§ 4.14 p.m.
§ Consideration of amendments on Report resumed on Clause 1.
§ Lord Kilbracken moved Amendment No. 5:
Page 2, line 5, at end insert—
("(4) In subection (3) above, conception shall be taken as occurring at the time when an ovum is fertilised, or, if fertilisation took place in vitro, at the time when an ovum is implanted.").
§ The noble Lord said: My Lords, Guinness was very good for me because it enabled me to put my papers in order. If this amendment had been called immediately, I should probably have been struck dumb and unable to respond.
§ I am grateful to the noble and learned Lord for agreeing that I should be permitted to move this amendment. It attempts to define the word "conception", and I believe that it would be necessary to do so even if the amendment that we have just agreed became part of the statute in its present form.
§ I ought to mention that in the Marshalled List this should be shown as being new subsection (4). It was so numbered when it first appeared in the printed paper this week but, since then, in the preparation of the Marshalled List that has been omitted from the beginning of the line.
§ I think that it is necessary to include some definition of the word "conception", as it is something that has become a great deal more complicated than it used to be. This is a somewhat profound matter because we are, after all, talking about the very precise moment at which human life, or indeed any form of life, begins.
§ Through all the centuries and millenia I do not think that anyone until quite recently knew anything about this at all. It was known that intercourse took place; then it was said that subsequently conception took place, gestation took place and eventually a child was born. Although it may be possible under laboratory or hospital conditions to ascertain the precise, or nearly the precise, moment when conception takes place, it is not so on any other occasion. If a woman conceives, 649 she knows only that it occurred anything up to one week perhaps after the act of intercourse. Of course in the case of in vitro fertilisation, conception takes place in the dish and birth may not take place for 10 or 20 years, as I have said before.
§ If we try to decide when conception takes place, I do not know that there is any existing phrase or criterion by which it can be decided. As I understand it, conception could be one of a number of moments after intercourse has taken place. It could be at the moment of the inception of organogenesis; it could be at the inception of the embedment of the cell cluster in the uterus wall; it could be on the completion of the self-organisation of a group of cells into an embryonic plate; it could be on the development of a primitive streak in the embryonic plate or it could be on the completion of the embedment of a cell cluster in the uterus wall. I do not know which of those it is, and I do not think that anyone has tried to find out.
§ It could also be what I have covered in my amendment; that it is at present the unknown moment in the case of ordinary intercourse when an ovum is fertilised. I think that it is necessary to specify this even if it is something we will never know in the case of our own wives or our own daughters. We have to decide at what moment conception takes place. I think that, unless it takes place in a dish, it should be at the moment when an egg is fertilised.
§ I have stated in the amendment that, if fertilisation takes place in vitro, then for the purpose of the Bill and in future enactments conception should be considered as taking place at the moment when the ovum is implanted. Although that is not when conception takes place, for the purpose of the Bill, that is what should be considered. When implantation takes place five, six, eight, 10 or 20 years after the eggs have been fertilised in vitro, I think the moment of implantation of the fertilised egg in the womb should be the time on which the appropriate decision is based. In other words, my amendment would mean that if a child is to be taken as one whose parents were married at the time of his birth, implantation in the case of in vitro fertilisation would have to have taken place before his father's death. That is how I believe it should be. I beg to move.
§ The Lord Bishop of Birmingham
My Lords, I wonder whether in moving this amendment the noble Lord, Lord Kilbracken, is aware that it is several days after an embryo reaches the womb before it becomes implanted. The noble and learned Lord the Lord Chancellor pointed out that a gap of time was unfortunate and could have unfortunate results if someone died between the two. I did not realise that your Lordships' House would be discussing the complexities of the Warnock Report. Indeed, my amendment is definitely concerned with preventing that, so I have not revised my homework as I might. However, my memory is that it is normally about six days before the fertilised ovum is implanted in the womb. Therefore, there seems to me a long gap here. I should have thought that the kind of objections that the noble and learned Lord the Lord Chancellor brought previously would apply particularly in this matter.
§ Lord Campbell of Alloway
My Lords, having regard to the somewhat enigmatic scope of the definition of conception in paragraph (b) of Amendment No. 3, on which assistance is still sought, I wish very shortly to support the spirit of this amendment for the reasons I gave on Amendment No. 3—basically to ensure that in the case of in vitro fertilisation conception is related to the time of the implant in the womb.
With respect to the right reverend Prelate the Bishop of Birmingham, a gap of six days is neither here nor there. It is in fact about that time of implant, as distinct from the time of fertilisation in vitro, which could on one concept of conception mean conception. It is that differential for which I contend for the later point of time. That is all that it is. Whether or not this takes place in some tubes to which the right reverend Prelate referred (or in any other way) does not seem to be wholly material. I know that the noble and learned Lord the Lord Chancellor will consider the merit of the argument whether he agrees with it or not. One should put the time back as far as one can on the definition of conception.
§ The Lord Chancellor
My Lords, of course I will consider everything that has been said so learnedly from whatever quarter. I think we are in danger of muddling ourselves. We must start with the proposition that the very largest majority of children are born as a result of an ordinary act of sexual intercourse between a man and a woman, done in the old-fashioned way. The very elaborate suppositions of the noble Lord, Lord Kilbracken, and even those of my noble friend Lord Campbell of Alloway are the exception rather than the rule. Some of them are extremely unlikely to occur at all.
I had hoped that I had made things plain by Amendment No. 3, which clearly shows that we do include within the ambit of the Bill fertilisation in vitro. I explained proleptically the objections to the amendment I was unable to call, Amendment No. 4. The objections were based on a fact of which I had previously been unaware; namely that there is always a period of delay between the act of ordinary intercourse and the moment of conception—a minimum period of six hours.
Suppose a husband comes home to his wife after working abroad and dies perhaps from sheer joy immediately after their first and only act of intercourse which ultimately results in the birth of their child. The effect of Amendment No. 4 would have been (and I am advised that is is also the effect of Amendment No. 5) that the poor child would then be born illegitimate. This is something which is not to be borne. It is something up with which we cannot put.
There is a further reason which has to be stated. It is right that Clause 1(3), and the Act as ultimately passed and as it ultimately is, should refer to the act of intercourse or insemination because in the overwhelming majority of cases that will remain the means of procreation of a child. It is right that the subsection should recognise this by express reference. The reference to conception is included only to cater for the very small minority of cases of artificial insemination.
651 Frankly, I had hoped that the noble Lord, Lord Kilbracken, would not think it right to move this amendment, though I now understand that he wished to say what he has said and therefore I am very glad that I was able to call it. I hope that the noble Lord, having heard my undertaking to consider the rather elaborate sets of circumstances which have been postulated, will not press the amendment further.
§ Lord Mishcon
My Lords, I wonder whether I may ask the noble and learned Lord the Lord Chancellor to consider at least one aspect when he is looking at the speeches that have been so learnedly delivered today. I speak as one so ignorant on these matters that it may be that my question is not even a material one. However, it seems from a practical point of view that if one defines in a statute that the time has got to be precise when certain things occur—namely, the ovum being fertilised, and if fertilisation takes place in vitro the time when an ovum is implanted—presumably there will be a need for certificates from some medical or other authority certifying precisely what that time was. One cannot go blandly thinking about scientific evidence being available post facto.
Therefore I wonder whether one of the considerations that the noble and learned Lord the Lord Chancellor will bear in mind is the practical question. One could envisage a birth certificate being accompanied by the most weird and wonderful medical certificates in regard to timing and a matter which will obviously be extremely new in the family life of the world and certainly of this country.
§ Lord Simon of Glaisdale
My Lords, the noble and learned Lord the Lord Chancellor has said that he will consider all these matters. It seems to me that we have to leave the matter in his hands at this juncture. I indicated during discussion on Amendment No. 3 that I preferred Amendments Nos. 4 and 5 as a way of dealing with the matter. Now that your Lordships have accepted Amendment No. 3, Amendment No. 5 will simply not work. The question of implantation time is raised in the last phrase. This is a very serious matter which no doubt my noble and learned friend will be considering along with all the other matters.
§ The Lord Chancellor
My Lords, if I may obtain the leave of the House to say just a word, it was very largely for the kind of reason that the noble Lord, Lord Mishcon gave that I suggested that we had better do what my noble and learned friend has suggested we should do; that is, leave the thing as far as possible in my rather ignorant hands. My hands may be ignorant, but I have available very good advice, which I shall take. I think that would be best. One has to remember the sort of practical question which the noble Lord, Lord Mishcon, put forward. How is one to verify these facts? In the end, they would have to be verified by the courts, and when anything has to be verified by the courts there is the prospect of litigation. The definition which we have accepted in Amendment No. 3 at least makes things rather easier for those who come after us, and I hope we shall stick to it.
§ 4.30 p.m.
§ Lord Kilbracken
My Lords, I agree with both the noble and learned Lord, Lord Simon of Glaisdale, and 652 the noble and learned Lord on the Woolsack that we should not take this matter any further. Certainly, it would be quite impossible for this amendment to be accepted in view of the acceptance of that of the noble and learned Lord. Before withdrawing it, however, there are one or two points which I should like to make.
The noble and learned Lord on the Woolsack spoke of much prefering the good old-fashioned way of engendering children. I absolutely agree with him on that point. My immediate reaction was to feel that that was all very well, but with the good old-fashioned way there are no problems; no problems arise of definition. It is precisely with the new-fangled ways, when AID, AIH, in vitro and all the other methods are employed, that the difficulties arise, and we have to consider them and they have to be in the Bill.
Then I found that the good old-fashioned way was not so very straightforward, because the noble and learned Lord came up with the case of a man who had been out of the country for a time who came back for a bit of the good old-fashioned way and promptly expired with excitement at the moment of ejaculation. The noble and learned Lord felt—he may be quite right—that that would create all kinds of difficulties. I agree that it could happen. He quoted Murphy's law at the Committee stage, and under Murphy's law it almost certainly would happen, but who is going to know that it happened, and when is it ever going to be relevant?
Is it ever going to happen that a child is conceived in those circumstances and nine months or more later someone comes along and says, "Oh, there was an inquest in this case. The poor unfortunate fellow died when he was on the job", if that is not too vulgar a phrase for your Lordships' House, "and because he died at that particular moment, he died before conception had taken place. Therefore, the poor unfortunate child has to be treated as being illegitimate". That is an absolute flight of fancy. It is a scenario which I think it is quite unnecessary to consider.
Another point I should like to make before I sit down arises from the remarks of my noble friend Lord Mishcon, who complained, quite rightly I suppose, that conception is something we cannot pin down. We can never say when it took place. It is vague to talk about conception. But if we talk about an act of intercourse—and we keep referring to acts of intercourse in the Bill—by a young married couple all around the time that they got married and a child is conceived, I cannot tell you when that child was conceived. Can any of your Lordships tell me which act of intercourse was responsible for that child? Suppose it was four or five times a day for a fortnight, or maybe 50 acts of intercourse, you can be far less exact on the question of which act of intercourse was responsible than when the conception took place.
I feel there are some rather complicated questions in this whole matter. I gave it a lot of thought over the Christmas period, and I think that other noble Lords and noble and learned Lords should do the same. In the meantime, I shall let this gestation go on. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.653
§ Clause 2 [Construction of enactments relating to parental rights and duties]:
The Lord Chancellor moved Amendment No. 6:
Page 2, line 17, leave out ("section") and insert ("sections").
§ The noble and learned Lord said: My Lords, this amendment corrects a typographical error. It substitutes a plural for a singular. I beg to move.
§ On Question, amendment agreed to.
§ Clause 9 [Consents to marriages]:
Lord Kilbracken moved Amendment No. 7:
Page 5, line 32, at end insert ("AND THE CHILD HAS NOT BEEN LEGITIMATED OR ADOPTED")
§ The noble Lord said: My Lords, in order to understand the purpose of this amendment, which concerns page 5, line 32, you would have to have a copy of the Marriage Act 1949 which this clause in the Bill amends. I do not suppose that any of your Lordships have seen it, but the second schedule of the Marriage Act lays down those who have to give their consent under different circumstances in the case of the marriage of an infant.
There are two sections in the second schedule to the Act. The first is headed,
I. WHERE THE INFANT IS LEGITIMATE",
and the other is headed,
II. WHERE THE INFANT IS ILLEGITIMATE".
That is a word which we do not want to use any more in this Bill. If your Lordships turn to Clause 9 of the Bill, it will be seen that Part II of the schedule is replaced by the passage in the Bill headed,
II. WHERE THE PARENTS OF THE CHILD WERE NOT MARRIED TO EACH OTHER AT THE TIME OF HIS BIRTH",
and then the details. That would mean that in the schedule to the Act one section is headed,
I. WHERE THE INFANT IS LEGITIMATE",
and one section is headed,
II. WHERE THE PARENTS OF THE CHILD WERE NOT MARRIED TO EACH OTHER AT THE TIME OF HIS BIRTH".
That would mean that in the case of children who have been legitimated or adopted, those children are legitimate and would therefore come under Part I of the schedule; but without my amendment they would also come under Part II because their parents were not married to each other at the time of their birth. I am therefore maintaining that instead we have to say in Clause 9:
II. WHERE THE PARENTS OF THE CHILD WERE NOT MARRIED TO EACH OTHER AT THE TIME OF HIS BIRTH AND THE CHILD HAS NOT BEEN LEGITIMISED OR ADOPTED".
I beg to move.
§ The Lord Chancellor
My Lords, the purpose and effect of this amendment are mainly drafting, but it is totally unnecessary. Section 78 of the 1949 Act, "Interpretation", to which the noble Lord has drawn attention, is amended by paragraph 10 of Schedule 2 of the present Bill, so that it is made clear in the 1949 Act itself that references in that Act to the parents of a child being, or not being, married to each other at the time of his birth shall be construed in accordance with Clause 1 of this Bill, if it becomes law.
654 Clause I makes it plain that a reference to a child whose parents were not married to each other at the time of his birth includes a reference to a child who has not been legitimated or adopted. The amendment is therefore unnecessary, and it is also contrary to the general way in which the draftsman of the Bill has sought to avoid labelling illegitimate children. I would therefore urge the noble Lord not to press his amendment.
§ Lord Kilbracken
My Lords, the noble and learned Lord sometimes complains that I do not notify him in advance of what I am going to say, although in fact I have done so. Of course he never has to notify me in advance of what he is going to say. I am afraid that without studying what he has said I cannot comment further on this matter. Therefore, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 22 [Declarations of parentage]:
§ Lord Kilbracken moved Amendment No. 8:
Page 14, line I, leave out subsection (1) and insert—
("(1) Any person may apply to the court for a declaration that a person named in the application is or was his parent.").
§ The noble Lord said: My Lords, this is purely a drafting matter. Subsection (1) of Section 56 of the Family Law Act 1986 is amended by this subsection. I put down this amendment for one reason, and one reason only, and that is that I think that, although the substance of Bills is of supreme importance, it is also of value to use brevity and clarity; and I feel that often legislation is much more complicated and occupies a great deal more space than it ought to do. As a journalist and author I know that I feel that every word is precious, sometimes even every letter, and that attempts should be made where possible to make any passage as short as it can be.
