Lords Sitting of 27 November 1986

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Hereford): The LORD CHANCELLOR on the Woolsack.

Message from the Queen
The Earl of Airlie: My Lords, I have the honour to present to your Lordships a Message from Her Majesty the Queen, signed by her own hand. The Message is as follows:
"I have received with great satisfaction the loyal and dutiful expression of your thanks for the Speech with which I opened the present Session of Parliament".

Consumer Affairs Ministers' Meeting
Baroness Burton of Coventry: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a statement on the meeting of the European Council of Consumer Affairs Ministers held on 29th October and, in particular, the progress made in securing recognition of consumers' interests in all relevant areas of Community policy.
Lord Beaverbrook: My Lords, the Consumer Council was successful. In particular, the council agreed a resolution which underlines that consumers' interests must be taken more fully into account when the Commission drafts proposals for Community legislation. The resolution lists a number of specific factors which the Commission should investigate when assessing proposals from the consumer viewpoint, and asks the Commission to confirm for relevant proposals that it has in fact done so. The resolution also stresses the need for effective consultation with consumers. The Commission is to report on progress by December 1987.
Baroness Burton of Coventry: My Lords, I congratulate the Government on the UK initiative which produced the resolution and thereby salvaged quite a lot from the wreckage of the Commission paper. May I ask the Minister, with regard to the Commisssion being asked to report back in a year's time, whether he is aware that the paper prepared by the Commission was not what the Council asked for? Is he further aware that no definite recommendations were made in it? Finally, is he aware that the section dealing with the Consumers' Consultative Committee ignored entirely the report of your Lordships' House on EC consumer policy? Therefore will it be possible for the Minister to bring to the attention of Ministers the points I have made and perhaps we may return to the matter on a future occasion?
Lord Beaverbrook: My Lords, I thank the noble Baroness for her questions. The Government accept the finding of the Select Committee on the European Communities that present consultation arrangements with consumers are not satisfactory. However, the new resolution underlines the necessity for effective and duly representative consultation of consumers. The resolution calls on the Commission to investigate the impact of proposals on the price of goods or services, on their quality, their safety, the range of choice available to consumers and the state of competition in the market. I undertake to convey the remarks of the noble Baroness accordingly.
Baroness Burton of Coventry: My Lords, is the Minister aware that the House appreciates, as I do, the way in which he has coped with this Question? But will he ask the Ministers to realise that unless their initiative is followed up we shall get nowhere? These matters drag on in the Commission year after year. Will he stress the necessity for enforcing a follow-up?
Lord Beaverbrook: My Lords, the Government will press the Commission to implement the words and the spirit of this resolution conscientously and effectively. The Commission is to make a progress report, as I have already said, at the end of next year.
Baroness Nicol: My Lords, is the Minister aware that during the discussions attention was drawn to the delay in reaching a decision on dangerous products, especially dangerous toys? Are the Government prepared to take action by themselves on toy safety, especially in this season? Is the Minister aware that we are almost daily hearing of imported dangerous toys being on sale in this country?
Lord Beaverbrook: Yes, my Lords, I agree. Safety of toys should be of primary concern to all member states. The United Kingdom has taken every opportunity during its presidency to press for rapid action, but only recently has a revised draft directive been submitted by the Commission as a basis for negotiation. However, the directive is now on the table and working level discussions are under way. The Government are urgently seeking the views of all interested parties on these proposals.

Teachers: Professional Effectiveness
3.6 p.m.
Lord Ritchie of Dundee: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what proportion of the teaching force in the maintained sector of education they consider to be inadequate; what form that inadequacy takes; and where the evidence is to be found.
Baroness Hooper: My Lords, the Government believe that the teacher force is the major single determinant of the quality of education and they are committed to policies for enhancing the professional effectiveness of all teachers. Teaching quality is

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currently regulated through the work of the Council for the Accreditation of Teacher Education in the approval of initial training courses, through the Secretary of State's role in granting qualified teacher status and through the statutory arrangements for probation. The Government look forward to the early introduction of a formal appraisal system to underpin the training and development of teachers, including those experiencing professional difficulty.
Lord Ritchie of Dundee: My Lords, I thank the Minister for her informative reply. I should like to ask her whether she can say more about where the evidence of inadequate teaching is to be found.
Baroness Hooper: My Lords, it may help the noble Lord to know that the HMI expenditure report for 1985 stated that the quality of pupils' work was being adversely affected by the quality of teaching in three-tenths of the lessons seen. It further identified a mismatch of qualifications, poor identification of pupil needs and unsuitability of teaching styles as being among the key determinants of inadequate teaching.
Lord Avebury: My Lords, will the Minister confirm reports that one-third of secondary schools have no qualified teacher of mathematics and that the situation is hardly any better in regard to physics? In view of the disastrous effect this will have on the country's future ability to stay in even the second rank of technological power, does not the Minister think that the Government should find some means, even if it be in the form of extra financial inducements, to retain and attract teachers of mathematics and physics so that our children may be properly qualified?
Baroness Hooper: My Lords, I am not in a position to confirm the reports mentioned in the question asked by the noble Lord. However the Government, in favouring a pay structure which rewards good teachers and those with extra responsibilities with significant promotion and significant pay differentials, are aiming to attract teachers into areas where there is perhaps a scarcity.
Baroness Seear: My Lords, what additional resources will be made available for in-service training, since appraisal schemes without provision for training to deal with defects that are revealed is not much use?
Baroness Hooper: My Lords, the Government are taking measures to improve teaching quality, as was stated in the White Papers Teaching Quality in March 1983 and Better Schools in March 1985. Following on from the White Papers there have been significant initiatives on the content of teacher training, in-service training and teacher appraisal.
Lord Gisborough: My Lords, can my noble friend say whether it is true that it is very difficult to find people to volunteer to teach in inner-city schools and that therefore many inner-city schools have to put up with less good teachers than they would like? Is this not similar to the excellent case made by the noble Lord,
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Lord Avebury, for additional remuneration for people who teach computer studies?
Baroness Hooper: My Lords the Government are reviewing the whole position of teachers' pay, as your Lordships will be well aware. The aim is to provide incentives to encourage teachers in areas where there are scarcer resources.
Lord Irving of Dartford: My Lords, does the Minister agree that teachers have been consistently misrepresented on the question of appraisal, and the majority have been in favour of assessment right from the outset? Can she assure the House that any appraisal system implemented will never be used as a smokescreen for surreptitiously introducing a merit pay award with the sole purpose of seeking out inefficient teachers and sacking them, but rather for determining those people who need further training and giving them such training?
Baroness Hooper: My Lords, I believe that to suggest that the appraisal system is to be used to weed out inadequate teachers is a very negative way of describing a positive process. Systematic appraisal will ensure that problems are identified early on and that help can be provided.
Lord Parry: My Lords, returning to the issue of in-service education rather than in-service training, is the noble Baroness in a position to tell the House whether there are any authorities in Great Britain which no longer have in-service education facilities and whether that is a result of educational policies within authorities which have been affected by cuts in the education budget?
Baroness Hooper: No, my Lords, I am not prepared to confirm that statement. The Government's policies for improving the match of qualifications with subjects taught and for developing in-service training, as well as for the introduction of teacher appraisal, apply to all levels of school teachers and to further education as well.
Lord Elton: My Lords, does my noble friend agree that, whereas in-service training can make a good teacher better, it cannot rescue a bad teacher, and that consideration should be given to a way out of the profession for those who for many years have been trapped in it to their own frustration and that of the children?
Baroness Hooper: My Lords, I agree with my noble friend. The system of appraisal that has been designed by the Government is intended to encourage teachers and, if necessary, to encourage them to take a different tack if the area in which they have been working is not suitable to them.
Lord Parry: My Lords, before the House becomes too enthusiastic about the implications of that supplementary question and its answer, would it not be true to say that the real poverty in British education today results from the fact that far too many teachers are leaving the profession—teachers who are good and who are leaving at 52 years of age—and the education service is the poorer for their exit?
Baroness Hooper: My Lords, the noble Lord's supplementary question gives me the opportunity to say that the Government are fully aware that the majority of teachers are able, dedicated and work extremely hard. Indeed, the former system of appraisal was intended to ensure that such teachers are recognised. The proposals on pay structure made by my right honourable friend will ensure that they can be adequately rewarded in an effort to ensure that the best teachers remain in our schools.
Lord Tordoff: My Lords, is the noble Baroness aware that in giving incentives to the teaching of physics and mathematics there can be a knock-on effect and that there is a serious shortage developing in this country of teachers of chemistry?
Baroness Hooper: My Lords, we are aware of the situation.
Lord Glenamara: My Lords, will the noble Baroness say whether she considers that the proportion of inadequate teachers is higher than the proportion of inadequate Cabinet Ministers who never stop talking about inadequate teachers?

Gibraltar and Spanish Airspace Restriction
3.15 p.m.
Lord Boyd-Carpenter: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the restriction imposed by Spain on the use of Spanish airspace by British military aircraft approaching or departing from Gibraltar Airport has now been withdrawn.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, no. We continue to take every suitable opportunity to urge the Spanish Government to lift this restriction.
Lord Boyd-Carpenter: My Lords, can my noble friend say whether Her Majesty's Government regard it as appropriate for one member of NATO to seek to interfere with the use of another member's airfields by another member's aircraft; and whether the Spanish Government have been good enough to give any explanation whatever of this attitude?
Baroness Young: My Lords, I have made our Government's position very plain on this matter and my right honourable and learned friend the Foreign Secretary will have a further opportunity to raise it when the Spanish Foreign Minister visits London in January. So far as NATO is concerned, the demarcation of the North Atlantic Treaty Organisation command boundaries is a matter for the Alliance as a whole, and in this case does not arise since Spain is not fully integrated into the Alliance's military structure.
Lord Cledwyn of Penrhos: My Lords, we are grateful to the noble Baroness for her account of what the
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Government have done. Could she say whether there are any plans to discuss this matter within NATO; or is she saying that it is too early yet to do that? It seems to me that the noble Lord was quite right when he said that it is unreasonable that this right should be withheld by a NATO partner. Could the noble Baroness indicate whether the Government have plans to discuss this in the appropriate quarter?
Baroness Young: My Lords, this matter has been raised on many occasions, both at ministerial level and at official level. We shall raise it again in January. I think that the point that the noble Lord makes will not be lost on the Spanish Government, but I think it is appropriate at the present time to see what will be the outcome of the next round of talks.

Students Unions: Freedom of Speech
3.17 p.m.
Lord Beloff: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the agreement between the authorities of University College, Cardiff and their students union reported in the Daily Telegraph of 19th November 1986 is a breach of Section 43 of the Education (No. 2) Act 1986.
Baroness Hooper: My Lords, Section 43 of the Education (No. 2) Act 1986 will come into force in September 1987. Institutions have first a period in which to draw up their codes of practice as required by subsection (3). However, my honourable friend has initiated inquiries of the Principal of University College, Cardiff, to find out how he expects that the agreement with the students' union in practice will help protect freedom of speech. In preparing its code of practice, the college will need to consider the bearing of Section 43 upon this agreement.
Lord Beloff: My Lords, I thank my noble friend the Minister for that informative reply. It seems to me that she would probably agree with me that there are many good uses to which the famous Welsh voice could be put; but would she not agree that chanting to make speakers unable to be heard is not one of the better uses to which the Welsh voice could be put?
Baroness Hooper: Yes, my Lords. The Government's intention is that free speech should be protected. This does not mean that the traditional means of expressing dissent through peaceful demonstration should be inhibited. Nor does it necessarily rule out some heckling. I think your Lordships would agree that where the speaker is a Member of Parliament he or she can reasonably be expected to cope with that. The criterion to be applied is Whether the speaker is being prevented from speaking. Clearly, continuous heckling or chanting could be designed to have this effect.
Lord Elwyn-Jones: My Lords, is the noble Baroness aware that Cardiff University College, of which I have

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the honour to be president, is determined to do everything possible to ensure both that speakers are enabled to be heard and that students are free to communicate opposing views, and that the college is totally committed to freedom of speech—at which, incidentally, they are usually so good—within the law; and that, except for the incident, which no doubt gave rise to this Question, the college has a very fine record in this respect? Is the noble Baroness further aware that work is already actively in hand in drafting the required code of practice and associated rules required by the Education Act?
Baroness Hooper: Yes, my Lords, we are aware that the college authorities are taking the necessary steps to prevent the recurrence of such an incident, and institutions, as a result of the Education (No. 2) Act, will have to take a position from next autumn to demonstrate that they have taken all reasonable and practical steps to this end.
Lord Irving of Dartford: My Lords, will the noble Baroness bear in mind that since the incident in question with Mr. Enoch Powell, Mr. Leon Brittan has addressed a meeting there which took place without disruption and that Mr. Brittan then said, "What happened in Cardiff was an excellent example of what should happen, and much more civilised than happens in some other places"?
Baroness Hooper: Yes, my Lords, I am aware of that quoted remark. My right honourable friend the Secretary of State has himself recently been able to make comments in the same vein.
Lord Beloff: My Lords, is the noble Baroness aware that my Question had nothing whatever to do with Mr. Enoch Powell or his visit to Cardiff? It was based upon a published agreement involving the university authorities, of which I must assume the president of University College is unaware, which laid down permission for students to heckle and if necessary to chant, to drown the speeches of those persons whom they believed to racist or sexist. As neither of those adjectives has any meaning, perhaps the noble Baroness would agree that it is in fact a licence not for free speech but for its ending.
Baroness Hooper: Yes indeed, my Lords; and of course once Section 43 of the new Act is in force it will he for the courts to rule whether particular actions on the part of those under a duty to protect freedom of speech in any way contravene its provisions.
Lord Morris: My Lords, why was it deemed necessary for the commencement of Section 43 to be delayed until the autumn of 1987 rather than have it come into force when the Act was passed?
Baroness Hooper: My Lords, since the new provision includes a requirement that each institution should establish a code of practice to guide all those concerned in meeting the new duty within the particular institution, the Government would like those codes to be thoroughly thought through before they are brought into operation. That will take a little time.
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Some institutions, like Cardiff, are already revising their procedures and reviewing their disciplinary codes in the light of the statutory duty to which they will be subject.
Lord Parry: My Lords, in view of the noble Lord's original Question, is it not a fact that public behaviour at the moment flows through naturally from the greater antagonisms that have been created by confrontation politics? While we deplore the fact that people are shouted down, is it not a dangerous assumption that all the voices raised at Cardiff University were necessarily Welsh voices?
Baroness Hooper: My Lords, it is of course important that freedom of speech should be protected.
Lord Elwyn-Jones: My Lords, in view of the assurance that I have been given on behalf of the college, is it not better now that the opportunity should he taken to see that freedom of speech is ensured? Heaven knows, the Welsh people, of all people, have lived and thrived on it!
Baroness Hooper: Indeed, my Lords, I think that what everybody wants to see is freedom of speech on the university campuses without any problems.

HMSO Printing Dispute
3.23 p.m.
The Lord President of the Council (Viscount Whitelaw): My Lords, with the leave of the House. I should like to make a short Statement on an industrial dispute at Her Majesty's Stationery Office's new printing works.
As a result of a dispute which broke out last night, the Lords Minute of Proceedings and Order Paper have not been printed. To enable the business of the House to proceed, the Order Paper and the second half of the Minute have been produced reprographically. Until the dispute is resolved they will continue to be produced in this way. I very much hope that any inconvenience to your Lordships can be kept to a minimum and that circumstances will return to normal as soon as possible.
Lord Cledwyn of Penrhos: My Lords, we are very grateful to the noble Viscount for making that Statement. We hope that the dispute will be settled quickly and amicably.

Business
Lord Denham: My Lords, at a convenient moment after 3.45 this afternoon my noble friend Lady Hooper will, with the leave of the House, repeat a Statement that is being made in another place on school teachers' pay and conditions.

Animals (Scotland) Bill [H.L.]
"The Earl of Selkirk: My Lords, I beg to introduce a Bill to make provision for Scotland with respect to

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civil liability for injury or damage caused by animals, the detention of straying animals and the protection of persons or livestock from animals; and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(The Earl of Selkirk.)
On Question, Bill read a first time, and to be printed.

House of Lords Offices: Select Committee
3.24 p.m.
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the Select Committee on the House of Lords Offices be appointed and that as proposed by the Committee of Selection the Lords following, with the Chairman of Committees, be named of the Committee:

Ampthill, L.

