§ 4.14 p.m.
§ Committee stage resumed.
§ LORD DRUMALBYN
I had hoped that there would be a rather wider debate on this particular series of Amendments of mine. Of course it would have been possible for me to draft them in line with the Minority Report of Sir Hugh Lucas-Tooth, but it seemed to me that it was better to express the view that I myself held. I doubt whether it helps for the noble Lord, Lord Hughes, to describe as a very narrow view the view that has been commonly held for so long. Nor is it helpful to say that what we have been doing, the approach we have adopted for centuries past, has been morally wrong. People have to make up their own minds. We accept that the noble Lord takes this particular view, but I really do not think it is right for him to castigate in this way those who hold other views.
As usual, the noble Earl, Lord Iddesleigh, has made a most useful contribution to a Scottish debate, and we welcome very much his intervention in these debates. If he would refer to Appendix IV of the Russell Committee Report, he will find an extremely interesting summary of succession rights of bastards under some Commonwealth and foreign laws, which completely bears out what he has said. And it may be of interest to the Committee to know that in a great many of the countries mentioned succession rights given in the mother's estate, or in the father's estate, are generally contingent upon the bastard's rights depending on recognition or declaration as to paternity. So here, again, I think that the noble Lord, Lord Hughes, was a bit wild in castigating the suggestion that there should be a restriction of this kind. If he will look at the Summary he will find that in Canada, the United States of America, Belgium, Denmark, France, Italy, the Netherlands, Norway and Portugal, in every single case the succession rights in the father's estate are contingent upon recognition as to paternity. This is a matter to which we could revert at a later stage.
The only other point I should like to revert to, and challenge the noble Lord upon, is his claim to know what is the 236 view of the people of this country as a whole to-day. Surely those who are in the best position to know what the view of people in this country is are those who are responsible for giving them legal advice. I would ask the noble Lord what has been the view of the three Scottish bodies, the Scottish Law Agents' Society, the Society of the Writers to Her Majesty's Signet and the Law Society of Scotland. What has been their view? I have quoted the view of the Law Society of Scotland, which was completely unfavourable to this change, and I do not know what the view of the other two bodies was. But it seems rather strange that, when these are the bodies who are most closely in touch with opinion on this kind of matter, the noble Lord should not mention even what the view was that they expressed to the Russell Committee.
As to the stigma attached to illegitimate children, the fact remains that if a child is not adopted—and, as I said, I hope that most illegitimate children will be adopted—that stigma will go on, presumably, until the point where the succession rights occur. Then at that particular time regarding the stigma, if it is a stigma, there will be what the noble Lord described, I think, on Second Reading as "some compensation at last" I do not think that this is the right way to look at it. I believe that the right way to look at it is as I have said. What we want to do is to reinforce the family, and it is for that reason that I put down my Amendments in the form in which they appear. I hope that the noble Lord will at least reply to the question I have asked about the advice given by those bodies in the best position to know. I am bound to say that I am disappointed with the lack of support I have had, but of course in the absence of more support I would not wish to press the Amendment.
§ LORD HUGHES
Before the noble Lord withdraws the Amendment, as I hope he will, it is only fair that I should give the further information he has sought. When I referred to his approach as a narrow one I did not in any way wish to be regarded as being unduly critical. People have a right to take a narrow or a wide view of a subject, but the reason why I used that particular term was because of a discussion we had yesterday. I pointed out that on subjects of this kind. 237 which are largely moral issues, generally if the public have a strong point of view against it, it is expressed in some form or another, and I do not for one moment accept that the views of the public on moral questions of this kind are formed by telephoning their lawyers. There are comparatively few people in this country who at any time in their lives have contact with their lawyers, but even those who do are not likely to ring them up and say: "What should be my opinion on the subject of the rights of illegitimate children?" If we were always to wait before making reforms, until we were certain that we had the lawyers behind us, there would be a great deal of legislation in the queue.
I should say that on receipt of the Report the Secretary of State consulted the following bodies: the Faculty of Advocates, the Law Society of Scotland, the Society of Writers to Her Majesty's Signet, the Society of Solicitors in the Supreme Courts, the Scottish Law Agents Society, the Sheriffs-Substitute Association, the Social Interest Sub-Committee of Church and Nation Committee of the General Assembly of the Church of Scotland and the Scottish Council for the Unmarried Mother and Her Child. Of these the Society of Solicitors in the Supreme Courts, the Scottish Council for the Unmarried Mother and Her Child and the Scottish Law Agents Society were in favour of the Report; the Social Interest Sub-Committee of the Church of Scotland Committee on Church and Nation and the Faculty of Advocates offered no observations.
