§ 4.19 p.m.
§ Proceedings after Third Reading resumed.
§ Clause 22 [Declarations of parentage]:
The Lord Chancellor moved Amendment No. 6:
Page 14, line I. leave out from ("for") to end of line 9 and insert ("a declaration that a person named in the application is or was his parent").
The noble and learned Lord said: My Lords, I ought to have said from the Woolsack, if that was the right place, but I now say it here, that I am told that as printed on the Marshalled List the amendment standing in my name is to,
leave out from ('for') to end of line 9".
Whether that was a misprint I was frantically endeavouring to find out and I had not completely found out. Whether it was a misprint or a mistake, it
ought to have read "line 7" and not "line 9". When the noble Lord, Lord Kilbracken, moves his amendment to my amendment it may turn out that he was quicker than I to spot the defect in the drafting.
§ However, if I may, I should like to put it in case it was not a misprint which I should be entitled to change. I should like to suggest that I put in a manuscript amendment to the extent of saying, "to the end of line 7", which would have the effect of retaining subsection (2) in the Bill as drafted. I think that would be better than the form in which the noble Lord, Lord Kilbracken, moves his amendment to my amendment. At any rate we are on the same point. The noble Lord moved an amendment at the Report stage in terms identical with those that I intended to move on 15th January 1987 at col. 654 of Hansard. This is a new provision inserted into the Act of 1986, Section 56, and it does not alter the substance of Clause 2 in any way. It was, as the noble Lord said when we discussed this before, a drafting amendment.
§ I was at that time a little reluctant to accept it as it stood, because the draftsman had pointed out to me that, although it would appear to have no effect upon the Act of 1986, it might very well be thought to have unexpected repercussions. We should be amending another Act of Parliament by inserting a new clause and it might have repercussions on other clauses. I have caused a good deal of investigation to be made since then and the conclusion is that it would have no effect on that other Act of Parliament and that the amendment of the noble Lord is therefore neater than the draft in the Bill.
§ I do not know what the House will allow me to do but I think I am in order in asking to substitute "line 7" for "line 9" in my amendment which would have the effect of retaining subsection (2) of the new Section 56. That is what I am advised to do if that is for the convenience of the House.
§ Lord Simon of Glaisdale
My Lords, is my noble and learned friend entitled on Third Reading to move a manuscript amendment? I feel that that should be done and it is convenient, but I remember a Bill of the noble Lord, Lord Meston. The noble and learned Lord the Lord Advocate wanted to move a manuscript amendment when it was pointed out that there was a defect in his Scottish amendment. We were told that no manuscript amendment could be moved on Third Reading. My own view is that that is so and it is apparently so. It is a defect in our procedure.
§ Lord Meston
My Lords, the noble and learned Lord is right. There is a rule preventing manuscript amendments being put forward on Third Reading. I do not understand the rule and if we can waive it today so much the better.
§ Lord Kilbracken
My Lords, if I may intervene for a moment before the noble and learned Lord puts the amendment, he is perfectly right. I noticed that in the amendment as he had tabled it, it left out the whole of the passage down to the end of line 9. He now says that that was not intended, but of course I could not tell that that was the case and therefore that subsection (2) would not come out. I thought that the provision in 536 subsection (2) ought to stay and so in my Amendment No. 7, which is an amendment to Amendment No. 6, I tagged on the provision of subsection (2) to the end of subsection (1). Therefore, without moving a manuscript amendment but simply by accepting my Amendment No. 7 the provision of subsection (2) will be included and Amendment No. 6 can stand as it is at present drafted.
§ Lord Silkin of Dulwich
My Lords, my attention has been drawn to Standing Order No. 46 of the House which says that no amendment other than a privilege amendment shall be moved upon Third Reading of a public Bill unless notice of the amendment has been given to the Clerk not later than the day preceding that on which the amendment is to be moved in sufficient time to enable the amendment to be printed and circulated in the form in which it is to be moved. That seems to support the suggestion that a manuscript amendment as such is not permissible. Whether that applies to what the noble and learned Lord who sits on the Woolsack suggests might be a misprint—in which case the amendment which was handed in was correct but unfortunately was not correctly transcribed—I do not know. I should have thought it would be a ridiculous situation if a misprint cannot be corrected.
§ The Lord Chancellor
My Lords, the trouble about it is that I had my attention drawn to this only at the time I was discussing a previous amendment, a very few minutes before the Statement began, and I have been frantically trying to find out whether the omission was a lapsus calami on the part of the draftsman or a misprint on the part of the transcriber. Whichever way it is, if I may, in order to avoid any point of order being valid, I shall accept the amendment of the noble Lord, Lord Kilbracken, to my amendment but without prejudice to restoring the text to what I intended it to be. I believe the effect is the same but I slightly prefer the original form that I had intended to be part of the Bill. However, having said that, I shall now move my Amendment No. 6 as it stands and ask the noble Lord to move his amendment to my amendment, in which case, on the understanding that I have given, I shall accept it. I beg to move Amendment No. 6.
Lord Kilbracken moved, as an amendment to Amendment No. 6, Amendment No. 7:
Insert after the words to be inserted ("or that he is the legitimate child of his parents").
§ The noble Lord said: My Lords, I beg to move my Amendment No. 7 as an amendment to the noble and learned Lord's Amendment No. 6. I was going to start my remarks by saying how delighted I was to have managed to deliver one googly that got through the defences of Stonewall Jackson, the noble and learned Lord the Lord Chancellor. Now I am able to say that I have apparently been able to deliver two such googlies.
§ So far as Amendment No. 6 is concerned, I should like only to say that I want to thank all those noble Lords on all sides of the House who have supported me. That support was perhaps what convinced the noble and learned Lord that my amendment should be accepted. I should like to mention also how sorry I am 537 that the noble Lord, Lord Renton, who supported me then, is unfortunately unable to be here today.
§ I put down Amendment No. 7 simply because I saw that subsection (2) had been omitted. I thought that might have been an error but I had to take the amendment as I found it and I saw no reason for subsection (2) being deleted. Indeed if the noble and learned Lord, as I am sure is the case, did not notice this until just before the Statement, I can only say that the presence of my Amendment No. 7 could have alerted him or any of the officials in his department. If the subsection is deleted only as far as line 7 then my amendment does not make sense: it simply repeats what is already in the Bill. However, I am so glad that two of my amendments are going to appear on the statute book that all I need do is to say how grateful I am to the noble and learned Lord for making his suggestion. I therefore beg to move Amendment No. 7.
§ 4.30 p.m.
My Lords, the question of whether or not a manuscript amendment is allowed does not really apply in this case because if the House has made it quite clear that the entry in the formal amendment of the noble and learned Lord the Lord Chancellor of "line 9" should in fact read "line 7", it is perfectly within the power of the Clerks of the House to correct what is in effect nothing more than a typographical error. Whether that error arose from the time of the tabling of the amendment and the transcription of that amendment to the printed paper is neither here nor there. I think it would be perfectly legitimate for the Clerks to amend the wording of the amendment with no embarrassment or difficulty whatsoever.
§ Lord Simon of Glaisdale
My Lords, there are two matters which arise on these amendments. One is procedural and the other concerns drafting. As regards drafting, undoubtedly this is an improvement. The noble and learned Lord on the Woolsack described himself as being a little reluctant at Report stage. I think he did himself an injustice. He acted much more categorically than that. At any rate, there was universal feeling that the draft of the amendment of the noble Lord, Lord Kilbracken, was an improvement to the Bill. This gives us an opportunity of saying how much we all owe to the noble Lord for the immense care that he has taken with this Bill.
The manuscript amendment is yet another example of the extreme inconvenience of ruling out manuscript amendments at Third Reading in all circumstances. As a result of the Bill of the noble Lord, Lord Meston, which dealt with consanguinity, I have taken the matter up with the Procedure Committee, and I hope that I shall have the support of the noble and learned Lord on the Woolsack in that regard.
§ Lord Silkin of Dulwich
My Lords, on the procedural point, it seems to me that there is a matter which the House should look at. Undoubtedly the Standing Order can be read in more than one way. We may be in a situation in which we do not have further consideration of this Bill if it comes from another place. It is fortunate that there is further consideration, and therefore the sensible suggestion, if I may say so, 538 of the noble and learned Lord on the Woolsack can be given effect. It would be a great pity if a desirable amendment could not be made because there is no further consideration of the Bill. While there may be good reasons for the present wording of the Standing Order, perhaps it ought to be looked at again to see whether, in the particular circumstances of this case, there could be an exception grafted on to it.
As regards the substance of the two amendments, I should like to echo what the noble and learned Lord, Lord Simon of Glaisdale, said about my noble friend Lord Kilbracken's efforts to improve this Bill. His earlier efforts this afternoon may perhaps have been "Bothamed" (shall I say?) by the noble and learned Lord on the Woolsack. However, he has produced some very important issues which the noble and learned Lord has taken up in this and other amendments. I am sure that the House will be grateful to him for that.
§ The Lord Chancellor
My Lords, perhaps I may just say in reply to the speeches which have been made that I am still a little doubtful whether what happened was a misprint or whether it was error on the part of the draftsmen. If it was the latter, I think we are caught by the Standing Order. If it was the former, the printer could alter it, and I think we had better follow the course I presented previously. I am afraid that it was not so much a googly that the noble Lord, Lord Kilbracken, bowled me; I think I hit my own wicket! Whichever way it was, if I may say so I am happy to accept the amendment of the noble Lord, Lord Kilbracken, which is Amendment No. 7 to my Amendment No. 6. We shall reconsider the actual draftsmanship, if we may, if it goes to another place. It is purely a drafting matter.
I should also like to thank the noble Lord. I am afraid that I was tied up in a web of my own weaving. Otherwise I should have thanked him before, and I apologise for not doing so.
§ On Question, Amendment No. 7 agreed to.
§ On Question, Amendment No. 6, as amended, agreed to.
Lord Kilbracken moved Amendment No. 8:
Page 14, leave out lines 10 to 16 and insert—
("( ) Any person may apply to the Court for a declaration that he has, or that he has not, been legitimated.").
§ The noble Lord said: My Lords, I have an idea that I may be pushing my luck here. Your Lordships will see that subsection (3) of new Section 56 of the Act that we are amending occupies seven lines. It is about as long as subsection (1), which we have just managed to cut down to a couple of lines. When I realised that my amendment to subsection (1) was apparently going to be accepted, I thought: why not do exactly the same thing to subsection (3)? I believe that that is what I have done.