In this amendment your Lordships will see that new Section 56(1), at the top of page 14, occupies eight lines. My amendment occupies one and a half lines. In my opinion my amendment says everything that the existing subsection says. The subsection says:
Any person may apply to the court",
for one or more of the following declarations with respect to his parentage, that is to say".
I say that all that is unnecessary. My amendment says:
for a declaration that a person named in the application is or was his parent".
I do not think that I have left out anything from those eight lines, and I have at the same time incorporated Amendments Nos. 10 and 11, because I put in "is or was" instead of "is". In the interests of brevity and clarity, I beg to move this amendment.
§ Lord Renton
My Lords, I think that the noble Lord, Lord Kilbracken, is to be congratulated on attempting to express in two lines what appears in eight lines in the Bill. I do not think that he has altered the effect. I do not think so, although there is just one point which the Lord Chancellor may or may not take. I am not going to put it into his head in case he has not thought of it. I think that this is a commendable effort on the part of the noble Lord.
655 While I am on my feet and we are considering Clause 22, let me thank the noble and learned Lord the Lord Chancellor for so courteously and kindly writing to me during the parliamentary recess in answer to two points that I made about the application of that clause. I accept what he told me, and I am grateful.
§ 4.45 p.m.
§ The Lord Chancellor
My Lords, I am grateful to both noble Lords. The addition of the words "or was" in the amendment is of course an improvement, but it is carried into effect also, and alternatively, by my Amendments Nos. 9 to 12 in the appropriate places.
Of course I do not claim to be an expert parliamentary draftsman but I think I understand the draftsman's preference for his own language rather than that of the noble Lord, Lord Kilbracken, although I would wholeheartedly agree with my noble friend Lord Renton when he says—as the noble Lord also said—that if you can put something into two lines it is better to do so than to spell it out in ten, or words to that effect.
But one never knows what courts will do unless things are rather spelled out for them. It is possible that the amendment of the noble Lord would work in the way he expects, but the whole of Part III of the Act of 1986, as amended by the present Bill, is drafted in a particular way. That way is to spell out what is intended in very full terms. One can see that if one looks at Section 56 of the Family Law Act 1986, which is already law.
The draftsman suggests that the somewhat compressed nature of the noble Lord's amendment would be out of keeping with the provisions surrounding it in the Act it is intended to amend. I would on the whole stand by that, without in any way depreciating the value of the noble Lord's suggestion. If the old Act had been altered in this way and drafted in this way, perhaps it might have been a good thing, but I think it might mystify the courts if this new style amendment were inserted into an Act which has already been passed. I would therefore stand by the draftsman without claiming any superior knowledge of my own.
§ Lord Mishcon
My Lords, I wonder whether the noble and learned Lord would be courteous enough to agree that he has defended many people in his time and done it very ably, but on this occasion he does not appear to me, at least effectively, to lave defended the parliamentary draftsman. If we had listened to one single reason as to why this amendment was not acceptable, or if one had heard one single difficulty with which the court might be faced, it would be different. This is a sensible amendment, as it seems to me, which compresses into simple language and a couple of lines what is spelled out here in my view—and I know it is the noble Lord's view too—in quite unnecessary individual heads.
Section 56(1) asks for leave of Parliament—and it gets it—for a person being able to apply for a certain declaration. What is that declaration? If you look at paragraphs (a), (b) and (c) it all amounts to the fact that it is a declaration that a person named in the application is or was his parent.
656 We sit here as a revising Chamber. I know that the noble Lord, Lord Renton, is beloved by all of us because he always puts us right when it comes to a question of parliamentary draftsmanship, and his committee once deliberated and gave opinions and recommendations some time ago on certain principles.
There has to be a good reason why we do not accept one and a half lines in the place of about seven or eight. If the noble and learned Lord would kindly give one good reason I, at all events, should listen to him, but if he cannot, I hope that the House will accept the amendment.
§ Lord Renton
My Lords, if I may with leave of the House speak again briefly, when we are having to reenact, wholly or in part, previous legislation, we should not be debarred from improving it, except in those circumstances where a particular phrase has been the subject of judicial interpretation. That was the secretive point that I had in my mind when I spoke earlier. My noble and learned friend the Lord Chancellor did not take that point. If, on the other hand, he can assure us that there are particular phrases in the first eight lines as they stand which have been judicially interpreted and which therefore we must not touch then I should go along with him. Otherwise I join with the noble Lord, Lord Mishcon, in hoping that the splendid effort of the noble Lord, Lord Kilbracken, may one day prevail.
§ Lord Simon of Glaisdale
My Lords, I hope my noble and learned friend the Lord Chancellor will reconsider this matter before the next stage. The only reason that was put forward was that previous legislation was done in a different way. If we are going to stand on that we shall never improve our statutory procedures.
Again I draw attention to the very wise words put forward by two great judges, Lord Elmslie and Lord Wheatley that I quoted on an earlier amendment. I hope my noble and learned friend will see the advantage of this economical way of drafting. Speaking for myself, I cannot conceive any court being misled in any way by the draft of the noble Lord, Lord Kilbracken.
§ The Lord Chancellor
My Lords, of course I shall consider what has been said; but I am not wholly convinced by all this. We are not acting as a revising Chamber for the purpose of redrafting an Act which has already been passed.
Section 56 of the Act in which it is designed to insert a new clause is intended to be an insert into an existing Act of Parliament. Part III of the Act of Parliament, of which Section 56 is an example, is drafted in a particular way. I am afraid the section which it is intended to insert is inserted in the same style and in the same manner as the other parts of Part III.
Of course I cannot give my noble friend Lord Renton any assurance that the matter of Part III has not been the subject of judicial interpretation. I could find out and probably let him know, but we are now at the Report stage of a Bill. If this had been put forward in Committee I should have very happily said that we would consider it again on Report; but we are now on 657 Report and the draftsman advises me that there is a real danger that the insertion of what looks like an ingenious improvement, but may not necessarily be, will cause confusion when the rest of Part III is considered. There is no suggestion whatever that there is anything wrong with Part III of the Family Law Act as it stands. What it is proposed to do is to revise an Act of Parliament and not to revise a Bill. We are a revising Chamber, but we are a revising Chamber when we enact Bills not when we consider Acts of Parliament which have already been passed.
There is a question of principle here. I consider that we are acting a little in a headstrong way if we disregard professional advice that we have had about an Act of Parliament, the other sections of which in the relevant part of it have not been examined in context. Although I am perfectly prepared to have this considered again, I am not altogether persuaded that the noble Lord, Lord Mishcon, is not being a bit headstrong and a bit hasty in what he said to the House.
§ Lord Elwyn-Jones
My Lords, do those final words indicate that the noble and learned Lord is willing to consider this again before Third Reading? That would seem to be the solution in view of the strength of opinion.
§ The Lord Chancellor
Yes, my Lords, it does. But I feel we are making rather a meal of this. I have already unequivocally said that I shall consider it, but I do think that at Report stage we had better get on.
§ Lord Kilbracken
My Lords, I am very grateful for the powerful support that I have had for this little amendment, not only from the Government Benches and from my own Front Bench, but also from the Cross-Benches from the noble and learned Lord, Lord Simon of Glaisdale. This is not a matter of importance. It does not affect the meaning of the Bill in any way. It is simply an attempt to show how eight or nine lines can be expressed equally well within a line and a half. All the noble and learned Lord on the Woolsack seems to have said is that it cannot be accepted because the rest of the Act it amends is so badly and verbosely worded—
§ Lord Kilbracken
My Lords, the noble and learned Lord says that he did not say it; but what I gathered from what he was saying was that if my subsection were inserted into it it would be in such a contrast with the rest of the Act because it was well written instead of being badly and verbosely written that it could not be accepted. I had not intended to withdraw this amendment, but I would have said "Content" rather softly. In view of the undertaking of the noble and learned Lord on the Woolsack that he will consider it between now and Third Reading, I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
The Lord Chancellor moved Amendment No. 9:
Page 14, line 1, leave out ("one or more") and insert ("either or both").
§ The noble and learned Lord said: My Lords, with this amendment, I shall speak to Amendments Nos. 10, I 11 and 12, if the House will allow me to do so. These points have already been dealt with, and the noble Lord, Lord Kilbracken, inserted the word "was" in his former amendment. I think I can move the amendments formally. I beg to move.
§ On Question, amendment agreed to.
The Lord Chancellor moved Amendments Nos. 10, 11 and 12:
Page 14, line 5, after ("is") insert ("or was")
Page 14, line 6, after ("is") insert ("or was")
Page 14, leave out lines 7 and 8.
§ On Question, amendments agreed to.
§ Clause 23: [Provisions as to blood tests]:
§ The Lord Chancellor
My Lords, before I call Amendment No. 13, perhaps it would be convenient for the noble Lord, Lord Kilbracken, if I tell him in advance that I intend to accept his amendment.
Lord Kilbracken moved Amendment No. 13:
Page 14, line 39, leave out ("subsection") and insert ("subsections").
§ The noble Lord said: My Lords, I think that is a bit unfair to tell me in advance. I knew perfectly well that the noble and learned Lord would have to accept it, and that is why I put it down. When I was working on this Bill over Christmas I came upon four or five mistakes so trivial that probably only retired chief subeditors such as myself would ever have noticed them. All but one of these were so trivial that changes could be made when the Bill went for printing. But I saved one.
§ Even though the Lord Chancellor's stonewalling technique refused to agree to any of my other amendments, this one he will be forced to accept because it is a typographical error. If he had not told me in advance that he would accept it, I would have told him that if he resisted this I should personally have presented him with a pair of white gloves. I now cannot do that, but I beg leave to move the amendment.
§ On Question, amendment agreed to.
§ 5 p.m.
The Lord Chancellor moved Amendment No. 14:
Page 14, line 49, leave out ("blood samples") and insert ("samples of blood or tissue").
§ The noble and learned Lord said: My Lords, I may say for the convenience of the noble Lord, Lord Kilbracken, that I am going to accept this amendment in principle, but I would ask him to withdraw it until I can propose another amendment on Third Reading.
§ Lord Kilbracken
My Lords, I must say that I find this rather improper. I am very grateful for what the noble and learned Lord said, but when he calls amendments he is supposed to allow the person moving the amendment to get up to say what he was going to say and he can make his comments afterwards. For him to get up first and say that he thinks I may have a point is very nice to know, but it is the normal and invariable practice in your 659 Lordships' House that the Minister should give his opinion after the mover of the amendment has spoken.
However, in view of what the noble and learned Lord has said, I shall only mention that certainly in Clause 23, which refers to blood testing, as it is called in the Bill, there are changes which should be made because of progress which has been made in recent years in ways to establish paternity by means of medical tests.
The clause as at present worded refers only to blood tests and blood samples, whereas the more important and more reliable tests nowadays involve tissue typing and DNA analysis, and in order to carry these out—and they are carried out, as the noble and learned Lord mentioned at the Committee stage—it is necessary to take samples of tissue and to have tests of blood and tissue. In addition to this amendment, it would be necessary to make an amendment on page 14, line 45, and on page 15, line 3, where there are references to blood tests and also in many places in Part III of the Family Law Reform Act of 1969. So I beg to move and will listen with interest to what the noble and learned Lord now has to say.
§ The Lord Chancellor
My Lords, I make no apology for trying to save the time of the House by telling the noble Lord in advance that he is pushing at an open door. The reason why I would ask him to consider withdrawing the amendment is that it does not go far enough. He is perfectly right in saying that his amendment has revealed a lacuna in Clause 23, but it does not go far enough because it will not cover bodily fluids such as saliva or semen.
Further, a second reason is that it is necessary to make a further consequential amendment to Part III of the Family Law Reform Act 1969 which deals generally with the topic of blood testing. If the noble Lord agrees to withdraw his amendment, I undertake to table at Third Reading an amendment to cover the point.
§ Lord Kilbracken
My Lords, I am most grateful to the noble and learned Lord, and of course I shall do as he asks. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Kilbracken moved Amendment No. 15:
Page 14, line 49, leave out from ("from") to end of line 51 and insert ("that person and any party to the proceedings who is alleged to be his father or mother;").
The noble Lord said: This matter relates to the persons from whom blood tests may be ordered. I want to extend this to,
that person and any party to the proceedings who is alleged to be his [the child's] father or mother".
§ As the Bill is drafted at present, any person who is alleged to be the father or mother may be ordered to have blood taken for testing, although they are not parties to the proceedings. I do not think that anyone who is not a party to the proceedings ought to be forced to have a blood test.
§ It has been pointed out to me that my amendment might not be suitable because of a case which happens 660 quite frequently in which the biological father of a child may be one of two men who both had intercourse with the wife, or indeed three of four men who had intercourse with the wife during the period when conception might have taken place. In the case where there are two possible fathers and one could be rather more likely than the other for various reasons, it could happen that that likelier father was out of the country and could not be a party to the proceedings and could not be ordered to have blood tests. But then it would contribute to identifying the child if the less likely of the two fathers were tested. But if that were to be the case, under my amendment it would only be necessary to make that less likely father, for the purposes of eliminating him, a party to the proceedings and to allege him to be the father. I think that is all I can say on this amendment. I beg to move.
§ Lord Meston
My Lords, I was only going to say that again the noble Lord, Lord Kilbracken, has given a great deal of thought to this. Certainly on one reading of Clause 23 as drafted, it might be thought, and this is certainly my interpretation of it as a humble lawyer, that it was necessary for the person alleged to be the father or mother to be already a party to the proceedings. I think that is implicit in the words at the end of Clause 23(1)(b),any other party to the proceedings".But as the noble Lord says, Clause 23 as drafted might be taken to entitle the court to direct blood tests against any person alleged by anyone to be the father or mother of the child, irrespective of whether that person is a party to the proceedings. In so far as there may be any doubt about that, the noble Lord, Lord Kilbracken, is right to try and have that doubt cleared up.
That is not just a matter of a dry, legal argument. To require people to undergo blood tests can at the very least be an embarrassment and inconvenience and certainly can be an infringement of personal liberty. It must be quite clear who can be required to take a blood test. In the typical case one comes across in my squalid sort of practice, the woman accuses her boyfriend of being the father of the child. The boyfriend says, "I doubt it, our relationship was going through a bad period, and anyway I saw her kissing the milkman", or "smiling at the postman", or "I heard that she was holding hands with a man in the pub". In the usual course of events the court would not require the milkman or any other innocent third party to be tested.
"The party to the proceedings" has a strict legal sense. I think its is defined in the Supreme Court Act as someone who is served with notice of the proceedings or who otherwise intervenes. But in certain circumstances of course it would be right for third parties to be made parties to the proceedings in the strict legal sense where they are strong candidates for paternity. But the court must have its discretion unfettered in that respect.