It is perhaps pertinent in this connection to say that at least the Church obviously had no fears that the institution of marriage was likely to fall under severe attack as a result of this measure. The Sheriffs-Substitute Association commented only on a practical point arising from the difficulty of establishing paternity; and the Society of Writers to the Signet and the Law Society of Scotland were in general against the Report, although the former were most hostile to the provision of equal rights for illegitimate persons in their father's estate and viewed the extension of rights in respect of their mother's estate with "comparative equanimity". Therefore I think I would be justified in saying that in regard to the organisations, including the legal organisations—without expressing any 238 opinion because I have no knowledge of the numbers represented by those bodies —the overwhelming majority of the people consulted were either in favour of, or not against, the Report.
§ THE EARL OF PERTH
The noble Lord, Lord Drumalbyn, said he was sorry that there had not been a greater (expression of views on this particular matter. I think that perhaps some of us have not expressed our views because this is a rather difficult legal question. If I were to try to express a view, it would be this. It would be a bit hard if, because you were the illegitimate offspring of a mother you were all right in the, way of inheritance, but if of a father you were not, more particularly if it is likely that the father has more money than the mother. I would understand it if this Amendment went the whole way, but as it goes only part of the way I think it is unacceptable.
The point that worries me is that raised by my noble friend Lord Mansfield I, but I think the answer must be that even to-day one has the problem of paternity. The number of cases may increase, but over a period of time one would expect a practice to develop, with the assistance of the medical evidence which can be adduced to-day, by which this could be solved, although clearly there is a difficulty. So I was encouraged when I heard my noble friend say that he would probably not press this Amendment.
§ LORD DRUMALBYN
I do not want to prolong this debate, but I should like to make the observation that if the father wants to leave money to an illegitimate child it is always open to him to make a will to do so. We are dealing now only with the question of succession on intestacy. The other point is simply on the distinction between the mother's and father's estate. I do not know whether I made my point sufficiently clear on this, but perhaps I may read what the Law Society of Scotland said:After the birth of the illegitimate child, if it is not adopted it is almost certain to be brought up by the mother alone, and the father neither sees it nor takes any interest in its welfare, except for the payment of alimony under a decree of the court or after admission of paternity, if asked only. In perhaps the majority of cases no claims of any kind are made by the mother upon the father.239 The main point here is simply that the illegitimate child of the mother is brought up in the mother's family, as it were, and remains part of it, whereas the father of the illegitimate child very rarely brings it up within the family and, if he does, he may well adopt it. In view of the debate we have had, I do not wish to press these Amendments and I beg leave to withdraw my first Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 [Right of illegitimate children to legitim]:
§ On Question, Whether Clause 2 shall stand part of the Bill?
§ 4.28 p.m.
§ LORD DRUMALBYN
This is a quite different kind of clause. Perhaps I should explain to noble Lords who are not familiar with Scottish law that there is a right enjoyed by the children to a share by law in the moveable estate of the deceased parent. Here we are really up against a quite different problem, because the position seems to be this. A person who intends to make a will often goes to his solicitor to seek advice as to the law, and the solicitor will say: "In order for your wishes to be carried out you must comply with certain legal requirements." Of course the legal requirement is that the children are entitled to one third of the moveable property of the deceased parent if the other parent is still alive, and one half if the other parent is already dead. So the solicitor will advise him as to what kind of will he should make if he does not want it to be upset by subsequent claims.
But again in the case of an illegitimate child we come back to the fact that the testator may not even know of the existence of the illegitimate child, so that in that kind of case there should he no doubt whatever that in giving the illegitimate child the right to legitim, as it is called, the wishes of the testator will be overridden. It will be perfectly possible, of course, for the testator to leave to the illegitimate child, if he so wishes, that part of his estate which is at his disposal, which is in the case where the wife still survives one-third and where the wife does not survive one-half. If he does not do that, it seems to me quite clear that what we are here seeking to do is to override the wishes of the testator. I must confess I do not see any justification 240 for this, even though we have already given a right of succession in intestacy to the illegitimate child. The mere name legitim makes it quite clear what the purpose of this is, and I simply cannot conceive that if at the time when legitim became the law of the land it had been intended that it should apply also to the illegitimate there would have been any legitim at all. I do not think it would have made sense, and I do not think this makes sense now. Therefore I beg leave to move to leave out the clause.