Ardwick, L.

Belstead, L.

Bottomley, L.

Boyd-Carpenter, L.

Cathcart, E.

Cholmondeley, M.

Cledwyn of Penrhos, L.

David, B.

Davidson, V.

Denham, L.

Diamond, L.

Fanshawe of Richmond, L.

Ferrers, E.

Fisher of Rednal, B.

Fortescue, E.

Gibson, L.

Gisborough, L.

Grey, E.

Hailsham of Saint Marylebone, L. (L. Chancellor)

Hooper, B.

Hylton-Foster, B.

Irving of Dartford, L.

Jacques, L.

Kimberley, E.

Kirkhill, L.

McIntosh of Haringey, L.

Mackay of Clashfern, L.

McNair, L.

Massereene and Ferrard, V.

Moran, L.

Mowbray and Stourton, L.

Munster, E.

Nugent of Guildford, L.

O'Neill of the Maine, L.

Peyton of Yeovil, L.

Phillips, B.

Ponsonby of Shulbrede, L.

Rea, L.

St. Albans, Bp.

St. Aldwyn, E.

Saltoun of Abernethy, Ly.

Seear, B.

Seebohm, L.

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Serota, B.

Shaughnessy, L.

Sherfield, L.

Stedman, B.

Strabolgi, L.

Swinton, E.

Teviot, L.

Tordoff, L.

Underhill, L.

Westbury, L.

White, B.

Whitelaw, V. (L. President)—(The Chairman of the Committees.)

On Question, Motion agreed to.

Hybrid Instruments: Select Committee
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That, as proposed by the Committee of Selection, the Lords following, with the Chairman of Committees, be named of the Select Committee on Hybrid Instruments:

Beswick, L.

Brandon of Oakbrook, L.

Cawley, L.

Collison, L.

Cork and Orrery, E.

Drumalbyn, L.

Fletcher, L.

Lloyd of Kilgerran, L.

Prys-Davies, L.

Stamp, L.

Teviot, L.

Wise, L.

—(The Chairman of Committees.)

On Question, Motion agreed to.

Consolidation Bills: Joint Committee
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That pursuant to Standing Order 49 the Lords following be appointed to join with a Committee of the Commons as the Joint Committee on Consolidation Bills:

Airedale, L.

Alexander of Tunis, E.

Campbell of Alloway, L.

Gisborough, L.

Grey, E.

Hanworth, V.

Lloyd of Kilgerran, L.

Lockwood, B.

Mackay of Clashfern, L.

Milner of Leeds, L.

Oliver of Aylmerton, L.

Strabolgi, L.

That the Committee have power to agree with the Committee of the Commons in the appointment of a Chairman;
That the Minutes of Evidence taken before the Committee from time to time be printed and, if the Committee think fit, be delivered out.
—(The Lord Chancellor.)
On Question, Motion agreed to; and it was ordered that a message be sent to the Commons to acquaint them therewith.

Family Law Reform Bill [H.L.]
3.25 p.m.
The Lord Chancellor: My Lords, I rise to move, That this Bill be now read a second time.
It will be familiar ground to your Lordships that in recent years, as part of our programme of law reform, I have tried each year to include at least one important item relating to family law. This Bill introduces the subject of illegitimacy. As your Lordships will already know, that subject has twice come before the Law Commission for England and Wales and once before the Scottish Law Commission. The purpose of the Bill is to enact the recommendations of the first report of the English Law Commission (Law Commission No. 118) in the light of the modifications proposed in the second report (No. 157) which, in its turn, broadly welcomed the Scottish line of approach as contained in the Scottish Law Commission Report which followed shortly on Law Commission No. 118.
Broadly, the difference between the two approaches was that Law Commission No. 118 had recommended the use of the words "marital" and "non-marital" in relation to children born out of wedlock, whereas the Scottish Law Commission considered it preferable that labels of this kind were altogether unnecessary as well as undesirable and would in any case only rarely be used, and that in the comparatively rare cases where a distinction would require to be drawn it would be better to do so explicitly in relation to the matrimonial status of the parents at any relevant time and not by applying a label to the child.
That view was accepted by the English Law Commission in its second report and the Bill now before Lordships accordingly broadly represents the first report of the Commission, as modified in the direction of the Scottish view. That has already been enacted and thus has the additional advantage of approximating the English and Scottish laws of status to one another. I need hardly remind the House that the object of the reports and of the Bill is, so far as possible, to remove any avoidable discrimination against, or stigma attaching to, children born outside wedlock.
In the words of the second report, the policy underlying the recommendations is that to the greatest extent possible the legal position of a child born to unmarried parents should be the same as that of one born to married parents. That was set out at greater length in the report of the English Law Commission, No. 118, which I think I ought perhaps to summarise very largely in the words which the commissioners themselves used. They said they had not only been influenced by the comments received by the consultees of the working paper but that they had also been
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impressed by the significant movement, both in this country and abroad, against discrimination based on birth outside marriage. They said that judicial statements in this country have supported the view that the policy of modern legislation is to eliminate the differences between legitimate and illegitimate children, and there is also a considerable volume of published material urging reform in English law.
Anxiety, the commissioners added, had also been voiced in Parliament on a number of occasions about illegitimacy. They went on to say that on a wider international plane the United Kingdom has signed and ratified the Council of Europe Convention on the legal status of children born out of wedlock, which provides common rules designed to assimilate the legal status of children born outside marriage with the status of those born to a married couple. We have also signed and ratified the European Convention on Human Rights.
It is noteworthy, so the commissioners reported in 1982, that the European Court of Human Rights has held that laws discriminating against those born outside marriage are, unless justifiable on some special ground, inconsistent with the guarantees provided by the Convention. The commissioners also referred to the position taken in other countries—New Zealand, most of the Australian states and Switzerland, to mention but a few—to abolish the legal aspects of discrimination against non-marital children.
Having stated the policy of the Bill, I ought to say that, though it is comparatively short (33 clauses and 4 schedules) the importance of the subject may be illustrated by the fact that in the 12 months of the calendar year 1985, 126,000 children were born of parents who were not married to one another at the time of their birth.
I shall, of course, be conducting your Lordships through the precise proposals contained in the clauses of the Bill. But before I do so, let me begin in general terms by explaining the need for a Bill of this kind. So far as possible we want to eliminate both discrimination and stigma so far as it affects children born out of wedlock. There are forms of legal discrimination under existing law. First, there is the legal discrimination which directly affects the position of these children. The maintenance of such a child is one example. It is subject to special restrictions affecting the jurisdiction of magistrates' courts; for instance, no lump sum exceeding the rather paltry figure—if I may use that expression—of £500 may be awarded.
Secondly, such a child is subject to discrimination as regards its right of inheritance. The child cannot inherit on an intestacy from a brother or sister or any other collateral, and though it can inherit from a parent it cannot do so from any ancestor more remote. The child cannot be the heir to an entailed interest—for those of your Lordships who are interested in that rather esoteric term. The father of such a child is also subject to discrimination by the law in ways which may adversely affect the interest and welfare of the child itself. Even where—which is not particularly often—the father is awarded custody, no contribution by way of maintenance can be obtained from the mother, whatever her means.

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The father's consent is not required for the adoption, nor is his consent required to the marriage of the child while a minor, unless he has already been granted custody or is its legal guardian. There is also procedural discrimination in the appropriate methods of procedure regarding maintenance which is held to produce an element of stigma.
Part I of the Bill is short and contains but a single clause. Subsection (1) applies both to enactments and to instruments passed or made after the commencement of the Act and provides that, in general, unless a contrary intention appears, relationships are to be construed without regard to the marital status of parents at the time of the birth. This reflects the Scottish approach. However, its full importance can best be seen in subsection (2) of Clause 1 in relation to Part II of the Bill. Your Lordships will note, however, in Clause 1 the special application of this principle to those legitimate or legitimated by the legislation of 1976 or otherwise and to adopted children.
The policy to be enacted in relation to future Acts or instruments by Part I is applied to certain specified past enactments in Clause 2 of Part II of the Bill, and only to those specified enactments. Clause 3 renders agreements between parents relating to parental duties enforceable if, but only if, they are found to be in the interests of the child. Clause 4 and following give the father of the child various rights which he does not at present enjoy. Clause 4 provides that the court may order that he enjoys (subject to contrary direction) jointly with the mother (if alive) or guardian all parental rights and duties. The courts will, of course, have a discretion as to whether or not to make such an order, and such an order will be made only if to do so is in the child's interest.
It is envisaged that a typical situation in which such an order might be made would be where the child's parents have been living in a stable relationship which is ended by the mother's death. The effect of an order vesting all the parental rights and duties in the father would effectively be to put the father into the same legal position in relation to the child as he would have been in had he been married to the mother at the relevant time.
The need for the ability to make such an order was emphasised in a recent case. The judge noted that, notwithstanding the recent spate of legislation in this field, no such order had been established. He described in rather colourful language the position of the father of an illegitimate child in this respect as being that of one,
"who is still left like a beached whale on the shore where the law first deposited him in 1971".
Under the Guardianship of Minors Act 1971, a father is entitled to apply for custody of, or access to, his illegitimate child. He first became so entitled under the Legitimacy Act 1959.
Under this part of the Bill, the father of an illegitimate child is also given certain other rights in relation to that child. He will be able to apply for these rights only if he already has rights to custody or care and control over the child in question. There are six of these rights. First, there is the right to apply for the court's direction where the parents disagree on a question relating to the child's welfare. Secondly, there
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is the right to apply to become the child's guardian on the death of the mother. Thirdly, there is the right to appoint what is called a testamentary guardian. Fourthly, there is the right to object to a testamentary guardian appointed by the mother. Fifthly, the father's agreement is established as a pre-condition to the child's adoption or freeing for adoption. And, sixthly, the right of the father to give his consent to the marriage of a child of this nature under the age of 18 is extended.
As a further means of ensuring that the law has adequate machinery to give legal recognition to the family links between an illegitimate child and its father, whenever it is in the child's interests to do so, the Bill lays down two other provisions. I have already said that it is provided that all parents, whether married or not, are to be entitled to make legally binding agreements about the exercise of their parental rights over their child, and that such an agreement will been forced only if the court considers that to do so would be for the benefit of the child.
Secondly, the father of such a child who has actual custody of him is given certain rights as a "parent" under the Children and Young Persons Act 1969 and the Child Care Act 1980. It is considered that the creation of these rights strikes the right balance between the father's parental rights and the duties of the local authority. They also ensure that a father who, before a child is taken into care has had responsibility for its upbringing, is put in the same position as the mother. Apart from conferring additional rights on the father of a child born out of wedlock, Part II of the Bill also makes general provision for custody and access orders and for financial provision on behalf of the these children.
The Bill amends the Guardianship of Minors Act 1971 so that the courts will be able to make custody or access orders in relation to all children, whether or not born out of wedlock, either on the application of either parent; or, where a guardian has been appointed, to the exclusion of the surviving parent; or where there is a disagreement between joint guardians, one of which is a parent. When the court makes an order under these provisions it will in all cases apply the well-known principle that the child's welfare is to be the first and paramount consideration.
I turn now to the question of financial provision for these children. The Bill repeals the Affiliation Proceedings Act 1957. That Act remains a direct descendant of the old bastardy laws, whose object was to relieve the parish of the burden of child maintenance if that burden could be placed on the father. The repeal of this Act abolishes the separate and distinct procedure for enforcing provision for a child born out of wedlock by affiliation proceedings. The Bill provides that orders for financial provision for all children, irrespective of their parents' marital status, are to be obtained by proceedings under the Guardianship of Minors Act 1971, as amended.
Before dealing with these new provisions, I should like briefly to draw attention to various aspects of the Affiliation Proceedings Act 1957 which will disappear as a result of the repeal of that Act. First, there will no longer be a time limit of three years after the birth of the child for the bringing of financial proceedings in respect of children born out of wedlock. Secondly,

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there will no longer be any special rule of law requiring corroborative evidence that the putative father is the natural father of an illegitimate child. This peculiar requirement, which the Law Commission thought had no place in the civil law as distinct from the criminal law, dates back to the Poor Law Amendment Act, under which the overseers of the poor could recover from the putative father the cost to the parish of supporting the child. Thirdly, the child's mother will be able to apply for a financial provision order in respect of a child of this nature, notwithstanding that she is married to a man other than the child's father. Finally, the special avenue of appeal from the magistrates' court to the Crown Court will no longer be available, but will be the same as that of other people.
Under the Bill the High Court, the county courts and the magistrates' courts will all have jurisdiction to make orders for financial provision for these children, as they already have for other children. Magistrates' courts will cease to have exclusive jurisdiction.
The amendments to the Guardianship of Minors Act 1971 create an enhanced range of financial provision orders enabling' the High Court and the county court to order for the benefit of the child not only periodical payments, but also secured periodical payments, lump sums and transfers or settlements of property, without restriction as to amount. At present, as I have said, the magistrates' courts alone are empowered to order periodical payments and lump sums under £500. But it is thought that they are not appropriate tribunals to deal with the difficult questions of law that may arise on the transfer or settlement of extensive property.
As with orders for custody and access, the courts are empowered to make financial provision orders, either on the application of one of the child's parents; or, where there is a guardian, to the exclusion of the surviving parent; or where there is a disagreement between joint guardians one of whom is a parent. Additionally, provision is made for applications by children over the age of 18 whose parents are separated and who are undergoing further education or training, or who have special needs, such as would arise from some form of physical handicap.
Part III of the Bill deals with entitlement of a person born out of wedlock to certain property rights. This area of the law was last reformed by the Family Law Reform Act 1969. It made various changes which to some extent improved the position of a person born out of wedlock. However, that Act did not remove all the legal disadvantages which affect such a person. Part III remedies this deficiency. The rules of intestacy are amended so that illegitimacy becomes, in general, irrelevant for the purposes of entitlement on intestacy; and this covers not only the succession of the illegitimate child to the property of others, but also the rights of others to succeed to the estate of a person born out of wedlock who dies intestate. Various reforms are effected which benefit persons born out of wedlock in relation to their rights of succession under wills and other dispositions, including entailed interests.
I should emphasise that none of these changes affect succession where a person dies intestate before the
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coming into force of these provisions, or succession under a will made before their coming into force. Secondly, none of these reforms will in practice alter the descent of the titles of honour or the devolution of property which goes along with such titles. I believe that will answer a series of questions which was put to me yesterday in written form by my noble friend Lord Sudeley.
Part IV of the Bill provides a new remedy by way of a right to seek a declaration by the courts available to those who seek to establish the facts of their own parentage. Applicants for this new remedy may have an emotional need to have the facts about their origins clarified. There may also be a question of future entitlement to property which turns on a dispute as to parentage. The best evidence to resolve such a question (such as blood tests) might no longer be available at the time when the property came to be distributed. In such cases a potential claimant might wish to seek a declaration of parentage at an earlier stage when this evidence is still available.
Part V of the Bill facilitates the recording of paternity on the birth certificate of a child born out of wedlock.
Part VI of the Bill deals with a number of miscellaneous and supplemental matters. Perhaps I may draw special attention to Clause 27, which deals with the legal status of a child born as the result of the artificial insemination of a married women by a donor (or AID). Where the woman is artificially inseminated with the semen of someone other than her husband, and her husband consents to this insemination, the clause provides that the child is to be treated in law for all purposes as the child of the marriage.
The policy of this clause has been endorsed in the report of the Warnock Committee, and indeed by the Law Commission, which has indicated to me that it would have preferred this matter to be dealt with as part of any comprehensive legislation on the issues discussed in the Warnock Report, which might mean putting it off for a long time. However, I consider that this clause should form part of this Bill. I do not think that a Bill which removed discrimination against illegitimacy as such would be a just Bill without clarifying the position of the AID child, at least to the extent approved of by the Warnock Committee. If need be, the clause can be amended later if it gives rise to difficulty, but at present I do not see much likelihood of that. To delay an agreed policy until full legislation on the Warnock Report could not, at any rate in my view, be justified.
I am only too conscious of the length of this explanation. The diversity, technical character and complexity of the provisions of the Bill have made this unavoidable, if I were to explain the proposals adequately. In conclusion, I shall only say that I regard the Bill as an important law reform which will help children born out of wedlock to have as normal a family life as possible. Because such children may be born in unstable family circumstances, it is of great importance that the law should not inflict any additional disadvantages on them. This Bill seeks as far as possible to remove the remaining legal disadvantages from which they suffer. I commend it to your Lordships. My Lords, I beg to move.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)