At Committee stage, the noble and learned Lord the Lord Chancellor, I think, referred to the husband, for example, in a case where the lady is still married and the husband still on the scene. There are other circumstances where either one or other of the parents 661 may have died and there is a brother or a sister to be tested. However, I venture to suggest that the noble Lord, Lord Kilbracken, has put his finger on an important point in saying that the circumstances in which potentially innocent third parties should be subjected to blood tests, and indeed other sorts of tests as they are now to be introduced into the law, should be clearly circumscribed.
§ Lord Campbell of Alloway
My Lords, perhaps I may briefly rise to support the amendment. It may well be said that it is unnecessary on one view and on one interpretation of the statute. But it serves as an aid to clarification and I respectfully suggest that it is appropriate and worthy of consideration.
§ Lord Silkin of Dulwich
My Lords, my difficulty with the amendment of my noble friend is that, while it may very well, as has been suggested, clarify a possible deficiency in the clause as it exists, it seems to create another deficiency. The existing clause provides that the power to order the taking of blood samples should apply to the person making the application or,any party who is alleged to be the father or mother of that person"—which is the point dealt with by my noble friend—and any other party to the proceedings".Those final words are omitted from my noble friend's amendment.
In Committee I raised the question of who could be a party to the proceedings, with particular reference, for example, to a brother or sister. The noble and learned Lord the Lord Chancellor has kindly written to me on that point and assured me that rules will be made to indentify people who can be party to the proceedings and that they may well include brothers and sisters. If accepted, this amendment would rule out that possibility so far as the taking of blood samples is concerned. At the moment I am not clear why that should be so.
§ The Lord Chancellor
My Lords, I agree with every word which has fallen from the noble and learned Lord on the Front Bench of the Opposition. I believe we are all agreed that the court should only be empowered to give directions as to the taking of blood samples from persons party to the proceedings for the reason given by the noble Lord, Lord Meston, that it is an intrusion to take blood samples compulsorily and therefore persons should be party to the proceedings before they are taken. They should be either the applicant or certain other parties to the proceedings. The effect of the present amendment of the noble Lord, Lord Kilbracken, which I thought we had discussed fairly fully in Committee, is in fact to rule out parties to the proceedings (either the applicant or others) who are not alleged to be parents of the child, who of course must be parties to the proceedings.
A simple example, which I think the noble Lord, Lord Meston, and possibly the noble Lord, Lord Kilbracken, have in mind, is this. Suppose a person who wants to apply for a declaration as to parentage knows the identity of his mother (which is usually the case) but knows also that his father must be one of two men. I use that simple example, though the number may be more than two. However, suppose that person 662 knows that his father must be either Abraham Alpha or Benjamin Beta and that both of them are known to have had intercourse with the mother.
If the applicant suspects that Benjamin Beta was the father but he is abroad and cannot be made party to the proceedings, blood tests could be ordered from Abraham Alpha if he was a party to the proceedings. If those showed negatively that Abraham Alpha could not be the father of the applicant, it might well be the case that the court would find that Benjamin Beta, though absent and though no blood tests had been taken from him, was by process of elimination the true father. That might be desirable. I think that was largely the point made by the noble and learned Lord, Lord Silkin, and I think it is a good point. Therefore I would ask the House not to accept this amendment.
§ 5.15 p.m.
§ Lord Kilbracken
My Lords, I am grateful to all noble Lords who have taken part in this debate. I must say that I found the comments of the noble and learned Lord to be rather mysterious. I stated on two or three occasions that certainly no one should be ordered to have blood tests who is not a party to the proceedings. He emphasised that. If your Lordships will consider the wording of the Bill at present in paragraph (b) at the bottom of page 14, you will see that it states:for the taking, within the period specified in the direction, of blood samples from all or any of the following, namely, that person"—which means the child—any party who is alleged to be the father or mother of that person and any other party to the proceedings".The use of the word "other" is very misleading because it makes it look as though other parties to the proceedings have already been mentioned. However, they have not, because the paragraph says:any party who is alleged to be the father or mother of that person and any other party to the proceedings".My point is that the Bill as drafted at present includes persons who are not party to the proceedings. Furthermore, I suggest to the noble and learned Lord on the Woolsack that in the example he gave the man he called Abraham Alpha (who is the less likely father), who stayed at home, rather than Benjamin Beta, who has gone to the Continent, could under my amendment perfectly well be ordered to give blood simply by making him a party to the proceedings and having someone allege that he is the father.
We have the phrase,alleged to be the father or mother".We do not know who has to allege that or where they have to allege it; presumably the wife can allege it and make him a party to the proceedings. In any case, that is not going to stop Abraham Alpha from being forced to have a blood test.
I do not intend to press this matter to a Division. But I think it is a matter that requires attention and perhaps will awaken an interest in the subject in other noble Lords. In those circumstances I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.663
§ Clause 24 [Registration of father where parents not married]:
§ Lord Kilbracken moved Amendment No. 16:
Page 15, line 31, leave out from ("birth") to end of line 15 on page 16 and insert—
("the father shall not be required to give information concerning the child's birth; and the registrar shall not enter his name in the register as the child's father except—
(2) Where the father makes a request to the registrar under paragraph (b) of subsection (1) above—").
§ The noble Lord said: My Lords, I am glad that the noble and learned Lord took a little time to call the amendment because it has given me time to sort out my papers and get my breath back. I must say that my stamina is beginning to flag. I shall try to do my best because I feel that this is the most important amendment I have put down and I very much hope that some of your Lordships will feel the same.
§ Clause 24 is about the registration of births. It amends Section 10 of the Births and Deaths Registration Act 1953. It lays down the action necessary if the natural, unmarried father of the child is to have his name entered on the register. I feel strongly about this for two separate reasons. First, all through the Bill, right up until Clause 24, the unmarried father has been treated in a way completely different from any preceding legislation. That is an important feature and is part of the Bill's much more enlightened attitude towards people born out of wedlock.
§ Until now, in clause after clause of the Bill, when there has been reference to an unmarried father, rather to my surprise he has always been described simply as "the father". It took me some time to realise that that is what the Bill meant in every case, because there may be the biological father, the legal father and the adoptive father. But in clause after clause right up to this point, when there is a reference to the natural father he is described simply as "the father". That is the way it should be and I welcome it.
§ When we come to this clause about entering the father's name on the register he suddenly becomes "that person", "the person stating himself to be the father", and so on. Unlike the rest of the Bill the whole of this clause reaks of the old-fashioned thinking and assumption that an unmarried father is a shadowy figure somewhere in the background, that very often he has made himself scarce and his whereabouts is not known or indeed that his identity may not be known. While this is sometimes, or perhaps often, still the case, I feel that it is completely wrong and a great pity that alone in the Bill this clause should be drafted as though that were the typical and usual position.
§ More and more couples are living together without the benefit of clergy. They are in stable relationships, with children, and fathers are increasingly acknowledging and taking some responsibility for their 664 children whether or not they are involved in such stable relationships. Therefore I tried to redraft this subsection in about half the length that it presently occupies so that, although it is an amendment to another Act and might stick out in that Act as being drafted in a literate way, it would be clear and concise.
§ I should like to go through the clause in a moment but there is a separate point that I wish to raise first. I refer to the question of whether or not the child in the case should be allowed to object to the insertion of the natural father's name on the register. On page 15 of the Bill your Lordships will see the different conditions that are necessary if a father's name is to be entered on the register—first, if the father and mother go along together; secondly, if the mother goes along with the consent of the father; and thirdly, if the father goes along with the consent of the mother. However, only under paragraph (d) at the top of page 16, at the request of the mother or the father and on production of a copy of a relevant order—"relevant order" is defined lower down the page at line 31—for some very strange reason the written consent of the child is required if the child has attained the age of 16.
§ I think that is perfectly right, but I also think that in any case the written consent of the child over 16 should be required except possibly if it is one of those cases where the father and mother are such great pals that they go along together and sign the register together; and then I think that they should not have to get the child's permission. But in all other cases, where the father goes along by himself with a written statement from the wife, or vice versa, I feel strongly that the consent of the child is essential.
§ Let us remember that very often the child has a deep resentment of his natural father. The child may resent the fact that that father did not marry his mother and he may have suffered throughout his life from the stigma attached to what we used to call illegitimacy. Yet if the father has a relevant order, which is any of the orders listed, he can go along on his own initiative and have his name entered on the register without the consent of the mother or the child. The child may resent that very much. I feel that it should be laid down that in all such cases where the child is over 16, or 18 if your prefer, the child's consent should be obtained.
§ All that it remains for me to do, and I shall not go right through the clause, is to point out to your Lordships that the passages in the Bill and the passages I have rewritten do not differ in intent apart from the question of written consent of the child. The same is said but in half the number of lines.
§ 5.30 p.m.
As regards the consent of the child over 16 being necessary, that is included in paragraph (b)(iii) of my amendment. Unless the father and mother go along together to sign the register either the father or the mother must produce,
declarations by both of them in the prescribed form stating that they are the parents
a certified copy of a relevant order
in either case, if the child is over sixteen, the written consent of the child.
The Bill as it stands states that,
no person shall as father of the child be required to give information".
Why does not the Bill just say,
the father of the child shall not be required to give information"?
The Bill says in subsection (1)(a), at line 35,
at the joint request of the mother and the person stating himself to he the father of the child".
Why does the Bill not just say,
at the joint request of the father and mother"?
I shall not go through it line by line, but I feel that it is a terrible pity that there is this reversion to the language and attitude of mind towards this problem in this clause when it does not occur anywhere else in the Bill. It is with some depth of feeling, therefore, that I beg to move.
§ 5.30 p.m.
§ Lord Campbell of Alloway
My Lords, I shall be brief. I regret that I cannot support the point concerning the father. I understand what is being said but it ignores totally the drafting of the 1953 statute which it is intended to amend. One must keep some symmetry between the original form of the statute and the proposed amendment to it. To some degree, that cuts across the other point taken previously. Although one could say that old statutes should be better drafted, this is hardly the occasion on which to improve on the drafting as there should be some symmetry between the amendment and the original Act. Therefore I cannot support the amendment as it stands.
However, as regards the consent of the child being obtained, if the child is over 16 my noble and learned friend may well think that there is something in this. For example, in affiliation proceedings under the Children Act 1975 the consent of the child, if over 16, is always required. Perhaps my noble and learned friend could consider that point
§ The Lord Chancellor
My Lords, I find some difficulty in understanding the reasoning behind this amendment, which I only saw rather late. On the first point, a person cannot be described as the father of the child until the proceedings are at an end. Therefore, to call him the father of the child in advance is to beg the question which the proceedings are about. In fact, in new Section 10 of the Births and Deaths Registration Act 1953, which this clause intends to insert in that Act, the words, "that person" where they occur in, say, subsection (1)(b)(i) are used as a shorthand expression for the person stating himself to be the father or the person whom the mother states to be the father and who himself in subparagraph (ii) makes a statutory declaration to that effect. I do not know any other way of doing it, because the fact of his paternity is only to be established after the proceedings are complete. Therefore, this is a question-begging amendment on the first point made by the noble Lord, Lord Kilbracken.
The issue of the child's consent was dealt with by the Law Commission in its 1982 report on illegitimacy.
666 My understanding is that it came to the same conclusion as is now in the Bill. May I say to my noble friend Lord Campbell of Alloway that it is, of course, true that in affiliation proceedings, which are abolished by the Bill as such, the child's written consent to the registration is required under present law if the child is over 16. This rule was originally introduced, as noble Lords probably know, by the Children Act 1975. It reflects the fact that in affiliation proceedings, being designed primarily for financial support, the child's interests would not otherwise be considered in the context of a finding of paternity and subsequent birth re-registration. Accordingly, it is provided in the new Section 10(1)(d) that if the child is of such an age that it would be appropriate to take his views into account—and 16 is taken as such an age—his consent is required to be in writing.
That seems to me to be absolutely sound, but in paragraphs (a)(b) and (c) registration or re-registration is effected as a matter of fact and on the evidence prescribed by agreement between the father and the mother. It is question of fact. One cannot say that consent is required to register a fact, if it proved to be a fact. What is required is proof of the fact. Therefore, the clause as drafted seems to me to prevail and I am unable to advise the House to accept the amendment.
§ Lord Kilbracken
My Lords, I did not think that the noble and learned Lord would accept the amendment, but I want to reply to the point that he made. In such a case there is no question about the identity of the father and the mother. If the identity of the father is in doubt—and it almost always is the father—he must undergo blood tests, and so on. But what is happening here is that two people present themselves and say, "I am the father and this is the mother and we want to register the child." Alternatively, one says, "I am the father and here is a declaration by the mother stating that I am the father and I want to register myself as being the father." After all, that is what happens if a married couple have a child. The father or the mother registers the child. The man may not be the father but she probably is the mother. The father may be someone quite different, without any use of AID. The husband may not even know that someone else is the father. However, if he goes along and fills in the register then his name will be put down as the father and the wife's name registered as the mother and no one asks any more about it.
I see no reason at all in a case like this, where two people declare that they are the parents, why that should not be accepted. I realise that this proposal is probably too radical to have any hope of acceptance by the noble and learned Lord on the Woolsack and therefore, though I feel strongly about it and would much like to see the amendment accepted, in the hope that what I have said may have generated some thought among your Lordships, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Lord Chancellor
My Lords, we now come to Amendment No. 17, tabled in the name of the noble and learned Lord, Lord Denning. The noble and learned Lord is not present and so the amendment is not moved. That saves me a certain amount of bother. 667 There now follows Amendment No. 18, also in the name of the noble and learned Lord, Lord Denning, which is likewise not moved.
§ [Amendments Nos. 17 and 18 not moved. ]
§ Clause 27 [Artificial insemination]:
§ [Amendments Nos. 19 and 20 not moved. ]
§ Lord Meston moved Amendment No. 21:
Page 18, line 28, at end insert—
("( ) In this section "artificial insemination" shall include any form of assisted insemination whether inside or outside the womb and whether using donated semen or donated ova.").
§ The noble Lord said: My Lords, I am conscious of the fact that it is intended by the right reverend Prelate to have a wider debate on Clause 27 and therefore I shall not detain your Lordships at any length on my amendment.
§ Assuming that Clause 27 remains in this Bill, I suggest that my amendment is necessary. Until the noble and learned Lord the Lord Chancellor moved Amendment No. 3 there was no indication in the Bill that it was specifically intended to cover children born as a result of in vitro fertilisation by donated sperm. We now know that the Bill in general is intended also to recognise in vitro techniques, and for that of course we are grateful. I shall have to consider perhaps at a later stage whether or not it is now necessary specifically to refer to in vitro births in relation to Clause 27 alone.
§ However, the concern of this amendment is frankly wider. It is to ensure that Clause 27 should cover all forms of assisted birth undertaken consensually by a married couple. The logic of the noble and learned Lord the Lord Chancellor, with which, if I may say so, he has argued forcibly both at Second Reading and at Committee stage in support of Clause 27, is, I suggest, quite unaswerable. His argument is that it is simply unfair not to give status to children born consensually in wedlock with the full agreement of both parties to the marriage.
