as legitimate under Scots law the question of the father's place of domicile at the date of the child's birth or conception should be irrelevant and the law of the father's domicile at the time of the subsequent marriage should be decisive. Clauses 1 and 2 of the Bill give effect to this recommendation.
The third change effected by the Bill is in relation to the law concerning rights of representation. It is still an open question in Scots law whether the issue of an illegitimate person who predeceased his parents' marriage can take rights as if their parent had been legitimated by the marriage. The Commission recommended that the law should be clarified by a provision that in such a case the issue should be treated as if their parent, although deceased, had been legitimated from the date of the marriage, and Clause 4 of the Bill provides accordingly.
The remaining provisions of the Bill deal with the recognition of legitimations effected under foreign law generally, with the scope of rights and obligations arising on legitimation—where regard has been had to the Law Commission's view that the legitimation of a child should not operate to the prejudice of property rights of third parties—with the interpretation of deeds and the interpretation, extent and commencement of the Act. My Lords, I do not propose to go into the detail of these provisions, but if any noble Lords have any questions about them I shall try to deal with them later to-day, or alternatively, by letter as soon as possible after to-day's debate.
Finally, I should recall for your Lordships' convenience that when the Law Commission's Report was published, my right honourable friend the Secretary of State announced in another place that he and the Lord Advocate were studying it with a view to legislation; and he added that he would be glad to receive any 873 comments which interested persons or organisations might wish to make. I should report to your Lordships that there has been no response to this invitation. The Law Commission's own consultations during their study of the law led them to an understanding that the legal profession in Scotland would welcome the main change effected by the Bill. I hope this useful Bill will commend itself also to your Lordships, and I beg to move that it now be read a second time.
§ Moved, That the Bill be now read 2a,.—(Lord Hughes.)
§ 4.34 p.m.
§ THE EARL OF DUNDEEMy Lords, we are grateful to the noble Lord, Lord Hughes, for the very clear and brief manner in which he has expounded this Bill. As he has rightly said, it has always been part of the law of Scotland that illegitimate children should be legitimised by the subsequent marriage of their parents. I think that it would be a more complete description of the position to say that this has always been the law of all Christian countries except England which, for some reason, was an exception to it. The English Church and the English Crown tried to bring England into line with the rest of Christendom at the Council of Merton in 1234, but the English Barons replied with the famous phrase:
"Nolumus leges Angliae mutari."I will translate that for the benefit of those of your Lordships who were educated at Eton. It means:We do not wish the laws of England to be changed.In fact they were not changed until 1926, when a new English Act was passed bringing the law into accord with that which already existed in Scotland.
§
But there was one exception brought into the English Act of 1926. Section 10 of that Act provides that:
Nothing in this Act shall affect the succession to any dignity or title of honour or render any person capable of succeeding to or transmitting a right to succeed to any such dignity or title.
Of course, that exception never applied in Scotland, either to the succession to a peerage or, indeed, to the succession to the Throne. The grandson of King Robert the Bruce, Robert Stuart, first had
874
an illegitimate son by Elizabeth Muir of Rowallan in 1337. He married her ten years later, in 1347, which legitimised their son. Later, I think in 1371, he succeeded his uncle as King of Scotland, as King Robert the Second and his legitimised son became Heir to the Throne and afterwards succeeded as King Robert the Third in 1390; and our present Royal House are descended from him. So there has never been any doubt about the fact that legitimisation by the subsequent marriage of parents does not affect the succession to titles.
§ There have been many cases in our own lifetime in which there have been two different claimants to a peerage, one of whom was born out of wedlock, and the case has always turned upon whether at the time of his parents' marriage his father had been a domiciled Scotsman. I have no doubt that the Scottish law is right; that it is socially convenient and right that legitimation by subsequent marriage of parents should not exclude a child from succeeding to his father's position. But it does, I think, become a little more complicated when, as the noble Lord mentioned, never in Scottish law had legitimation by subsequent marriage been legal if at the time of birth, or of conception, as the case might be, the parents would not have been able to marry because either had been married to someone else or for any other reason.
§ I think one has to look very much more carefully at the position, not only in regard to the succession to a peerage but in regard to the succession to entailed property if there is a possibility that a man and woman who may both be married to somebody else have an affair and produce a son. The father, by his legitimate wife, may have several sons who are brought up in the natural expectation that they will succeed to a piece of property or a title; and then, perhaps years afterwards, both the father and the mother may obtain divorces and become married to each other, and if they could prove, as they might be able to do, that the child which had been born while they were both married to somebody else was in fact the son of the real father and not of the woman's husband, the child could then cut out those who had always been brought up to expect that they would succeed to whatever property or functions might be in question.
875§ The Scottish Law Commission, my Lords, is a very learned body and knows far more about this subject than I do, and I should always hesitate to argue against any of their recommendations. But I am a little regretful that they have produced this Bill, because I always feel that when the law of Scotland is clearly superior to the law of England it is far better to leave things as they are. I am not sure that in all respects this is going to be an improvement.