School Teachers' Pay and Conditions
3.49 p.m.
Baroness Hooper: My Lords, with the leave of the House, I should like to repeat a Statement being made in another place by my right honourable friend the Secretary of State for Education and Science. The Statement is as follows:
"With permission, Mr. Speaker, I wish to make a Statement about teachers' pay and conditions of service in England and Wales. For more than two years now there have been protracted and unsatisfactory negotiations and, sadly, extensive disruption of children's education. To end that situation I announced in the House on 30th October that the Government would make an additional £600 million available over this year and next for a new pay structure. The structure should contain differentials to reflect the varying responsibilities of teachers and the need to recruit, retain and motivate teachers throughout the school system and at all stages of their careers. I made it clear that this generous government support for such a pay structure would also depend on a clear definition of teachers' duties carrying through into contracts of employment.
"There have been many long hours of negotiations since 30th October. So far what has been achieved is a document which last Friday the local authorities by a majority vote and four of the six teacher unions agreed to put to their constituent bodies for consideration and ratification. Clearly opinion in the profession is divided. Many teachers concerned for the future of our school system have substantial reservations about the proposals in that document.
"However there has been some useful progress. There is now a clear definition of the teacher's job. Parents, local authorities, heads and teachers themselves all need this so that there can be no doubt about what can be required of teachers within their contracts. The teachers' working year is to be fixed at 195 days, allowing five days beyond the pupil year. It is also agreed that teachers shall be available for work at the direction of the head teacher for 1,265 hours a year. That is a little less than the figure which the local authorities themselves took to the Coventry negotiations last July, but it is a figure which the Government judge sufficient and which the Government would be willing to accept. There is progress too on teacher appraisal and yesterday I approved extra funding for development work on six local authorities. Lastly it is now accepted by all that Burnham must go.
"Last Friday's document also addresses complex issues about the ways in which the available teacher time should be deployed in schools. The best broad measure of staffing is the pupil-teacher ratio. That has fallen from 18·9 to one in 1979 to 17·6 to one this year. Our expenditure provision for 1987–88 and our plans for later years allow for a further fall. There are competing claims between teaching
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classes, examination and assessment work, curriculum development, and the professional development and in-service training of teachers. My department and the local authority associations have been examining these questions in some detail over recent years. I intend to undertake further consultation with local authorities and unions about these matters. But I should make it clear that future changes will have to be accommodated within our expenditure plans for education which the Government have already announced.
"Progress has therefore been made in a number of areas, but I have also to tell the House plainly that Friday's document contains some features which the Government cannot accept. First, we cannot accept the excess costs of the proposals on pay. The phasing and distribution mean that the proposals cost an extra £15 million for the three months of January to March next year and another £70 million for the next financial year. The Government's offer, worth £600 million, is for 16–4 per cent. to be implemented in full by next October. That offer stands. It is very generous by any standard.
"Secondly, I must leave the House in no doubt about the unacceptability of the proposed pay structure. We have not been given a sensible structure for the profession. Instead we have a reiteration of earlier ideas with higher figures and only minimal movement towards the Government's criteria. The Government want a pay structure for the teaching profession which will provide more incentive posts and there is considerable professional support for our view. These posts will reward good classroom teaching and extra responsibility. They will also pay for skills in short supply and attract good teachers to demanding posts which might otherwise be difficult to fill—in inner-city schools, for example. My proposals are based on 140,000 incentive posts in a profession of 400,000 teachers. Today there are 105,000 such posts. Friday's proposals would provide only 80,000. That would mean that 25,000 teachers who are now on the higher scales would not hold promoted posts come September. My aim is that half of the profession should hold promoted posts or be heads or deputies. Theirs is that only about one-third should hold such posts. This is a huge gap and a fundamental point of principle. We must enhance the career prospects of good teachers and give management the flexibility it needs to improve the quality of education in our schools.
"Lastly, there is the question of future negotiating machinery. All are agreed that Burnham must go. Friday's document would in effect perpetuate arrangements similar to those which have so signally failed recent times. The Government hold to the view that for an interim period we need an advisory committee and I shall tomorrow introduce the Bill announced in the Queen's Speech to establish such a committee.
"I have been and remain willing to see the local authorities and the unions about these matters. But I am not willing to allow this highly unsatisfactory situation to continue. Our children are entitled to better schooling and that has often been denied them over the past two years. The House, the public

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and all parents will understand that the Government must put our children first."
My Lords, that concludes the Statement.
Lord Irving of Dartford: My Lords, I should like to thank the noble Baroness for repeating the Statement made by her right honourable friend in another place. Will she bear in mind that imposing a settlement—even abandoning Burnham—would be a recipe for further conflict? Therefore, will she not work with her right honourable friend for an accommodation that will make peace possible in our schools so that children can have the education to which they are entitled?
Does the noble Baroness not think that yesterday's ballot result from Scotland, where more than 90 per cent. of secondary school teachers rejected the Government's proposals, indicates a united and strong feeling among teachers? More importantly, does she agree that the Nottingham settlement is conspicuous for the moderation of its terms? It has clearly been drawn up with the urgent desire to end this dispute as swiftly as possible, although not at the expense of standards in schools.
Does the noble Baroness agree that an agreement providing incentives for all teachers, as in the Nottingham plan, is more likely to secure higher educational standards than one which appeals only to the top rungs of the profession? Does she not think that, as the Nottingham agreement does not slam the door in the face of half the teaching profession, it would be wise to find the 0.3 per cent. additional to the 16.4 per cent. already promised?
We sincerely hope that the Minister will not ignore the major steps forward that have been taken at Nottingham and thereby prolong this destructive strike.
Lord Ritchie of Dundee: My Lords, I too should like to thank the noble Baroness for repeating the Statement made in another place. It is devoutly to be hoped that we are getting nearer to an agreement in this appalling conflict. The TUC and the parents have endorsed the agreement recently made between employers and employees. Teachers are at this moment involved in their own democratic processes. I believe that the NUT will start to ballot its members on Monday and the Assistant Masters and Mistresses Association is doing so at the moment. I should like to reiterate the words of the noble Lord, Lord Irving. I too hope that the Secretary of State will not feel it necessary to intervene at any point directly in the settlement of the pay dispute.
Nearly all the outstanding issues have been covered in the agreement as regards conditions. Children, for example, are no longer to be sent home in the event of industrial action; there is to be an appraisal system. Most matters have been satisfactorily covered. Two issues only remain outstanding. One is the actual salary structure. I should have thought that compromise would be possible here as between the views of the Government that more incentive posts should be offered and of the unions that adequate motivation should be given to ordinary classroom
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teachers. I think it is their hope that there should be adequate incentives for ordinary classroom teachers in order to keep the best teachers in the classrooms.
The other point at issue is that there is a desire on the part of the teachers to limit class sizes and to have adequate non-contact time during the school year. Both those matters are, in fact, very much related to good teaching. They are especially applicable with the new exam, the GCSE, where the structure of the exam is very much directed towards more individual attention to pupils proceeding at their own rate and in their own way. Surely these difficulties can be surmounted, despite the possibility of additional funding being necessary, so that we can finally resolve this terrible dispute for the sake of the children and their parents.
4 p.m.
Baroness Hooper: My Lords, I am grateful to the noble Lords, Lord Irving of Dartford and Lord Ritchie of Dundee, for their comments on this extremely important subject. Both noble Lords have suggested that the attitude of my right honourable friend the Secretary of State in making this Statement was perhaps a recipe for conflict. However, I have to say that we have all heard on previous occasions the promise of imminent peace and calm if only there is no interference. There have been no fewer than three agreements this year.
In January the ACAS panel was set up to create "immediate steps" towards,
"the cessation of all industrial action with a return to full normal duties".
That was in January of this year, but what has happened since then? In May an interim 5·5 per cent. pay deal was agreed. The unions gave an assurance of,
"a return to peace and calm in our schools immediately"—
but what has happened? In July the so-called historic Coventry agreement declared that there was no dispute between the parties, but we are still seeing dispute not only between the parties but between the unions themselves.
Therefore disruption has rumbled on throughout the year, sometimes under the guise of local disputes, sometimes on specific issues such as covering, and sometimes an attempt to demonstrate continued union muscle and militancy. But in whatever way disruption takes place and is presented it hurts pupils and their parents who are now owed an urgent return to uninterrupted school education. That is why my right honourable friend the Secretary of State has made his position unequivocal.
As regards incentives, mentioned by both noble Lords, we feel that there must be incentives for teachers so that they perform well in the classrooms, are prepared to take on extra responsibilities, and encourage scarce skills and qualifications to schools in the face of heavy competition from outside. In addition, they must be encouraged to move and to work in difficult schools; for example, in the inner cities.
The Government now believe that the incentives they are proposing will help. What are the present incentives? As was said in the Statement, there are some 105,000 scale 3, scale 4 and senior teacher posts.

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My right honourable friend proposes to increase the number of incentive posts to cover 43 per cent. of all teachers, excluding heads and deputies. That means some 145,000 incentive payments, ranging from £900 to £4,800.
The ACAS document offers two allowances of £779 and £2,077 available to 23 per cent. of teachers, excluding heads and deputies. That amounts to only 80,000 promotion posts available for extra responsibilities. We do not feel that that is adequate, or sufficient to meet the needs that I have already outlined.
Taking these real incentives with the salary structure to which the noble Lord, Lord Ritchie of Dundee, referred, perhaps I may add to what I have already said by saying that we believe the incentive provided by the extra allowances proposed by the Government is very valuable. The scale allowances which the Secretary of State is proposing, ranging from £900 to £4,800—from 7 per cent. to 38 per cent. of the basic scale maximum of £12,700—will be a real incentive.
The noble Lord, Lord Ritchie of Dundee, also referred to the size of classes. The Government feel that their record in that respect is good. Since 1979 the proportion of classes in secondary schools with more than 33 pupils has fallen from 2.1 per cent. to 0.9 per cent. The average secondary school class size is now under 21 pupils. Over the same period the proportion of classes in primary schools with more than 33 pupils has fallen from 10.5 per cent. to 6.4 per cent. The average primary school class is now under 26 pupils. That is hardly the record of a government who favour big classes.
I agree with both noble Lords in that what the Government are seeking in resolving these problems is to have good teachers who will benefit the pupils and therefore the future of the country.
Lord Parry: My Lords, while the noble Baroness has given the House a great deal of detail relating to incentive awards, I should like to ask her whether she will caution her right honourable friend the Secretary of State not to be too optimistic that incentive awards will create the sort of peace within the classrooms on which he is determined, and which we applaud he should seek. Incentive awards are divisive. The basic qualifications of people entering teaching in the past have varied greatly, as the noble Baroness will appreciate. It is not always possible to equate high standards of academic attainment, desirable though they may be, with good teaching.
In the apportioning of incentive awards it is absolutely essential that these awards should represent the highest quality of teaching and that opportunity should continue to be given for enhanced training while in service. I appreciate that we have had detail, which we will assimilate later, on the in-service education programme. However, will the noble Baroness insist when speaking to her right honourable friend the Secretary of State that these two matters are completely understood?
Baroness Hooper: My Lords, I shall happily pass on the noble Lord's comments to my right honourable friend the Secretary of State. All that the noble Lord
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said about incentives is fully appreciated and is being taken into account. Of course what the Government are aiming at is a package to solve the present problems; and that package embraces not only the incentives planned but also enhanced training in service and advanced training.
Lord Murray of Epping Forest: My Lords, does not the noble Baroness agree that the difference between the present situation and situations which have existed earlier in the course of this dispute is that there is now in existence an agreement which has been accepted by the represenatives of the overwhelming majority of teachers? That includes the union—the Professional Association of Teachers—which has received the seal of approval from her right honourable friend the chairman of the Conservative Party. It has been agreed by the representatives of the employers and it has been welcomed by representatives of parents—the national confederation.
Will the noble Baroness explain to the House why her right honourable friend, having by her own account achieved in this agreement so much of what he wanted and having gone so far to persuade the unions and the employers to come together and reach an agreement, is now prepared to hazard his own great degree of success in securing changes in conditions and in negotiating machinery which he himself said he wanted?
Finally, will the noble Baroness give the House an indication of how the Government propose to impose on teachers and employers the Secretary of State's own views? How does the Secretary of State propose to secure the willing and enthusiastic co-operation of teachers, on which the noble Baroness herself laid so much emphasis when replying to a Question earlier this afternoon?
Baroness Hooper: My Lords, I thank the noble Lord, Lord Murray, for his intervention, but it is not right to say that the agreement signed on Friday by four out of the six unions involved has provided an open door for progress. The Deputy General Secretary of NAS/UWT has been ready to portray our schools as battlefields. Indeed, I read in Education how matters are perceived by the local secretary of that union in Birmingham, and I shall quote what he says:
"We are well known for our ability to find ways of making life difficult for local education authorities and that is what we will do if either deal goes through".
So it is either deal—the ACAS document or the Government's proposals; it matters not.
Against this background I think that we can utterly reject any logic which puts the blame for disruption on the Secretary of State, or indeed on the Government. I should like to reiterate what was said in the Statement; namely, that the Secretary of State always has been, and continues to be, available and ready to pursue further discussions with representatives of all the parties involved. In terms of imposing his views, we have evidence which leads us to believe that we have the support of the many good and dedicated teachers in this country who are keen on getting on with their job and making sure that their pupils are getting the best possible education that is available.
Viscount Eccles: My Lords, this is a very serious day for British education. It is immensely important that the local authorities should remain in the full sense the employers of the teachers. Still more important is the education of our children, and for that we must have a structure of pay and conditions which will attract and retain men and women of the quality needed as education becomes more complicated and encompasses new subjects. When I look at the difference between the proposal of the local authorities and that of my right honourable friend, I have no doubt that the proposal of my right honourable friend takes the longer view and is firmly more in the interests of the children. Therefore I should like to ask the Minister whether talks will take place to try to persuade the local authorities that it is not worth sacrificing their position in relation to the teachers when such a good offer is on the table.
Baroness Hooper: My Lords, I thank my noble friend for his remarks. Perhaps I can best answer him by emphasising that it is the improvement of the quality of teaching in schools at which the Secretary of State's package is aimed. From the Statement let me again quote what he said:
"I have been and remain willing to see the local authorities and the unions about these matters. But I am not willing to allow this highly unsatisfactory situation to continue. Our children are entitled to better schooling and that has often been denied them over the past two years".
The Secretary of State is indeed ready and willing to continue discussions, and we hope that his powers of persuasion will convince the reluctant to accept the package.
Lord Howie of Troon: My Lords, I hope that the noble Baroness will accept the sympathy of all sides of the House on her being obliged to bring such miserable news to us on this matter. Do the Government realise that school teachers are miserably paid, and that our high technological society depends upon education and teachers and the ability to attract people into the profession? Does the noble Baroness realise that many Members of this Chamber employ secretaries and that these secretaries are paid more than we pay to the average teacher? Secretaries are important, but they are less important than teachers. Is there no way in which the Government can be induced to recognise that education is important, that it costs money, that the key to education is teachers and that teachers ought to be paid more?
Baroness Hooper: My Lords, I am prepared to agree with the noble Lord, Lord Howie of Troon, that the key to education is good teachers. From that point on I have to differ with him, because of course we believe that the differentials which the Government offer, and which I have already outlined, will provide the necessary key and a career structure for those who are in the teaching profession.
4.15 p. m.
Lord Alexander of Potterhill: My Lords, in my opinion this is the most important issue that has come before Parliament for a very long time. I think it was Disraeli who said that on the future of the education service depended the future of the nation. That was
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true then and it is true now. The noble Viscount, Lord Eccles, and I have had experience of negotiating with teachers over many years. I negotiated with them over a period of 30 years, reaching agreement on all occasions and without encountering a strike. Your Lordships will remember that the Plowden Report recommended the setting up of an independent committee to review teachers' salaries, in the same way as obtains for other professions, such as the Civil Service, the police, and the Services, but the then Government of the day rejected that recommendation.
A body with which I am concerned has recently published a book, a copy of which some of your Lordships may have received. It is entitled Education Committees and it reiterates a statement that I have believed all my life; namely, that partnership in education is vital and distribution of power in education is vital if freedom is to be enjoyed in a democratic society. Therefore I very much hope that the Secretary of State will make every possible effort to find a compromise which is acceptable to the local education authorities and the teachers, and that he will not seek to take a major step toward central control and direction by imposing a settlement on the profession.
Baroness Hooper: My Lords, I thank the noble Lord, Lord Alexander of Potterhill, for his remarks and I can assure him that they will be drawn to the attention of my right honourable friend the Secretary of State. However, as I have already said, the Secretary of State is, and continues to be, very willing to consult all parties and to have discussions with them. He is seeking a speedy conclusion to the problems and is doing everything in his power to achieve that end.
Lord Ross of Marnock: My Lords, does the noble Baroness realise the importance of the Statement that she has made? Like the noble Viscount, Lord Eccles, and the noble Lord who has just spoken, I believe that one will never achieve the right atmosphere in schools—be they in England, Wales, Scotland or anywhere else—unless they contain a profession that is prepared to negotiate and co-operate. If one lays down the law to teachers or to anyone else they may obey that law, but they will not offer that extra word or give that extra inch that makes all the difference to the quality of education and to the school itself.
As I understand the Statement, it seems that the Secretary of State will get rid of Burnham and that there will be an advisory (but not an independent) committee. An advisory committee means that the last word will rest with the Secretary of State, so we are writing into legislation a guarantee of confrontation.
I should like to remind the noble Baroness that the Secretary of State for Scotland, in connection with a dispute that has gone on even longer than the English one, eventually decided to set up an independent committee, the Main Committee. The Main Committee reported. The first person to depart from that report was the Secretary of State. His proposals, parting from the independent commission, created the vote we had in Scotland yesterday where 89 per cent. of the teachers voted and 84 per cent. of them said "no" to the Secretary of State. Nothing in England and