If your Lordships will look at my amendment, I simply say, in place of the rigmarole that is in the Bill at present, that,
Any person may apply to the Court for a declaration that he has, or that he has not, been legitimated".
I believe that that says everything which the present version takes seven lines to say. In other words, it is
consistent with the kind of language used, it is more concise language and it is better English for what is now the first subsection of that new section. I believe that where we can cut down passages, as it has been agreed we should do, we ought to do so.
§ The Lord Chancellor
My Lords, I would not say that the noble Lord, Lord Kilbracken, is pushing his luck. Far from it, after the position in which I found myself as regards the last amendment. I think that I should be pushing my luck rather far if I attempted that. However, this illustrates my reluctance to interfere with the drafting of what is basically a new section to another Act.
I am advised that the amendment would put Section 56(3) of the Family Law Act 1986 out of line with Section 57(2) of the same Act. Section 57 deals with declarations as to foreign adoptions. These subsections deal with declarations that cannot both be made. The applicant must either have become or not have become a legitimated person. Similarly, he either is or is not an adopted person for the purposes of Section 39 of the Adoption Act 1976. Both subsections set out the two sets of alternatives as separate propositions. It would not be right to make a single drafting amendment to Section 56(3) and there can be no question of amending Section 57(2) because to do so would be outside the scope of this Bill.
I suggest that the amendment ought to be withdrawn, not because it is a bad one but because of what I have said. As I have pointed out, it is aimed at a provision which is of a different type from Section 56(1). The two propositions in that provision are not in the alternative. In Amendment No. 6 it was possible to reduce them to a single formula without putting the provision seriously out of line with any other provision in the Family Law Act 1986. I am told that this is not the case with the proposed amendment to be inserted into Section 56(3), and I would therefore ask the noble Lord, Lord Kilbracken, to withdraw his amendment. Having regard to the sackcloth and ashes in which I must now figuratively stand, I shall look at the matter again, but this is the stance that I would ask the noble Lord to take.
§ Lord Kilbracken
My Lords, I am grateful to the noble and learned Lord. Naturally, I do not have the Family Law Act 1986 with me and therefore I cannot possibly look it up, but I am sure that what the noble and learned Lord has said is absolutely true. I have every intention of withdrawing the amendment, but before we leave the drafting questions I should like to mention to the noble and learned Lord that when a batsman is given out "hit wicket", the bowler is credited with his wicket. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 23 [Provisions as to blood tests]:
The Lord Chancellor moved Amendment No. 9:
Page 14, line 44, leave out ("blood") and insert ("scientific").
§ The noble and learned Lord said: My Lords, I propose to speak to Amendments Nos. 9, 11, 12, 14 540 and 26. I should have said from the Woolsack that if Amendment No. 14 were to be agreed to when called I should not thereafter be able to call Amendment No. 15.
§ This again is the result of discussion at an earlier stage. This sequence of amendments fills a lacuna in Clause 23 which permits the court to order only testing on blood. The amendments would allow the court to order tests on blood and all bodily tissue and fluids in order to settle an issue of parentage in any civil proceedings. At present under Clause 23 the court is permitted to order testing on blood only. This is a lacuna—and here I am entering into scientific fields about which I am ill qualified to speak—because the new DNA fingerprinting which enables an individual to be positively identified as the son or daughter of another individual may be carried out on any bodily substance. The amendments to Clause 23 make the necessary changes to Clauses 20 and 25 of the Family Law Reform Act 1969, and consequential amendments are made in Schedule 2. Again, we are indebted to the noble Lord, Lord Kilbracken, for bringing this matter to my attention at the Report stage of the Bill. I beg to move.
§ Lord Kilbracken
My Lords, I am grateful to the noble and learned Lord for putting down this series of amendments, which arise, I think I may claim, from my amendment at Report stage to substitute blood and tissue for blood. The proposals which he has put down to remedy this defect are completely satisfactory and I support them.
§ On Question, amendment agreed to.
§ The Lord Chancellor
My Lords, I have not spoken to Amendment No. 10, which is separate. I do not know whether the noble Lord, Lord Kilbracken, wishes to move it.
§ 4.45 p.m.
Lord Kilbracken moved Amendment No. 10:
Page 14, line 45, leave out ("is or is not") and insert ("is, is not, or is not excluded from being").
The noble Lord said: My Lords, the necessity for this amendment seems to arise from the amendment that has just been accepted. The clause now reads that the court may,
give a direction—
(a) for the use of scientific tests to ascertain whether such tests show that a party to the proceedings is or is not the father or mother of that person".
It has been broadened so that instead of referring merely to blood tests it refers also to DNA analysis and tissue typing. Those two techniques are likely to be used although the court may decide that a blood test is all that is necessary. But now that the word "blood" has been deleted and "scientific" has been inserted, it seems to me that the present wording of the subsection would not make it possible for ordinary simple blood tests to be ordered.
§ As the subsection stands tests can be ordered only if they show whether a person is or is not the father of the child. Blood tests cannot do that; DNA analysis can. Blood tests can in certain cases show that a person is not the father of a child but they can never say that a person is the father of a child. They can show that he 541 is not excluded from being the father of the child. They can show that out of every hundred men in this country, given the blood of the father and mother, only one or two are capable of being the father, because the frequency with which different types of blood occur is well known.
§ It may in certain cases become more and more likely that a person is the father. It is never possible to say with certainty, and quite possibly a blood test will give no real indication of whether or not a person is the father. If that is the case, it seems to me that blood tests are not covered by the subsection as it has been amended. The reference to what are now described as scientific tests can only be for DNA analysis and tissue typing and not for the orthodox blood tests which must be included in this paragraph.
My amendment would make paragraph (a) read,
whether such tests show that a party to the proceedings is, is not, or is not excluded from being, the father or mother of that person".
That would make it possible for the court to order whichever of these tests it liked. I believe that that is necessary and I beg to move.
§ The Lord Chancellor
My Lords, again I am in rather deep water scientifically but I am advised that this amendment is unnecessary. The noble Lord, Lord Kilbracken, is correct of course in saying that the present generation of blood tests operates on an exclusionary basis—that is to say, such tests reveal only with varying degrees of probability whether or not a particular individual is excluded from being the parent of a person. However, it may be that in some cases, if a person is revealed by a blood test as not being excluded from being the parent, the court may be satisfied that such a test has revealed with such a high degree of probability—perhaps on the basis of other evidence of an extraneous kind—the likelihood that he is or she is the parent in question as to justify a finding. In such cases the court ought to make a finding of parentage.
Furthermore, the court may order a blood test from one person on the supposition that if he is excluded it will then be possible to ascertain that some other person is the parent. That case is also covered by the present wording and therefore, as at present advised, although I see the point of what the noble Lord is saying, I would ask him not to press the amendment.
§ Lord Kilbracken
My Lords, as I think I said in my earlier remarks, the ordinary, everyday, old-fashioned blood test can show that it is very likely that one particular man is the father. These tests can clearly be of value when, as is often the case, it is a question merely of which of two men is the father when it is known, admitted and agreed that one of two men is the father. If the blood tests are carried out and if they are lucky—or unlucky, as one chooses to regard it—and one of them is eliminated, it can be taken that the other is definitely the father.
The point is that I still do not think that these blood tests can be taken as tests to show that a party to the proceedings is or is not the father or mother. These tests cannot show whether a person is the father. They cannot show also whether a women is the mother, should that ever be in doubt which I do not think it ever is. Therefore, although I do not intend to press the 542 matter further, perhaps, before this measure goes to another place, the merit of what I propose should be considered. Having said that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
The Lord Chancellor moved Amendment No. 11:
Page 14, line 48, leave out ("blood") and insert ("bodily").
§ The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.
The Lord Chancellor moved Amendment No. 12:
Page 15, line 3, leave out ("blood") and insert ("scientific").
§ The noble and learned Lord said: I have also spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.
Lord Kilbracken moved Amendment No. 13:
Page 15, line 8, after ("being") insert (", or is identified as being,").
The noble Lord said: My Lords, this is another point that arises as a result of the substitution of "scientific" for "blood" in subsection (1), but the other way round. Subsection (2)(b) is completely appropriate if we are only referring to blood tests, because it states that the person responsible for carrying out these tests, now described as scientific tests,
shall make to the court a report in which he shall state whether any party to whom the report relates is or is not excluded by the results from being the father or mother".
§ That is exactly what the report would state if blood tests were being used. The report would say that the person is excluded or that the person is not excluded. However, if the more sophisticated tests are being used to establish paternity, such as those the noble and learned Lord called DNA fingerprinting, or through tissue-typing, then the father will be positively identified. Therefore, one of the things that the person responsible for the tests can report is not merely whether the person is or is not excluded by the results from being the father or mother but whether that person is positively identified as being the parent. Therefore, since that is one result that the person making the report will usually give, if modem tests are used, I feel that it certainly ought to be inserted in the Bill. I beg to move.
My Lords, if one looks at subsection (2)(c) it is clear to me at any rate that the necessity for Amendment No. 13 is in doubt. I believe that Clause 23(2)(c) covers the point in the noble Lord's amendment.
§ Lord Silkin of Dulwich
As at present advised I agree with the view but would go a little further and say that the insertion of the words "is identified as being" would suggest that the blood tests alone, quite apart from any other evidence in the case, can identify, and that would be quite wrong.
§ The Lord Chancellor
I appear to take an intermediate position. Contrary to what the noble Lord, Lord Kilbracken, says, the amendment is not necessary. Section 20(2)(b), as inserted by Clause 23(1) of the Bill, is concerned only with cases in which one 543 of the present generation of blood tests has been carried out: that is, a test which operates on the basis that a person is or is not excluded from being a parent.
No amendment to that provision is therefore needed to reflect the next generation of blood tests which are based on DNA genetic fingerprinting and which enable positive identification of a parent to be achieved. With these tests the inserted Section 20(2)(c) is the relevant provision and not paragraph (b). It is drafted in a way that is entirely consonant with such new tests. In answer to the noble and learned Lord on the Front Bench opposite, this Bill is designed to deal with the possible generation of new tests rather than the existing exclusionary tests.
I take note, of course, of what the noble Lord said because I have been very conscious that, scientifically, many of these matters are outside my special knowledge. Therefore, I take note of what he says and will take advice on it. In the meantime, I ask the noble Lord not to press his amendment.