§
The noble Lord mentioned that the English Act of 1959 took this step of the legitimisation of a child whose parents had not been able to marry at the time of the child's birth but, owing to divorce or some other reason, were able to get married afterwards. In that Act the proviso was continued that this change in the law should not affect the right of succession to any title or dignity. Yesterday evening I tried to confirm these matters by telephoning St. Andrew's House, because I wanted to be sure of them, and the noble Lord has been kind enough to write to me this morning. I am grateful for the promptness with which he has grasped the points and replied. He has drawn my attention in his letter to Clause 3(6) of the Bill, which deals with the seniority of legitimated persons. Your Lordships will see that legitimated persons will have seniority only from the date of the subsequent marriage or, in the case of persons legitimated by Clause 5 of the Bill, from the date when the Bill becomes law. Thus, the noble Lord observes in his letter to me to-day:
If there is already an heir apparent to the title and an older illegitimate son who, because of the restrictions on legitimacy, has not been legitimated by the subsequent marriage of his parents, the illegitimate son, on being legitimated under the Bill, will not replace the heir apparent, he will remain junior to him".
That was not clear to me from the Bill until I got the noble Lord's letter, because it refers to "members of a class of persons". I suppose that includes Peers and heirs to Peerages, but it was not obvious to me to begin with.
§ I would like a little clarification of this. First of all, I take it that this would cut out the legitimate heir, not of the father himself but, if he had a brother or nephew, his heir presumptive, who for a long time would have been expecting to succeed to the Peerage. Of course, it might be said that the heir presumptive 876 can be excluded at any time by the marriage of the holder of the title, who might marry unexpectedly and have a son. But that is not quite the same thing as bringing forward an illegitimate son born by somebody else's wife long ago at a time when they could not have married. I am not going to pursue this matter, but I would like your Lordships to understand what we are doing before we agree to pass this Bill without any amendment.
§ I think that the noble Lord, Lord Hughes, argued the Bill entirely on the right grounds, on the grounds of convenience and advantage to society. He did not use the word "stigma", which I think is always a mistake, because if we say that we make people legitimate in order to remove a stigma, it seems to me that we are acknowledging the existence of a stigma on hundreds and thousands of other illegitimate children who never can be legitimated because their parents are never going to marry. There never should be any kind of stigma on any illegitimate child. However much we may agree or disagree about the conduct of his parents, it must be plain to everybody that there cannot be any sort of adverse stigma attached to any illegitimate child, and we should not legislate on a false basis of snobbery of that kind. I do not think there was really any stigma about illegitimacy until quite modern times. Two hundred or 300 years ago people were often proud to have a bar sinister and show it in their coat of arms. In one of Shakespeare's plays, King John, the Bastard is the hero. I do not believe that the word "bastard" had any sort of pejorative implication until quite modern times. I think that this is a false piece of morality altogether.
§ What we want to do is to devote ourselves in this Bill to the convenience and advantages of society, which I think the noble Lord has done. I only want to make sure that your Lordships understand that by this legislation which we are now about to pass we will make it possible—and I await the noble Lord's elucidation of this with interest—in some cases for legitimate heirs to a peerage or to an old estate to be displaced by persons who have been born at a time when one or both of their parents were married to somebody else.
§ 4.47 p.m.
LORD SALTOUNMy Lords, as some sort of representative of a country which 877 has rejoiced in the social habit of hand-fasting for centuries and whose figures of illegitimate births must be extraordinarily high, if my knowledge of the people is worth anything, I certainly welcome this Bill. The only point I wish to emphasise a little is the point already made by the noble Earl, Lord Dundee. I would just mention the position and ask the noble Lord, Lord Hughes, to take this into consideration. At the present time if a Peer or an heir to a Peerage who subsequently succeeds to it has a child by a woman whom he is not in a position to marry, that child cannot become heir to the Peerage; if they are in a position to marry and subsequently do so, he can succeed.
The position is very cleverly taken care of in Clause 3(6)(a) and I admire the way it is done, but I do not think that the position is altogether covered. In seeking to remove all disabilities connected with his or her birth from a legitimated person, I am entirely in favour of the Bill, but I think that it should be done so as not to do a wrong to other parties by reason of that legitimisation. Under the law of Scotland to-day, such a person, if legitimised by this Bill, may become heir to a Peerage. Supposing that legitimated person was the only child of the newly-married people and the heir was the son of a brother, it seems to me that this Bill cuts out the nephew in favour of the newly legitimated son. I think that that is wrong, because by reason of this legitimisation a wrong is being done to an outside party who has nothing to do with the matter.