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Scotland will replace proper negotiations and an understanding of the importance of education.
Baroness Hooper: My Lords, we all want to see teachers regarded as a responsible professional body. We recognise that many are behaving professionally. We must begin to put in place new machinery which will allow this dispute and would have allowed previous disputes to be brought to a close. There is no point in perpetuating a negotiating process which has produced never-ending talks, but which even after so long still falls short of delivering a final agreement. The Secretary of State intends to hold to his plans as outlined in the Queen's Speech. To do otherwise would leave us with no means of breaking the deadlock. It would be imprudent for any government, mindful of the course of the dispute, to sit on their hands. Progress will be made toward disbanding Burnham.
Lord Somers: My Lords, is not half the trouble the fact that we are negotiating not with teachers who belong, on the whole, to a responsible profession, but with organised unions whose whole business is to try to stand in the way of any solution? If only we could find some way of communicating with teachers, a solution might be found.
Baroness Hooper: My Lords, there are always difficulties in negotiating with representatives of any group of people because there are always people who suggest that they are not truly representative. From our direct contact with teachers, we believe that the Government's proposals have the support of the vast majority of teachers.

Family Law Reform Bill [H.L.]
Second Reading debate resumed.
4.23 p.m.
Lord Mishcon: My Lords, I am confident that your Lordships will remember the lucid speech made by the noble and learned Lord the Lord Chancellor in introducing this important Bill. As he rightly said, there are various esoteric elements in it which I still believe will be understood by your Lordships. It must be so, if I have persuaded myself that I understand those esoteric matters.
About one thing there will be no doubt: we are looking at the principle that those children who, through no fault of theirs, have been born, as we have described them in the past, as illegitimate, have absolutely no rights other than to expect that a civilised society will not punish them for some crime that they have never committed. That has been the story of the past with regard to inheritance and many other provisions. So it is right that a Bill of this kind should come before your Lordships.
In saying that, one cannot take it for granted that there are no disadvantages to society in passing such a Bill. It is a question of deciding that the advantages and the rights exceed the disadvantages and the wrongs.
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One of the disadvantages may well be a decrease in the number of marriages. Marriage, an instrument of great value in our society, has been degraded over the past years. There are parents who decide that they will marry, despite the fact that they do not believe in the institution, because they say, "It is wrong, is it not, that our child should suffer some defeat of rights by virtue of the fact that we are not married? We had better go through the ceremony and get married." Such parents may now decide that as the same rights, in principle, arc being granted to legitimate and illegitimate children, there is no need to go through that marriage ceremony.
If that is taken account of in our assessment of the Bill, but not to the extent, I submit, that it defeats the main principle, we shall have acted responsibly, because it is something which must be taken into account. Against the backgound of that principle, with which, as I say, I believe that most if not all of us will agree, there have been two examinations by the Law Commission with regard to how to implement that principle in legislation.
I do not quarrel with a commission which changes its mind. I respect that commission. The English Law Commission, as the noble and learned Lord said, issued a working paper and then, in 1982, a report. As recently as October 1986, it issued a second report. May I say, in passing, that we are seeing a historic moment in parliamentary matters when we have a commission report dated October 1986 and we are considering the draft Bill attached to that report in November 1986. May that record be repeated in the future?
The Lord Chancellor: My Lords, I shall do my best.
Lord Mishcon: My Lords, the noble and learned Lord always does his best, and usually it is a good best.
The commission found certain matters in its working paper as being worthy of recommendation. Then, in its first report, it had some second thoughts. In its second report issued last month, it made some modifying recommendations with regard to those first thoughts. I am not going to submit that there is a muddle anywhere; I shall suggest that there are certain aspects of this Bill which, in the course of its passage through your Lordships' House, deserve definite consideration by your Lordships.
I say that because if the commission had some doubts before coming to final conclusions, and then came to different conclusions in the course of deliberations, your Lordships may feel that these are matters that deserve our intense consideration, because last thoughts are not always best thoughts.
May I turn to a few of the matters about which I believe there may still be a little doubt. The first is that it was thought, and rightly so, that we should be careful how we describe, in legislation, legal instruments and possibly, in our everyday conversation, the difference between those who were known as legitimate children and those who were known as illegitimate children.
I am perfectly sure that the noble and learned Lord will know that I lose no reverence for his use or pronunciation of the English language if I pronounce it marital with a short "i" and he pronounces it marital

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with a long "i". It was a recommendation of the first report of the Law Commission, in order that there should be no suggestion of illegality—the word "illegitimate" in lay language does seem to have the odour of some sort of illegality about it—that these children should be called either marital or non-marital children. The Scottish Law Commission did not like that idea at all.
In discussing this, the Law Commission in the second report acknowledged in paragraph 2.2 on page 2 that the Scottish Law Commission did take rather a different view, arguing that:
"labels of any kind applied to the child are unnecessary, given that in future 'it should … rarely be necessary to discriminate', and also undesirable, because they would 'rapidly take on old connotations' ".
Instead the Scottish Law Commission recommended that:
"future legislation distinguish, where distinctions based on marriage are necessary, between fathers rather than between children",
and that,
"where it is thought necessary to distinguish between people on the basis of whether or not their parents were married to each other at any relevant time … this should be done expressly in those terms".
I do not frankly know what that means. I am sure that that is my fault. But how is one supposed, in the light of that language, to describe those we had previously described as illegitimate children? Am I to say in reference to an illegitimate child, "That is Charles, the son of John Jones and Mary Smith"? Is that how I would have to describe the child, or is some other way being recommended to us? I thought that the Explanatory Memorandum would have taken advantage of that recommendation to define these children. I find, however, that throughout the Explanatory Memorandum they are defined as illegitimate children. I derive, therefore, no guidance, and I turn to the noble and learned Lord to ask whether in his reply he will be good enough to clarify the matter, at least for my sake.
I move to the next examination of this principle. The principle is that parents and citizens of this country, in regard to legal rights, should regard the legitimate child and the illegitimate child on one basis and one basis only; and that is the same. I wanted to see what the Government did in acknowledging that principle. One of the most vital factors in regard to a child's right and status is that of nationality. That was indeed recognised by the Law Commission, which was most precise in regard to the matter. Indeed, paragraph 3.22 on page 13 of its first report states:
"A legitimate, legitimated or adopted person can derive British citizenship under the new British Nationality Act 1981 from his mother or from his father. An illegitimate person can only derive citizenship from his mother because for the purposes of the Act 'father' means only the father of a legitimate or a legitimated person".
So the commission goes on in the course of its report. I shall not have time to give your Lordships all the quotations but I paraphrase the report, very fairly I am sure, when I say that it recommends that the same rights in regard to nationality should apply to the illegitimate child. The report outlines the reasons given by the Government so far for that not having been done. It says, after all, that the English Law Commission was dealing only with English children
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and that the Scottish Law Commission had still to sit. Well, the Scottish commission has sat, and it has certainly not advised against the grant of nationality status in the same way for both sets of children. When the Bill came before us, I looked immediately to see whether the Government had followed the same principle that is advocated for the rest of the country. I see nothing in regard to this change so that the illegitimate child will have the same rights in regard to nationality and citizenship.
I turn rapidly to the issue of domicile. Domicile in our law follows that of the father, the illegitimate child that of the mother. Are the Government prepared to say, as they should say, that in regard to domicile the rights and status of the legitimate and the illegitimate child should be the same?
I come now to a slightly technical point, although it is not difficult to understand. The commission in its first report decided that it should look at the safeguard given to trustees; executors and trustees in regard to a will or administrators and trustees where someone had died intestate. There was already in existence a statutory provision which said that trustees in those circumstances could distribute an estate without having—again, I paraphrase—to inquire as to whether or not there was illegitimate issue that might inherit or have certain rights. The commission in its first report decided to recommend that the right of trustees and the protection given to the trustees—because the rights of illegitimate children were extended in regard to inheritance—should be extended to cover all the other contingencies that would now be present by virtue of the increased rights of inheritance of an illegitimate child. That was its first recommendation.
In the second report issued last month, the commission instead of extending the right has removed the right. Although the commission gave certain reasons, the removal of the right has been imported into the Bill now before the House. I ask the noble and learned Lord whether this is not a matter that will have to be looked at closely. The removal of the protection of trustees is a most serious matter. It is no use, as the first report of the Law Commission recognised, talking about the ability to advertise. An advertisement in regard to some small estate is quite expensive. But apart from the expense, one does usually see in advertisements the requirement that any claim against the estate should be made by a certain date. A right against the estate would hardly occur to an illegitimate child as being something that constitutes a claim. That is usually interpreted as being a claim of a creditor, not a right to inherit.
If, however, there is no proper protection, one can imagine the embarrassing inquiries, in order to be certain that the trustee has acted responsibly, that would have to be made, for example, of a testator who has left a legacy to "All my grandchildren living at the date of my death". Presumably one would have to inquire further as to whether any of the children of that testator had any illegitimate children. I merely point that out as something that has to be looked at.
I move, if I may, to a matter that the noble and learned Lord touched on very lightly. It was right that he should. He said that he had answered certain questions of the noble Lord, Lord Sudeley, in regard to