I simply invite the House to extend the logic of his argument and allow Clause 27 to cover all children produced by any technique whose genetic inheritance in fact only comes from one or other of the couple who intend to bring up the child. The report of the committee under the chairmanship of the noble Baroness, Lady Warnock, certainly took the view that egg donation should be covered, and as I understand it that was the purpose of what I think was one of the least controversial amendments in the name of the noble and learned Lord, Lord Denning; namely, the second part of his Amendment No. 19.
§ I invite the House to allow the logic of the noble and learned Lord to be extended to all forms of assisted birth so that it is not necessary to legislate piecemeal in this difficult area. I beg to move.
§ Lord Robertson of Oakridge
My Lords, there may well be much merit in this amendment but I should like to point out one fact; namely, that this is one of the specific subjects on which the DHSS consultative paper that was published only last month, Legislation on Human Infertility Services and Embryo Research, 668 called for views at paragraph 28. It would seem wrong for your Lordships' House to anticipate the collection and study of those views.
§ 5.45 p.m.
§ The Lord Chancellor
My Lords, it seems that no other noble Lord has risen to speak. The noble Lord, Lord Meston, always talks very good sense, if he will allow me to say so, and I have considerable sympathy with this amendment; but I shall tell him why I am rather reluctant to accept it and I hope that he will believe it is a valid reason.
I had to tread a rather delicate path in this Bill, as must have been obvious both at Second Reading and at Committee stage. I reached the conclusion, with which I was happy to note the noble and learned Lord, Lord Silkin, agreed, that I could not very well propose a Bill on illegitimacy without clarifying to some extent and at least provisionally the case of the child born as a result of AID, and I have been happy to make it quite clear that I also intended to include in vitro fertilisation.
It was the noble Lord, Lord Robertson of Oakridge, I think (I am so shortsighted that I cannot be quite sure), who, from the Cross-Benches pointed out that there were people who thought I was jumping the gun on the question of the Warnock Committee. Frankly, I agree that this is a delicate path to tread. I thought that I must introduce Clause 27, despite a very respectable body of opinion that said that I should not do so, out of a sense of sheer justice to the children born of artificial insemination.
I myself am not necessarily opposed to extending this principle to children born as a result of egg or embryo donation. I do not want to prejudge that question but I am not necessarily hostile to it at all and I have a great deal of sympathy with it. As the noble Lord, Lord Meston, quite accurately said, such was the Warnock recommendation. However, I have to consider the views of those who think that I am jumping the gun on the Warnock Report. I have been trying not to do so more than was absolutely necessary in justice to the child born of AID or in vitro fertilisation, and I think that I should be going too far if I accepted this amendment.
The Government have recently sent out a consultative document on the Warnock Report entitled Legislation on Human Infertility Services and Embryo Research. Having sent out that document for consultation they have asked for other people's views on the subject before they legislate. I must point out that in neither of the draft Bills attached to the Law Commission's reports was there a provision on the lines now proposed in this amendment. I know that what I am treading is a delicate path, but the view which I am asking the House to accept is that I was right to include some provision in relation to children conceived by AID and in vitro but that if I went this further stage, which it certainly can be argued is a perfectly logical extension, I should be pre-empting the consultative document and the legislation on Warnock.
I know that it is a difficult road to tread, but it is the path that I have chosen. I would ask the House and the noble Lord, who always talks such good sense, to back 669 me on this. It is a matter which is open to argument—whether I was right or wrong. No one claims to be infallible in this House, least of all me. There it is. I think that I have gone as far as I can.
§ Lord Renton
My Lords, we should take note of what the noble and learned Lord has said. It is not only he but all of us who are in this somewhat embarrassing position because, on the one hand, we want to fulfil the purposes of the Bill as expressed in the Long Title and in Clause 1(1); but, on the other hand, we know perfectly well that there may be legislation following Warnock which will conflict with some of the matters dealt with in the Bill which would accordingly have to be amended if that legislation were passed.
I mention only the possibility that certain kinds of surrogate motherhood may be decided by Parliament to be illegal. In that case, there would have to be consequential amendments to this Bill. We cannot help that. We must try to fulfil the declared purposes of the Bill without, as my noble and learned friend has said, going too far. For that reason, if I may respectfully say so, I support the view that he has taken on this amendment.
§ Lord Meston
My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for his sympathy. I had hoped to push him a little further down the delicate path he described himself as having trodden. This Bill has the intention of providing a broad framework for children who are born after the Bill becomes law. Science is not standing still. As always, the law must try to catch up. I of course accept what the noble and learned Lord says. It may mean that there will have to be amendments to the Bill at a later stage, possibly after we have considered further legislation resulting from the Warnock Report. However, with a certain degree of reluctance, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
The Lord Bishop of Birmingham moved Amendment No. 22:
Leave out Clause 27.
§ The right reverend Prelate said: My Lords, unlike most noble Lords who have spoken on Report, I am not a lawyer only a bishop; nonetheless, it seems to me appropriate to bring this amendment before your Lordships' House again on report as there was no Division on the subject when it was considered briefly in Committee.
§ Secondly, there are some important considerations which were not mentioned in Committee. Thirdly, since then the consultation paper which the noble and learned Lord the Lord Chancellor has mentioned on legislation on human infertility services and embryo research has been issued, which, as I understand it, greatly alters the situation and makes it impossible to walk as delicately as Agag in this matter with the Bill as it now stands.
§ I must begin with an apology. I was unavoidably absent when the matter was discussed in Committee. I thought it right to keep an engagement made previously to entertain in my house all the Roman Catholic and Church of England bishops in the West 670 Midlands to discuss important matters with them. I knew that amendments standing in my name were in the capable hands of the noble and learned Lord, Lord Denning. I must admit that I was a bit distressed when I read the Official Report to find that the noble and learned Lord the Lord Chancellor had seen fit to describe my absence as the absence of the chairman of the "board of social irresponsibility".
§ The Lord Chancellor
My Lords, I immediately tender an unreserved apology if I caused any distress. I am afraid that my levity was unsuitable and I apologise.
§ The Lord Bishop of Birmingham
My Lords, I am grateful to the noble and learned Lord on the Woolsack for his courtesy in withdrawing that remark. I would wish him to call me irresponsible whenever I am, but not the board which I happen to chair.
When the noble and learned Lord spoke at that time he said that the consultation document would be issued in connection with the proposals of the Warnock Committee. That consultation document may not be in all your Lordships' hands. It came to me as chairman of the Board for Social Responsibility. I shall therefore have to quote a little from it. It deals at length with matters of AID among others. It deals with them on two counts. The first concerns access to genetical information about an AID birth, and secondly it concerns the registration of that birth.
Those matters are not unconnected. If there is no information available about the details of the donor, there is no information to which the person born in such a way can have access. I appreciate that the noble and learned Lord informed the right reverend Prelate the Bishop of London on Second Reading (and repeated it in Committee) that Clause 27, if passed as it stands, would not prejudice questions of access to be discussed when the Warnock proposals come to legislation. As I have said, however, it is impossible entirely to disconnect the two matters of access and registration.
I feel that I must quote parts of the consultation document which I note comes from the Department of Health and Social Security but which has been presented to Parliament by the noble and learned Lord the Lord Chancellor as well as other Secretaries of State. It states:There was little support in the response to the Warnock Report for the proposal for an optional 'by donation' annotation of the birth register. It was recognised that the child must have a birth certificate which concealed the facts about his conception but 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 (which could be the responsibility of a statutory licensing authority).That was thought to be essential, first, to maintain the integrity and reliability of the birth register as a record of biological fact; secondly, to ensure the child's right of access as an adult to an accurate record of the biological facts of his birth and to the information about the donor held on a central record; and, thirdly, to give an AID child who wished to marry the opportunity to ensure that there was no prohibited relationship with the intended spouse. That would only be possible if the donor's name were recorded in the central record.
671 Your Lordships will know that that deals with an alternative to the addition of "by donation" on the original record of birth; that is to say, a central record of AID births. It seems to me that it is not possible to consider adding "by donation" to the original record of birth unless we also consider the alternative put forward in this consultation paper. For that reason I have not brought forward my earlier amendment which today stood in the name of the noble and learned Lord, Lord Denning, and which has not been moved. Surely those matters must be discussed together as the Law Commission suggested. They must be discussed when we come to legislate about matters concerned with the Warnock Report as a whole.
How can we agree to Clause 27 unless we are assured of the accuracy of the birth register as a record of biological fact? Here again, I fear that I must quote from the consultation document. This passage is in heavy type:The Government would find it helpful to have further views on the way in which a system of registering and recording children born as a result of AID or egg or embryo donation might be set up which (a) would best meet the child's need for access to the truth about his genetic origins and some information about his genetic father and satisfy the family's need for privacy and take account of the donor's wish for anonymity".The Government have said that they would welcome views upon the information which should be held at the point of treatment by any statutory licensing body—by the Registrar-General. They would also welcome views about whether information on donors should be anonymised in all records or whether the donor's identity should be recorded, and, if so, whether it should be made available in any circumstances to the Registrar-General and to the child should he or she, on reaching maturity, wish to know. This is not very satisfactorily expressed. A child born through egg or embryo donation would not need to know information only about his genetic father, but about his genetic mother in the one case and about both his genetic father and genetic mother in the case of embryo donation. Again, the verb "to anonymise" is unknown to my dictionary. I suggest that it should continue to be unknown in the English language. Nonetheless, the sense of the passages which I have quoted is clear.
The consultation paper is asking for views on the subject of registering and recording the births of children born through AID. We are legislating today as though no consultation were to take place. I say this with great respect. It seems to me that this brings into disrepute the process of consultation. I am even tempted to say that the left hand does not perhaps know what the right hand is doing. It is not for me to say whether this is a sinister development or simply the result of governmental dexterity, but they seem a little confused. If Clause 27 stands part of the Bill then surely the noble and learned Lord the Lord Chancellor, together with the other Ministers in whose name the consultation paper is issued, ought to withdraw that part of the paper which asks for views about the registration of births of children born through AID.
There are also other considerations. The noble and learned Lord the Lord Chancellor said on Committee, and repeated today, that it would be a matter of gross injustice to deal with the case of a child born out of 672 wedlock but not to deal with the position of a child born in wedlock by AID with the consent of the married couple. We have not wholly dealt with the case of a child born by AID. There are three modes: by artificial insemination through syringe; by in vitro fertilisation; and by the method which is mentioned in the consultation paper and which I saw today taking place in a hospital, known as GIFT: gamete intra fallopial transfers. We have not dealt with the last method.
Obviously the noble and learned Lord the Lord Chancellor makes a very powerful point which commands our sympathy about justice being done to a child born in AID. But what about a child born through egg or embryo donation? I watched this happening today. This procedure is taking place, and children are born. There is no law to prevent it because we have no legislation brought forward in connection with the Warnock Report. People are free—most of them do it very responsibly—to preside over procedures which bring to birth a child through egg and embryo donation. To legislate for children born through AID but not to legislate for children born as a result of egg and embryo donation is—to use the words which have already been employed—committing a gross injustice against them. We could be said to be setting a precedent by legislating for AID children, for those born through egg and embryo donation. It seems strange to register a child in the names of a social father and a social mother, neither of whom has contributed anything genetic towards the child, as would be the case in embryo donation. This legislation seems to be setting a precedent.
These are very complex matters. It seems to me that we ought to know more about the medical techniques and possibilities before we start legislating. Surely we must look at all these factors together. If the DHSS has asked for consultation, surely the process of consultation must run its course before Parliament begins to legislate. Surely we ought to legislate for children born by AID and egg and embryo donation together. Surely we ought to consider matters of access and registration together, because the two are intimately connected.
I appreciate the need for appropriate privacy on the part of a child born in this way. I should have thought that the shorter birth certificate gave quite sufficient privacy for practical purposes to him or her and his social parent. But surely it is the duty of your Lordships' House to reject legislation which destroys the integrity and reliability of the birth register as a record of biological fact. I am somewhat shocked to find that your Lordships' House, if it passes this legislation, seems to be inviting people to act against the spirit of the Perjury Act. Surely we ought to take the advice of the Law Commission and wait until all the Warnock legislation is before us so that we can consider it as a whole. Those are the reasons I am glad to move that Clause 27 be left out of the Bill.
§ Lord Renton
My Lords, the right reverend Prelate has drawn attention to a number of risks, biological, social and legal, which he fears as a result of what he calls "this legislation" although he is referring to Clause 27 in particular.
673 We ought to take note of the risks to which he refers. There is no doubt that the Bill does not purport to deal with all of them. The Bill is attempting to deal with various situations which have already arisen and trying to drive some legal sense into what many of us would regard as unwelcome human practices. That is true though. However, the question we have to decide is whether leaving out Clause 27 will overcome those risks, or any of them. I seriously doubt whether it will.
I mention one very serious risk to which we ought at some time to apply our minds with great care. That is the biological risk that, through artificial insemination or its indirect results, a child may be born in or out of wedlock to parents who should not be causing the birth of such a child because their association is within the prohibited degrees of consanguinity, as recognised in the Church of England of which the right reverend Prelate is a bishop.
However, leaving out this clause would not overcome that problem. I do not wish to make a long speech, although it is tempting to do so because the right reverend Prelate has made a great deal of ground and we should regard what he has said with great seriousness. However, on this particular point I am quite sure that we should leave this clause in the Bill.
§ Lord Simon of Glaisdale
My Lords, obviously the argument is very nicely balanced. On balance, I am persuaded by the right reverend Prelate, and I should like to see the clause left out. That is obviously the preference of the Law Commission, on which my noble and learned friend on the Woolsack has so greatly relied.
Perhaps I may say that what the clause does is really much less momentous than had been sometimes supposed: it applies age-old common law and canon law rules to the new practice of AID. If a child was born possibly as a result of an adulterous union, the husband would have to prove that fact affirmatively. What is more, there would be a presumption that he had consented, and it would be for him to prove that there was no consent on his part. I know that those rules have been abrogated by the 1969 legislation, now consolidated, although, to my mind, not to the improvement of the law generally. However, applying those rules, all the clause really says is that it is for the husband to prove that he did not consent; and that unless he proves that, this child, like any child born in wedlock, will be presumed to be a child of the marriage. Although the clause is less momentous than has been pretended, nevertheless, if the right reverend Prelate should divide your Lordships' House I shall follow him into the Division Lobby because I think that on narrow balance he has made out the case.
§ Lord Meston
My Lords, I urge your Lordships to allow Clause 27 to stand. Indeed, I hope that it is a clause which sets a precedent. I remind your Lordships that the Bill in general, and this clause in particular, is concerned with the welfare of children. It provides a legal framework only and it attempts to remove unnecessary legal disabilities. The Law Commission recognised that it ought to tackle AID and AID children, but again only in the context of providing a legal framework.
674 At page 170 of its first report the Law Commission said this:In this report we are only concerned to make limited proposals to deal with the legal status of a child who, though conceived with the assistance of AID, is in social reality the child of the mother and her husband".The Warnock Committee approved the recommendations of the first Law Commission Report and gave its own clear suggestions. At Second Reading and in Committee the noble and learned Lord the Lord Chancellor forcefully argued that it would be unfair to single out AID children for disadvantageous treatment by the law.