§ Lord Kilbracken
My Lords, I am grateful to the noble and learned Lord for saying he will take further advice. Certainly, I do not intend to press my amendment. However, I should like to say in regard to the remarks of my noble and learned friend Lord Silkin that, of course, in the case of blood tests these will only show whether a person is or is not excluded, by the results, from being the father or mother. So long as blood tests only are being provided for, that is perfectly correct. However, if my amendment were accepted, that phrase would still be included, but would go on to say that the report should state,or is identified as being the father or motherwhich could not be done if blood tests are being used. However, that could be done if the more sophisticated tests are being used.
May I say to the noble Lord, Lord Morris, that, under paragraph (c), if for example DNA fingerprinting is done, the value is enormous. It is 100 per cent. It identifies the person. However, it does not seem to me to remove the necessity of saying that one result which can be given is that a certain person is positively identified. I would prefer to see the change made and I am glad that it is to be given further consideration. Therefore, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Lord Chancellor moved Amendment No. 14:
Page 15, line 20, leave out subsection (2) and insert—
("(2) In section 25 of that Act (interpretation of Part 111)—
'scientific tests' means scientific tests carried out under this Part of this Act and made with the object of ascertaining the inheritable characteristics of bodily fluids or bodily tissue."")
§ The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.544
My Lords, the noble and learned Lord said earlier that he would not be able to call Amendment No. 15, having agreed to Amendment No. 9.
§ The Lord Chancellor
My Lords, my noble friend is right. I am playing two roles in this particular drama and I sometimes get them mixed. My noble friend is right. I cannot call Amendment No. 15.
§ [Amendment No. 15 not moved.]
§ 5 p.m.
Lord Denning moved Amendment No. 16:
After Clause 24, insert the following new clause:
§ ("Registration of births.
§ —.(1) Nothing in this Act shall affect the provisions in section 4 of the Perjury Act 1911 enacted so as to preserve the integrity and reliability of the register of births; and in particular the provisions that it is a criminal offence for any person wilfully to make a false answer to any question put to him by any registrar of births: or wilfully to give to any such registrar any false information concerning any birth.
§ (2) Nothing in this Act shall affect the provisions of sections 1, 2 or 36 of the Births and Deaths Registration Act 1953 to the effect that it is the duty of the father and mother of a child to give information to the Registrar of Births concerning the birth of the child and making it an offence wilfully to refuse to answer any question put to him or her by the Registrar.
§ (3) It is hereby declared that it is the duty of every Registrar of Births to ascertain to the best of his ability the true facts relating to the birth of any child and to see that they are properly recorded in the register.
§ (4) In the case of any child born as result of artificial insemination of a married woman with the semen of some man other than her husband, the Registrar shall not enter in the register the name of her husband as the father but shall enter the name of the other man as the father if it is known, or otherwise shall leave his name as unknown, or the entry blank, in accordance with section 10 of the Births and Deaths Registration Act 1953.").
The noble and learned Lord said: My Lords, I suggest that this is an important amendment. It is concerned with the integrity and reliability of the birth certificate—a most important feature in our society. I tabled this amendment in order to bring home the opening words of Clause 24 (repeating the Act of 1953):
in the case of a child whose father and mother were not married to each other at the time of his birth, no person shall as father of the child be required to give information concerning the birth of the child, and the registrar shall not enter in the register the name of any person as father of the child".
§ Let us take that case and apply it to a wife who is an adulteress. There is no doubt whatever that the child's father and mother were not married to each other at the time of the birth and therefore no name should be entered as that of the father. It would be quite impermissible to put in the name of the husband as the father. Is it any different when the wife is artificially inseminated with the semen of an unknown donor? Is the law to be considered different? Indeed, is the person who puts in the birth certificate entitled to tell a lie and to say that the husband is the father when everyone knows that he is not and that the father is an unknown donor? That is the crucial point that I am seeking to bring out in this amendment.545
§ In our society it is vital that the register of births should be reliable. Let us consider the position of any hereditary Peer in this House. Is he or are his descendants to have a bastard put upon them in the shape of a donor's child? I suggest that that is quite wrong. The register of births should tell the truth. It should not show the name of the husband as the father because he is not the father; it should show no known man as the father. That is the way to keep the integrity of the register of births. That is what Section 10 of the statute says at the moment.
§ In the first two subsections of my amendment I have sought to warn the whole world, if need be, of the importance of the register of births being true and accurate. I have cited the relevant statutes. It is an offence against the Perjury Act to tell lies of that kind and such an offence is punishable with seven years' imprisonment if thought necessary. In the other Act it is an offence to refuse to give information or tell anything but the truth. Thirdly, I have said that it is the duty of the Registrar of Births to ascertain the facts and to see that they are properly registered. I suggest that no one can quarrel with those three propositions.
§ I then dealt with the crucial point, which concerns artificial insemination. Is that to be considered differently? Is a person to be permitted to tell a lie and to say that the husband is the father of the child when he is not? Is that in the interests of the child? Is it in the child's interests to deceive him as to who is his father and not tell him the truth? On all hands it is agreed that when a child is 18 he should be told the truth. Every child has a right to know who is his father and to be told the truth. Is the child to be deceived in that way? Are the grandparents to be so deceived? What about succeeding generations? Are they to be deceived? May one deceive a hereditary Peer or a genealogist?
I should say that Sir Anthony Wagner, Clarenceux King of Arms and late Garter King of Arms, takes strong exception to such falsehoods being put in the register of births. Equally so does the Society of Genealogists, and the like. There should not be a false entry in the register of births. That is why my amendment states:
in the case of any child born as a result of artificial insemination of a married woman with the semen of some man other than her husband, the Registrar shall not enter in the register the name of her husband as the father but shall enter the name of the other man as the father if it is known, or otherwise shall leave his name as unknown, or the entry blank, in accordance with [this statute]".
That is the law at the moment and I wish it to be declared.
I have heard this afternoon that Clause 27 of this Bill will make it lawful to tell a lie. Is it to be permitted by our law that a husband may have his name entered as the father of a child when everyone knows that he is not the father? Since the Warnock report was submitted, the Department of Health and Social Security has canvassed views on this matter and it says in paragraph 30 of its command paper, published during the course of the passage of this Bill through the House that:
There was a strongly held view that the legal father should be allowed to enter his name on the birth register only if the entry could be linked by the Registrar General with a central record of AID births … This was thought to be essential:
§ That is the latest view on this subject. It is a strongly held view. The name of the husband is not to be entered as the father unless there are some such words as, "by donation of- or something by which the child and everyone else can get to know it. That is the view the Warnock Report. It says that there should be a register and a licence for all these things. It says that the clandestine use of AID processes could be very harmful, and so they could. I need not continue. How much more will it be thought clandestine when a couple, either partner or both, can falsify a birth certificate in this way? I was not able to go into this matter at the Report stage.
§ My noble and learned friend the Lord Chancellor says that it is a technical offence. As Lord Chancellor he could not condone it in law. As a layman of the Church of England he could understand it as an act of compassion. I also am a member of the Church of England and I deplore lies being told about such a solemn matter as a birth certificate. If I were sitting as a judge and I knew that a Peeress and her hasband together had falsified the birth certificate in order to taint the descendants, I should treat the matter as a serious offence.
§ I am pressing this matter in order to uphold the integrity and reliability of the register of births and I ask your Lordships to support my amendment. I beg to move.
§ Lord Silkin of Dulwich
My Lords, I think that there is a certain atmosphere of déjà vu about this debate. At Committee stage we went into this matter at considerable length. I think it is right that your Lordships should have in mind the circumstances that give rise to the amendment that has been moved by the noble and learned Lord. Those circumstances occur where a husband and wife, who clearly passionately want to have a child, cannot produce a child because the husband is unable to perform his necessary part in the production of a child. To have the blessing of a child and to bind together the marriage, with the consent both of the wife and of the husband, they use the modern and, one hopes, beneficent process of artificial insemination from a person whose identity will not be known by anyone. The child that is born as a result will be regarded by the husband and the wife as being as much their child as if the child were naturally born in the ordinary course of events.
The noble and learned Lord wishes to create a difference; he wishes to create a situation in which the whole world and the child, irrespective of the wishes of the husband and the wife, will be able at any time to learn of the circumstances of his birth and of the fact that his father was physiologically unable to take part in the production of that child. No matter how much they may love him, that will be a factor which he will be required to learn or able to learn if the amendment is carried into law.
When I pointed that out in Committee—I was supported by other speakers—I had the strong impression that the Committee was not agreeable to 547 such a course as the noble and learned Lord has suggested and supported the view that I ventured to put forward, which was that it is for the husband and the mother to decide when and whether the child should know the circumstances of his origin and not something which the law should compel him to be informed about irrespective of their consent.
I cannot believe that it would be regarded by a more senior member of the family—the grandfather—as a form of deception in those circumstances if the grandfather also relied upon his daughter or his son, as the case may be, to let him know, if they thought fit, that that was the circumstance that had resulted in the birth of their child.
I hope that the House will not accept this proposal. I can think of nothing that would be more likely to drive a coach and horses through the purpose of Clause 27 (the AID clause), which is the unfortunate circumstances with which we are dealing and which would allow a measure of relief to the husband and the mother that otherwise they would not have. If they know the consequences which will follow as a result of the noble and learned Lord's amendment they will be strongly deterred from following that course.
§ 5.15 p.m.
§ Lord Meston
My Lords, I agree with the noble and learned Lord in inviting your Lordships not to accept the amendment. It raises serious questions. It is important in a civilised society that we should have a reliable system for the registration of births, but it is also now recognised that it is terribly important to most of us, if not all, that we should know something of our roots.
Parliament has recognised that basic human need in the Children Act 1975 which, as your Lordships may know, allows adopted children to obtain certain information about their origins. AID, which is covered by Clause 27 and to which this amendment and Clause 24 are directed, can be seen as a form of pre-natal adoption and yet there are differences from the adoption process. AID is an altogether more private affair. It is less likely to be discussed outside the immediate family. There is no need to go to court, but one would hope, as with adoption, that there would be counselling and that that counselling would include consideration by the couple of whether and when to tell the child of its true, natural parentage.
On balance, one must come down against the intention of the amendment for practical reasons. First, unlike adoption, the natural father in an AID case will be an unknown donor, the preservation of whose anonymity is essential to successful AID.