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the question of inheritance of a Peerage. I have to disclose no interest in this matter at all, having the privilege of being a Life Peer. Having accepted the fact, without any doubt at all, that the commission did not recommend any question of change in this direction—namely, that an illegitimate child could not inherit a Peerage—and that this Bill does not enable either the noble and learned Lord, as the Lord Chancellor, or any successor of his to make rules even under Clause 30 of this Bill to change that situation, I merely ask, since the matter has aroused certain interest in the press, whether he would care to indicate what in his view is the justification, having regard to the principle that we are all enunciating, for saying that an illegitimate child should be barred from inheriting a Peerage. I think that will indeed have public interest.
Lastly, I turn to a matter which I regard as extremely important. I shall be as rapid as possible in dealing with it. I am dealing with the question of a declaration of parenthood. On that issue, the working party made a recommendation that there should be a right for a child to go to the court, serving process on the necessary parties involved, asking the court to declare who was the parent of that child. I do not have time to quote, but I believe that I shall be paraphrasing the findings and thoughts of the commission fairly. In their first report, they say that they have had second thoughts about it. It causes them a great deal of anxiety. With some reluctance, the commission say that we still ought to give this new right of going to the court to declare who is somebody's parent. They realise that it could give rise to rather ugly actions, possibly blackmailing actions. It could also give rise to grave embarrassments which might cause rifts in families, and very difficult matters indeed, but they still thought on balance that the right ought to be given. However, they said there ought to be safeguards. There must be.
There are two safeguards that they put in that I want to mention. The first is that the Attorney-General should be made a party to the proceedings and indeed should be able to intervene if ever he wanted to in any part of those proceedings. Secondly, the court should have the right at a preliminary stage to decide that this was harmful from the point of view of the child involved, and in those circumstances, since a declaration is always a matter of discretion for the court, should say that the proceedings should not continue.
Those safeguards are not reproduced in the draft Bill which accompanied the second report; nor are they reproduced in the Bill now before your Lordships. Although this matter may have to be examined in far greater detail in Committee, I feel that it would be useful to have even on Second Reading some guidance as to why those safeguards are not there and what the noble and learned Lord feels about what is a rather novel proceeding, and possibly a dangerous one: this question of declaration of parenthood as against the declaration of legitimacy, which is a quite different matter.
Having said that, I repeat that I believe all your Lordships will have sympathy with the principle behind this Bill and will be grateful to the noble and learned Lord for the way he introduced it.
4.47 p.m.
Lord McGregor of Durris: My Lords, from these Benches I wish to extend a very warm welcome to the Bill and to thank the noble and learned Lord the Lord Chancellor for his careful and lucid exposition. It would he of no help to the House were I to rehearse ground already covered, and I have no intention of doing so. I shall be very brief.
I have to declare an interest in that I am president of the National Council for One Parent Families, a body that was set up in 1918 by Lettie Fisher, the wife of H.A.L. Fisher the historian, with the principal aim to obtain reform of the existing bastardy and affiliation Acts. The achievement of that aim in this Bill makes it a great event for the national council, which in those days was called the National Council for the Unmarried Mother and her Child. It has taken 70 years to reach this point.
I know that the noble Lord, Lord Mishcon, told us that progress has been very swift in 1986, but it has taken a very long time to get to the beginning of 1986. In that period the national council has promoted, or been associated with, some 38 statutes. It would not be helpful to your Lordships for me to recite the virtues of the national council, but we are very grateful indeed to the noble and learned Lord that we are now in a position to see our aim achieved.
The noble and learned Lord the Lord Chancellor quoted a figure—I believe that it was 165,000—
The Lord Chancellor: My Lords, the figure was 126,000.
Lord McGregor of Durris: My Lords, it was 126,000 for the number of illegitimate children. Lest arguments develop about the possible effects of this legislation on the future numbers of illegitimate children, it may be worth while making two or three comments on them.
First, of these 126,000 illegitimate children, one-half are born to parents who seem to be living in stable cohabitation. I am taking that figure from two extremely helpful pieces of research done by the Office of Population Censuses and Surveys and published within the past two years. It is important therefore to remember that we are not discussing—as we were in 1918—children who had been put, so to speak, into the street or into the care of the poor law. We are frequently discussing children born into families and I have no wish to follow the noble Lord, Lord Mishcon, along the lines on which he opened his speech, beyond saying that I think we should recall that one can put too much emphasis on the significance of marriage and too little emphasis on the importance of the family.
I think that a generalisation which would be approved of by all anthropologists is that it is not marriage that creates the family; it is the family that creates marriage. Any legislation which supports the family—as I believe the Bill most emphatically does—is more likely to achieve the aim which we all have than is the present situation. It is very important to give rights to children in this area. Therefore, precisely because it supports the family I wish to commend the Bill to the House.
4.51 p.m.
The Lord Bishop of London: My Lords, generally speaking, we on these Benches welcome the Bill. Many of its provisions implement recommendations which the Church in various ways has been making for a number of years. In expressing certain reservations about it I hope that I shall not be taken in any way to be reducing the welcome which we give to the provisions. We very much welcome that, so far as possible, any stigma or disabilities which flow from being illegitimate should be removed, and we are wholehearted in that view.
Nevertheless, I must say that, as the right reverend Prelate the Bishop of Birmingham, in his speech on the loyal Address foreshadowed, there are two aspects of this Bill which give us great concern. The first aspect is the abandonment by the Law Commission of the distinction between marital and non-marital; the second aspect is the provision for children born as a result of artificial insemination by donor.
As regards the first aspect, I found the reasons in the second report of the Law Commission for abandoning that distinction singularly unconvincing. Reference was made to the fact that it was desirable to follow the Scottish practice, but perhaps I may remind your Lordships that the Bill, as it then was, dealing with the Scottish situation, went through another place (as the noble Earl, Lord Selkirk, said in presenting it to this House) "on the nod". The Second Reading debate on that Bill in this House took 16 minutes. There was no debate at the Committee stage, nor on Third Reading. I do not believe that that is an adequate consideration, certainly by this House, of what is a fundamental change which is being made, and I shall come back to that point later.
However, before I develop that matter I should like to say a word about the significance of legislation. I think that I have made this point to your Lordships before, but I make no apology for making it again. Legislation has certain immediate and specific results which flow from the provisions of the various enactments. What is equally important in my judgment is the overall impact of any legislation on attitudes within the country, and those can often be very different from what people expect.
In view of the time, I shall not go into examples, but one can think of legislation which has been enacted and of how subsequently those who have promoted it have come to say, "What did we do? We did not think it would have this or that kind of effect". I believe that it is very necessary for us to say what is likely to be the impact, not merely in this case, on people living in marriage. Indeed, I am very grateful to the noble Lord, Lord Mishcon, for what he said about the possible effects on marriage. However, I am thinking also of the effects on the attitude to marriage in the family generally in the country—I am thinking of the creation of a kind of popular opinion.
I do not think that anyone would doubt that at present we in this country see—and have seen for a number of years—a weakening of the institution of marriage. I shall say in a moment something about the relationship between marriage and the family. However, I think that it is also true to say there is a weakening of the sense of "family". Whether one links
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the two together or not, the number of illegitimate children—as we have already heard from the noble and learned Lord the Lord Chancellor—has now reached a very high figure indeed, and so has the number of single-parent families.
The professed aim of this Bill is towards the welfare of the child. I do not think that there could be any doubt about that as being a right and laudable objective. However, it is suggested that that somehow contradicts another concern, which is the preservation of marriage and family life throughout the country. I do not see those two objectives in conflict; I see them as complementary because I do not believe that the child can be considered in isolation from the family. Therefore, I have to look at the Bill and say: "Yes, this is in the welfare of the child, but is it in the welfare of the child not as an isolated individual but in the context of the understanding of marriage and family life in the country? Will it in future encourage that stability of relationships, that fidelity which is in the interests of the child?"
The right reverend Prelate the Bishop of Birmingham in his speech on the loyal Address, said that human beings have evolved with pairing and bonding as part of their nature. That is perfectly true, and one reason for that is simply the fact that the human young has fewer inbuilt instincts than the young of any other creature, and needs that kind of background in order to be able to acquire those instincts from family life.
I could give many examples from pastoral experience of the problems that are created by the lack of a stable family life with both parents. In saying that I am not making judgments about single-parent families or illegitimacy; I am stating a fact. I am thinking primarily of certain families I know where, for example, the father dies young, not as a result of any human action but simply from an accident or from some disease, and the lack of a father in that family has undoubtedly, as I have seen later on in the lives of the children, had a very considerable effect on their ability to relate to people and their ability to grow and develop. In looking at the family as a whole, we must not be mesmerised by those who, for one reason or another, have suffered or deliberately chosen to live as single-parent families. It is simply a fact of human nature that we need the whole family in which to grow up and develop.
We on these Benches have long maintained that the present law relating to illegitimacy is most unsatisfactory. We would support all efforts that are made to remove any stigma and disadvantages of one kind or another. Yet if the stigma is to be removed and the rights are to be secured, I believe that that must be done in a way which does not encourage the situations which caused the difficulties.
I hope that I heard the noble and learned Lord the Lord Chancellor aright when he used the phrase: "they sought to eliminate the differences between legitimate and illegitimate". I wrote down that phrase at the time, and I think that it is right. I wonder: did the noble and learned Lord actually mean what he said? He is normally so lucid and clear that I found that phrase difficult to believe.
The Lord Chancellor: My Lords, I hope that the right reverend Prelate and I are not going to quarrel, but this point is a false point. The Bill is about the language used in statute and the law. One cannot eliminate the facts of life. My whole speech was about the difference between those whose parents were in wedlock and those whose parents were out of wedlock at the time they were born. One cannot eliminate the facts of life. What we are talking about is not the facts of life as they are but what the terminology of the law should be about them. The purpose of this, and the only point about it, is that some statutes use the word "illegitimate" and some statutes do not. It is the label attached to the child in statute law particularly, but also in common law, that we are talking about.
The view I was seeking to put forward was that concerning terminology, to use the noble Lord, Lord Mishcon's phrase, the label should be attached to the people who were not married and not the child who was the offspring of their copulation.
The Lord Bishop of London: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for his exposition, because he has now made the point for me that I wanted to make. What we are talking about here are the legal points which he made, but that is not how it is necessarily seen in the country. This is my worry and the worry of those of us on these Benches. What is seen is a suggestion—I put it very crudely—that henceforth the Government do not think it is necessary to get married. That, I know, is what the noble and learned Lord does not mean, but that is how I believe it will be commonly understood. I am not alone in thinking that. I am most grateful to the noble and learned Lord the Lord Chancellor for that exposition because, if he had not given that, I should have had to draw attention to the fact that the only way to do what he said, which is to eliminate the differences, would be either to abolish marriage or to compel everybody to get married. Neither would be a practical nor desirable course to adopt.
The point I want to make is that what we have to consider is the impact of this factor. When the Church of England Board for Social Responsibility was approached about the Bill last year it gave general support. But that was in the context of the use of the words "marital" and "non-marital". It did not, and it was not asked, to consider the possibility of removing all references to the distinction between families in which the partners are married and those in which they are not. We feel that we have not had a proper opportunity to give a response to that change in the recommendations of the Law Commission.
We have serious reservations, and to some extent our reservations are for the reasons given by the noble Lord, Lord Mishcon, about this abolition of the distinction. Secondly, we are worried about the provisions regarding artificial insemination by donor. Before I come onto that I should say that I am not, as everybody knows, a qualified lawyer, but I find Clause I extraordinarily difficult to understand. When I read Clause 30 and I find that the noble and learned Lord the Lord Chancellor can apply the meaning of Clause 1 to past enactments, I find myself in a rather humpty-dumpty world. I should be grateful if the noble and learned Lord the Lord Chancellor, when he replies,
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could relate what he said in his intervention about the law not being able to change fact to what is said in Clause 1 about the way people are treated whatever their relationships may be. I hope he will feel able to do that.
I now turn to the question of AID. We have always maintained that a child should have the right to know about his or her origins. We believe, therefore, that the removal of any stigma and social disadvantage, as is provided for in this Bill, must be based on truthfulness. In a recent report from the Church of England it is said:
"We would wish to affirm the importance of clarity and truthfulness in these matters and that any use of the practice which involves deceit clouds the genetic identity of a child so brought into the world as offensive to Christian values.".
Elsewhere we have said of the arguments we have put forward:
"All of this goes closely with the insistence elsewhere … that the procedures allow for clarity about the indentity of the child. Our genetic life is part of what it means to be human and children are entitled, therefore, to a clear understanding of their own origins and how they came to be the people they are in the family they are part of".
I do not think I need to emphasise this any further. I am simply making the point that as far as I can see—I may have misunderstood—Clause 27 will make that impossible, in that if the husband of the wife who is having artificial insemination by donor gives consent, then he can be put down as the father. That is not true. That is not the situation. I believe that needs to be looked into very carefully, partly for the reasons I have already given about the right of a child to be able to know his or her origins and, secondly, because of possible genetical implications as well. I know that was recommended in theWarnock Report, but I am very unhappy about the isolation of that recommendation from the Warnock Report being treated now apart from the implementation of the other recommendations in one way or another.
I should like to end by saying that we support this Bill in the way in which it relieves the illegitimate child of disabilities in society; that we have no reservations about at all. But we are worried about the impact on society as a whole of the removal of the distinction between "marital" and "non-marital". We believe that will have effects which I am sure are not intended by those who promote the Bill. We are also worried about the provisions in Clause 27. I hope that careful attention will be given to these points during the consideration of this Bill.
5.8 p.m.
Baroness Macleod of Borve: My Lords, like other noble Lords, I am most grateful for the usual brilliant and lucid way that my noble and learned friend the Lord Chancellor has explained this Bill to us. Like the right reverend Prelate, I could not quite understand Clause 1; so I am glad to have a friend and I shall not go into that again.
I shall take a slightly different view on this Bill, though I welcome the principle. However, it is perhaps unusual for me to speak both in sorrow and in anger in regard to the necessity for the Bill. We have been told that there are now 126,000 illegitimate (as the word was) children in a certain period of time. I did not quite understand that.
The Lord Chancellor: My Lords, my noble friend is quite right. I think I said (and I hope I was right in saying) that that figure was for the calendar year 1985.
Baroness Macleod of Borve: Thank you very much. My Lords, I speak in sorrow about this matter, with the noble Lord, Lord Mishcon. I view this Bill as another step in degrading marriage. A few years ago we in your Lordships' House made it possible for people to be divorced, or to take steps to be divorced, within one year of marriage. I think that was a retrograde step.
Secondly, as has already been said, there is no need to marry, but it is vitally important that the family should be formalised. The right reverend Prelate, in my view absolutely rightly, said that stability and security are vital to the children of a relationship, whether it is a marriage or otherwise. It is sad that people in public life today anounce that they are to become parents but that they have no intention of getting married. What an example that is to the younger people in our society today! From my experience (and perhaps it is not so wide as that of some other noble Lords) it is very important that the children of a relationship should know that their parents are together. How easy it is, as we all know, if parents are not married, for one to walk out on the other and to create so much distress within the relationship.
I am also angry because in these days of surely-planned parenthood, surely illegitimate children (as we still have to call them) should not be brought into the world except in unusual circumstances. The noble and learned Lord will probably think that this is not part of what we are discussing today, but I submit that it is part of the background.
I entirely agree with the principle of the Bill, especially when it says that the child should be paramount and all that is pertaining to the future of a child, or children, of marital or non-marital circumstances shall be all-important. I am more pleased than I can say, having had to sit in courts trying to deal with the problems of young people dissolving their marriages, that henceforth the father will have equal rights—where, of course, the father is known to the child and also to the mother—because I am sure that all noble Lords will agree that if a child has a loving father that man ought to be able to enjoy all the rights of parenthood. One knows of numbers of fathers who are excluded from seeing their children, from having anything to do with one or more children. That is very sad indeed. I am also pleased that the Bill makes special mention that, in circumstances of adoption, the father must give his consent.
In Clauses 22 to 26, we come to the registration of the birth of the child. This, I think, is about the most important part of this Bill because there is still and always will be an anomaly in those clauses. A child's mother can and will—and always will be able to do so—refuse to disclose who is the father, either because she does not know or for family or personal reasons (and I can quote incest as one) or because, as a result of a rape, the father will not acknowledge it and she probably does not know the father of the child anyway; or, worse still, because she was the victim of a gang rape, which unfortunately is very prevalent
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today. In such a case, the father of a child might be any one of five, six or perhaps even seven young men.
So, although registration—that is, through the register—obviously would be a way to find the identity of the father of the child, it is very likely that the mother does not know. I am also thinking of some of our friends who are as British as anybody in your Lordships' House but who have not perhaps been in this country for more than two or three generations and who have, by custom, several fathers for their children. They perhaps will not be able to know—and I have come across this myself in court—the paternity of a child of theirs. I hope that if a child wants to find out, quite rightly, I think, its parenthood, it will not have to go to a court for that. I should have thought that the registrar, who is bound to have a registration of the birth, would be able in all circumstances to provide that knowledge for the child concerned.
As we all know, this Bill is based on the recommendations of members of the Law Commission. I am sure that they are very worldly, up-to-date and wise people. I just wonder whether they realise how much the younger generations, the younger women, in our society are unfortunately—and I say that in view of the figures that the noble and learned Lord has given us—producing babies without having been married to the fathers of the children. I hope that the members of the Law Commission have very much more worldly wisdom than I have. Certainly I do not have as much of those attributes as do the members of the Law Commission; and, because I have not and because I trust their wisdom, I hope that this Bill will go through, probably amended.
5.18 p.m.
Lord Silkin of Dulwich: My Lords, all who so far have taken part in this debate have extended a welcome to this Bill. I do so as well because it seems to me to do a measure of belated justice to a growing number of our fellow citizens who, since time immemorial, have suffered injustice. I say, "a growing number" and I echo the concern of the noble Baroness, Lady Macleod, because there is no doubt at all that the growth in the illegitimate population, both in absolute terms and as a proportion of births, must give rise to concern.
In the 15 years from the end of the war, some 6 per cent. of births were illegitimate. By 1980, the proportion had nearly doubled, and by 1985 it was approaching one in five. Even higher was the proportion born to young mothers—as many as one in four. Plainly, there must be many reasons for this swift but steady growth. One, at least, seems to me to be quite clear from the figures. More and more couples create a stable family without benefit of wedlock. A significant sign of this is where both parents register the birth of an illegitimate child—as many as 65 per cent. in 1985 and under 50 per cent. 10 years earlier. And in three-quarters of those cases the two parents give the same address as father and mother. Undoubtedly there are very many couples today who have come to believe that a formal marriage, which can swiftly and easily be dissolved, adds little to a stable union which is based on love and on trust.
It may be said—indeed it was rather suggested by the right reverend Prelate in what he said—that this

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Bill, in reducing the disabilities of children born to a union of that kind, will encourage the belief that the Bill is an anti-marriage Bill. Even if that were so, I would say that it cannot be right to bolster the institution of marriage by penalising the innocent fruit of the extra-marital relationship. That would not be the right way to do it. However, I do not believe that this Bill is anti-marriage or that it will discourage marriage. I do not believe there is a single couple in the land who, when this Bill becomes law, will say, "Now we are free to live together without getting married".
The truth is that it will remove certain anomalies in the law which have stood in this country when in many other countries they have long since gone. Of course, an Act of Parliament alone cannot alter social attitudes. If the Act reflects them, as I believe this Bill does, it can help to strengthen such attitudes; but no more than that.
I do not believe that illegitmacy bears the stigma it once bore, and I am glad that is so. It seems to me that the stable unions which exist both outside marriage and within it are in a large degree responsible. This Bill will certainly play some part—but let us not exaggerate that part—in strengthening the social attitude which regards a stable union and a secure family life (which I want just as much as the right reverend Prelate wants) as the most important elements in a civilised society. For that, I welcome the Bill.
Having given a very general welcome to the Bill, I should like to refer to one matter of detail. I do so in part because again this is a matter which was developed by the right reverend Prelate. It deals with Clause 27 and the sensitive topic of AID. Certainly I do not want to encourage controversies which perhaps are best avoided; but the matter is before the House and we have to be honest and deal with it. I would not like it to be thought that silence about the clause implies any reluctance to support it or, if I may say so, any reluctance to applaud the noble and learned Lord the Lord Chancellor for including it. After all, he had the temptation presented by the second report to defer the legislation until the achievement of a comprehensive scheme embracing other modern techniques for stimulating birth; but he had the courage to reject that temptation.
Having said that I approve of Clause 27, I must comment that in two ways it is not wholly consistent with the Bill's philosophy. In the first place, the Bill's general philosophy is to recognise the true father as the lawful father of the child; and in the case of AID someone who is not the true father is being so recognised. I accept that inconsistency, for the reasons which are given in paragraph 12.7 of the first report, and particularly because I believe that it will help to promote stable unions. That is surely more important than the dry consistency of the law.
However, in the second place, I find it hard to follow the reasoning of paragraph 12.10 of the first report, which explains why the principle of Clause 27 is not to apply to an unmarried couple. I understand there are some 3,000 AID births a year: it is a well-established method. The use of AID to promote stability within the union of two people is at least as important in the life of an unmarried couple as it is in that of a married couple; indeed, perhaps more so, if marriage itself is a stabilising factor. As paragraph 12.10 comments, the
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extensions of Clause 27 to cover those cases would be consistent with the Bill's philosophy, and failure to extend it will mean that a new class, by no means insignificant in size, of illegitimate children will be created so that the fruit of the unmarried union will again be at a disadvantage relative to the fruit of the married union.
I hope the noble and learned Lord the Lord Chancellor, who, as I have said, has already shown his courage on this matter, will now display his wisdom. Since this is the only fault of any substance that I can find in this Bill, I wish it success and a speedy passage into law. And, if I may, I should like to wish it thereafter an early commencement. Perhaps I might say just one word in conclusion on the subject of commencement. In a Written Answer given in another place on the 4th June, 1986, at col. 596, the Attorney-General said:
"the cost implications will have to be considered again when determining the dates on which the provisions of the Bill should be brought into effect.".
The Explanatory Memorandum tells us that the cost should not exceed £3 million a year, and so I ask the noble and learned Lord the Lord Chancellor whether he can tell the House what delay, if any, that will cause in bringing this Bill into effect. I hope that any such delay will be insignificant.
5.28 p.m.
Lord Simon of Glaisdale: My Lords, this Bill has been introduced to your Lordships by my noble and learned friend the Lord Chancellor with his exemplary and usual clarity and cogency. On balance, it has been welcomed by all those who have addressed your Lordships and also by the right reverend Prelate the Bishop of Birmingham, who referred to it during the debate on the Address. I therefore have no wish to go into details or to explore further its merits. I agree entirely that on balance this measure is abundantly justified.
However, I do share the sense of the moral dilemma posed by the right reverend Prelate the Bishop of Birmingham, and which, if I may say so, was put extremely well by the noble Lord, Lord Mishcon, at the beginning of his speech today, by the right reverend Prelate the Bishop of London and indeed by all noble Lords who have spoken today, including the noble and learned Lord who has just sat down—all, that is, except the noble Lord, Lord McGregor of Durris, who although welcoming the Bill, was inclined to question whether it raised any moral dilemma at all. I differ from him with great diffidence, as he is one of the greatest sociologists in this country and I have had the privilege of working with him on a project. I have every reason to know that what he says should be accorded great respect.
What the noble Lord said was that there were 126,000 illegitimate births last year, but of those, 53,000—half of them—were from stable unions. But he did not draw your Lordships' attention to the fact that that means that 53,000 of them were from unstable unions, in which a child was launched onto the world without the provision of two parents to look after the child.
The noble Lord went on to say that it is not true that marriage creates a family; on the contrary, it is the