Of course, where one has an anonymous donor there will be problems of registration and access, and again the Warnock Committee made specific recommendations in that regard. Frankly, the problems of registration can be overcome. At the end of the day, I suggest that the welfare of the child, and in particular the security and legal status of that child, are more important than the integrity and the mechanics of the registration of births.
I venture to agree with the noble and learned Lord, Lord Simon of Glaisdale, that what is proposed in Clause 27 is not as momentous as might be suggested. It is a form of antenatal adoption, as I read it. It is certainly right that the law must recognise and secure the status of such children. Indeed, the law should not put obstacles in the way of such children.
This is not a Bill to regulate AID or any other artificial techniques. As was said at the beginning of the afternoon, it is a Bill in broad and general terms as to the status of children. The fact is that AID is practised and it is lawful. It does not matter to the child, who is the outcome of that technique, whether the AID was regulated or unregulated. It does not matter whether or not the regulations governing AID were mandatory. The fact of the matter is that the child must have its status protected and secured so far as the law can achieve that. That is not to say that sooner or later—I hope that it is sooner rather than later—the proper regulation in accordance with the Warnock recommendations will not come into force. Meanwhile, Clause 27 does not hinder further legislation in accordance with the Warnock recommendations and, if anything, I suggest that it helps the process.
§ 6.15 p.m.
§ Lord Mishcon
My Lords, it is my pleasure to follow the noble Lord, Lord Meston, largely because I agreed with everything that he said. I therefore do not intend to repeat his speech, which I am sure was warmly received by the House. I say with him that the welfare of the child is pre-eminently in our mind, as it is in all our recent legislation dealing with children. The whole purpose of the Bill is the eye that the law now casts—which is a very different look from the previous aspects of the law—upon the protection that the law can give to the dignity of a child born illegitimately through no fault of its own.
As has been said, we are dealing here with a very narrow area indeed. We are dealing with people who have married and are still married. We are dealing with one of the parties who finds it impossible to have a child: the blessing of children. How appropriate that the word "donation" was used in various amendments 675 and various speeches! They have been deprived of the donation of a child through ordinary means. As a result, they have done what is perfectly legal in our law as it stands at the moment: they have decided to take advantage of artificial insemination.
Furthermore, in this clause we are dealing with two parties to that marriage who are ad idem as to what they want to happen. That is, that they wish to be regarded in society, and in their relationships with that child, as the proper, lawful parents of that child. So far, in sheer humanity and with the aspect, as I have said, that the law now wishes to adopt in regard to children, how right it is that the law should now say: "If this be the parents' wish in regard to that child, we shall so regard it".
When dealing with the Bill are we to say that we are not to look at the matter because of the debate which is going to take place generally in regard to the Warnock Report? I think that we would be failing in our duty if this clause was not included. To deprive these children of the protection of the Bill would be very wrong.
May I take the discussion a little further? I believe I am right in saying that this point was raised in Committee. If I remember correctly, the noble and learned Lord the Lord Chancellor placed some emphasis upon it. I wish also to place some emphasis upon it. The law, in my humble view, must never create a situation where the law is placed in contempt or where the law is not enforceable against decent citizens because it would be wrong to enforce it.
What is to be the position in regard to registration and generally in regard to declarations made by parents who come within Clause 27? Are we to say, in certain circumstances when a statutory declaration is made about parenthood or statements are made to the registrar of births, that they are guilty of perjury? Which of us sitting in a Director of Public Prosecutions' office, which of us sitting as a prosecuting solicitor, would ever advocate a prosecution of that kind? Indeed, even if it were advocated, where would be the proof that the prosecution would want or would be able to bring before the court?
The clause ought to be included. It would be wanting in duty for the House not to have such a clause as Clause 27 in the Bill.
§ Lord Kilbracken
My Lords, I am sorry to disagree with my noble friend on the Front Bench, but I should like to support the right reverend Prelate for all the reasons he has expressed and, therefore, I do not propose to repeat.
I want to draw attention in particular to a certain point in the clause that I think underlines the need to withdraw the clause so that it can be more fully considered. It is a matter that should particularly concern your Lordships because I want to talk about the effect, or lack of effect, of Clause 27(3). As your Lordships know, it states:Nothing in this section shall affect the succession to any dignity or title of honour or render any person capable of succeeding to or transmitting a right to succeed to any such dignity or title".We are talking about artificial insemination, in particular AID. I want to put to your Lordships the 676 case of a hereditary Member of your Lordships' House who, for whatever reason, is incapable of fathering an heir. In such a case, he and his wife may decide to avail themselves of AID. They go along to the hospital in complete confidentiality; the semen of a donor is inseminated; and, in due course, a child is born. In such a case, if the husband is not a hereditary peer, there can be no doubt that the child is registered and regarded and accepted as the legal, natural and absolute son of his father. The husband and wife are counselled that, if they have intercourse around the period when conception would be expected to take place and when insemination does take place, they will never really know—although the husband has been proved to be impotent or sterile—and the public will certainly never know that the child is not in fact the biological son of the husband.
This question was raised in Committee on a different matter by the noble Lord, Lord Robertson of Oakridge. He pointed out that it would be very easy in such cases to establish whether the husband was in fact the natural father by taking blood tests, by tissue typing or by DNA analysis. However, your Lordships will remember that that suggestion was most severely censured by the noble and learned Lord on the Woolsack who described it (I cannot quote him verbatim) as a very serious infringement of personal liberties. Therefore, when a child is conceived in this way in any other case, if he happens not to be a hereditary peer or the heir apparent to a hereditary peerage, it is considered a great infringement of personal liberties to insist upon a blood test to establish the identity of the child.
What happens in this case? What happens when Lady X has this baby—it has nothing whatever to do with her husband's ancestry—and presents him, as all other mothers and fathers do in these circumstances, as heir to a peerage in your Lordships' House? The answer is that she simply says, "This is my son"; and the husband, the peer of the realm, says, "This is my son, he is registered as such". In due course, he comes and sits in your Lordships' House, and good luck to him.
I ask only whether that is the intention of subsection (3). There is no believable way in which his right to sit in this House can be disputed. This gives a new meaning to the word "affect" in line 26:Nothing in this section shall affect the succession to any dignity or title of honour".It may be that this is happening all the time, and that lots and lots of AID babies, after they have grown up and their fathers have died, come and sit in this House. I would not mind a bit. I am just drawing attention to it. But the subsection states,Nothing in this section shall affect the succession".This means that they can go on doing it and that it is perfectly all right. I just wonder what the subsection means. If that is not the meaning, it seems to mean that to use AID to father a future hereditary peer is wrong, and people have to stop doing it, but there is no way in which they can be stopped doing it.
It is no good saying that they have to apply for a writ of summons and that the new peer has to provide documentary evidence that he is the son because, as far as he knows, he is. His father and mother are not 677 going to come along and say, "Look, Charlie, sorry, but you are not really your father's son at all, you are the son of a donor". They are never going to reveal that he is not a true son and heir. He thinks he is. Of course he is going to apply for a writ of summons, which he will get. If that is challenged, what happens then? No one can take a blood test from his father at this stage because his father is dead and buried—perhaps cremated. They could exhume him if he had not been cremated and take a posthumous blood test or tissue sample. They are hardly likely to go to those lengths.
If this happens, even if it is disputed, there is no way it can be proved one way or the other. If he is sitting in this House, his father has to be dead. So he comes and sits here and ends up on the Government Front Bench. I think that is fine. There is a whole area that has not been explored and that ought to be explored. Until it has been explored, I think the whole clause should be removed from the Bill.
§ 6.30 p.m.
§ Lord Hylton
My Lords, I shall not follow the noble Lord, Lord Kilbracken, into the highways and byways of Peerage law. However, I should like to support the right reverend Prelate in his amendment. I suggest that the deletion of this clause will force the Government to think again and to come back with a better text than the one we have now, in particular taking into account the very important points that were made in Amendments Nos. 18, 19 and 20 but which we have unfortunately not been able to discuss this evening.
The right reverend Prelate made one most important point about access to the biological truth being provided for the child when it comes of age. I suggest this is in the interests and for the welfare of the child. If your Lordships can think back to the Children Act 1975, a very similar provision was made for adopted children when they come of age to be able to discover their true parents. It is on those grounds that I support the right reverend Prelate. I hope the Government will have second thoughts.
§ Lord Houghton of Sowerby
My Lords, I have not said a single word on this Bill throughout all its stages so far. That is not because I was not interested in what it was proposing to do, but because I was so warmly in support of the ethos of the Bill. I congratulate the Government on their courage and the comprehensive way in which they have tried to amend the cruel laws of illegitimacy. How cruel the Church can be. How cruel moralists can be on matters of this kind. I deplore the attempt to remove this clause from the Bill.
If noble Lords wish to consider this amendment in relation to other amendments that have not been discussed today, there is still a further stage at which it can be done. I have listened to all the debate. I have been here all day, and there is nothing that has been said which discourages me from supporting Clause 27 of the Bill. After all, whose interests are we trying to serve? It is the interests of the children, the interests of their desire for security and stability in their lives and to be able to face social prejudice and religious doctrine which often comes into matters of this kind.
678 I support the noble and learned Lord the Lord Chancellor wholeheartedly in his remarks on the Committee stage that this is not a religious matter. It is always somewhat misleading, if I may say so with great respect, when right reverend Prelates on the Bishops' Bench rise to speak on matters which are not religious matters and use their authority as bishops of the Church of England to express a point of view. We have to be careful. In principle, this is a layman's matter. Maybe it is a lawyer's matter on the intricacies of the situation.
I do not accept that there is any divine law or any fundamental law in our system of the registration of births. The registration of a birth is what society wants it to be. Mostly it wants it to be a record of the parentage of a person who is born in wedlock. We have done some cruel things to children who are not born in wedlock. When I think of the struggle that some people have made throughout their lives against the stigma of illegitimacy I wonder what board of social responsibility ever condoned what they were made to suffer. Ramsay MacDonald, Ernest Bevin and J. H. Thomas all had to fight against this stigma throughout their lives.
It is much more important that a child should feel secure in its home and in its parents than that it should know in every case what is described by the right reverend Prelate as the biological fact. It is not fundamentally important that a child should know the biological fact if the registration of birth gives him or her a clean bill of legitimacy within the law and within the family. That is what children want. They do not want AID put against their names or a separate register of those who are born in some peculiar way. They want to feel that they were born properly of their mothers. After all, the mother is the person in birth. Social law and social habits have not worried too much in the past who the fathers were. The important thing was that a child should have a mother and a mother's care. The mother will be there under this proposal.
I sincerely hope that we are going to regard the interests of the children and free them from doubt, difficulty and stigma. I do so support what I thought was the most persuasive case put by my noble friend Lord Mishcon.
All through the history of these social and moral issues we have had to resist prejudicial and religious dogma. One considers that a Bill to remove the ban on the marriage of a man to his deceased wife's sister had to pass 11 times through the House of Commons, and was blocked 11 times in this Chamber. Gilbert and Sullivan wrote a ditty about it: "The Annual Blister, the Deceased Wife's Sister". Asquith decided that this nonsense should end, and it was passed in your Lordships' House when the right reverend Prelates walked out and let the heathens pass that into law.
In the circumstances we have to regard with some suspicion the source from which objection comes. This is a common or garden matter affecting children. It is their happiness and their sense of security that we must place first. That is my verdict. I am sorry I did not come in on this Bill before but I have read it and I was present during the Committee stage. The same noble Lords appear, saying the same things on these 679 issues. I shall be surprised if we do not get more of it before this debate has come to an end.
For my part I say, leave it alone. This is the best solution to a complicated matter. When life is complicated by scientific and biological research and development one has to protect the innocent people of new processes of human relationships from the awful consequences that can ensue. I feel strongly about this matter.
§ Lord Elwyn-Jones
My Lords, lest my silence be misunderstood, I rise to support the retention of Clause 27 in the Bill. There was one moving observation expressed by the noble Baroness, Lady Faithfull, earlier in the discussion on this Bill. The noble Baroness said that the Bill makes all children equal, including the children that come within the category of artificial insemination. It is a basic thought and a basic approach. If we look at the matter from that point of view, Christians must surely be in favour of that proposition, of which I am sure the founder of our faith would have approved.
§ Lord Robertson of Oakridge
My Lords, the main question before us is how the children's interest is best served? I fear that it is not best served if we go out of our way to deceive the child concerned about its parentage. That is not the way to build a sound parent-child relationship. I dread to think what would be the effect on the child if and when he or she finally discovers that he or she has been deceived about his or her parentage.
§ The Lord Chancellor
My Lords, we have had a fairly full debate I defended Clause 27 on Second Reading, and I was supported by the noble and learned Lord, Lord Silkin. I supported Clause 27 in Committee, and I believe that the sense of the Committee was then in my favour. I rise to support it again without apology for what I have done.
I do so partly on moral grounds, which have been well expressed—better expressed than in any words I might choose—by the noble Lords, Lord Mishcon and Lord Houghton of Sowerby, neither of whom belong to my own party or to my own Church, which is that of the right reverend Prelate. He said he was only a bishop. Well, I am only a layman, and I do not know that it puts me in a superior position to him. I feel strongly on moral grounds, but I also intend to approach this on a more practical ground. A great mistake has been made, I believe, by those who support this amendment in thinking that we are dealing with a new problem created by the marvels of science and AID.
Let me pose a case to the right reverend Prelate. A man has been married for 20 years to a wife whom he loves. She has been guilty of perhaps a single act of infidelity. A child is born of whom the husband knows that he is not the father. I wonder how many people have read some recent biographies, for instance Mr. Ziegler's biography of the late Diana Cooper, a personal friend of mine. He said quite plainly that her true father was not the father who was registered. But her father, who was a duke, no doubt registered that child with himself as the father. I wonder whether any- 680 one has read the recent biography by my honourable friend Mr. Robert Rhodes James, the Member for Cambridge, of Anthony Eden, the Prime Minister, to whom we paid legitimate tribute. He places the true paternity of that child not as his baronet father, if I may say so to the noble Lord, Lord Kilbracken, but to a certain George Wyndham, and says that Anthony Eden himself believed it. I wonder how many of us have read the Ampthill case that went on for a very long time and was ultimately decided by your Lordships' Committee for Privileges, on which my father appeared on one side and I, about 30 years later on another.
We are not facing a new problem because these children are engendered by AID. I would say firmly to the right reverend Prelate that a man who registers a child which he knows is not his own, born in wedlock, but still allows his name to be put forward as the father of that child, may be committing a technical offence under the Perjury Act. It is not perjury in the theological sense because he does not take an oath. But he is committing a technical offence which, as Lord Chancellor, I cannot condone. However, as a layman of the Church of England I may think very differently. I may think that he is doing a compassionate and Christian act.
