§ 3.22 p.m.
§ THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR SCOTLAND (LORD HUGHES)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Hughes.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD CHAMPION in the Chair.]
§ Clause 1:
§ Succession in cases of illegitimacy
1. For section 4 (succession in cases of illegitimacy) of the Succession (Scotland) Act 1964 (hereafter in this Part of this Act referred to as "the Act of 1964") there shall, in relation to the estate of any person dying after the commencement of this Act, be substituted the following section:—
Succession in cases of illegitimacy.
4.—(1) Notwithstanding anything in section 2 of this Act, where a person dies intestate and is survived by illegitimate children, those illegitimate children and the legitimate children (if any) of the intestate shall together have right to the whole of the intestate estate.
(3) For the purposes of subsection (2) of this section an illegitimate person shall be presumed not to be survived by his father unless the contrary is shown.
LORD DRUMALBYN moved, in the proposed amendment of Section 4 of the Succession (Scotland) Act 1964, in subsection (1) to leave out "person" and insert "woman". The noble Lord said: We are here concerned with a quite fundamental change in the law. Section 4 of the Succession (Scotland) Act 1964
says, in effect, that where a woman dies intestate and is not survived by lawful issue any illegitimate children of hers can take the whole of her estate, and where an illegitimate child dies intestate and without lawful issue his or her mother can take the whole of his or her estate. What this clause does, as I understand it, is to extend the right of illegitimate children to share equally with lawful issue the whole of the estate either of the mother or of the father subject to the prior right of a surviving spouse. This is really a very far-reaching change in the law, as has been recognised in the memoranda that were submitted to the Committee which studied this matter, and one is bound to ask: What is the justification for it? I refer, for example, to the memorandum of evidence submitted by the Council of the Law Society of Scotland, which begins by describing
the occasional hardship of individual circumstances which may be quoted in support of a change in the law as being no justification for so radical an innovation as giving to an illegitimate person the same rights of succession on intestacy as a legitimate person".
The proposals contained in this and following clauses are based on the recommendation of the Russell Committee, appointed jointly by the Lord Chancellor and the Secretary of State for Scotland in 1964. The Committee received written representations from organisations and from individuals, but took no oral evidence. There was a Minority Report submitted by Sir Hugh Munro-LucasTooth, Member of Parliament, which did not agree with this recommendation; or, in so far as it did agree, it agreed subject to safeguards and restrictions. The recommendation stemmed from an idea expressed in paragraph 19 of the Russell Report in the following terms:
Whatever may be said of the parents, the bastard is innocent of any wrongdoing. To allot to him an inferior, or indeed unrecognised, status in succession is to punish him for a wrong of which he was not guilty.
I should like your Lordships to consider whether this is sound or whether, again in the words of the Law Society of Scotland,
it represents a sentimental approach to the question".
§ In so far as it is sound, should it be the dominant consideration when we come to consider the law? Will the change promote harmony, or will it create 218 discord? Is it as certain in operation as the present law? Above all, ought we to look at this from the point of view of the individual only, or rather from the point of view of the individual in the community of the good society? The social unit in the community surely is the family. Those who belong to a family bear certain obligations, both moral and legal, and have certain legal rights, because they are members of the family. In recent years legislation has sought to ensure that as many children as possible who belong to families, whether they are born into a family or not, and that all who belong to a family, whether by birth, by adoption or by legitimation, should have equal rights. This, I think, is the right approach, and I think we shall all hope that in t me to come every child will be the member of some family; and, of course, on becoming the member of another family through adoption they automatically, by law, lose any rights they may have of succession to the estate of their original parents.
§ There is one comment I should like to make on the original idea, as I have described from which these recommendations are derived. There is surely no question of crime or punishment here. The State does not make it a crime to have intercourse outside wedlock. What the State does is to sustain the institution of marriage by distinguishing between lawful issue and the rest, and by according lawful issue a legal status. If illegitimate children are to have the same civil status, the same rights in law, as legitimate children, I fail to see why we should distinguish between legitimate and illegitimate children in name. I fail to see why, in the long run, there should be any institution of marriage at all. There are some children, of course—and there may always be—who are unfortunate enough never to gain admission to a family. I hope that that will not continue to be so, as I have said. I am sure the aim of policy should be to ensure that every child is or becomes a member of a family.