Secondly, this is something with which the Law Commission dealt in some detail in its first report when it considered the possibility of having some special annotation on the birth register. It concluded:This solution has one major disadvantage: there may be cases where the husband of a woman who has receivd AID treatment might in fact be the father of the child".In practical terms, where a couple agree to undergo AID, intercourse does not cease. The husband may not be completely impotent. He may merely have a low sperm count. It is nevertheless possible for him to 548 be the father of the resulting child. It will not therefore help the accuracy of the birth record to delete the husband as the father of the child and it will not help the child.
§ The Lord Bishop of Birmingham
My Lords, I should like to thank the noble and learned Lord, Lord Denning, for putting much more eloquently and with greater learning the point that I was trying to make on Report when I asked that Clause 27 should not stand part of the Bill. I do not want to repeat anything that I said then; I wish to introduce two points which I did not make.
The first is that when the noble and learned Lord on the Woolsack introduced the Bill he said that it was for the benefit of the children. I had thought that the benefit of the children was what we had in mind. The arguments adduced by the noble and learned Lord, Lord Silkin, were for the benefit of the parents and the grandparents and not for the benefit of the children. I thought that it was a principle which is now generally recognised that children should know as much as possible about their origins. I appreciate that in the case of AID it is improbable that they would know (I hope they would not) who their genetic father was, but nevertheless they should know as much as possible about their origins.
The noble Lord, Lord Meston, described AID, if I remember aright, as a kind of pre-natal adoption with a certain difference. There is a great difference. An adopted child was an unwanted child, or otherwise the child would not have been adopted. An AID child is a desperately wanted child. That distinction should be made. I am therefore puzzled, if we are thinking of the benefit of the child and not of the parents, why it is so dreadful to have "by donation" on the birth certificate. As things stand, under Statutory Instrument 1968 No. 2049 (No. 37) the Registrar General is required to put "by adoption" on the birth certificate. If I had the choice, I should prefer to be an AID child who was wanted rather than an adopted child who fortunately found parents because I was unwanted. We should perhaps remember that whatever we decide about this amendment the Registrar General, with the Minister's consent, has the power to insist that "by donation" is put on the birth certificate.
Under Clause 1 of the Births and Deaths Registration Act 1953 the Registrar-General shall prescribe such particulars as may be prescribed. That is legal language. Clause 39(a) provides that with the approval of the Minister the Registrar-General by statutory instrument may prescribeanything which by this Act is required to be prescribed.We should bear in mind that whatever we actually sign, as I am informed by legal people who know more about these matters than I do, with the approval of the Minister it would be possible for the Registrar-General to make such regulations. I assume in this case that it is the Minister of Health. We shall come to that when we consider the Warnock recommendations in due course.
However, it would seem to me to be very sad if your Lordships' House did not agree with the arguments of the noble and learned Lord, Lord Denning, about the 549 truth rather than await some possible regulation from the Registrar-General. Therefore despite what has been said I very much hope that the noble and learned Lord, Lord Denning, will persevere with his amendment.
§ Lord Elwyn-Jones
My Lords before the right reverend Prelate sits down will he give a second thought to his astonishing observation that the adopted child is an unwanted child? Very often the parents are killed. The children are loved by their parents who adopt them. That ought not to stand on the record even from the lips of the right reverend Prelate.
§ The Lord Bishop of Birmingham
My Lords, I appreciate what the noble and learned Lord, Lord Elwyn-Jones, has said. I appreciate that there are cases when, very tragically, parents die and orphans are adopted. I withdraw my statement to that extent and I am grateful to the noble and learned Lord for pointing it out. Nonetheless, I hope that the noble and learned Lord will agree with me that a very large number of adoptions used to be of an unwanted child. Of course since the Abortion Act the foetus is killed. I cannot withdraw my statement that adoption in principle is usually undertaken because for one reason or another—a single parent family, too many children, or whatever—the parents feel that they do not want the child.
§ Lord Simon of Glaisdale
My Lords, my noble and learned friend summarised in ringing tones the purpose of the first three subsections of this new clause. He then said, again in ringing tones, that no one will dissent from that. I have to say with all respect to him that I strongly dissent with regard to subsection (3). It seems to me highly objectionable to put on the registrar the duty of inquiring the true facts relating to the birth of any child, particularly in the circumstances with which we are concerned. To have the registrar cross-examining the persons who are seeking the registration to ascertain the circumstances in which the child was engendered seems to me impossible of acceptance.
I am not at all enamoured of Clause 27. I thought that the right reverend Prelate was quite right in seeking to remove it from this Bill. No doubt we shall have a chance to discuss that on the Motion that the Bill do now pass. However, that would be the way to deal with the problem which I know is of moment to my noble and learned friend Lord Denning. If only because of subsection (3), and the duty of inquisition, I am afraid that I cannot support this amendment.
§ Baroness Faithfull
My Lords, I am bound to ask the noble and learned Lord, Lord Denning, one question: what is truth? The noble Lord, Lord Meston, has mentioned the fact that during the time that artificial insemination has taken place nevertheless sexual intercourse continues between husband and wife. Those of us who have dealt with adoption meet a very extraordinary situation. A husband and wife, who have not been able to have children, come to an adoption society and ask to adopt a child. One goes through all the procedures for adoption and a child is placed for adoption.
550 By some strange chance, very shortly afterwards the wife conceives. None of us in the world of adoption have ever been able to understand this except that the adoption releases some kind of tension between husband and wife and they have a child. Very often we have placed children for adoption and the couple have then proceeded to have one or two children of their own. Therefore it can never categorically be stated that a couple cannot have a child, unless, for instance, the woman has had a hysterectomy or some other operation has taken place.
On this point the noble Lord, Lord Meston, asked about the couple who have had artificial insemination and continue to have intercourse. How is one to know absolutely definitely that the child is the child of artificial insemination or the child of the parents? With the experience that I have had in the adoption field of this extraordinary phenomenon of couples having been married for 10 or 12 years without having a child and then having a child when the adoption takes place, I ask the noble and learned Lord, Lord Denning, this question. Would it not be equally dishonest therefore to say that this is the child of artificial insemination when one does not definitely know?
§ Lord Kilbracken
My Lords, I too have spoken on this subject at earlier stages. I do not wish to repeat anything that I said. I should like to thank the noble Baroness, Lady Faithfull, for what she has said. It is within my experience that with a couple who have been unable to have children for many years, the wife becomes pregnant as soon as a child is adopted. However, I would also say that where a couple have been trying for all these years without success to have a child, if the woman then has artificial insemination from a donor and the couple continue to have intercourse over that period (if they are capable of having intercourse), it would be extremely unlikely—a theoretical possibility but very unlikely when the father has not been able to sire a child during all that time—that he would be able to do so simply because his wife has had AID.
My noble and learned friend Lord Silkin pointed out that if the amendment was accepted a child could learn at any time that his supposed father was not his genetic father. The noble and learned Lord, Lord Denning, referred to a situation where a child could discover that his father was not his genetic father. However, a point that does not seem to have been appreciated is that most children—I would say all children—do not see their birth certificate. A birth certificate is not something which has to be displayed on the wall like a psychiatrist's diploma.
I do not know when I have ever had to look at my birth certificate or when anyone has to look at his birth certificate. Perhaps one has to do so when applying for a passport, but making an application for a passport for anyone up to the age of 18 will be done by the parents anyway. The child will not see this document. He will not suddenly discover the words "by donor". It will be safely deposited in a registry of births. Of course after the age of 18 the now adult child may require his birth certificate for some reason or another. Under the amendment of the noble and learned Lord he would get the birth certificate and would say, "My God, the semen was donated". However, in my 551 opinion, in those circumstances, it should be understood that when a couple decide to use AID, the child should be made aware of this at least by the age of 18, if not sooner.
I agree completely with the noble and learned Lord on the Cross-Benches. A child, on reaching a certain age, has the right to know who his real father is. A child should not be allowed to grow up and to imagine, completely falsely and completely erroneously, that a certain person is his father when it is somebody quite different. I support the noble and learned Lord on that point.
In my opinion, the preferable solution—one that deals with that problem and is more effective than deleting Clause 27—is to accept the noble and learned Lord's Amendment No. 20 which says:This section shall not come into effect until there is established a statutory licensing body".and so on. That would defer consideration of the whole matter until we have been able to consider it properly and until the exact regulations have been laid down with the consent of everybody. The most important matter in the whole question is that Amendment No. 20 should be accepted and that those words should become part of the Bill.
§ 5.30 p.m.
§ Lord Robertson of Oakridge
My Lords, the answer to the point made by the noble Baroness, Lady Faithfull, that the child may be—only may be—the result of artificial insemination, is to be found in the first three lines of Clause 27 which refer to a child born,as the result of the artificial inseminationof the mother. That needs no clarification, no "ifs" and "buts".
§ The Lord Chancellor
My Lords, we have flogged this horse pretty thoroughly. We flogged him on Second Reading; we gave him another beating in Committee; we had another go on Report, although my noble and learned friend who proposes the amendment was unfortunately snowed-up on that occasion; and we are now flogging him again on Third Reading.
That indicates a good deal of difference of opinion—sincerely held opinion—on the matter. However, it confirms me on one point in my judgment when I decided what should be inside and what should not be inside the Bill. From my personal point of view it would have been very much easier for me to say, "Let us postpone the whole thing until the Greek Calends"—in other words, until we legislate or do not legislate the whole Warnock Report. That was an option and it would have been the easy way out for me, but I did not take it. I believe that I have now explained four times why I did not take it. I shall repeat it once more. I did not take that option because I thought that there was an issue of principle to be decided and that it would be unfair, in an Act dealing with the status of children alleged to be illegitimate, not to clarify the position of children who might or might not be the result—I take the point of my noble friend Lady Faithfull—of the process known as AID. I still think that I was right.
552 The fact that these debates have taken place rather confirms my judgment that it is no good dodging issues that must be faced sooner or later. If asked whether it was for the interest of the parents, whether it was for the welfare and justice of the child, or whether, as I am rather inclined to say now, in maintaining that the criticism of the noble and learned Lord, Lord Silkin, was unfair, that it is really in the interests of the family unit, including the child, I am quite sure on which side of the fence I come down.
There are technical issues to be discussed and very complicated ones, as we discovered earlier this afternoon. When one has thrashed them out, one has to face one or two questions. One of the questions was faced by my noble and learned friend Lord Simon of Glaisdale. What about the alleged integrity of the register? Of course it is a provision of the Perjury Act—I believe it is Section 4, but what does it matter?—that a person who, as matters stand, deliberately gives false information to the registrar is guilty of a technical offence, serious or less serious according to the nature of the circumstances. That will remain the law whether or not my noble and learned friend's amendment is accepted, and in whatever form the Bill ultimately passes into law, as it ultimately will.