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family that creates a marriage. Traditionally, particularly in the case of a lifelong marriage, it has been felt and experienced that marriage does indeed promote the well-being of the family. Particularly in the case of a lifelong marriage I have no doubt at all, from such experience as I can draw on, that it is by far the fairest relationship between a man and a woman. As to the second part of his proposition that the family creates a marriage, I must confess that I simply do not know what he meant. No doubt he will tell me what he meant and I shall understand it in due course, but at the moment it seems to me simply a meaningless proposition.
I come to the position that was put so well by the right reverend Prelate the Bishop of Birmingham and by so many other noble Lords today. We are running a risk. In so far as we derogate from the status of married persons we strike at the institution of marriage which, as I have suggested, is the buttress of the family in this country. The condition of married people is a status, and indeed the condition of illegitimacy is a status. Status is the condition of belonging to a class of people in society to which the law ascribes particular and special capacities and incapacities, and if you whittle away those capacities and incapacities it inevitably follows that you erode the status.
One has only to think of the status of serfdom. As its incapacities were rightly done away with, the status of serfdom disappeared. One can think also—perhaps nearer the matter of this Bill—of the status of concubinage, which our law has never known even in the form of a morganatic marriage. We have not known that because the law does not ascribe any special capacities or incapacities to persons living together in a state of concubinage. The only respect in which I venture to differ from the right reverend Prelate the Bishop of Birmingham is that he appeared to—
Baroness Faithfull: My Lords, does the noble and learned Lord mean the right reverend Prelate the Bishop of Birmingham or the right reverend Prelate the Bishop of London, because we have London with us?
Lord Simon of Glaisdale: My Lords, I meant Birmingham, as I said, because he referred to an Act of 1984 as being a sort of turning point. It is quite true that that Act, which, as the noble Baroness said, enables divorce proceedings to be taken within one year of the marriage, has resulted, as one saw from figures published only two days ago, in a vast acceleration of the rate of divorce—up 11 per cent. But that trend has been going on for 15 years. Steadily, year after year, the figure has risen.
That takes us back to the crucial measure, the Divorce Reform Act 1969, and for that, in my respectful submission, the church leaders have to accept a very great responsibility; by no means the sole responsibility, because a disaster like that does not happen unless a great many things are going wrong at the same time. I hasten to add that my noble and learned friend is completely exculpated so far as that measure is concerned. But it was from that date that one found the steady, dramatic and appalling increase
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in divorce which has done so much to destabilise marriage in our society.
I presume to attach some blame to the Church leaders because, if one compares the book that was written at that time, Putting Asunder, with the evidence that was given by Archbishop Fisher not more than a decade before to the Royal Commission on Marriage and Divorce—evidence that was entirely consonant with the traditional stance and doctrine of the Church—one finds the most astonishing dichotomy.
I have long felt that things have to get worse before they get better, but there seems to be today a general recognition that things have reached a pretty bad pass, and I venture to suggest two measures that should be considered or reconsidered. It means going back to thinking again about the grounds for divorce. The first measure is that parents who bring a child into the world owe that child a duty which supervenes their own convenience. The corollary of that is that if they presume to bring a child into the world—and, as the right reverend Prelate the Bishop of Birmingham pointed out, these are days of easy, free contraception—that is a voluntary act which should impose on them a duty together to provide a home for the child until the child is 16.
The other measure that I believe should now be reconsidered is that of allowing couples intending to marry to enter into a binding agreement not to divorce. When that proposal was considered during the discussions which accompanied the 1969 Bill, it was said that it would result in first class and second-class marriages. What a confession—that a marriage which is terminable by divorce is a second-class marriage! Why should people not bind themselves, if they so wish, not to divorce one another? Naturally it would be for the Church to consider how far what has been called a second-class marriage should receive the cognisance of the Church. However, I suggest that this proposal, as well as my first suggestion, ought now to be considered in the light of the dilemma posed to us by both right reverend Prelates, by the noble Lord, Lord Mishcon, by the noble Baroness and by the noble and learned Lord, Lord Silkin.
The initiative in these matters will have to come from Church leaders. It is quite unreal to expect the Government to take the initiative, as the right reverend Prelate the Bishop of Birmingham was inclined to suggest in the debate on home affairs. In any case, tinkering with taxation and mortgage relief is a triviality. Those are matters which are fundamental to society, and I suggest with all humility that your Lordships will be looking to Church leaders to give a lead in this respect.
5.43 p.m.
Baroness Faithfull: My Lords, I support this Bill, which is not easy to read. Nevertheless, it has been presented with great clarity to your Lordships' House by the noble and learned Lord on the Woolsack. It would be presumptuous of me to tackle questions of law and the matters so ably raised by the noble and learned Lord, Lord Simon of Glaisdale, and I shall not do so. I propose to concentrate on the feelings, emotions and sense of personal justice of the children who are the subject of our debate today.

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This morning I was in touch with a vicar of the Church of England—a person I greatly admire and one who is respected and loved by his parishioners. He was born illegitimate. He made two points to me. He said that whatever may be the changes in social attitude in our society in regard to marriage, nevertheless in the mind of the child who is born illegitimate there is a sense of stigma and of being a second-class citizen. Such children, as he has reason to know, have a sense of injustice. He went on to say that many of his parishioners come to him for advice and help when they wish to marry as a result of a pregnancy.
He says that he does not consider that the removal of the status in law of illegitimacy will lower the tone of family life. He pointed out, as has been pointed out earlier in this debate, that sadly the number of single parent families has risen. However, this is not due to illegitimacy. After all, a child who is illegitimate is stated to be illegitimate now. He believes, as the noble and learned Lord, Lord Simon of Glaisdale, said, that we must concentrate in education in the Church, outside the Church and particularly in schools on the need for children to have a stable relationship, whether between husband and wife or between father and mother of a child.
I see the point made by the noble Lord, Lord McGregor, but I say to him that in many cases that I have dealt with where there has been a stable relationship many parents finally get married, perhaps one or two years after the child is born. My experience has been with Barnado's, as a children's officer and as a director of social services. It is agreed and understood in your Lordships' House that illegitimate children suffer from a sense of being second-class citizens. They feel that throughout life. I must also point out to my noble friend Lady Macleod that they feel it when they must use the long birth certificate in applying for certain jobs where one must produce a long rather than a short birth certificate.
Perhaps I may now address your Lordships on the question of this Bill giving rights to fathers of illegitimate children. I believe that we have been wrong in the past in giving full responsibility for illegitimate children to mothers. I think such responsibility should be a joint one of father and mother. Many such children have asked me about their fathers. One of these children said to me, "I feel like Peter Pan. I am out of the nowhere into here. Where do I come from?".
I agree with noble Lords who have stated that one must he strictly honest with children. As regards the question of AID—that is, artificial insemination by donor—this raises extraordinarily difficult questions, but I believe that some children can accept the truth at one age and some at another. I believe that ultimately, by the time they are grown, children must know the truth. However, I believe this question often depends on how and when that truth is told to them. I strongly support that part of the Bill which keeps children in touch with their fathers.
Perhaps I may now speak on a point which is slightly outside our debate today but which I am bound to mention. It concerns the position of the courts. I may have missed something which the noble and learned Lord on the Woolsack said, but I believe that these cases over the whole position with regard to affiliation,
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money, and the status of children should be dealt with in a particular and very sensitive way in the courts. I need hardly say that I believe that we ought to think very carefully about the whole concept of family courts dealing with these cases.
I shall not speak further, as all the points which I wished to make have been made by other noble Lords. But I wish to make a plea on behalf of the children themselves who feel that they are unjustly treated. If we speak of the next generation and the position of families in that generation, most illegitimate children seek to be part of a stable family when they are grown if they have been helped and if they have had the facts honestly presented to them. I believe that most of those children would say that if the legal paraphernalia of illegitimacy had been taken away, they would not have had quite such a struggle.
My final point concerns the question of marital and extramarital relationships. After a while, those terms will take on the colour of illegitimacy and legitimacy. Therefore I feel that to use them is perhaps not wise. If we do use them, we shall have to have the same debate in your Lordships' House at a later stage, because they will mean just the same thing.
5.50 p.m.
Lord Meston: My Lords, I join in welcoming this important piece of law reform, one which is none the worse for its swift birth after a long gestation period, if that is not an inappropriate phrase to use in this context. It is the result of many years of debate. The Law Commission produced its working paper and two very thorough reports. It is reassuring to know that even the Law Commission can have second thoughts, especially second thoughts prompted by the Scottish Law Commission's work on the same topic.
We should be truly grateful that in the process the dreadful expression "non-marital children" has been discarded. The noble Lord, Lord Mishcon, asked how we should distinguish between such children in the future. Generally speaking, it should not be necessary. We should simply refer to them as children. But if the context requires it, we can refer to them as children born out of wedlock or born in wedlock.
By its recommendations, the Law Commission has endeavoured to bring us into line with European conventions. It is indeed to be hoped that we shall be less vulnerable to admissible applications to the Commission and the European Court in Strasbourg. The law has moved a long way since the common law denied any status to child born out of wedlock. There have been partial and piecemeal reforms, in particular the valuable Legitimacy Act 1926 and the Family Law Reform Act 1969. The stigma of illegitimacy is almost a thing of the past, but it does linger. In seeking to complete the process of removing the legal disadvantages, this Bill reflects the view that the conduct and attitude of the parents should not be a burden on the children they produce. As has often been said (and I think this was once said very effectively in your Lordships' House by Lady Summerskill many years ago) there are no illegitimate children—only illegitimate parents.
This Bill can provide only a framework of rights and responsibilites. The Law Commission did not pretend to do any more. Page 6 of its first report states:

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"It has also been suggested that the illegitimate suffer from special economic and social handicaps because society regards their families as anomalous and makes inadequate provision for them. Reform of the law can only make a limited contribution towards resolving these wider problems but the law should not and need not exacerbate them".
As the noble and learned Lord the Lord Chancellor has just said, you cannot eliminate the facts of life. It will still be a fact that unmarried parents will tend to be too young, inadequate and immature, and from the lower economic groups. It will still be a fact that a good number of mothers will want to conceal the identity of the father for reasons of hostility, fear or shame. It will still be a fact that fathers will seek to avoid responsibilities. It will still be a fact that, as the noble Lord, Lord Mishcon, said, there will be citizenship problems. There will still be many children deprived of the stability of a two-parent home.
In legal and practical terms, the real problem is not the abolition of the disadvantages of illegitimacy. The real problem for the Law Commission was the definition of the so-called rights of the parents and deciding how to regulate them, because not all illegitimate children are produced by casual encounters and they do not all live in one-parent families. Not all putative fathers are straining to deny paternity or pleading poverty. Many parents are prepared to meet their responsibilities and resent the disadvantages of their own uncertain status.
Indeed, that uncertain status encourages them to avoid their responsibilities if they feel they do not have any rights; for example, if a child is taken into care or is under the supervision of a local authority. All too often one sees in practice that the social workers do not consider or consult the father or his family. The absence of any requirement to obtain or to dispense with an unmarried father's consent to adoption is often the source of dismay and friction. One simply cannot deal in absolutes.
The other side of the coin is that there is a minority of putative fathers who can be seen to be a destructive nuisance asserting rights and complaints under the disguise of what is best for the child. In one ghastly case in which I was involved, an unmarried couple produced a child. They were hopelessly inadequate. The child was placed for adoption and the domineering father bullied the inadequate mother into marriage simply to give him the right to object or try to object to adoption.
I suggest that in this field the Law Commission has the balance right. In a thoroughly argued passage in the report it decided not to give the automatic rights to the father with the onus on the mother to disqualify him, but it preferred to give the father the opportunity to apply for shared rights. It is noticeable, though, that in the Bill appended to the first report it was possible for a father to apply for or to be granted all or some rights. The Bill in its final form refers simply to the grant of all rights. This is the product of the confusion we now have in our legislation. It is the result of trying to fragment parental rights.
The essential conclusion of the Law Commission in this area, the pragmatic solution, is correct. It has done the best it can to mitigate the risk that fathers may well have no incentive to apply for their rights to be
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recognised until it is too late. Either way, whatever solution is adopted, the intervention of the courts will clearly be all the more important in what may well be fluid and emotional situations. One can see that what is given to the courts by this Bill will be a new and difficult task in deciding whether—certainly in a contested case—a father should be granted the right to share all parental rights.
Likewise, with Clause 27 dealing with AID, a pragmatic solution has been adopted in line with the recommendations of the report of the committee under the chairmanship of the noble Baroness, Lady Warnock. I support Clause 27. It gives a true status to children who are wanted children who have no emotional ties with their biological father and where the only tie they are going to have with a father is with the husband of the mother who bore them. In some respects it can be treated as shortcircuiting the process which the married couple themselves would want to undergo—that of adoption. To that extent I support Clause 27.
The great step forward in the Bill is the wider financial and property settlement powers to be granted to the courts. In passing, I welcome the long overdue need to allow maintenance to wards of courts who happen to be born illegitimate.
I am not able to say whether removing the inequalities which the Bill seeks to remove will somehow undermine marriage. Certainly I doubt whether preserving the inequalities will shore up the institution of marriage. Certainly one can say that if the Bill is passed those who choose to avoid the commitment of marriage and choose to produce children will find the potential consequences far more expensive than hitherto. One can also remark in passing that the illegitimate birthrate has managed to rise year by year unassisted by the prospect of this legislation. The underlying hope of the Law Commission and of this Bill is that a parent should earn his rights by meeting his responsibilities.
I have to say that, speaking personally, I am rather sad to see affiliation proceedings go. I have spent many poorly paid, prurient hours in the magistrates' courts analysing amorous and squalid encounters. However, I admit that the fun has gone out of affiliation proceedings since blood tests have become so accurate. They seem to be able to tell whether one's great-grandmother kissed the milkman! Seriously, I wish to express a little unease at the abolition of corroboration as a requirement of law. Certainly I hope that in appropriate cases it will be established as a requirement in practice, if no longer in law.
The abolition of affiliation proceedings is in part the result of a recognition of the limitations inherent in the magistrates' domestic jurisdiction and procedures, some of which have been referred to in this report and some of which have not, but which will have to be tackled when the family court is considered. When it is considered we shall have to think carefully about the continued role of the magistracy.
I join in welcoming this Bill. I close simply by inviting the attention of the noble and learned Lord the Lord Chancellor to the suggestion in paragraph 3.12 of the first report that when a suitable occasion presents itself the consolidation of legislation dealing