§ Of course, some children born out of wedlock will be brought up by their mothers, who may or may not marry later. If they do not many, the law already allows an illegitimate child or children to succeed to their mother's 219 estate on intestacy. If they do marry later, then it is reasonable to allow them to share equally with the offspring of the marriage because they are members of the same family. The whole of the Russell Committee accepted that this change should be made, and I would also accept it for the reasons I have given. It is also entirely reasonable that children of an illegitimate child should be entitled to share in their grandmother's estate if the illegitimate child dies before his mother.
§ It is here, however, that the Russell Committee lapse into some confusion. If the purpose of their recommendations is to ensure that an illegitimate child is not to be allotted an inferior status in succession, how can they justify allotting an inferior status to the illegitimate child of an illegitimate child in succession to their grandmother's estate, or even to the illegitimate child of a legitimate child in rightly succeeding to the estate? I am sorry if this appears to be confusing; but it is one of the great difficulties that we have to deal with. This is a Scottish Bill; but I would point out that the Russell Committee was composed equally of English and Scottish representatives with an English Chairman, and we may well expect that the legislation now being put through in Scotland will subsequently be applied to England as well. So I would invite noble Lords who may think that this is a slightly esoteric matter—which was the word that has been used—to realise that it may well affect England as well as Scotland.
§ The Committee tried to justify this by saying that for an illegitimate child to share in the grandparents' estate might be directly opposed to the grandparents' wishes; so they came back inevitably to the part that the presumed wishes of the testator have to play in the distribution of an intestate estate. Earlier in their Report they had rather pooh-poohed this as a major consideration. Of course, it must be right that the law should have regard to what may be reasonably presumed to be the wishes of the deceased. At the present time, if he does not bother to make a will the law presumes that he would have left his property to his wife and family.
Here I pass on to consider the position of illegitimate children in relation to their
father's estate. The Russell Committee recognised a clear distinction between that and their position in relation to their mother's estate. They said:
There is of course the distinction dictated by nature between the association between a bastard and his mother and that between a bastard and his father; and this distinction has both an evidential and a familial aspect.
This language is not mine; it is the Report's. They go on:
Nature permits that a man may produce more bastards more secretly. Facts dictate that it must be generally far more difficult to establish the paternity of a bastard than the maternity:…
§ They did not draw the same conclusion that I draw. They did not draw what in my view is the correct conclusion: that the distinction ought to be reflected in the law. This is what this set of Amendments seeks to do. It seeks to establish that it is only the illegitimate children of the mother that should have the right to succeed an intestacy, and not the illegitimate children of the father. The reason for this I can state shortly. In the first place, the child is rarely a member of the father's family. If he is a member of the father's family, the father can adopt him and so legitimate him. Secondly, an illegitimate child brought up in the mother's family is already known and recognised as part of the family; not so the father's, in the ordinary case. He may not be known at all. It may be that the father does not even know that he has an illegitimate child. I imagine that there may be not a few illegitimate children in Europe at the present time of whom the father has no knowledge whatsoever, all of whom could turn up to claim their share in intestacy of their father's estate.
§ Another consideration, and an important one, is that the moment when the family is mourning the loss of a father is not the best time for the family to be appraised, for the first time, that there was an illegitimate child of the father. I believe that this will cause a great deal of strife and trouble at the time when the family is mourning the death of the father. Thirdly, there is the difficulty of establishing paternity. As Sir Hugh Munro-Lucas-Tooth pointed out, it may be that this will not arise until, on average—but perhaps this is a little exaggerated-50 years after the birth of the illegitimate child. I think that that goes 221 a little far. Let us say that something between 20 and 50 years would be the normal time. It will be difficult to establish paternity—and the proposal is that this is to be left entirely to the courts. As Sir Hugh Munro-Lucas-Tooth has pointed out, the courts would have to build up some case law in this matter. Meanwhile there would be considerable uncertainty.
§ I imagine that it will give rise to a lot of injustice; because if a claimant came along in the circumstances I have indicated, the tendency will be for the legitimate claimants to the estate to be very reluctant to oppose the claim in open court. I should think that this is bound to be so. So we may find that there is a great deal of injustice and a good many bogus claims will get by. At the very least, the right should be limited to cases where there has been some act of recognition of paternity, as according to the Report, is the case in several other countries, where illegitimates have had conferred on them this right. But the centre and core of my argument is that the right thing is to bring illegitimate children into families and have them brought up there, and not to tamper with the institution of the family. I beg to move.
Page 2, line 4, leave out ("person") and insert ("woman").—(Lord Drwnalbyn.)
§ House resumed.