However, I must underline what I tried to persuade the House about on previous occasions; namely, that the registrar, as my noble and learned friend Lord Simon of Glaisdale said, has no inquisitorial powers. It is the duty of the registrar to ascertain, so far as he can from the informants, whoever they may be, who are in the Act, the parentage of the child and to write it down. However, he cannot intrude into the privacy of the bedroom. I tried to persuade noble Lords that that was true. I am afraid that some noble Lords were rather shocked by what I said but, with great respect, I shall repeat some of it again.
We know from recent biographies—I cited the biographies of the late Anthony Eden and the late Diana Cooper—that it is a fact that the register, of which my noble and learned friend Lord Denning regards himself the guardian, is not a record of biological fact at all. It is a record of what the informants, who are usually the parents, say is biological fact. In fact, the truth of the matter—and we may as well face facts whether or not we regard this as a great Christian issue—is that AID is taking place. The parents—using the word in the social rather than the biological sense—register the child as their own and nobody can find out whether or not they are telling the truth. Therefore all the rhetoric about the sanctity and integrity of the register is purely unenforceable and purely unpoliceable.
One must face that fact because it is a fact, but there is a biological reason to be added to that fact which was given by my noble friend Lady Faithfull. If AID is practised, the parents are encouraged to continue their normal sexual intercourse. If the only fault is in the male and the sperm count is low, or if, as I am told is frequently the case—although I hate to deal with rather distasteful physical details—the sperm of the husband is mixed with the sperm of the donor in certain types of fertilisation, one simply does not know whether the child was engendered by artificial insemination or not.
553 I am not arguing very high questions of Christian morals but I did say, and I do say to the right reverend Prelate and to my noble and learned friend whose integrity and sincerity I respect enormously, that I believe that the social father of the late Diana Cooper or the late Anthony Eden, who registered a child of whom he perhaps did not believe he was the biological parent, performed a courageous act. He preferred to keep his marriage alive and to avoid a scandal. If I am told that that was a technical act of perjury, of course, as Lord Chancellor, I cannot condone it. If I were asked what God thinks about it, I might give a very different answer from that which my noble and learned friend has given or that which the right reverend Prelate would give. But I will not pursue this matter on this occasion.
We are dealing with a situation in which the integrity of the register is an accurate record of what the informants have said. Incidentally, if anybody takes the interest to look at my own birth certificate he will not find very much to show who I am. It has caused me embarrassment throughout my life. My father and my mother registered me as a male child but did not give me any first names for the very good reason that I was not christened for another month and a half and they had not decided on what first names I should have. So when I had to join the army I had to get two aged aunts, who are now unfortunately deceased, to say that I was the person referred to in the birth certificate.
When we are talking about the integrity of the register I really think we have to be a little more sensible than some of the more rhetorical speeches to which we have listened.
There is another fact which I must seek to impress upon my noble and learned friend Lord Denning. I do not think he fully realised how contrary the amendment which he has proposed is to the principle contained in the Warnock report on this subject. The effect of that was, in paragraph 4.25, that the laws should be changed so as to permit the husband to be registered as the father. I know that that is something which my noble and learned friend hates, and which the right reverend Prelate hates, but that was what the Warnock Committee said about it, and this is what Clause 27 says about it if the father and the mother consent to that situation.
I have to put this rather plainly. When I had to say what was to be in the Bill or what was not to be in the Bill I had a difficult task to perform because obviously we were faced with a matter on which sensitive feelings would be expressed, and also we were faced with the fact that the Warnock report contained a great number of other recommendations which obviously could not be inserted into a Bill of this kind which deals with the status of children who would otherwise be born out of wedlock.
The line I took, which I have defended before and therefore will not defend at great length again, was that we must deal with the status of AID children. We would exclude titles of honour. I think that my noble and learned friend was slightly misleading the House by inadvertence when he talked about Peeresses producing children in adultery. That could not happen under the Bill, though no doubt it can happen outside 554 the Bill. This has nothing to do with the Bill because that is expressly excluded from the Bill.
The Government have issued a consultation document because we felt that on a great number of issues the Warnock Committee thought legislation was necessary but that public opinion was insufficiently informed. Those matters have been contained in a number of other amendments and therefore I will not enumerate them at length, but they are far from clear, for example, on whether and how AID children should have access to information about their genetic origins, and if so what information should be made available to them, when, and in what circumstances.
Comments from a wide range of interested bodies—medical, social work, child care, as well as legal organisations—are being invited, but I would respectfully say that I chose the right line. I know that the biblical example of Agag is not altogether a happy one for one who walks the same delicate path, because Agag came to a rather sticky end, but I hope that on this occasion the House will not think I have been either irresponsible or unjust.
I said on Second Reading and I say again now that the more subtle, difficult and controversial matters contained in the consultation document should be left because the issues are not clear-cut, but that here we do have a clear-cut issue. Are we to provide that a consensually engendered child by the process known as AID should be treated as a child of marriage? To that I say yes, and my noble and learned friend and the right reverend Prelate, I think basically in their heart of hearts, say no. By one procedural amendment after another they have tried to say no to the question without actually saying no bluntly, which is what they mean.
This matter is now reaching its terminal stages in this House, and I am of the same opinion as I was at the beginning.
§ 5.45 p.m.
§ Lord Kilbracken
My Lords, I apologise to my noble and learned friends on my Front Bench, but I wonder whether I might ask the noble and learned Lord the Lord Chancellor the following question. He spoke with great approbation of Anthony Eden's father for registering his son as being his own child. Would he speak of him with the same approbation if the father, when he did that, had already been created the Earl of Avon, so that his son would succeed to the title?
§ The Lord Chancellor
My Lords, that is rather hypothetical, but all I know is that that is what would have happened. I was citing the example not for the purpose of entering into a dialogue on moral theology, either with the right reverend Prelate or with the noble Lord, Lord Kilbracken, but to show that the register itself is a correct record of what is told to the registrar, who has no policing powers, and that is a fact that one knows very well. I have given two examples of that very frequent fact. I would far rather steer clear of moral theology on this occasion. I teased the right reverend Prelate rather irreverently on a previous occasion, but I will never do it again.
§ Lord Denning
My Lords, I should like to bring the discussion back to the real point, which is the integrity and reliability of the birth certificate and the birth register. I agree entirely that if a child is conceived by artificial insemination to the knowledge and consent of both parents it should be treated as the child of those parents in law and in every way just the same as an adopted child.
In the case of an adopted child the birth register is correct. The truth is told by the partners who bore the child as to who was the father and who was the mother. The birth certificate is absolutely correct in every case of adoption, but when a child is adopted there is a special procedure whereby the child can be put down on the adopted children's register. The child can have access to that, so that he may know who his real father and mother were; so the child of an adoption is not only brought up knowing the adoptive parents but at the age of 18 can get to know about his origins. So adoption is an entirely different case.
I would add this: under the statute there is statutory provision for proper counselling to both parents about what is involved, and they must freely consent and understand what they are doing. There is no such provision here. That is the distinction.
The noble and learned Lord said that after they have tried to have a child for years without success they can go for artificial insemination but if they go on having sexual intercourse they cannot say whether it is their child. Of course they know perfectly well that it is not their child, that it is an AID child. If there were any doubt about it they could have a blood test, which could be done immediately. So I say that they are telling a lie on the birth certificate and they are doing wrong.
I insist once more on the integrity and reliability of the birth certificate, whatever those historical characters which my noble and learned friend mentioned may have done. I do not care what they have done. But if they have told a lie I am going to condemn it, whatever the motive. I put aside the question of knowingly telling a lie. Concerning the supposed cross-examination by the registrar, of course he will not do that. The statute provides that if questions are not answered correctly the registrar is entitled to ask questions to get information. The Perjury Act provides for that situation. I do not say that the registrar should cross-examine, but he should make gentle inquiries if he has any doubt at all about the matter.
All those points go by the board. Let us suppose an entry is made as I say it should be on the birth certificate—"No known father". What harm does that do to the child? What harm does it do to anybody? A shortened birth certificate can be given so that no one will know. As the departmental manuscript says, the man is not to record himself as the father unless that fact can be linked with the Registrar-General. I have put the case. I stand for the truth. I ask your Lordships to support my amendment.
§ The Lord Chancellor
My Lords, the Question is that Amendment No. 16 shall be agreed to. As many as are of that opinion will say, "Content"; to the contrary, "Not Content".
§ The Lord Chancellor
It is rather late, is it not, my Lords? When the trumpet gives forth an uncertain sound, who will prepare himself for battle? However, clear the Bar.
§ 5.52 p.m.
§ On Question, whether the said amendment (No. 16) shall be agreed to?
§ Their Lordships divided: Contents, 13; Not-Contents, 182.
|DIVISION NO. 1|
|Ailesbury, M.||Longford, E.|
|Belhaven and Stenton, L.||Pender, L.|
|Birmingham, Bp.||Phillips, B.|
|Buckmaster, V.||Robertson of Oakridge, L.|
|Denning, L. [Teller.]||Saltoun of Abernethy, Ly.|
|Fitt, L.||Somers, L.|
|Kilbracken, L. [Teller.]|
On Question, amendment agreed to.