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with custody and guardianship, on which a substantial amount of work has already been done, should be undertaken. Having said that, one perhaps draws back from that suggestion in the knowledge that the fate of any consolidation Act is for it to be amended within about 12 months of being passed. I welcome this Bill.
6.2 p.m.
Baroness Ewart-Biggs: My Lords, I too followed the clear presentation by the noble and learned Lord the Lord Chancellor with great gratitude. Not only did he help me to understand the Bill but, I must say, made me feel that it is quite extraordinary that for so long so many children were discriminated against because of their parentage. However, as the noble and learned Lord said, once the Law Commission made up its mind the decision was taken very quickly.
As other noble Lords have said, and I shall certainly not repeat everything said, it is clear that the intention of the Bill is right. The intention is to remove a label from children and, as the noble and learned Lord said, bring the same kind of treatment and protection to all children regardless of the marital status of their parents. Therefore, it is for the first time that all children will be placed in the same position in law.
The noble Baroness, Lady Faithfull, has made it clear that she sees this Bill as putting the child first—I always think of the noble Baroness, Lady Faithfull, as the unofficial Minister for Children—and getting the priorities right. As the noble Lord, Lord McGregor, said, it is a great triumph for the National Council for One Parent Families, now in nearly its 70th year and with which I am also involved, to see this particular legislation on which it started its campaign. The National Council for the Unmarried Mother and her Child, as it then was, has finally seen this legislation come to light.
I also stress what the noble Lord, Lord Meston said, that on an international level the reforms proposed by this Bill will have the great advantage of bringing Britain into line with our international convention obligations towards both the Council of Europe and the European Convention on Human Rights. That is a very important consideration.
During the debate two points were frequently made. One was the worry that marriage would be undermined. That point was brought up by my noble friend Lord Mishcon and the right reverend Prelate the Bishop of London, and others. But there are two ways of seeing this. My noble and learned friend Lord Silkin made the point, as did the noble Lord, Lord McGregor, that there are different ways of viewing the effect that this will have. Although from my observations young couples seem to have less respect for institutions—and perhaps less respect for the institution of marriage—they appear to have great respect for all the values which go towards making a strong and stable relationship. They practice tolerance, devotion and loyalty to each other; which are, of course, very important links in keeping together two people who wish to share their lives in the long term.
In view of that, the clauses which give unmarried fathers the right to apply to share with the mother parental rights and duties over the child appear to make this particular family unit, which clearly is
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growing, very much stronger in spite of the fact that, as I said, it is a different sort of marriage on an informal basis, foregoing the marriage rites. It could even be said—as I have often heard and, I imagine, other noble Lords have—that young couples in some cases deliberately do not enter into formal marriage, feeling that by foregoing the encircling and embracing framework of a formal marriage the onus to forge a strong and lasting relationship based on discipline and commitment will he much greater for each of them. That is an argument I have often heard put forward by young couples.
Indeed, the fact that, as has been said, 126,000 children were born last year out of marriage, despite the availability of free contraception, must mean that a growing number of couples enter into long term relationships without getting married. They do that completely of their own choosing and because they think it might result in a more stable relationship in the long run. Indeed, when they look around and observe the graveyard of formal marriages and the spiralling divorce rate, one is perhaps not so surprised that they are choosing that less formal structure of binding their lives together.
There is no doubt that this Bill will give them support in their efforts to join and unite and to bring up their children, with the result that this new family unit will be very much strengthened. Therefore, I should like to think that marriage will not necessarily be undermined and that to compensate for any danger that might exist this new and perhaps stronger family unit will emerge.
The other point made, with some anxiety, relates to Clause 27, which allows for a child to be registered as a child of a husband and wife where the child is born as a result of artificial insemination. The whole subject of AID is an important and crucial one. However, this Bill must not be used—and I hope it will not happen in Committee—as an opportunity to discuss the social, ethical and medical implications to which AID might give rise.
I very much took to heart the point made by the right reverend Prelate the Bishop of London about the right of a child to know who he or she is. The noble Baroness, Lady Faithfull, is right to say that there is a time during the life of a child, a young person, adolescent or even a young adult when this truth could be related. However, it can do nothing but harm if a child is told too early that it has been born through artificial insemination.
My noble friend Lord Mishcon brought up the question of nationality. I hope that perhaps the noble and learned Lord the Lord Chancellor will tell us whether the child of parents who are unmarried will be able, through this Bill, to inherit British citizenship from its father, or whether this will not be possible.
I should like to end by saying that of course we should all like to see the institution of formal marriage continue. We have known and respected it for a long time. Practically all of us have been part of that old institution of marriage, and we see the legitimate family consisting of married parents. We see it as an institution that needs support from government and from the attitudes of society, but I do not think that necessarily makes us intolerant of social trends and a change in attitudes which takes into account the less

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formal arrangements made between men and women about the way in which they wish to lead their lives. I think therefore that I see this Bill very much as a positive way of strengthening a different kind of family unit rather than as undermining the traditional one. Finally, I see it as supporting the child and giving it the most prominent position, which I think is the position that the child should always hold.
6.11 p.m.
The Lord Chancellor: My Lords, I begin by thanking all noble Lords who have taken part in this debate. In seeking to reply as shortly as the circumstances permit, it is obvious that I shall deal more in detail with the arguments of those who have expressed some reservations about the Bill than of those who have wholeheartedly supported it, for whatever reason. I should like in particular to thank the noble Lord, Lord Meston, who on these questions with which he is professionally proficient has always seemed to me to speak very much on the same wavelength as I do. I also thank the noble Lord, Lord McGregor of Durris, my noble friend Baroness Faithfull in particular and the noble and learned Lord, Lord Silkin, for the support that they have given me on what have been the relatively minor points of criticism to which the Bill has been subjected.
In opening I was not anxious to enter into profound questions of morality or theology. I simply say as a matter of record that I share the view of my noble and learned friend Lord Simon of Glaisdale—both he and I are members of the Church of England, and practising members I think—and I should not like to see anything done which undermines the institution of marriage. As a matter of sheer history my noble and learned friend on the Cross-Benches was perfectly correct when he said that I was on record as being highly critical of the 1969 legislation, which I think is quite irreversible. It was very largely orchestrated by the Church of England itself and particularly the episcopate, so that, if I belong to God's holy Opposition, if I may call it that, I may be forgiven for not taking all that seriously the strictures of the right reverend Prelate the Bishop of London about this modest or comparatively modest little Bill. However, I say this to him. If he runs away with the idea that, because we remove the terminology of the law which imposes an inevitable stigma on the child born out of wedlock, the people of this country will be so stupid as to run away with the idea that the Government are trying to undermine the institution of marriage, I think he gravely underestimates the intelligence of the people of this country.
Even to the extent mentioned by the noble Baroness who has just spoken, I shall not now go into the necessity for the relationship of marriage. On any view, marriage—religious or irreligious—is a contract giving rise to a status. The essential nature of it is that, if people choose to live in an irregular way, in a state of what my noble and learned friend called concubinage—whether the relationship be a marriage or a shacking-up—the man is usually able to show the woman the door without the smallest remedy being available to her except in respect of the children of whom he can be proved to be the putative father.
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Secondly, as regards the children of a union, they are assumed to be children of that union if there is a marriage status. Therefore all I can say to the argument that in altering the terminology of the law by removing the stigma of the use of the Norman French words "legitimate" and "illegitimate" you are trying to undermine the institution as an institution, is that such is not the view of the Government, and I should like to see a Lord Chancellor who is serving as what I hope is a trusted colleague of the present Prime Minister put forward any contrary view. He would get a poke in the eye with an umbrella before he knew where he was! I think that there is absolutely nothing in that criticism.
I go so far as to agree with my noble friend Lady Faithfull that if we substituted the original terminology of the English Law Commission—namely, "marital" (I insist on pronouncing it mer-eye-tal because I was brought up on Latin poetry and know where the quantities lie) and "non-marital"—for the existing terms of "legitimate" and "illegitimate", we should very soon be having the same debate about the stigma attaching to "marital" and "non-marital". I think that the noble Lord, Lord Meston, made the same point.
I think the real truth is that it is far better to label the parents than to label the children. It is more just and more correct because, as the noble Lord, Lord Meston, said—or perhaps it may have been the noble Baroness, Lady Ewart-Biggs—there are no illegitimate children; there are only illegitimate parents. Children are only children.
However I now turn to the more technical side of the matter, having left theology for the moment. The first technical point, which was made by the noble Lord, Lord Mishcon, and echoed in one or two of the speeches, was why the Bill does not deal with nationality? The reasons are largely technical but I shall rehearse them. They coincide with the report of the Law Commission and, as may have been observed in this House when I put forward a Bill, in general my policy is normally to follow the recommendations of the Law Commission if I can. There are occasions when I cannot.
In the first place, this is a Bill for England and Wales and it is not a Scottish Bill. Reverting for a moment to the question of terminology, it is very much better that English law should follow Scottish law wherever possible, or that Scottish law should follow English law wherever possible. This is a Bill for England and Wales, and it does not extend to Scotland. I am sorry to say that those who made the point before me forgot that there is a third part of the United Kingdom called Northern Ireland. The Law Commission recognised that before we could legislate on citizenship wide consultations would be necessary. These have not been held. Experience has taught me that unless such consultations are held, law reform has a poor chance of survival. The difficulties in producing satisfactory legislation on this point have not yet been resolved and a United Kingdom-wide Bill dealing with nationality is not at the moment in practice.
The Law Commission makes some interesting proposals on citizenship which the Government have studied carefully, but it has not yet proved possible to identify arrangements which are fully in accordance with the approach to citizenship in our nationality law

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and which will be clear and reliable. The Law Commission's approach to children in this country, of requiring declarations of parentage, would break new ground in our citizenship law and would not deal with the formidable practical and legal problems of children born abroad, which need more careful study.
The difficulties, as I see them, are formidable. I doubt whether we should be doing a service to the Bill if we were to attempt to resolve those difficulteis during its passage. If I may say so, with respect to the noble Lord, Lord Mishcon, who also raised the question of domicile, that is a thicket of private international law considerations in which I should hope not to enmesh myself even in Committee.
The next point made by the noble Lord, Lord Mishcon, related to trustees. That is a technical point. Broadly speaking, the answer is that the Law Commission's second report, as he rightly said, reversed its original recommendation. It removed the protection at present given by Section 17 of the Family Law Reform Act. The Law Commission gave four reasons, which I put before the House in answer to the noble Lord, Lord Mishcon. On balance I find them convincing.
They were that, first, it may be no more onerous to ascertain whether there is anybody entitled through an illegitimate person than it is to ascertain the other matters which arise under the general duty imposed on trustees to distribute the estate to the right beneficiaries. Secondly, as I think the noble Lord, Lord Mishcon, recognised, adequate protection may be said to be given under the existing Section 27 of the Trustee Act 1925. Under this provision a personal representative or trustee may advertise for claims. He is then free from liability to all claimants except those of whose claims he has notice.
Thirdly, any question of embarrassment being caused to personal representatives and trustees was not thought to constitute sufficient justification for the present statutory protection on the ground where there is some reason to suspect that there may be an illegitimate link. A conscientious personal representative or trustee would normally make inquiries, however embarrassing, if only to be sure that he would not be exposing the other beneficiaries to a later action against them. Fourthly, it may not be in the interests of the other beneficiaries that the personal representative's duty to distribute the estate to the right beneficiaries should be qualified by Section 17. A person claiming through an illegitimate link would then still be entitled to trace the assets through the personal representatives' hands and they might have understandable reason to complain if reasonable inquiries before distributiion would have disclosed its existence.
I think that the next point that the noble Lord, Lord Mishcon, made was: why not titles of honour? I can see that my noble friend Lord Sudeley is in the House. I think the answer is rather simple. I do not know why the noble Lord should confine himself to Peerages. Far more important than the question of hereditary Peerages is the descent of the Crown. It would raise serious questions if I were to embark upon this delicate field in relation to the Family Law Reform Bill. The patent which creates the Peerage, except in those few
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Peerages which are created by writ, where different and common law considerations arise, is normally to the heirs of the body lawfully begotten and to be begotten.
I remember hearing those words read out for the first time again when my noble friend Lord Whitelaw was introduced into the House. It is part of the Crown's prerogative to ensure that it descends through the married line. What is far more convincing to my mind is that even in 1926, when we legitimated children per subsequens matrimonium, thereby following the Roman Catholic Church and not the Church of England, the question of descent of titles of honour was expressly reserved. They can only be legitimated if lawfully begotten at the time.
Lord Mishcon: My Lords, I wonder whether the noble and learned Lord will forgive me. Everything that he says is, as usual, correct. I merely invited him to tell the House whether Her Majesty's Government would be prepared to advise a change in that procedure in view of the principle that he has enunciated with such eloquence, that legitimate and illegitimate children should be treated in the same way.
The Lord Chancellor: My Lords, I thought that I was dealing with that point. All that I can tell the House is that Her Majesty's Government have no plans, at any rate in this Bill, to alter the descent of titles of honour or the descent of the Crown. I think that I have explained why. Anyone who expects to get absolute consistency in the law in this field is following a will-o'-the-wisp.
A question was asked about Clause 30 and the powers which enable me, by statutory instrument, to apply the rule of construction established in Clause 1 to those existing enactments by which it is expressly provided that illegitimate relationships should be treated in the same way as legitimate ones. There was a good deal of discussion on this point, but the provision contained in the Bill was recommended by the Law Commission in paragraph 2.6 of its second report, and I think that it is a useful one. The type of provisions to which the power may apply are Section 113(2)(d) of the Housing Act 1985 and Section 19(2)(b) of the Registered Homes Act 1984, which refer, in terms, to an illegitimate child. If I had the power and used it, such provisions would be repealed and the provisions to which they relate would be made subject to the principle contained in Clause 1.
I concluded that the clause should be retained but only for use in those cases where it is found, in practice, that somewhere about the statute book there are statutes in which the provision equating illegitimate children with legitimate is badly expressed, and could be better expressed by the application of Clause 1. It is not intended to alter children's substantive status.
I hope that I am not outstaying my welcome. I am trying to deal with all the points, and some of them were rather intricate. The right reverend Prelate, to whom I now return, expressed worries about AID. I am not sure that I wholly understood his point. What he was apparently saying was not material to the Bill's text or provisions. He argued that the facts of physical paternity should be on record and that children born as a result of AID should be allowed access to that