I must remind the right reverend Prelate that the festival of Christmas has just passed. One of the Gospels during that festival is the first few chapters of St. Matthew. There was a man there who took his affianced wife to Bethlehem and found that she was with child of which he was not the father. He brought up that child as his own child and the child was commonly accepted as the child of the marriage. I am now talking to a prelate of the Church of England. Did he do right, or did he do wrong? He was minded at first to put her away privily but decided not to in order to save himself the publicity because he was warned in what was called a dream that the child was to be brought up as his own child. I am not prepared to say, as a Christian, as a member of the Church of England, that man who, by the ordinary process of generation, puts himself down as the father of a child whom he knows not to be his, but who chooses to continue to be married to the woman he loves and has perhaps lived with for 20 years, is necessarily committing a moral sin. Of course, I cannot condone a technical offence against the Perjury Act. Has anyone read the biographies of Scawen Blunt, for instance, or Harry Cust? There are all these well-known people. The children of those encounters were all allowed to be registered as children of the marriage. The age-long doctrine of the Church has been that the presumption is that a child born in wedlock should be treated as legitimate unless the contrary is absolutely proved.
I am not persuaded that when these children are born of the new presence of donation, we are necessarily dealing with a new problem. We are dealing with a very old problem. What is happening in these cases, dealt with by Clause 27 of the Bill, is that both parents have consented to what has been done.
I must tell the right reverend Prelate, and urge the House to believe, that this is going on legally every day of the week; the children are in fact being registered as children of the marriage. Therefore, technical offences are being committed. Is the right reverend Prelate 681 seriously telling us, as chairman of the Board for Social Responsibility, that they will stop going on if we do not pass Clause 27? What we shall be doing, if we do not pass Clause 27 is encouraging them to go on doing it because no-one will ever know. Is the fact that there are other methods now of creating children (of which neither parent is the biological author, whose being is the biological author, like surrogate motherhood which is dealt with by Warnock in the consultation paper) going to deter us from doing our manifest duty under the Bill? For there are further complications, and no doubt science will proceed. I frankly tell the House it was I who did it; I persuaded my colleagues and they followed me. It is quite true that a different view was put forward by the Law Commission, but I thought it was my duty to put this clause in the Bill and I have done so. So far as I am concerned, I am going on doing so.
§ 6.45 p.m.
§ The Lord Bishop of Birmingham
My Lords, I have listened with as much care and attention as I can muster to what people have said against my amendment. I have tried to listen as sympathetically as I can. I must make clear that I did not argue on religious grounds. I argued on grounds of ethics, and I should be sorry to think that a bishop of the Church of England in your Lordships' Chamber may not argue on terms of ethics. Perhaps I could inform the noble Lord, Lord Houghton, that the Board for Social Responsibility recorded its view several years ago that it was against illegitimacy. I expressed my view in response to the gracious Speech from the Throne giving a welcome to this Bill with this one problem that I am raising. If it is of any interest to your Lordships' House my brother is married to his deceased wife's sister.
If I felt that either of my two arguments had been refuted, or if I felt that I was not suggesting something for the welfare of a child, I can assure your Lordships that I should withdraw my amendment. The noble and learned Lord, Lord Elwyn-Jones, said that we want all children to be equal. I understood him to say that. I hope I have quoted him correctly. So do I in moving this amendment. I want equality to be shared with children of egg and embryo donation as much as from AID.
I am actually in favour of AID in particular circumstances. I have said nothing against it. I am concerned about legislation for AID without legislation for those children born by other means. It seems to me to be a matter of gross injustice that one should be taken and the other should be left. I wish that I could have heard someone address himself to the moral point that I was trying to make in this respect.
I also referred to the process of consultation. No one has addressed himself to the process of consultation. Is it the case that the consultation is not really required, though it has been asked for? If I felt that those two points had been met I should certainly withdraw this amendment.
I do not want to get involved in this subject, and your Lordships' House would not wish me to be involved in it, but the person to whom the noble and 682 learned Lord the Lord Chancellor referred in his speech did not, so far as I know, pretend that he was the father of the child of whom he was speaking.
§ The Lord Chancellor
My Lords, I think that the right reverend Prelate is wrong. It is clearly stated in the Gospels that the child was brought up as child of the family, with the other brothers and sisters, according to one view, of a previous marriage, and according to another view of that marriage. St. Paul in his Epistles clearly referred to, "after the manner of the flesh, of the seed of David". I think that the right reverend Prelate is wrong on his Gospels, too.
§ The Lord Bishop of Birmingham
My Lords, I must thank the noble and learned Lord the Lord Chancellor for his intervention, and I fear that we must agree to differ on this matter.
I am not convinced that anything I have suggested is contrary to the welfare of a child. As the noble and learned Lord the Lord Chancellor said, and indeed as the DHSS actually suggest in its leaflet—as the noble and learned Lord, Lord Denning, read out last time—the parents of an AID child are encouraged to have sexual intercourse during the period concerned and to register that child as their own. The noble and learned Lord said that this was a technical offence, as indeed I am sure your Lordships' House will agree, and that he was not convinced that that was a sin: and nor am I.
But it does not seem to me to be intolerable to continue this situation—as it has continued now for a considerable number of years—for a year or so further until we can deal with them all as a whole and not just take one particular category and say, "Oh, we won't bother about egg and embryo donation", which, as I said, I saw taking place today.
I appreciate that the Church has been cruel in the past, and so have other institutions, but I do not think that in this particular matter it is. In my experience I cannot see that the present situation in which an AID child is registered as the child of its social parents, or its social father and genetic mother, is a technical offence, and is against the welfare of a child in any way.
It would seem to me—and my judgment may be at fault; it often is—that it would be fairer just to let the matter go on for another year or so until the Warnock Report legislation is before us, so that we can deal fairly with the whole class, since there is no question of illegitimacy at the moment for those born of AID because they are registered as the children of the husband and wife.
It may be that what I say does not find favour in your Lordships' House. However, I feel that I must in honesty express the viewpoint that I hold and try to show to your Lordships the reasons why I am putting this amendment forward. I believe that it is not against the welfare of the children and that we need to consult further about this. It may not seem like that to your Lordships, but that is the reason that I put forward this amendment.
§ On Question, amendment negatived.683
§ Clause 28 [Children of void marriages]:
Lord Kilbracken moved Amendment No. 23:
Page 18, line 30, leave out from ("marriages)") to end of line 32 and insert ("for the words "the act of intercourse resulting in his birth" there shall be substituted the words "his conception or, if fertilisation took place in vitro, of the implantation that resulted in his birth" ").
§ The noble Lord said: My Lords, although this amendment has the dreaded asterisk beside the No. 23, I tabled it over a week ago and the asterisk is only because I made a small and insignificant change in it.
§ Clause 28 is concerned with amending the Legitimacy Act 1976. I want to consider it for a moment in the light of the question of in vitro fertilisation. Section 1 of the Legitimacy Act 1976, which I fortunately hold in my hand, is about the children of void marriages.
To abbreviate it a little, what it says is:
The child of a void marriage … shall … be treated as the legitimate child of his parents if at the time of the act of intercourse resulting in the birth (or at the time of the celebration of the marriage if later) both or either of the parties reasonably believed that the marriage was valid".
If the mother thought that the marriage was valid at the time that intercourse took place and then it turned out that it was not valid, the child is still legitimate.
Under Clause 28 of this Bill that is changed by inserting the words:
or, where there was no such act, his conception".
Therefore it would read:
The child … shall … be treated as the legitimate child of his parents if at the time of the act of intercourse resulting in the birth (or, where there was no such act, his conception
et cetera. The use of the word "conception" again would mean, in the case of in vitro fertilisation, where conception takes place at the time the sperm and the ova meet in the dish, that conception then takes place at that moment.
§ Under the Bill as at present drafted, in the case of in vitro fertilisation, because conception takes place at that moment, if the fertilised ova are implanted after the mother or the father knows that the marriage is invalid the child will still be legitimate. What should matter is not the time—My Lords, I cannot talk against you. I cannot do it; I am tired.
§ Lord Kilbracken
I appreciate that. I shall leave it at that, as I believe I have made my point. I beg to move.
§ 7 p.m.
§ The Lord Chancellor
My Lords, I made it clear at an earlier stage of this debate that there is a point behind this amendment. It is a worthy point. If the noble Lord will withdraw his amendment, I shall undertake to table appropriate amendments to cover this matter at Third Reading. The objective of this amendment, as I understand it, 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.
684 It is the Government's intention that such a child should be brought within the scope of the provision. When I moved Amendment No. 3 I had precisely that objective in mind. However, I am grateful to the noble Lord for having moved this amendment because it has revealed that Clause 28 needs amending in the light of a previous amendment. This drew a distinction between insemination and conception, thereby making it clear that the latter could refer to creation only outside the mother's body, whether in vitro or by means of another technique. If the noble Lord will agree to withdraw, I shall undertake to table appropriate amendments at Third Reading.
§ Lord Kilbracken
My Lords, I am most grateful to the noble and learned Lord, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 2 [Minor and consequential amendments]:
§ The Lord Chancellor moved Amendment No. 24:
Page 49, line 44, at end insert—
("91. At the end of section 60(2)(c) of that Act (supplementary provisions as to declarations) there shall be added the words "and on persons who may be affected by any declaration applied for".").
§ The noble and learned Lord said: My Lords, in the debate in Committee my noble and learned friend Lord Simon of Glaisdale asked whether Clause 23, which refers to provisions as to blood tests, covered a person who is cited to see the proceedings. That occurs, for those who are interested, in col. 1281 of Hansard.
§ The question prompted me to consider whether there should not be a rule-making power. This amendment is the result of it. It amends Section 60(2) of the Family Law Act 1986 to provide for rules to be made enabling the court to order that certain persons be given notice of application for declarations as to parentage, legitimacy and legitimation. These persons would not become parties to the proceedings unless they wished to do so. They would, however, be given an opportunity to become parties if they wished to do so.
§ The power created by this amendment is analogous to that contained in Section 47 of the Administration of Justice Act 1985, which revived the old and useful concept of citation to see proceedings. It is limited to probate and trust cases. However, a number of proceedings for declaration will in substance relate to a future right of inheritance. In some cases, it may be proposed that a blood test be carried out on a person, such as a testator, so that an issue of parentage may be resolved before his death. In such cases, it is right that persons who may have an interest in the proceedings, such as other potential beneficiaries, should have an opportunity to become involved parties. This amendment confers that opportunity upon them. I beg to move.
§ Lord Simon of Glaisdale
My Lords, all that falls for me to say is to thank my noble and learned friend. He has dealt with this matter entirely appropriately, if I may say so with respect. I am glad to have been the occasion, but I cannot claim any credit for the amendment, which I heartily support.
§ On Question, amendment agreed to.685
§ Social Security Benefits Up-rating (No. 2)Order 1986
§ Social Security (Contributions, Re-rating)(No. 2) Order 1986
§ Social Security (Treasury Supplement to and Allocation of Contributions) (Re-rating)Order 1986
§ Statutory Sick Pay (Rate of Payment)
§ Family Income Supplements (Computation)
(No. 2) Regulations 1986
§ Supplementary Benefit Up-rating (No. 2)
§ 7.7 p. m.
§ The Parliamentary Under-Secretary of State, Department of Health and Social Security (Baroness Trumpington)
My Lords, I beg to move that the draft orders in the six social security motions standing on the Order Paper in the name of my noble friend Lord Hesketh be approved.
These statutory instruments put into effect the third up-rating of social security benefits within 16 months. They complete our transition from a November to an April up-rating timetable, by way of the interim increase which was implemented last July. The instruments also propose changes in the statutory sick pay scheme; in national insurance contribution brackets; and in the level of the Treasury supplement to the National Insurance Fund for the forthcoming tax year. It will be the first time since the debates on what became the National Insurance Act 1974 that the House has had the opportunity to discuss together both the increase in benefits and the changes in national insurance contributions which fund over half the total cost of the increase—nearly £500 million out of some £720 million in 1987–88.
It seems extraordinary that Parliament has so rarely been able to discuss social security finance and expenditure together. Our changes in the up-rating timetable, which these instruments conclude, mean that in future it will always be possible to consider these issues at the same time. I feel sure that the House will welcome this sensible development.
The details of the social security benefits up-rating were announced by my right honourable friend the Secretary of State for Social Services in another place on 22nd October, and were repeated in your Lordships' House. It will be for your Lordships' convenience if I briefly run over the details. The up-rating of all benefits is based on this occasion on the movement of the relevant price index between January and September 1986. Over this period, the retail price index showed an increase of 2.1 per cent., and this is accordingly the increase in retirement pensions, widows' and invalidity benefits and the other weekly national insurance benefits.
Retirement pensions will go up by 80 pence a week for a single person, from £38.70 to £39.50, and by 686 £1.30 for a couple, from £61.95 to £63.25. Child benefit will also increase in line with inflation, from £7.10 to £7.25, and the non-contributory benefits such as mobility allowance, attendance allowance, severe disablement allowance all increase by 2.1 per cent. War pensions and war widows' pensions go up similarly.
Since 1982, the normal index for the uprating of supplementary benefit has been the retail price index minus housing costs. Over the eight-month period measured for this up-rating, the change in this index was 2 per cent., and the corresponding increase in supplementary benefit is thus less than for the contributory benefits. Supplementary benefit additional requirements are up-rated by the appropriate specialised part of the retail price index and have been increased where the relevant index warranted it.
I have already said that this up-rating is the third in 16 months as we move to a new up-rating timetable. It thus covers price rises only over an eight-month period. An eight-month increase is inevitably less than one which covers a full 12 months, and the increase is obviously smaller when annual inflation is at its current low level. It perhaps puts next April's rise into context if I point out that the increase of £1.30 means that between November 1985 and April 1987 the basic pension of a couple will have gone up by a total of £5.95 and a single pension by £3.70. That amounts to some 10.3 per cent. extra over the whole 16-month transitional period. When we last had a debate on social security up-rating in July 1986 the noble Baroness, Lady Jeger, expressed doubts about whether the retail price index adequately measured the price increases affecting elderly people. I hope that she will acknowledge that a total increase of over 10 per cent. in 16 months is not bad.
Although the April up-rating of benefits is unusual in being only eight months after the last one, there is very little that is remarkable about the detail of the increases before the House. We have adhered to our pledge to maintain the purchasing power of pensions and other linked long-term benefits, and this at a time when we are paying pensions to almost 1 million new pensioners since 1978. I hope also that now that we have the figures for the April up-rating, your Lordships will be happier about the effect of moving up-ratings from November to April.
The change of up-rating date means that beneficiaries will have extra money at the same time as other major financial changes take place, such as in taxes, rates, local authority rents and, of course, national insurance contributions. It means that pensioners will no longer receive a tiresome change of tax coding in the middle of the year, as was the case with November benefit increases. Now that the benefit rates are clear, we know that inApril a single pensioner will get a basic pension of £39.50, 15 pence a week higher than if his benefit had been increased by the RPI on the old November timetable. I hope that this will relieve the concern expressed by the noble Lord, Lord Banks, on the last occasion an up-rating was debated here.