|Adrian, L.||Dundee, E.|
|Airedale, L.||Elliot of Harwood, B.|
|Allerton, L.||Elton, L.|
|Attlee, E.||Elwyn-Jones, L.|
|Aylestone, L.||Ewart-Biggs, B.|
|Beaverbrook, L.||Faithfull, B.|
|Beloff, L.||Ferrier, L.|
|Belstead, L.||Fraser of Kilmorack, L.|
|Bessborough, E.||Gainford, L.|
|Blake, L.||Gallacher, L.|
|Blyth, L.||Gardner of Parkes, B.|
|Boston of Faversham, L.||Glanusk, L.|
|Boyd-Carpenter, L.||Glenamara, L.|
|Brabazon of Tara, L.||Glenarthur, L.|
|Braye, B.||Gowrie, E.|
|Broadbridge, L.||Graham of Edmonton, L.|
|Brookes, L.||Gray, L.|
|Brougham and Vaux, L.||Gray of Contin, L.|
|Broxbourne, L.||Greenway, L.|
|Butterworth, L.||Grey, E.|
|Caithness, E.||Gridley, L.|
|Cameron of Lochbroom, L.||Grimond, L.|
|Campbell of Alloway, L.||Grimston of Westbury, L.|
|Carmichael of Kelvingrove, L.||Hailsham of Saint Marylebone, L.|
|Carnegy of Lour, B.|
|Carnock, L.||Halsbury, E.|
|Cawley, L.||Hampton, L.|
|Chelmer, L.||Hanworth, V.|
|Cledwyn of Penrhos, L.||Harmar-Nicholls, L.|
|Colville of Culross, V.||Harvington, L.|
|Colyton, L.||Hatch of Lusby, L.|
|Constantine of Stanmore, L.||Henderson of Brompton, L|
|Cork and Orrery, E.||Hesketh, L.|
|Cornwallis, L.||Heycock, L.|
|Cowley, E.||Hives, L.|
|Cox, B.||Holderness, L.|
|Craigavon, V.||Home of the Hirsel, L.|
|Cullen of Ashbourne, L.||Hooper, B.|
|Dacre of Glanton, L.||Houghton of Sowerby, L.|
|David, B.||Howie of Troon, L.|
|Davidson, V. [Teller.]||Hunter of Newington, L.|
|Dean of Beswick, L.||Hylton-Foster, B.|
|Denham, L. [Teller.]||Inglewood, L.|
|Derwent, L.||Jeger, B.|
|Diamond, L.||Jenkins of Putney, L.|
|Dilhorne, V.||Kaberry of Adel, L.|
|Dowding, L.||Kemsley, V.|
|Kilmarnock, L.||Renwick, L.|
|Kimball, L.||Ritchie of Dundee, L.|
|Kimberley, E.||Robson of Kiddington, B.|
|Kinloss, Ly.||Rochdale, V.|
|Kinnoull, E.||Rochester, L.|
|Kirkhill, L.||Rodney, L.|
|Lane-Fox, B.||Ross of Marnock, L.|
|Lindsey and Abingdon, E.||Rugby, L.|
|Listowel, E.||St. Davids, V.|
|Llewelyn-Davies of Hastoe, B.||St. John of Bletso, L.|
|Lloyd of Hampstead, L.||Sanderson of Bowden, L.|
|Lloyd of Kilgerran, L.||Savile, L.|
|Lockwood, B.||Seear, B.|
|Long, V.||Selborne, E.|
|Lyell, L.||Shackleton, L.|
|McFadzean, L.||Shannon, E.|
|Mackie of Benshie, L.||Shaughnessy, L.|
|McNair, L.||Silkin of Dulwich, L.|
|Mar, C.||Skelmersdale, L.|
|Margadale, L.||Stanley of Alderley, L.|
|Marley, L.||Stedman, B.|
|Masham of Ilton, B.||Strange, B.|
|Massereene and Ferrard, V.||Strathclyde, L.|
|Maude of Stratford-upon-Avon, L.||Sudeley, L.|
|Mayhew, L.||Taylor of Blackburn, L.|
|Merrivale, L.||Taylor of Gryfe, L.|
|Mersey, V.||Taylor of Mansfield, L.|
|Meston, L.||Teynham, L.|
|Morris, L.||Tordoff, L.|
|Mottistone, L.||Tranmire, L.|
|Mountevans, L.||Trefgarne, L.|
|Moyne, L.||Trumpington, B.|
|Mulley, L.||Vivian, L.|
|Munster, E.||Wallace of Coslany, L.|
|Napier and Ettrick, L.||Wells-Pestell, L.|
|Newall, L.||Whaddon, L.|
|Nicol, B.||White, B.|
|Nugent of Guildford, L.||Wigoder, L.|
|Orkney, E.||Wilberforce, L.|
|Orr-Ewing, L.||Williams of Elvel, L.|
|Perry of Walton, L.||Winchilsea and Nottingham, E.|
|Ponsonby of Shulbrede, L.|
|Portland, D.||Winstanley, L.|
|Rankeillour, L.||Wise, L.|
§ Clause 27 [Artificial insemination]:
§ 6 p.m.
§ Lord Denning moved Amendment No. 17:
Page 18, line 14, at end insert—
(c) had, together with the other party to that marriage, received counselling so as to ensure that they had full understanding of what was involved, and had freely and unconditionally agreed to the artificial insemination of the woman,").
§ The noble and learned Lord said: My Lords, in this provision I have inserted a requirement that the two parties shall not be bound to all the duties of parents unless they have been counselled; that is, given full information and explanation of what is involved. That is by statute what applies in the case of adopting parents. By statute it is required that, before they are bound to all the duties of parents, they are to receive counselling; that is, full information and explanation of what is involved. I suggest that this applies equally and even more importantly in the case of an artificially inseminated child. If one considers the husband, who has agreed to artificial insemination, surely an explanation should be given to him that he will have 558 landed upon him a child of whom he knows nothing, who he has not conceived and of whom he will not even know the name. Furthermore, he will be bound for all his days to the duties of father in respect of it, and he cannot withdraw from that.
§ In the case of adoption the situation is entirely different. The Department of Health and Social Security has said that there should be counselling for the parents. Even by our own law in the House of Lords recently, an individual who is to undergo an operation must be told by the doctor, before he consents to that operation, what is involved in order that his consent is properly obtained and he knows and can challenge the judgment.
§ There is no provision in Clause 27 for any counselling or explanation to the parents of what is involved; in particular for the husband to know what he will be landed with in future. The purpose of the amendment is to underline that the parents are not bound to duties to the child, particularly the father, unless full explanation has been given to them, as in the case of an adopted child; and to effect the recommendations of the DHSS in this regard.
§ Lord Meston
My Lords, the noble and learned Lord seeks in the amendment to introduce two new elements in Clause 27—compulsory counselling and clear positive evidence of unconditional consent. In a sense he is seeking to introduce what already happens as a matter of practice. To some extent therefore, it might be asked: why not make it a matter of law? Equally, it can be said that it is not necessary because almost certainly it happens in every case in any event.
The Royal College of Obstetricians and Gynaecologists in its guidelines requires the consent of the mother and her husband. One has to keep remembering in these circumstances that the identity of the donor is unknown to the mother and her husband and the donor will know nothing of them. Therefore, if the law deprives the child of a lawful father (that is, the husband who consents to artificial insemination) the law cannot in reality provide the child with an identifiable natural father who wants the child, the natural father being an unknown donor who is providing his sperm only and nothing else.
The Law Commission considered whether it was necessary to require the positive consent of the husband or simply to provide, as the Bill provides, a rebuttable presumption that the husband has consented. The Law Commission, the Bill and indeed, the committee under the noble Baroness, Lady Warnock, all came down in favour of the rebuttable presumption solution. It is a matter of balance. On balance, I suggest to your Lordships that that was correct. The presumption of the husband's consent is rebuttable and, therefore, it is still open to him to say, "I was cheated, my consent was unfairly obtained. I did not give my true consent". However, it is not open, and I venture to suggest to your Lordships that it should not be open, to him to go back on a freely entered-into commitment to his wife and to the unborn child to stand in loco parentis to that child.
In practical terms, those disputes could happen many years later. As the Law Commission said in its first report at page 175: 559It would be hard on a child whose paternity and status has been settled for some years if, in the course of his parents' marriage breaking down, his legal paternity depended upon proof of consent to an operation years before or upon the existence of a particular document. In our view the burden of proof should rest upon the husband to show that he did not consent".Paraphrasing that, to allow arguments about the technical validity of the consent could expose the child to the risk of legal limbo, having no lawful father under Clause 27, if enacted, and no identifiable biological father. It is not the fault of the child that it was produced in this way. The clause unamended gives the child the chance of certainty in its status and should be left unamended.
§ The Lord Chancellor
My Lords, when I hear the noble Lord, Lord Meston, speak, I often want to say that I concur and have nothing to add. However, this is the most appallingly unjust suggestion that one could imagine, bolstered by false analogies and leading to a totally unjust conclusion.
Let me first deal with the false analogy. Once a child is adopted he is an adopted child except in very curious and unlikely circumstances. You cannot deprive him of his status once he has been adopted by simply going back on the past and saying that the provisions of the statute which led to his adoption were not fully complied with.
Secondly, suppose one deals with what my noble and learned friend describes as the medical analogy. Of course, it is true that in American law fully informed counselling and consent has become a legal shibboleth. And, of course, it has led to the whole practice of the contingency fee in relation to medical negligence, a tremendous growth of speculative litigation, and vast increases in premiums—but for what purpose? It is for the purpose of giving a person who has had an operation damages if it goes wrong.
What kind of analogy can that be to the status of a child when consent has been given to its artificial insemination by both its parents? This is the kind of legal thinking of Alice in Wonderland. I really think that my noble and learned friend should think twice before putting amendments of this kind on the Marshalled List.
Let me make two or three things absolutely plain. I am, of course, clear in my mind that before a couple takes the step of engendering a child by virtue of artificial insemination they should take great care to see that they are aware of the legal implications, and see whether they are aware of the medical implications. But if they do that and then consent, and six years later their marriage breaks down and a child is born, my noble and learned friend thinks that that child should be labelled a bastard for the rest of his life. Do your Lordships think that is just! I do not.
§ Lord Kilbracken
My Lords, many of the objections raised both by the noble and learned Lord on the Woolsack and by the noble Lord, Lord Meston, can be avoided if, after the AID child is born, the husband adopts it.
§ Lord Denning
My Lords, although reference has been made to the present practice of the Royal 560 College, that applies to properly-licensed clinics which they allow and no doubt supervise. The Warnock Report said that any clandestine practice of artificial insemination would be very harmful. It could be done without any of those safeguards under this clause. It could be done without any explanation or understanding at all.
All I want to secure is what the Warnock Report and the Department of Health recommended. They recommended that they should be told all that is involved so that they fully understand it, just the same as for adopting parents. That was all my amendment sought. The fact that the Royal College secures proper consent seems not to detract from the general principle; namely, that we ought to see in statute that those involved understand and appreciate what is going on.
§ On Question, amendment negatived.
§ [Amendment No. 18 not moved.]
Lord Denning had given notice of his intention to move Amendment No. 19:
Page 18, line 19, at end insert ("save that the other party to the marriage shall not be allowed to enter his name on the register of births as the father unless the entry can be linked by the Registrar General with a central record of such births.").
§ The noble and learned Lord said: My Lords, this follows the amendment on which we had a Division. I referred to it at the time. In those circumstances I shall not move this amendment.