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information. That suggestion conflicts with the Warnock report recommendation that on reaching the age of 18 a child should have access only to the basic information about the donor's ethnic and genetic origin.
I do not want in this Bill to express an opinion as to whether that suggestion or the Warnock suggestion is correct, because responsibility does not rest with me and a decision has not yet been taken on it. The Government announced on 25th November that a consultation paper inviting views would be published before the end of the year. That publication will be available from Her Majesty's Stationery Office.
The provisions in this Bill dealing with the legal status of AID is compatible with whatever amount of information about the donor's identity it is eventually decided should be made available to the child once he has reached the age of 18. The criticism that is made does not really therefore affect the text of the present Bill. The criticism, if it be a criticism, is a little premature in that it anticipates a government decision that has not been made that we should exclude the provision of certain parts of the information from the knowledge of the public or the knowledge of the individual child. That has not been made. Therefore the Bill would require no amendment whichever way the decision ultimately went.
I agree tentatively with those of your Lordships, notably the noble and learned Lord, Lord Silkin of Dulwich, who have supported the inclusion of Clause 27. I believe that if we clarify the position of children hitherto regarded as illegitimate and born out of wedlock, it would be a mere injustice to exclude any clarification whatever of the position of children who were born within wedlock but avowedly under the process known as AID. It would be an injustice and it could not ultimately be tolerated. It was for that reason, despite the weighty opinion to the contrary of the Law Commission, that I insisted on keeping it in the Bill. I do not believe that the Bill would founder without it but we would be doing a real injustice if we did not have Clause 27.
There are of course other and genetic problems raised by those who are keen on imagining the extremely unlikely. They are problems relating to the results of adulterous intercourse and premarital intercourse that is not adulterous but is the result of fornication. As anyone who has read the recent series of biographies about late Victorian, Edwardian and neo-Georgian aristocracy will realise, these are difficulties that do not arise normally out of AID at all but are much more likely to arise in relation to what I have said.
My noble friend Lady Macleod of Borve, who, like me, applauds the institution of marriage, was not quite right when she said that we had recently degraded that institution by allowing divorce within a year. That is not correct. We have prohibited divorce within a year. The change in the Bill that is now the Act of 1984 was that in place of a three-year period of delay, but with an exception that could be exercised within a week of marriage, we put on an absolute provision for one year. This resulted in a slight head of steam leading to a burst of petitions for dissolution. But that is, I am
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happy to say, plateauing out, and as the Scots, who never had the three-year period, have had ample experience to tell us, it makes no ultimate difference to the frequency of divorce, because they already know that.
I was most grateful for the speech of my noble and learned friend Lord Simon of Glaisdale, for reasons that I have already given. But he will probably excuse me if I do not comment on his two suggestions about the grounds of divorce. I do not believe that I would be able to put them forward at the Committee stage of the Bill because they would be outside the scope of the legislation. Although they were very interesting, I would prefer not to be drawn.
I am grateful to noble Lords for the general welcome given to the Bill. If there are questions that I have not answered, I shall be happy to answer them now, during the Committee stage or by correspondence. I believe, however, that I have covered a good deal of the ground. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Functions of Traffic Wardens (Scotland) Amendment Order 1986
6.35 p.m.
The Earl of Dundee The Earl of Dundee rose to move, That the draft order laid before the House on 12th November be approved. (1st Report from the Joint Committee).
The noble Earl said: My Lords, this order amends the Functions of Traffic Wardens (Scotland) Order 1971 and is subject to affirmative resolution procedures in both Houses. It resembles very closely the order relating to the functions of wardens in England and Wales approved by the House earlier this year.
The order does not extend the functions of traffic wardens nor does it provide for new powers or functions. The order arises from the need to enable traffic wardens to issue "fixed penalty notices" under Part III of the Transport Act 1982 when new provisions relating to the issuing of these notices for stationery vehicle offences are introduced in Scotland on 1st December of this year. When Part III is brought into force, the legislation currently referred to in the 1971 order, which enables traffic wardens to issue fixed penalty notices at present, will be repealed. This order, which we have before us, amends the 1971 order only insofar as it removes the reference to the repealed legislation and replaces it with a reference to the Transport Act 1982. The order therefore does no more than allow traffic wardens to continue issuing fixed penalty notices, but under different legislation.
As the need for this order has arisen because of the implementation of provisions in Part III of the Transport Act 1982, it may be helpful to your Lordships if I say something briefly about these provisions. There have been, for some years, problems in administering the present parking ticket system, and a large number of parking tickets issued are never paid. Under the system which is now being replaced the motorist who ignored a parking ticket was presumed

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to have opted for a court hearing for the alleged parking offence and the procurator fiscal had therefore to prosecute such a motorist if any penalty were to be imposed. In practice, the large number of unpaid penalites made it impractical to pursue all such cases and many motorists escaped. The provisions being implemented are intended to remedy this by requiring the motorist specifically to request a hearing if he wishes to dispute his liability for the offence. If he does not and he also fails to pay the penalty, a fine of one and a half times the amount of the penalty will be registered against the motorist without the necessity of a court hearing. Thus a £12 unpaid parking ticket will become an £18 fine. This fine will be subject to the normal fine enforcement powers available to the courts. This is a very brief outline of the new fixed penalty system for stationary vehicle offences and while it should reduce the burden falling on the police and the courts in prosecuting such offenders, its implications for traffic wardens are small in that their functions and powers will remain the same as at present.
I hope that this explanation has set the draft order in context. Your Lordships will appreciate from what I have said that the order is necessarily simple as a consequence of bringing these provisions of the Transport Act 1982 into effect. I beg to move.
Moved, That the draft order laid before the House on 12th November be approved. [1st Report from the Joint Committee.]—(The Earl of Dundee.)
Lord Ross of Marnock: My Lords, we are grateful indeed to the noble Earl, Lord Dundee, for his explanation, so far as it goes, of what we have before us. The noble Earl said that it follows fairly closely English legislation that came earlier this year. I look at this order and what do I find? It says "Made". This is a draft. It is not made yet. The order says, "Coming into Operation 1st December". When is that? It is Monday. If this is essential to the bringing into operation of the new system let us look at the new system itself. We got that from the Secretary of State via Mr. Ian Lang, Parliamentary Under-Secretary of State, Scottish Office, under a statutory instrument on 28th October.
May I suggest that it took the Scottish Office from 28th October until about now to realise that there was something wrong? In other words, they had forgotten about the limitation of the powers of the traffic wardens. We do not amend Section 95(5) of the Road Traffic Regulation Act. We do not amend the 1982 Act, presumably because that would have required primary legislation and we should have been out of time with regard to the commencement date which was already law as from 28th October. In respect of 28th October I am citing a different Act altogether. I think that it was the Transport Act 1982 which was cited there as giving power to do this. It laid down 1st December 1986.
Can the Minister be frank with the House and tell us exactly what happened and why we are considering this at the very last minute? Suppose that something drastic had happened to this House today? The traffic wardens would not have had the power to do what the Government want them to do.
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Why did they not change Section 95(5) of the Road Traffic Regulation Act 1984? They had the power there.
"Traffic wardens shall not be employed to discharge functions other than those prescribed as appropriate for the purpose by order of the Secretary of State made by statutory instrument; and no order shall be made under this subsection unless a draft … has been laid before, and approved by resolution of each House of Parliament".
They could have used that, but no, we go back to 1971.
In 1971 the traffic wardens did not have the power that is now being given to them or was given to them in 1982. I say this because in 1982 when the fixed penalty notice system was introduced and measures were laid down it was limited then to a constable in uniform. The traffic wardens could not do this according to law under the 1982 Act. Somewhere somebody forgot all about this and we come here at the last minute amending the 1971 Act.
Who are traffic wardens? I think that the age group is anything from about 19 to 59. Here they are given a new power. It was said that traffic wardens should be suitably trained—this was in the 1984 Act—for this new power. But this is not yet legislation. It has not yet been made. It has been approved by the other House but it has not yet been approved by this House. They have between today, Friday, Saturday and Sunday to train them suitably for this new task. This is because somebody in the Scottish Office must have slipped up.
If we go back to the other Act one discovers that in 1971 a draft was made on 4th March—which means that it was discussed before that—which came into operation on 1st April. But here we are, the order is not yet made, and it is coming into operation on Monday. It is interesting to note what the Under-Secretary said about the number of unheeded notices. I think that it is about 50 per cent. in certain very busy areas. If he knew anything about what is happening in the courts in Scotland—there was a very interesting article in the Glasgow Herald the other day in relation to this—he would know that they do not have the time. I wonder whether the situation will be any better after this. I do not see that it will be very much improved. There is certainly the additional penalty of the extra £6; but it makes it rather a laughing stock, if, having made and underlined laws, and having increased penalties, we do not have the administrative resources to put the measure properly into law.
The policeman cannot do it; he does not have the time. But if we do not have this measure the traffic wardens will not have the power to do it. I think that we shall be very unpopular with the motorists of Scotland if we allow this order to pass. There was a time when I was a motorist when my eyes were a little better than they are now. However, I shall risk the unpopularity. I think I have to, for the sake of the good sense of Scotland, about which we have heard a good bit in respect of the Bill before us earlier today. But months after they had done it properly in England, we suddenly decide that something is wrong with regard to Scotland and that we had better get this order through quickly. However, it is not good enough from the point of view of the reputation of the Scottish Office.
The Earl of Dundee: My Lords, I have some sympathy with the point of the noble Lord about timing. However, I feel that I can reassure him. There are two points to be made: first, that owing to the need to align the 1971 order with the new provisions contained in Part III of the 1982 Transport Act, wide consultations were necessary. Secondly, the traffic wardens' powers were certainly not forgotten, but the House of Commons came back later than this House. As a result there has in fact been no earlier opportunity to bring the matter to the attention of the House.
However, the substance of the point by the noble Lord concerned training. Indeed, if a great deal of training had been required to follow from the new measures proposed then lack of good timing would have been a difficulty. However, as it happens, the functions of traffic wardens arising from the proposals will be relatively unchanged. Traffic wardens will not need to be retrained in any way. Therefore I think that I can assure the House that there will be no administrative difficulties arising. I have every confidence that next month, and as from 1st December, the new proposals will be able to work well, and not least since the purpose of them is to ease the administrative burden on the courts and to give a greater disincentive to motorists to neglect parking fines.
On Question, Motion agreed to.

Suppression of Terrorism Act 1978 (Application of Provisions) (United States of America) Order 1986
6.50 p.m.
The Minister of State, Home Office (The Earl of Caithness)The Minister of State, Home Office (The Earl of Caithness) rose to move, That the draft order laid before the House on 20th November be approved. (2nd Report from the Joint Committee.)
The noble Earl said: My Lords, I beg to move that the draft Suppression of Terrorism Act 1978 (Application of Provisions) (United States of America) Order 1986, a copy of which was laid before this House on 20th November, be approved.
The House will be aware that the purpose of this order is to apply the provisions of the Suppression of Terrorism Act 1978 to the United States. This will open the way for the United Kingdom to ratify the new Supplementary Extradition Treaty with the United States. The amended text of that supplementary treaty is set out in Schedule 1 of the draft order. An exchange of notes between the two governments, giving the text, was laid before your Lordships' House and the other place last month. The main effect of the supplementary treaty will be to prevent people accused or convicted of certain serious crimes of violence from avoiding extradition by claiming that their offences are political. As your Lordships will know, people accused or even convicted of serious violent offences in the United Kingdom have been able to flee to the United States and avoid extradition by claiming that their offences were political.
It may be helpful if I seek to explain first some of the terms of the draft order before us this evening, and then turn to the supplementary treaty iself. The draft order has been considered by the Joint Committee on Statutory Instruments. Before the United Kingdom can ratify the supplementary treaty the necessary statutory provisions have first to be applied. Thus the draft order applies certain provisions of the Suppression of Terrorism Act 1978 in respect of extradition to the United States. That statute gave effect to the European Convention on the Suppression of Terrorism. The present arrangements with the United States reflect some of the terms of the European Convention which, among other things, seeks to remove the political offence exception from extradition in respect of certain violent crimes. The European Convention also contains other provisions which have not been included in the supplementary treaty. Thus it obliges participating states to establish extraterritorial jurisdiction over offences where extradition does not take place. But that would be outside the terms of our principal extradition treaty with the United States; nor would it be a particularly appropriate facility for two common law states. It has not therefore been included in the supplementary treaty. The Suppression of Terrorism Act is applied by order to other states which have ratified that convention. It has been so applied over the years to all the European states which have ratified. The United States would be the first country outside the Council of Europe to be designated.
The draft order, in Schedule 2, identifies the various provisions in the 1978 Act which give effect to the provisions of the supplementary treaty. In particular I draw your Lordships' attention to paragraph 5 of that schedule. This sets out the list of offences—drawn from the list in the 1978 Act—which are not to be regarded as offences of a political character in relation to a request for the extradition of a person to the United States. All the major terrorist offences are covered in the list which includes murder, manslaughter, kidnapping and explosives offences.
The supplementary treaty does not extend the range of offences which are extraditable under our principal extradition treaty with the United States. The principal treaty sets out in the normal way the list of crimes for which extradition takes place, and to that extent remains unamended. The principal treaty however incorporates a further requirement of the Extradition Act 1870: the political offence exception. This requirement is a standard feature of our extradition treaties. Thus the principal United States treaty prevents extradition:
"if the offence for which extradition is requested is regarded by the requested party as one of a political character".
This concept is not defined in either the 1870 Act or in the treaty. In the United States a body of case law has arisen concerning the interpretation of this exception. The effect of this has been that the United Kingdom has failed to secure the extradition of people accused or even convicted of serious offences simply on the ground that the US court had to accept that their political motives prevented extradition. It may be helpful to the House if I gave an example.
In one particular case the United Kingdom applied for the extradition of a man to face a charge of attempted murder as a result of causing an explosion at an army barracks in 1974. In this incident a bomb exploded in the canteen of a barracks in Ripon and a civilian canteen manageress was injured by flying glass. The fugitive in fact admitted involvement in the incident. Following consideration of the United Kingdom's request a San Francisco court ruled that the alleged offence was political and rejected the request.
Neither the United States nor the United Kingdom accept that this state of affairs represents a proper application of the political offence safeguard. It is deeply offensive to ordinary law abiding people to see criminals accused of such vicious offences find haven in another country, particularly a country with which we have such close and friendly relations. The purpose of this safeguard must surely relate to asylum. But where both countries are democracies and have independent judiciaries it cannot be right for people accused of such crimes so easily to escape justice.
I turn now to the content of the supplementary treaty. The present text of course differs from that which was signed by representatives of the two governments in June 1985. The amendments were made following lengthy proceedings in the Senate Foreign Relations Committee, with which the United Kingdom was kept closely in touch.
The most important changes relate to the list of offences and to the inclusion of a safeguard. The effect of the supplementary treaty is that a person accused or convicted of any of the offences in the list in Article 1 of the supplementary treaty would not be able to avoid extradition by claiming that his offence was politically motivated. Some of the offences on the original were removed. For example, there were difficulties with some of the firearms offences. It was doubted whether the descriptions of the offences would always cover conduct which actually amounted to a crime in the United States. The combination of the international terrorist offence references (for example, hijacking, hostage taking) was a matter of drafting. And possession and purely property offences were removed. The list of offences is therefore briefer. But both the United Kingdom and the United States are confident that the whole range of terrorist crime is covered.
Another important change was the inclusion in Article 3 of the so-called humanitarian or asylum safeguard. This provision did not feature in the original text of the supplementary treaty because there was no treaty or convention obligation on us to do so. It was also felt to be unnecessary because the issues covered by the safeguard simply do not arise between the US and the UK. The Senate, however, felt that it was proper to include the safeguard in order to balance the removal of the political offence safeguard. In this respect therefore the supplementary treaty follows the European Convention.
The safeguard is found in our Suppression of Terrorism Act and is applied automatically to other countries in the European Convention on the
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Suppression of Terrorism. It is also found in the Fugitive Offenders Act 1967 which covers Commonwealth extradition. It has now been included in the Criminal Justice Bill which is at present in the other place so that it can also apply in foreign extradition cases.
The effect of the humanitarian safeguard is to prevent extradition where the extradition request is made for the purpose of trying or punishing a person on account of his race, religion, nationality or political opinions, or where the fugitive would, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions. The article also provides, however, that the fugitive must satisfy a court:
"by a preponderance of evidence"
that he would be persecuted in this way. It was also decided that the supplementary treaty should make clear that no changes were being made to the evidential requirements. Thus Article 2 repeats the prima facie and "probable cause" requirements.
The remaining changes were minor or technical. I shall, however, mention one. It was intended to change the principal treaty provision in respect of prosecutions which were barred by lapse of time. The aim was to provide that extradition might only be denied where the offence in the requesting state was barred by lapse of time. However, the Senate deleted the provision, because it considered that the existence of a time bar in the requested state was a proper reason to deny extradition.
I hope that I have said enough about the treaty to enable your Lordships to form a view of the purpose of this draft order. For the sake of completeness I should also explain that two other instruments will be required before ratification can take place. An Order in Council under the Extradition Act 1870 is necessary: this is laid, but is not subject to proceedings. And a negative resolution order under the 1978 Act will apply the arrangements to the dependencies.
The Government believe that the supplementary treaty is a most welcome development. It will demonstrate that neither we nor the United States will allow our countries to afford refuge to those accused or convicted of grave crimes. My Lords, I therefore commend the draft order to the House, and I beg to move.
Moved, That the draft order laid before the House on 20th November be approved. [2nd Report from the Joint Committee].—(The Earl of Caithness).
Lord Mishcon: My Lords, the House will be grateful to the Minister for so clearly explaining the reasons for the supplementary treaty and draft order now before us. As he rightly said, there was a scandalous set of conditions following the wave of terrorism, when we found that in the United States—such a valued ally—terrorists guilty of the most heinous crimes were being let off extradition by virtue of a claim that their actions were politically motivated. The decision made in the San Francisco court, which the noble Lord referred to, was one which created a great deal of anger and

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resentment in this country. There is not the slightest doubt but that the warm cords that bind us to the United States become very much cooler as a result of incidents of this kind. This supplementary treaty has done something not only to right a wrong but to see that a proper, civilised order in regard to matters of this kind exists both here and in the United States. From these Benches we welcome the supplementary treaty and the order.
The Earl of Caithness: My Lords, I am grateful to the noble Lord, Lord Mishcon, and his party for their support. I wish that the Liberals and the SDP were here also to support the order.
On Question, Motion agreed to.
House adjourned at once minute past seven o'clock.