I turn now to the Statutory Sick Pay (Rates and Payment) Regulations. As your Lordships will be aware, there are at present three rates of statutory sick pay, depending on an employee's average weekly 687 earnings. However, as many as 85 per cent. of all SSP payments—that is, 4.8 million—attract SSP at the top rate. This leaves only 15 per cent. of payments where the middle or the lower rate is applicable. It is clearly not a sensible structure to retain two rates for such a small percentage. It overcomplicates the scheme and increases the administrative task for employers. The regulations accordingly merge the middle and lower rates with effect from 6th April, producing a simple two-band system. This logically reflects the current situation, while at the same time providing a welcome easement on the operation of SSP for employers.
The regulations provide that the standard rate of SSP will increase to £47.20 and will be payable to all employees whose average earnings are £76.50 a week or more. The lower rate will be set at £32.85 and will go to employees whose average earnings fall between £39.00—the new lower earnings level for the payment of national insurance contributions—and £76.49.
After that canter through the increases in social security benefits, I now turn to the second main element in these instruments—the means by which national insurance benefits such as pensions, unemployment benefit, invalidity benefit and others are actually financed. Noble Lords will recall that my right honourable friend the Secretary of State announced the Government's proposals for national insurance contributions in another place on 6th November. I hope that your Lordships will particularly acknowledge the Government's achievement in keeping the employee's Class 1 contribution rate unchanged for the fourth successive year. As required by statute, the lower earnings limit for Class 1 contributions will be £39 per week from next April, because it is linked to the weekly rate of basic retirement pension rounded down to the nearest pound. The upper earnings limit, which may be between 6½ and 7½, times the basic retirement pension, will be £295 per week from next April, nearly 7. times the basic pension level.
The regulations dealing with the upper and lower earnings limit for Class 1 contributions cannot be laid before the House until the draft benefits up-rating order has been approved, because of the statutory link with pension levels. However, I mention them now because they are an integral part of the Government's proposals on contributions.
I should like to look first at some of the detailed proposals in the draft Social Security (Contributions Re-rating) (No. 2) Order 1986. Noble Lords will recall that the Government reduced the Class 1 contribution rates paid by lower paid workers and their employers in 1985 but did not affect their benefit entitlement. The net annual cost of these changes, reflected in lower receipts from national insurance contributions, is expected to be £500 million in the current year, which is the first full year of operation.
The Government propose to maintain the value of the earnings brackets at which lower contribution rates are paid by increasing their respective earnings limits. The lowest earnings bracket on which contributions will be payable at the 5 per cent. rate will run from £39 to £64.99 per week. The 7 per cent. earnings bracket will run from £65 to £99.99 per week, and the 9 per 688 cent. earnings bracket will start from £100 per week and end at £149.99 for employers' contributions and at £295 per week, the proposed upper earnings limit, for employees' contributions. Employers will pay contributions at the 10.45 per cent. rate where a person's weekly earnings are at or above £150. The proposed increases in the earnings brackets are greater than strict inflation indexing would have required.
These proposals for the Class 1 contribution are of greatest interest to most workers, but a growing number of people are now self-employed. The Government as a whole attach great importance to the self-employed and to their contribution to the economy. We took steps to assist them in 1985 by abating the level of the flat-rate Class 2 contribution they pay. We are continuing that abatement in 1987, and the Class 2 rate will therefore rise by only 10p to £3.85 a week. Self-employed people also pay profits-related Class 4 contributions if they have profits above a certain level. The Class 4 contribution rate itself will remain unchanged at 6.3 per cent. The profits limits will go up from £4,450 to £4,590 and from £14,820 to £15,340. The upper limit is exactly 52 times the proposed Class 1 upper earnings limit.
The changes mean that Class 2 contributors will pay only an extra £5.20 per year in 1987–88. That is a very modest rise. For those self-employed people with profits at or above the proposed upper profits limit of £15,340, annual Class 4 contributions will increase by £23.94 a year in 1987–88.
The remaining category of national insurance contributions is the voluntary Class 3 rate, which noble Lords will be aware protects the long-term benefit rights of those people with breaks in their contribution records who are not otherwise protected by credits of various kinds. The rate is being set at the customary 10p per week less than the weekly Class 2 rate, and the voluntary Class 3 rate will therefore be £3.75 per week from next April.
I mentioned earlier that national insurance contributions pay for only a proportion of all social security benefits. Almost half of all expenditure on social security benefits is expected to be met by general taxation in 1987–88. This changing balance between the cost of contributory benefits, such as pensions, and the cost of non-contributory benefits, such as child benefit, or income related benefits, such as supplementary benefit, leads to our proposals for changes in the Treasury supplement to the National Insurance Fund.
The Treasury supplement dates back to the start of the national insurance system, when a direct subsidy from general taxation to the cost of contributory national insurance benefits was thought appropriate. However, over the years the number and cost of benefits financed directly from taxation has grown. Even between 1981–82 and the current year the share of total social security expenditure financed wholly from tax revenue has gone up from 40 per cent. to 46 per cent. The Government have in these circumstances to strike a balance between revenue from contributions and from taxation.
We decided that the taxpayer should pay less to the National Insurance Fund in recognition of the growth of expenditure on non-contributory benefits which has 689 been met wholly by the taxpayer. Our proposal is therefore to reduce the level of the Treasury supplement to the National Insurance Fund by 2 per cent., from 9 per cent. to 7 per cent. from April 1987. This does not mean that any contributor has to pay higher contributions. This is because of our proposals for changes in the small share of contributions going to the redundancy fund and from employers only to the maternity pay fund.
Since August 1986 the redundancy rebate has ceased to be paid from the redundancy fund to employers with more than nine employees. As a result, there are now lower demands on the redundancy fund, which has recently moved into surplus after a long period of deficit. The Social Security Act 1986 provides for the winding up of the maternity pay fund as a result of the introduction of statutory maternity pay, and for the transfer of its assets and liabilities to the National Insurance Fund. We therefore propose to abolish the allocation of employers' contributions to the maternity pay fund from next April and to cut substantially the allocation that is paid to the redundancy fund. The employment protection allocation, as it is called, will thus reduce to 0.07 per cent. for employees and to 0.06 per cent. for employers from next April.
I now come to the report by the Government Actuary on the financial effects of the Government's proposals. In 1987–88, the National Insurance Fund is expected to receive income of some £26.3 billion; this includes contributions, the Treasury supplement, and other income including income from investments. Total outgo from the National Insurance Fund is expected to be £25.6 billion in 1987–88, including the additional costs of the proposed benefit uprating and expenditure on administration. On current estimates, the fund is expected to be in surplus by some £742 million in 1987–88, and the expected balance in the fund is expected to rise by the same amount to £6.4 billion by April 1988.
I must stress that these estimates are uncertain. At this stage, about three months before the start of the financial year and some 15 months before its end, it is clearly difficult for anyone to be certain that the fund's income and outgo and its surplus will turn out as the actuary presently estimates. Uncertainty is one reason for the fund to keep a balance as a working reserve against any unexpected increases in benefit expenditure or falls in contribution income. An operating margin is also required to fund the payment of benefits by the Post Office on time. We expect that the accumulated balance in the fund will be equivalent to nearly 13½ weeks' benefit expenditure. We regard the size of this balance as sensible.
To sum up, we ale proposing to increase social security benefits by 2.1 per cent. from April 1987, giving pensioners and others the third increase in 16 months. We are increasing supplementary benefit scale rates by 2 per cent., which is the amount of increase in the retail price index less housing costs—the relevant index for this purpose. Supplementary benefit additional requirements are being increased by the movement in the appropriate specialised index, where it has gone up over the relevant period. Statutory sick pay is being simplified 690 from three payments rates to two. And this is being achieved so far as benefits financed from the National Insurance Fund are concerned while we hold employees' contribution rates steady for the fourth successive year and redress some of the balance between the contributor and the taxpayer in meeting the cost of benefits.
Social security expenditure will cost some £46 billion in 1987–88, accounting for over 30 per cent. of public expenditure. The up-rating we propose will in itself add over £700 million to the current bill, on top of the £420 million provided for in July. This is a good record on both benefits and contributions. I commend the proposals to your Lordships.
Moved, That the Social Security Benefits Up-rating (No. 2) Order 1986 laid before the House on 2nd December [3rd Report from the Joint Committee]; the Social Security (Contributions, Re-rating) (No. 2) Order 1986 laid before the House on 25th November [3rd Report from the Joint Committee]; the Social Security (Treasury Supplement to and Allocation of Contributions) (Re-rating) Order 1986 laid before the House on 25th November [3rd Report from the Joint Committee]; the Statutory Sick Pay (Rate of Payment) Regulations 1986 laid before the House on 2nd December [3rd Report from the Joint Committee]; the Family Income Supplements (Computation) (No. 2) Regulations 1986 laid before the House on 25th November [3rd Report from the Joint Committee]; and the Supplementary Benefit Up-rating (No. 2) Regulations 1986 laid before the House on 2nd December [4th Report from the Joint Committee] be approved.—(Baroness Trumpington.)
§ 7.30 p.m.
§ Baroness Jeger
My Lords, I begin by saying that on the Order Paper the noble Lord, Lord Hesketh, was to propose these draft orders tonight. The fact that he is poorly at home and that we have the pleasure of having the noble Baroness here to deal with these proposals shows that women are much stronger than men. This is a difficult debate because all these measures were passed in the other place before the end of the year and we are now asked to rubber stamp them. We shall not vote against them but we should like to deal with one or two aspects. All the instruments for the up-rating of benefits within the existing system are quite unacceptable because they lack the fundamental changes for which we, on this side of the House, are working. Because the base is wrong, the up-rating cannot be right; but we have to try to deal with some of these questions.
We agree that the April up-rating is acceptable. We welcome the introduction of closer changes in benefit and changes in contribution and we look forward to bringing those changes closer to income tax changes. The total cost of the consolidated fund and the national insurance fund which reached 30 per cent. of public expenditure involves us in considerable thought. When we look at the higher cost of fuel, which is part of the up-rating, we have to wonder from which date the fuel costs are calculated. Most benefits are to be increased by 2.1 per cent. This is based on price increases between January and September. But average earnings during that period have increased by more than 7 per cent. The Labour Party believes that 691 increases in benefits should be related not to increases in prices but to increased in earnings. We must ensure that benefits are related to increases in living standards.
Supplementary benefit is to be increased by about 2 per cent., but that figure excludes housing. There are many changes to housing benefits and these will mean a reduction of £28 million in a full year. The maternity pay fund is being wound down and this will save the Government £335 million. With regard to social security pay, will the abolition of the middle rate mean that 400,000 lower paid people will be worse off? I am told that £19 million will be saved. These points have to be considered along with the changes being made.
What would the increases be if they had been linked to earnings rather than prices, as happened under the previous Government? I am told that in 1978 a couple with two young children on supplementary benefit would receive about 46 per cent. of an average wage. This is now down to 43 per cent. If I am wrong, I should like to be told.
The Government Actuary's report shows that a 1 per cent. increase in earnings produces an extra £220 million a year for the fund. We are now told in these figures that there is to be a reduction in the Treasury contribution of 7 per cent. This cannot be right. If we reduce the contribution to the fund, income tax payers will get some reduction and insurance contributors will have to pay more. The child benefit increase in these figures is 15p but it ought to be 50p to make up for the 1985 cuts.
Perhaps I may, with some hesitation, talk about supplementary benefit and heating additions. How much are the increases about which the Government have boasted due to higher costs rather than warmer hearts? Are heating allowances based on fuel prices between May 1985 and January 1986, as I have been told? These figures will continue until April 1988. Our heating allowances are not being kept in line with present prices but with the old prices.
I want to ask the noble Baroness about the present £5 allowance. I hope she will not mind, and I have already mentioned the matter to her. I am glad that the Government have taken this initiative to try to get ahead with the £5 allowances without a great deal of bureaucracy. I am a little worried about the advertisement tonight in the London Evening Standard which I believe is to be reproduced all over the country. The advertisement asks several questions. It asks:Are you or is your partner a householder?What is a householder? Is someone living in a bedsitter using a meter for the gas fire a householder? What is a lodger? What is the position? We know that many of the poorest and coldest people in the country are lodgers, using gas meters or electricity meters. It would be of great help—I ask this question because I know that the noble Baroness will want to be helpful—to let people know whether or not they are householders and what is their position within these rules.
The advertisement asks:Are you or is your partner 65 or over?Does that mean that if a woman is 60 she does not qualify. Do both people have to be over 65? I ask these 692 questions not with any enmity but in order to make the position clear. Are the heating allowances based on fuel prices which do not now apply?
As regards retirement pensions, I am concerned in many respects, but I raise only one query. I had to read through the report by the Government Actuary on the drafts of the Social Security Benefits Up-rating (No. 2) Order that we are discussing. In paragraph 14, he said that almost the whole of the remaining increase in the surplus is accounted for by a reduction of £101 million in the anticipated expenditure attributed to retirement pensions. I have heard a great deal about what the Government are doing in respect of increases in looking after people. However, when I read in this very estimable document that there is going to be a £101 million decrease in retirement pensions, then I feel that it is quite fair to ask the Minister about it.
At paragraph 15, the Government Actuary refers to the money that would be gained by the abolition of the death grant. I find that the maternity pay fund will cease to exist. In paragraph 18, the Actuary says that liabilities will become part of the National Insurance Fund and that there will be a saving of £35 million.
If these savings to the Government are made, it can only be because they are taking money from recipients. I think it is very important, without going into too much actuarial detail, that the Minister should tell us exactly why these deductions are being made. Taking away £35 million from the maternity pay fund and all the other amounts that I have mentioned must surely make us aware that the Government are not concerned with making things better for the poorest people in this country but are making them worse.
§ 7.45 p.m.
§ Lord Banks
My Lords, I should like to thank the noble Baroness. Lady Trumpington, for her explanation of the content of these orders. I have made clear on previous occasions that we on these Benches approved the change to April as the up-rating month and I am glad that we have now come to the end of the series of special up-ratings which were necessary to bring that about.
At first sight this would appear to be a fairly routine up-rating to take account of a 2.1 per cent. inflationary increase. The noble Baroness said that it would cost £700 million extra per year. Said like that, it seems to be a large sum, but we see it in perspective when we realise that, as she made clear, the total cost of social security is expected to be in the region of £46 billion. What is now being spent, or will be spent, as a result of this up-rating is not increasing the real value of benefits but preserving the real value of benefits.
National insurance benefits account for 54 per cent. of social security spending and they are of course largely financed by earnings-related contributions. Earnings are increasing faster than prices. Contributions are based on earnings. Benefits are linked to prices. Therefore we should expect a buoyant review and the money should be there to meet the up-rated benefits, certainly so far as concerns national insurance benefits. Therefore we see that the spending of the £700 million, welcome as it is, is not really an act of government largesse.
693 While, as I say, this is a fairly routine up-rating, as the noble Baroness, Lady Jeger, pointed out, there arc slipped in a number of minor but significant reductions in benefit. We know that £68 million is to be cut from housing benefit, though we are not directly concerned with that this evening. The noble Baroness, Lady Jeger, referred to the fact that there will be a saving of £19 million as a result of the merging of the two lower rates of statutory sick pay; and there will be losers as a result of that.