§ [Amendment No. 19 not moved.]
§ 6.15 p.m.
§ Lord Denning moved Amendment No. 20:
Page 18, line 28, at end insert—
("( ) This section shall not come into effect until there is established a statutory licensing body for clinics or agencies providing AID services with regulations governing their conduct.").
§ The noble and learned Lord said: My Lords, this follows a recommendation of the Warnock Report. I mentioned it just now. The Warnock Report was quite clear that the clandestine practice of artificial insemination would be very harmful to society. It recommended that there should be a statutory licensing body—that was the essential feature of the recommendation—which could supervise the clinics, could see that they kept proper records of the donors and all those receiving, and also that those records could be sent to a central register so that children could trace who were their real parents.
§ The Warnock Committee felt that this statutory licensing body was so important that to provide artificial insemination without a licence should be a criminal offence punishable by the criminal law. I am therefore seeking to enforce the most important recommendation of the committee that there should be a statutory licensing system. That is the object of the amendment. I beg to move.
§ Lord Meston
My Lords, surely this amendment is premature. It is right that the Warnock Committee recommended a statutory licensing body but there is no certainty that it will in fact come into existence. It is simply one of the options. The consultation paper 561 recently issued by the DHSS makes that absolutely clear.
The other possible option is really a continuation of what happens now—that is to say, regulation on a voluntary basis by the various professional bodies. There is no certainty that there will be a statutory licensing body, and accordingly the expression should not go into this Bill.
§ Lord Silkin of Dulwich
My Lords, I agree with the noble Lord, Lord Meston. It seems to me, moreover, that this amendment goes far beyond the purpose and scope of Clause 27. We already have AID. I do not know whether the amendment is intended to stop AID until the statutory licensing body is set up, or whether it is merely intended to have the result that the provisions of Clause 27, which are consequential upon the existence of AID now, do not follow.
If it is the first, then it certainly goes far beyond the scope of this Bill because it seeks to stop the practice of AID, and this Bill is concerned simply with the question of legitimation. If, on the other hand, it seeks to have the effect that Clause 27, which is a reasonable and necessary consequence of the existence of AID in relation to legitimation, should be held up pending the setting up of the licensing body, then I cannot see the purpose of that or how anyone would gain anything from it.
§ Lord Kilbracken
My Lords, I have already indicated that I strongly support the noble and learned Lord on this point. It would mean that the section would not come into force until Parliament had had the opportunity to consider the matter with the help of the Warnock Report and whatever has come up in the course of this debate, and then legislate in such a way that such a statutory licensing body is established. The acceptance of this amendment would not stop the practice of AID in the meantime. It would simply mean that AID continues to be used under exactly the same conditions as it is now.
My noble and learned friend Lord Silkin said that this provision would be going beyond the scope of this Bill, which is concerned with legitimation. But if we look through the Bill we find again and again all through that it deals with matters that have nothing whatsoever to do with legitimation. There is no reason why it should not again go beyond it in this case.
§ The Lord Chancellor
My Lords, I agree wholeheartedly both with the noble Lord, Lord Meston, and with the noble and learned Lord, Lord Silkin. I really do not need to say very much. I have explained during the course of this amendment not once now but five times what I have done and why I have done it. I felt it was an injustice, in a Bill which tried to remove the stigma of illegitimacy, that the issue raised by AID should not be faced to the extent of giving legitimacy to children engendered in this way consensually between the two parents.
I have never said a word against the recommendations of Warnock, which were in favour of a statutory body. What I have said and say again, for the fifth or sixth time, is that they will have to wait until we legislate on the ramifications of Warnock, which are very numerous. We have issued a consultation paper 562 asking for people's opinions, which are likely to be diverse, and on which we shall not get a consensus for some time. It is quite clear that whenever the date of the next general election will be, we cannot do that during this Parliament. Viewing, if I may say so without any degree of criticism, the various manifestos which seem to be emerging from my own party and other parties in the race, it does not look to me as if it will happen in the first Session of next Parliament either.
The truth is—I think my noble and learned friend ought to look into his conscience and face it—that my noble and learned friend does not like Clause 27. He has adopted one device after another to prevent it coming into effect and this is only another such device. This is a wrecking amendment and I ask the House to reject it.
§ Lord Denning
My Lords, I am sorry that my noble and learned friend says that I am trying to wreck this. I am not trying to wreck it. I am trying to get artificial insemination put on a proper basis so that the parties concerned properly consent. In the light of the opinion of my noble and learned friend, and, I am afraid, of many others who are against me, I shall not press the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 28 [Children of void marriages]:
§ The Lord Chancellor
My Lords, in calling Amendment No. 21—I shall be speaking also Amendment No. 22—I should say that if Amendment No. 22 is agreed to I cannot call Amendment No. 23.
The Lord Chancellor moved Amendment No. 21:
Page 18, line 30, leave out ("after") and insert ("for").
§ The noble and learned Lord said: My Lords, in vacating my place on the Woolsack, I am speaking now to Amendments No. 21, 22 and 24. I undertook to the noble Lord, Lord Kilbracken, to move on Third Reading amendments in response to an amendment which he moved at cols. 683 and 684 of Hansard. This is to give effect to the undertaking I then gave him when he withdrew his own amendment to Clause 28.
§ The purpose and effect of the amendment is to ensure that a child born as a result of fertilisation in vitro is within the ambit of Section 1 of the Legitimacy Act 1976, which, in certain circumstances, legitimates the children of void marriages. It is right that a child born in this way should come within the scope of Section 1. The amendments bring the drafting of Clause 28 into line with Clause 1(4), in which a distinction is drawn between "insemination" and "conception", thereby making it clear that the latter refers only to creation outside the mother's body, whether in vitro or by some other technique. The matter was ventilated by the noble Lord, Lord Kilbracken, before. I undertook to put down these technical amendments and I now beg to move Amendment No. 21, with which are married Amendments Nos. 22 and 24. I beg to move.
§ Lord Kilbracken
My Lords, I am very grateful to the noble and learned Lord for putting down this 563 amendment, which, as he says, springs from an amendment that I put down at Report stage. It extends Clause 28 to include children who resulted from in vitro fertilisation because the noble and learned Lord reached the decision, under pressure from the noble and learned Lord, Lord Simon of Glaisdale, to extend the Bill that far but no further.
In my opinion, the present amendment unfortunately does not have the effect I wanted it to have or the effect that surely it must have. The clause deals with the children of marriages that are declared void. The intention of the Bill we are amending is that if conception takes place between a man and a woman who have gone through a form of marriage and if that marriage is subsequently found to be void for any reason, then the child is fully legitimate if at the time when conception took place either of the parents believed that the marriage was valid.
We now have to extend that so that the same principle will apply if in vitro fertilisation is used. The way it would work, if the amendment of the noble and learned Lord were accepted in the form in which it is drafted, is that the child would be legitimate if at the time of its conception either the mother or the father thought that the marriage was valid. This extension is being made to cover in vitro fertilisation. In in vitro fertilisation, as I have pointed out already, conception takes place at the time when the ova and semen are put together in the dish. The concepti are then frozen and may be used at any time in the next couple of decades. This means that one parent has to think the marriage was valid, not at the time when the act of intercourse took place but at the time when the fertilisation took place in the dish.
It seems quite clear that this is not the time that matters. If the fertilised eggs are frozen and then both parents realise that the marriage is void and if after the marriage has been found to be void the concepti are inserted into the wife's womb, there is no possible reason why such a child should be considered legitimate. That is what the position would be if this amendment were to be accepted.
My Amendment No. 23 is put down as an alternative to the noble and learned Lord's amendment. In my amendment what matters is that at the time of the insertion of the conceptus one or other parent has to think that the marriage is valid. Surely that is what matters, and surely that is how it should be. I therefore hope that your Lordships will decide that my Amendment No. 23 is to be preferred to that of the noble and learned Lord the Lord Chancellor.
§ 6.30 p.m.
§ The Lord Chancellor
My Lords, I thought I was doing the noble Lord a favour by accepting the principle of his amendment. I still prefer the simple thought that if when the vital act takes place people think that their marriage is valid and it turns out subsequently to be void, the interests of justice demand that the child should not be labelled illegitimate or born out of wedlock. I stand by that. I am beginning to think it is impossible to please the noble Lord, Lord Kilbracken.
The Lord Chancellor moved Amendment No. 22:
Page 18, line 31, leave out from ("be") to ("conception") in line 32 and insert ("substituted the words "the insemination resulting in the birth or, where there was no such insemination, the child's")
§ The noble and learned Lord said: My Lords, I have already spoken to Amendment No. 22. I beg to move.
§ [Amendment No. 23 not moved.]
The Lord Chancellor moved Amendment No. 24:
Page 18, line 42, leave out from first ("the") to ("conception") in line 43 and insert ("insemination resulting in the birth or, where there was no such insemination, the child's")
§ The noble and learned Lord said: My Lords, I have already spoken to Amendment No. 24, and I beg to move.
§ The Lord Chancellor
My Lords, with regard to Amendment No. 25, the next amendment, I may be wrong but I had the idea that that was probably consequential upon Amendment No. 23. If I am wrong about that, the noble Lord will no doubt move his amendment.
§ [Amendment No. 25 not moved.]
§ Schedule 2 [Minor and consequential amendments]:
§ The Lord Chancellor moved Amendment No. 26:
Page 36, line 44, at end insert—
("20A. In section 20(6) of that Act, for the words "blood samples" there shall be substituted the words "bodily samples".
20B. In section 21 of that Act, for the words "blood sample", in each place where they occur, there shall be substituted the words "bodily sample" and for the words "blood tests" there shall be substituted the words "scientific tests".
20C.—(1) Section 22(1) of that Act shall be amended as follows.
(2) For the words "blood sample", "blood samples" and "blood tests", in each place where they occur, there shall be respectively substituted the words "bodily sample", "bodily samples" and "scientific tests".
(3) After paragraph (a) there shall he inserted the following paragraph—
(aa) prescribe the bodily samples to be taken;".
(4) In paragraph (d) after the words "any such illness" there shall be inserted the words "or condition or undergone any such treatment".
(5) After paragraph (i) there shall be inserted the following paragraph—
(j) make different provision for different cases or for different descriptions of case.
20D. In section 23 of that Act—
(a) in subsection (2), for the word "paternity" there shall be substituted the word "parentage"; and
(b) in subsection (3), for the words "blood sample" there shall be substituted the words "bodily sample".