§ LORD HUGHES
When the noble Lord, Lord Drumalbyn, was speaking on Second Reading the way he spoke of his intention of moving an Amendment of this kind was such that I gave special consideration to the matter. I therefore want to emphasise that in what I am about to say I am not asking your Lordships automatically to reject the course proposed by the noble Lord simply because we felt obliged to resist the previous Amendments. I accept that this clause touches on a different aspect of the subject, but I wish to emphasise that it is associated very closely with the previous one if we are accepting the reasons why the Government are doing this.
If the Government are in fact right, as I believe they are, in accepting that the illegitimate and the legitimate child should have equal rights, it would be quite inconsistent for them to say, "But this will not apply when we come to the subject of legitim". Of course, when this was brought into operation it referred only to the legitimate child, because when this became the law of Scotland the position of the illegitimate child was very much worse than it is at the present time. We must accept, I think, that if we are going to improve the position of illegitimate children, if we accept the principle that they should receive equal treatment, then it follows that they should receive equal treatment, so far as is possible, all along the line.
During Second Reading I rather had the impression—though I may be wrong —that the noble Lord suggested that in fact there was a case for abolishing altogether the right to legitim and that testators should be free to distribute their estates in whatever way they wished. As I say, I may have been wrong; I may have read more into what the noble Lord said than he intended. But if he 241 was saying that, I must make it quite clear that I am in complete disagreement with that. I do not think that parents should be allowed to distribute their estates on death in such a way as to make no provision for the support of their children, whether the child's right takes the form of legitim in Scotland or the somewhat dissimilar provision enacted for England and Wales in 1938 in the Inheritance (Family Provision) Act of that year.
§ LORD DRUMALBYN
If I may intervene, of course these two matters are quite different. The noble Lord said "somewhat dissimilar", but they are wholly dissimilar, because this is a question of discretion of the court, which is quite different from the fixed position of legitim.
§ LORD HUGHES
I said "somewhat dissimilar", but I am quite prepared to accept "wholly" if it meets the situation. In 1938, in regard to England and Wales it was felt necessary to interfere in some degree with the principle that a person could do exactly what he wanted. The Scottish position has been very much more firm on this position for a very long time: that there was an obligation to make provision for the widow and the children. If we accept the principle—as the Government and the vast majority of those organisations to which I referred do—that children, whether legitimate or illegitimate, should be equated, we must go on to say they have the right to participate in legitim. A right on intestate succession is only a conditional right. It can be extinguished by the making of a will. It may well be that it is the illegitimate child who has the best moral claim—the child whom the father has rejected—who is most likely to be deprived of this conditional right by the terms of such a will. If we are going to achieve our purpose of not penalising the illegitimate child for the circumstances of his birth, surely he must have the legitimate child's unconditional right—that is, under the Scots law of succession, the right to legitim.
I know that arguments have been put forward that the existence of an unconditional right of this kind will be specially disturbing to the family situation. I must say that I have wondered from time to time whether it is the exercise of the right or the procreation and non-recognition of 242 an illegitimate child which will have that effect. I think, however, that the pictures which have been painted have been exaggerated and that the risk of the fears expressed being realised is small. But even the extent to which they do exist is, I am certain, a quite inadequate reason for not making what I regard as a necessary improvement to the condition of the illegitimate child. For those reasons, if we are to accept the principle and be true to the principle, it would be quite wrong to delete Clause 2 from this Bill.
§ LORD DRUMALBYN
Once again I should have liked to hear what other Members of your Lordships' House think about this matter. This is, of course, a peculiarly Scottish matter and will not affect any English legislation that may subsequently come along. I should have thought it would be appropriate to have very much the same legislation for both Scotland and England arid to leave this peculiar Scottish legitim subject as it is.
There is perhaps one further comment that I ought to make. Like the noble Lord, the Lord Chairman, I have taken a considerable interest over a period of years on the problems of adoption, and I believe this is of the greatest importance. I should not like to think that anything we are doing in this legislation will cause people to refrain from having children adopted into families. In some circumstances that might be the cumulative effect and I should very much regret it if it sere so. But in view of the fact that your Lordships do not appear to feel at all strongly about this matter, and as it has already been approved in another place, though not without some dissent, I will not press it.
§ Clause 2 agreed to
§ LORD HUGHES
I beg to move that the House do now resume for the purpose of hearing a Statement by my noble friend Lord Beswick.
§ Moved accordingly, and on Question, Motion agreed to.