I am aware that there will be protection for those who are actually on benefit at the time when the change takes place. Nevertheless, future claimants will be at a disadvantage as compared with current claimants. I understand that the number likely to be involved is in the region of 400,000. Perhaps the Minister can confirm that that is the estimated figure.
The noble Baroness, Lady Trumpington, referred to the further reduction in the Treasury supplement to the National Insurance Fund from 9 per cent. to 7 per cent. That represents a reduction in the National Insurance Fund's income of £581 million, as the Government Actuary's report makes clear. But we have to bear in mind that the Treasury supplement has been reduced since 1979 from 18 per cent. to 7 per cent. If it had been maintained at 18 per cent. then during the year 1987–88 the Treasury supplement would have amounted to £5,225 million instead of the projected £2.032 million at the 7 per cent. figure, again according to the Government Actuary's report.
Therefore as a result of that cut in the Treasury supplement there has been a reduction from that source in the revenue of the fund by £3,193 million per annum. That is 12½ per cent. of the cost of the benefits which are projected for the year 1987–88. A 12½ per cent. cut in national insurance contributions, for example, would mean that the contribution for a contracted-in person of 19.45 per cent. for an employer and employee combined could have been reduced to 17.02—a reduction of nearly 2½ per cent.
We must also remember that employees' contributions have risen from 6½ per cent. to 9 per cent. since this Government took office. While we congratulate the noble Baroness on the four years of no increase to which we referred, some of the gilt is taken off the gingerbread when we recall the 2½ per cent. increase in earlier years. Had the Treasury supplement not been reduced from the level at which it stood in 1979, that 2½ per cent. addition need not have been paid by contributors as it is at the moment—except for the mitigation provided for those at the very bottom of the scale—or the £3,193 million per annum could have been spent in providing better national insurance benefits; for example, higher pensions.
The fact that it was not spent on increased benefits or on national insurance contribution reductions but diverted to pay for non-contributory benefits, as the noble Baroness explained, is surely a way of making contributors pay for non-contributory benefits. That cannot be right.
I am glad that child benefit is increased in line with prices, but the 1985 cut in real value has not been restored. I ask again, because I do not think we have had a direct answer on this point, whether it is the intention of the Government to restore that particular 694 cut at some time in the future. The noble Baroness, Lady Trumpington, will be aware that we on these benches are very concerned that the Government will not undertake to maintain the real value of child benefit in the future.
Finally, in 1979 the Government said that pensioners and other long-term beneficiaries could look forward to sharing the increased standards of living in the country as a whole. It is true that there has been some increase in the real value of the pension since 1979, but it is not clear just how much of that is due to the link with earnings which operated when the Government came to power but which they subsequently broke. The pension has fallen as a percentage of national average earnings, and with earnings rising faster than prices and this trend assumed by the Government to be going to continue, pensioners are falling behind and will fall still further behind.
I therefore ask the question: when will they share as promised in the increased standards of living? When I put a similar question in this House on the 22nd October last to the noble Baroness, she said in reply:It would not he responsible to move to a system which would result in substantial increases in real terms in future years irrespective of the country's ability to pay for them". [Official Report, 22/10/86; col. 308.1That is what the noble Baroness said. Perhaps I may put this question to her: is that not the exact principle on which the Government's policy with regard to SERPS is based? If it is all right in one case, why is it not all right in the other?
While talking about the basic retirement pension, it is relevant to refer, as did the noble Baroness, Lady Jeger, to the discussion about extra payments for heating during exceptionally cold weather such as we are experiencing at the moment. The problem is that the benefit is too difficult to trigger and too selective. To have a retrospective benefit defeats its object, however short the triggering period. The only way to avoid a retrospective benefit is to increase the regular benefits either during the depths of winter only or throughout the year. Of course that would involve a redistribution of income, which regrettably the Government do not seem prepared to consider.
A large part of the money required could be found by replacing allowances against income for tax purposes with allowances against tax. These allowances would be worth the same to those on higher rates of tax as those on the standard rate. Thus, an allowance of £1,000 against income would be replaced by an allowance against tax (that is, a deduction from tax) of £290, the same as the value of an allowance of £1,000 against income to a standard rate taxpayer. But this figure of £290 would apply at all higher rates of tax. This is one method of redistribution which the Government could use.
From what I said earlier the House will appreciate that, while we are not opposed to the general purpose of these orders, they have certain features about which we have the strongest reservations.
§ Baroness Turner of Camden
My Lords, I do not want to add very much to what has been said by my noble friend Lady Jeger and the noble Lord, Lord 695 Banks, who has just made a contribution to the debate, but I should like to make a few comments about the statutory sick pay provisions.
I can remember being a member of a TUC committee when SSP was first introduced, and the committee was very apprehensive about it at that time. Eventually we were told by the then Minister that we should watch to see how it worked and last year we were told that there were no problems with it. Indeed, this statement was repeated by the Minister in another place when these regulations were discussed. This afternoon we have been told that, because of administrative complications, the levels are to be cut to two instead of three. I must say that the effect of this step on the lower paid could very well be quite disastrous.
As has already been pointed out, £19 million is to be saved in this way. That seems to me to be a very mean kind of saving, because substantial savings are being made by the Government in other areas. A sum of £35 million is being saved as a result of the maternity pay fund: the noble Baroness herself made reference to savings that would be made on the redundancy fund as a result of the passage last year of the Wages Act, and there are other savings that have been mentioned by both my noble friend Lady Jeger and the noble Lord, Lord Banks.
This is all very well for those employees—I happen to be one, and there are numbers of other better paid employees in this category—who are covered by collective agreements, where their employers undertake to pay full pay for the first six months of sickness and half pay thereafter. There are a number of agreements of that kind which in the main cover higher paid workers. The SSP is not for such workers. Here we are talking about the very poorest of low paid workers. I should like to question why it is thought necessary to introduce this two-level arrangement. As has already been pointed out, it will have an effect on future workers and it seems to me that the amount of saving is really quite niggling. In the context of these figures, £19 million is a very small amount indeed.
I should like to suggest that this proposal should be reconsidered. It seems very mean indeed to say to people at the lowest end of the earnings chain that so far as they are concerned their sick pay can be reduced in this way. That is what is meant. That £19 million has to come from somewhere and it will come from those people.
§ Lord Kilmarnock
My Lords, I shall intervene only very briefly in this debate. With his usual expertise the noble Lord, Lord Banks, has covered almost all the points about which I should have spoken if he had not been here. I agree with him that it is good that we have moved into the last stage of shifting the up-ratings from November to April. I think that it has been a very confusing process for the public and that they will be relieved that the shift has now entered its final phase. They will at least be in a better position to evaluate the real value of benefits and to judge whether they are being treated fairly.
I want to make only one specific point. In the debate on AIDS which was held in your Lordships' House 696 and which 1 introduced on the 10th December last year, I asked the noble Baroness about the social security arrangements for AIDS victims. The point that I was making then was that there was no special benefit for AIDS victims, who, like those with terminal cancer, notice the cold more and require special diets. Moreover, the continual doses of antibiotics which they require devitaminise the body and often require additional expenditure of up to £10 a week on vitamin supplements and medicaments of that nature. Also, because of the heavy sweats with which such patients are afflicted, frequent changes of bed linen and clothing are required, which lead to much higher laundry bills.
I said in that debate that a single person's sickness benefit of £29 a week, even when brought up to £30 or so by heating and laundry allowances, was a very inadequate sum with which to get by in those appalling circumstances. Of course in these orders we find that the sickness benefit rate for a single person has been uprated to £35.5, as the noble Baroness explained, but the basic problem to which I drew attention then remains.
I now want to ask the noble Baroness whether she is aware—and I expect she is—that the length of spells in hospital undergone by AIDS patients is reducing somewhat, which I suppose is owing to increasing experience in the treatment of opportunistic diseases arising from AIDS. This situation is to be welcomed, but it is unlikely to continue if AIDS patients in the community do not have the means to maintain themselves in a reasonable state of health.
With the projected increase in numbers on a very large scale—whether a pessimistic or even an optimistic scenario is adopted, the increase will be on a very large scale—it will surely be desirable both on grounds of humanity and of cost to enable AIDS victims to spend as much time as possible out of hospital. I therefore simply want to ask the noble Baroness whether she will reconsider her earlier reply. I should perhaps have said that in the earlier debate she gave me rather a dusty answer.
I want to ask the noble Baroness whether she will reconsider her earlier reply. I am not seeking to press her to make any commitment this evening other than to bring the matter to the attention of her colleagues in her department, to discuss it with them and possibly to write to me when she has had the opportunity of comparing notes with them. That is the only request I make of her this evening.
§ 8 p.m.
§ Baroness Trumpington
My Lords, although the debate has been short, the subject is of enormous interest to everyone in the country as actual or potential beneficiaries or as contributors to national insurance. I am not sure whether your Lordships have appreciated being able to consider both sides of the benefit balance sheet together but I hope that you may do. It is a sensible procedure and reduces the burden on the House by making one debate out of two. By the time we next debate these annual instruments we shall be faced with fewer Motions. When the up-rating legislation contained in the Social Security Act 1986 comes fully into force it will incorporate all benefit up-ratings in one order.
697 I shall try to answer as many of your Lordships' points as I can, and will of course write to noble Lords should I fail to pick up any matters. I noted what the noble Baroness, Lady Jeger, said about possible difficulties in understanding the advertising about the exceptionally severe weather payments. I will pass her remarks to my right honourable friend, but I feel sure that the publicity about that issue will encourage the majority of those entitled to claim for payment. On the point about age, the payment is available where either one of the couple is aged 65.
The noble Baroness asked in the same context what a householder is. A householder for supplementary benefit purposes is essentially someone who has responsibility for his or her own housing expenses and care of domestic tasks. It is a common-sense definition. It is a matter for the independent adjudication authorities to decide in any individual case whether someone is a householder. An old person living in a bed-sitter, paying rent and catering for him or herself would be a householder. Someone living in a granny flat in the house of a son or daughter probably would not be.
The noble Baroness referred to the Treasury supplement being cut to provide scope for income tax cuts. That is not true. We are merely trying to balance the interests of the taxpayer, who pays for noncontributory benefits, and the interests of the contributor. My right honourable friend the Chancellor of the Exchequer will decide what scope he has for adjusting the burden of taxation after considering many pieces of information more important than the expected annual surplus on the National Insurance Fund.
The dates of fuel cost calculations were also brought up by the noble Baroness, who asked what the basis of the increase in fuel costs was. All the benefits covered by the uprating were increased by the relevant index from January to September 1986. During that period the fuel section of the retail prices index fell by 0.1 per cent. That is why the supplementary benefit heating additions are not being increased on this occasion. The higher rate heating addition paid to very elderly people went up in July to £5.55 a week.
The noble Baroness also referred to the winding up of the maternity pay fund and the savings that will accrue from that. As I said, the fund is being wound up because of the introduction of statutory maternity pay from next April. As your Lordships will be aware, statutory maternity pay will be paid by the employer and he will be able to recover all those payments from the national insurance contributions he pays to the Inland Revenue. That will lead to reduced income for the National Insurance Fund. It is therefore wrong to suggest that the winding up of the maternity pay fund will result in a saving.
The maternity allowance did not meet its objectives. The new rules will ensure that it goes to women who have given up work to have a child, and 20,000 women with recent work records will be brought into benefit for the first time by the revised scheme.
The noble Baroness made some comparisons with what benefit levels might have been had they been increased consistently in line with earnings. I accept 698 that benefit levels would have been higher if they had been linked with earnings, but that measure is not one that the Government can accept in current economic circumstances.
The noble Lord, Lord Banks, will note with interest that if we look more generally at pensioners' incomes we find that over the period 1979–1985 their net incomes rose in real terms by 2.7 per cent. a year, whereas the incomes of the population as a whole rose by 1.3 per cent. only.
We must take account of the changing balance of social security expenditure between contributory and non-contributory benefits. Over the past decade the growing level of non-contributory benefits has meant that the burden of social security expenditure would have fallen on the taxpayer had we not cut the Treasury supplement. We think that the cut in the Treasury supplement is only fair and reflects the changing balance of social security expenditure.
With regard to the question asked by the noble Lord, Lord Banks, about child benefit, his interest in child benefit is well known. I cannot give him the assurance that he seeks about the restoration of the 1985 value. The up-rating of child benefit is something which must be considered on each up-rating occasion in the light of all the circumstances.
The noble Lord referred to real increases in pensions. The real value of retirement pensions has increased by several percentage points ahead of inflation since 1978. We expect that increase to be maintained. I dealt with the earnings link in reply to the noble Baroness, Lady Jeger. I believe that the point I made about the increase in pensioners' total net incomes over the period 1979 to 1985 is an adequate answer to the noble Lord's concern about the pensioners' share in rising living standards. As I said, they have done better than other members of the general public.
The noble Baronesses, Lady Jeger and Lady Turner, asked me some questions about statutory sick pay and the effect of the reductions in rates from three to two for employees. About 7 per cent., or 400,000 spells, of SSP a year are currently paid at the middle rate, which will be abolished under these regulations. I should make it clear that it by no means follows that those employees will find their income reduced during sickness, although I acknowledge that there will be a public expenditure saving of £19 million.
In the first place of course we are providing that all employees on the middle rate at the changeover date will continue to receive that rate while their current spell of incapacity lasts or until their SSP entitlement runs out, if that comes sooner. No one will receive a cut in the SSP that they are already receiving at 6th April.
On top of this, account must be taken of employers' own occupational sick pay schemes. We know that as long ago as 1977 some 80 per cent. of all full-time employees were covered by such schemes, and there is evidence to show that since the introduction of SSP occupational sick pay coverage has continued to grow. Many employers top up the SSP they pay under their own schemes. Thus the overall income of the 699 employee during sickness will not reduce. I acknowledge that some employees will not have the benefit of occupational sick pay arrangements, but we need to view this in perspective.
In 90 per cent. of cases spells of sickness are over within eight weeks. Indeed, over half the spells are over within two weeks, with the average duration working out at three weeks. Most employees will not therefore be significantly affected by the merger of the middle and lower rates, but where appropriate supplementary benefit will of course be available.
The noble Lord, Lord Kilmarnock, raised the point about social security and AIDS. There is no special and separate social security for AIDS sufferers, but the supplementary benefit system provides a range of special assistance for disabled people, which includes, for example, provision for meeting the full cost of special diets where they are very expensive. Under the reformed income support scheme from 1988 a variety of help will also be available for disabled people including AIDS sufferers. But for all that, I shall bring the remarks of the noble Lord to the attention of my right honourable friend.
In my opening remarks I summed up the main proposals in these instruments. I remind your Lordships again that the Government's proposals increase benefit expenditure by £720 million in 1987–88, on top of some £420 million arising from the up-rating which took place only last July. Our proposals for contributions protect the lower paid, mean no increase in Class 1 contribution rates (which are the concern of most employees) and provide for a fairer balance beween the taxpayer and the contributor in paying for national insurance benefits. I commend the orders and regulations to your Lordships.
§ On Question, Motions agreed to.