20E. In section 24 of that Act, for the words "blood sample" there shall be substituted the words "bodily sample".")
§ The noble and learned Lord said: My Lords, I have spoken to Amendment No. 26 and I beg to move.565
§ The Lord Chancellor
My Lords, before putting the Motion, That the Bill do now pass, which I propose to do now, there has been considerable dispute as to whether I should say what I am about to say, and it has now been decided that I must say it. I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Family Law Reform Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
The reason I did not say that before was that the matter was in dispute. It is now clear that I must say those words, and they are said. I now beg to move that the Bill do now pass. In putting the Motion, I should like to thank all noble Lords who have assisted and contributed to the various discussions. I hope they feel that on the whole the Bill has served a useful purpose and that we have sent it down to the other place in a better condition than it was when originally introduced.
§ Moved, That the Bill do now pass.—(The Lord Chancellor.)
§ Lord Silkin of Dulwich
My Lords, I should like to echo the last words of the noble and learned Lord the Lord Chancellor. I think this is a much improved Bill and certainly a good deal of the improvement flows from the persistence of my noble friend Lord Kilbracken in putting forward his amendments. I hope he will forgive me if I describe them as semantic amendments: I do not use the word "semantic" in any derogatory sense.
I want to say two words more. First, I would reiterate the expression of praise that I gave to the noble and learned Lord the Lord Chancellor on Second Reading on having the courage to bring forward Clause 27. I think that was highly desirable and it represented a great improvement on what the Bill might have been.
Secondly, I want to remind the House that the Bill as it now stands still does not deal with the question of citizenship which I raised in Committee. The noble and learned Lord the Lord Chancellor has written a very detailed letter to me explaining the existing situation on citizenship. I have not thought it right to come back to the issue since the Committee stage, as we dealt with it very thoroughly on that occasion. However, I must express the hope that in another place the issue of citizenship will be dealt with. I believe very strongly that the failure to deal with it is not in any sense the fault of the noble and learned Lord the Lord Chancellor, who expressed great sympathy on that point. I hope therefore that, although this is a Lord Chancellor's Bill, the Home Office will be sufficiently interested and involved, some eight years after Mr. Raison expressed the view that citizenship should be included in such a Bill, to ensure that an amendment is so drafted that it does form part of the Bill.
§ Lord Meston
My Lords, perhaps I may join in saying that this was a good Bill when it was introduced into your Lordships' House and it remains a good Bill after its passage. I should like also to join in paying tribute to the noble Lord, Lord Kilbracken, for the 566 obvious thought, time and trouble he has put into this Bill. It is particularly good for the lawyers to encounter such an advocate of linguistic clarity as the noble Lord in matters of this sort. However, I have to say that until this Bill started its passage through your Lordships' House I thought I understood the facts of life. There were moments, particularly after 3 o'clock this afternoon, when I was not so sure.
Clause 27, which has taken up so much time during the passage of this Bill, remains unscathed and indeed we are grateful to the noble and learned Lord the Lord Chancellor for persevering in the arguments and not giving way to the temptation—which must have existed at least at some stage—to have let the clause go. Clause 27, whatever its merits, does not detract from the worth of the body of the Bill, which of course clarifies the rights, duties and status of parents and brings up to date the status and rights of children.
As the noble and learned Lord, Lord Silkin, has just said, a gap still remains. The Bill does not deal with the question of nationality and citizenship which he raised at Committee stage. I will not repeat the arguments for or endeavour to rebut the arguments against. The noble and learned Lord the Lord Chancellor indicated his sympathy for what was said in support of the amendment at Committee stage. I hope that sympathy will be sustained and will show itself in some practical result. The problem of stateless and potentially stateless children will not go away. One accepts that this is a complex area of the law but, as the noble and learned Lord has just said, it has been considered for a very long time. Surely in the interests of the children and of family unity and unification the problem must be tackled sooner rather than later. For that reason I hope that we are not saying goodbye to this Bill but simply "au revoir".
§ Lord Denning
My Lords, no one is going to thank me. I would just say that I have thought it my duty to try to bring this Clause 27 into accord with the recommendations of the Warnock Report. I have clearly failed in that. I only hope that when the general review of this subject is undertaken eventually the recommendations of the Warnock Report will find a place in legislation in your Lordships' House.
§ Lord Simon of Glaisdale
My Lords, in welcoming the Bill even more heartily than I did on Second Reading, I should like to congratulate my noble and learned friend on the Woolsack, for yet again bringing forward the Law Commission reform of family law legislation. Its record is outstanding when one considers the body of legislation that has been produced in the last few years. My noble and learned friend has not only done that service; he also makes our debates habitually exciting by his interventions. Perhaps they are a little bruising if one is the immediate object. However, when one listens, one can enjoy them wholeheartedly.
On Second Reading, while the Bill was generally welcomed, anxiety was expressed that by virtually removing the distinction between legitimate and illegitimate children we were derogating from the state of marriage. Those anxieties seem to me, as I said at the time, entirely justified. I entirely agree, on the other hand, that the worst way of reinforcing the state of 567 marriage would be to penalise, as we have done up to now, children who are born out of wedlock through no fault of their own. We must find other ways of reinforcing the state of marriage.
I also suggested on Second Reading two such ways which I shall not repeat, as they would almost certainly be out of order at this stage. However, I congratulated my noble and learned friend earlier on his fostering of the Law Commission reports on family law and the Bills which were drafted. I venture to remind him and all your Lordships that there is one conspicuously outstanding matter, which is the Bill which was drafted as the Matrimonial Homes Co-ownership Bill. That Bill, if it could be brought into legislation, would reinforce the position of the wife, who is the very linchpin of the family, in the household. I venture to suggest that it would go a long way to assuage the anxieties expressed on Second Reading.
I desire to mention only one other matter, which is Clause 27. I take a view contrary to that of my noble and learned friend and of other noble Lords who have spoken on that clause. I hope that it will be removed when the Bill goes to the other place. There was a great deal of heat and noise when we debated Clause 27. However, there was rather less cogency of argument and rather more heat than light. What is plain is that what was claimed for the clause—namely, that it would benefit children who are born by artificial insemination—no longer stands up to examination.
My noble and learned friend has said repeatedly, cogently and rightly that the present practice is to register such children as legitimate. Although he says, as he is bound to, that as head of the judiciary he cannot condone what is certainly a crime, nevertheless I think he carried your Lordships with him in the contention that one cannot say that the parents in such cases are acting wrongly. Therefore, all that will happen is that children who are at present registered as legitimate children will continue to be so registered, but they will now be registered lawfully. That seems to me to isolate the one argument in favour of Clause 27, which was the argument put by the noble Lord, Lord Mishcon, on Report. He said that it is highly undesirable to have legislation which is flouted. We must face the fact that the registration of AID children as legitimate children of those who have arranged for donation is a flouting of the law.
One must put that matter in proportion. I compare it with the legislation under the Shops Act. A generation ago the Gowers Committee described the shops legislation as bringing the law into contempt. Quite recently, the Auld Committee repeated in slightly different language that it is bringing the law into disrepute. Although that is a very strong case compared to the violations of this law which take place, as we know it is not generally known and it does not strike one as being as flagrant as it does in the case of the shops legislation. Therefore, although I give full weight to the point of the noble Lord, Lord Mishcon, one has to weigh that against the argument of the right reverend Prelates the Bishop of Birmingham and the Bishop of London that it is most inconvenient to legislate over part of the Warnock ground in advance of considering the repercussions. In effect, we are preempting some of the decisions. Although I recognize 568 one argument in favour of Clause 27, I do not think the other arguments stand up to examination, and on balance, greatly as I welcome the Bill, I think it would be much better without Clause 27. As I say, I hope that that clause will be removed.
I hope that that does not derogate from my expression of admiration for the way my noble and learned friend has conducted this Bill, on which he has proved himself a master and delighted us with his debating skills.
§ Lord Kilbracken
My Lords, having occupied so much of your Lordships' time, I shall speak for only a few seconds. The noble and learned Lord, Lord Denning, said that nobody would thank him for his part in this debate. I should like to thank him. I should like to thank him for the amendments he put down and the way he has spoken to them, as well as for the help and encouragement which he has given to me. I extend my gratitude to the noble and learned Lord, Lord Simon of Glaisdale, who is sitting behind him. I should also like to express my appreciation to my noble and learned friend Lord Silkin and to the noble and learned Lord, Lord Meston, for their kind words. I also thank the noble and learned Lord on the Woolsack for his patience and forbearance.
§ The Lord Chancellor
My Lords, your Lordships have already heard too much from me and I shall therefore be brief in what I have to say. I thank all noble Lords and all noble and learned Lords who have taken part in this brief debate. Lest the noble and learned Lord, Lord Denning, should be under any misapprehension, I was very glad for the vigorous way in which he put forward the point of view which clearly represented a strand with which I happen not to agree. It enabled the House to give what I believe was an emphatic vote on the subject. It would be a very bad day for this House if such an expression of opinion was rendered impossible by people who felt strongly on a subject not speaking and not voting. I am just as grateful to the noble and learned Lord as to anybody else.
The other thing I wish to say arises out of what was said by my noble and learned friend Lord Simon of Glaisdale. A document is in circulation. I am enabled to say this by my noble and learned friend's remarks, which have been sent to me more than once, suggesting that the Bill undermines the institution of marriage. If I thought that for an instant I should never have brought it forward. I want now to be painfully explicit to those not in this Chamber, because the argument has not been presented more than once in this Chamber throughout the whole passage of the Bill. Illegitimacy—that is to say; birth out of wedlock—is obviously due to human intercourse outside of wedlock. That may be due to a number of causes. It can be due to deliberate false thinking about the nature of marriage and the desirability of bringing up children within it. We have seen cases of popular stars almost flaunting this while the Bill has been going through the House. It can be the result of total irresponsibility resulting in promiscuous unions. It can be the result of rape. It can be the result of adultery.
In none of these cases do I support or believe in these things. But let me point out that if anybody troubles to 569 read what is in the Bill he will see no single clause where either rape, consensual adultery, lust or deliberate procreation of children outside marriage could be affected one way or another. The motivation of such actions, good, bad or indifferent, is wholly outwith the purview of the Bill, which is designed solely to do an act of justice to those who are suffering from injustice at the present time. I am delighted with the emphatic support which it has received from all quarters of the House.
§ On Question, Bill passed, and sent to the Commons.