Having made that point, and the noble Lord, Lord Hughes, having nodded his head in agreement, I ask him to look at that again, because if this subsequent marriage has later children, or if there are any earlier children of the marriage, their position is perfectly well taken care of, but no thought is given to outside third parties who have nothing to do with the family matter and are dispossessed by the passage of this Bill.
§ LORD FRASER OF LONSDALEMy Lords, I believe that in Australia if you call a man a bastard, and especially an old bastard, it is a term of endearment; but, as the noble Earl, Lord Dundee, has said, this is not wholly true in England. It is on this point that I want to ask the 878 noble Lord, Lord Hughes, a question. I seem to remember as long ago as forty years back taking part in the other place in a kindly Bill which produced a new form of birth certificate, so that a child who was born illegitimately and subsequently grew up and applied for a job did not have to show a birth certificate which demonstrated this fact, but could produce a birth certificate which avoided demonstrating it. I want to ask the noble Lord whether the Scottish law is the same and is as kind as the law of England in this matter now, and if not, whether when a birth certificate is issued—and I suppose it will have to be amended in the record when the child becomes legitimated under the Bill—it will have to be exposed to any employer, or anyone else, showing that the person is illegitimate, or whether a document can be devised which will not show that. I think it is a kindly point that needs attention.
THE EARL OF SELKIRKMy Lords, I should like to add my thanks to the noble Lord, Lord Hughes, for the clear way in which he has introduced this not entirely uncomplicated matter. I think this is a good Bill, because in the majority of simple cases there is some impediment which prevents the child from becoming a full member of the family. I must admit that I thought the date was the date of birth, but I readily give way to the noble Lord, if he thinks there is some doubt and that it should be the date of conception. I am sure it is in the interests of the child that this should be the case.
I agree with the noble Earl, Lord Dundee, that curious ramifications may take place. I should have thought that, on the whole, on the question of succession, the matter was fairly clear and there was not much doubt about it. I suppose it is true that people could take advantage of this Bill. For instance, there may be somebody very anxious to get a son, and he may go on trying, if I may so put it, with different people until he does get a son, and when he does, he then arranges to marry the appropriate mother. It may seem an extreme case, and it may be playing a little fast and loose with the Bill, but this is a remote possibility. But, even so, in my view the benefits which the Bill brings to the normal relationship far outweigh the example that I have given, and I certainly support the general lines of the Bill.
§ 4.53 p.m.
§ LORD HUGHESMy Lords, I am grateful to all noble Lords who have spoken for the generous support they have given to the Bill. If I may first of all reply to the question put by the noble Lord, Lord Fraser of Lonsdale, I can assure him that the law of Scotland in the matter of an abbreviated birth certificate is no less kind to these people than the English law is. Abbreviated birth certificates do apply in Scotland also.
The only other point which has been raised is the matter to which the noble Earl, Lord Dundee, and the noble Lord, Lord Saltoun, referred. It is perfectly true that the Bill will replace an heir presumptive by the legitimated person who may then become, in the terms of the Bill, an heir apparent. The noble Lord, Lord Saltoun, quoted the case of a nephew who for many years might have expected to succeed, and then discovers that his place can be taken by a newly legitimated son. But this is not new. Those who can presently be legitimated by subsequent marriage in Scotland do take precedence over an heir presumptive. After all, he is only an heir presumptive on the basis that it exists all along that a son can be born who would deprive him of his rights. What we are seeking to do, therefore, is to give justice as between one illegitimate child and another. It is not anything the first child has done which merits an advantage being conferred on him; or, alternatively, it is not anything that the second child, whose parents were not free to marry at the time of his birth, has done which requires him to suffer any disadvantage.
What we have done is to make certain that a person who has been the heir apparent will not be deprived of his rights, and that the illegitimate person, in the circumstances of this Bill, as the noble Earl, Lord Dundee, has been good enough to say from the reading of my letter, will take rights only as from the date of the marriage, and he is therefore assumed (to put it in lay language rather than legal language) to have been born at that date, and any sons, although born to him subsequently, who have been born of the first legal marriage remain in precedence over him.
LORD SALTOUNIf the noble Lord will give me a moment afterwards I can explain my point more clearly to him, because I have a point. I do not want to interrupt any more.
§ LORD HUGHESI presume that when the noble Lord says "afterwards" he means after the debate has concluded. If he wants to talk inside the debate he will have to do it now.
§ LORD HUGHESI was intensely interested in what the noble Earl, Lord Dundee, said about the past history of this matter. I had not realised that we had carried an advantage in generosity in this matter over the English for so many years. If, in fact, Scottish law has been more Christian and civilised for 700 years, we have to accept that for the last seven years the English have been in advance of us. We are now seeking to put the position back into its proper perspective, and by adopting what we do here, we not only catch up with the position which was established in England and Wales seven or eight years ago, but once again we go—and I think quite properly—a little ahead of them in seeking, so far as it is possible to do, not to inflict injustice as between classes of people when nothing they themselves have done has merited any such injustice being done to them.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.