§ 8.53 p.m.
§ Lord Kilmarnock
My Lords, I beg to move that this Bill be now read a second time.
Its sole aim is to make it possible for persons legitimated by subsequent matrimony to inherit a title throughout the United Kingdom rather than, as at present, in only one part of it; namely, Scotland. It is a modest measure but not, I believe, without importance. I hope it will find favour with your Lordships.
357 As regards the dilatory amendment in the name of the noble Lord, Lord Morris, I could have wished that the noble Lord had put it down a little earlier, or approached me, so that we could have had time to discuss—and, I would hope, allay—his fears. As a result of a conversation this morning, I now have an inkling of what disturbs him, erroneously in my view and that of my advisers, and I shall do my best to set his mind at rest. At all events I hope that he will agree with me after this debate that we should continue to pursue any remaining matters of concern in Committee, as happens in the vast majority of cases with Private Member's Bills in your Lordships' House.
Before I proceed any further, two things are incumbent on me. The first is to declare a personal interest in that the succession to my own peerage would be affected if the Bill became law. It would pass from the current heir presumptive who is my younger brother, to my son who would become the heir apparent. There is no disagreement in my family that this is a proper step. But I am aware that there is a question of expectations, which I will address later in my speech.
I also want to make it absolutely clear at the outset that the Bill has nothing whatever to do with reform of the House of Lords. It is exclusively concerned with the succession to hereditary titles. It is up to Parliament to decide whether or not the holders of such titles should be entitled to sit in Parliament. Possibly this question will arise again in the not too far distant future, and possibly not, but whatever the outcome of the next general election and any proposal for reform that may follow it, that will not be affected one way or another by the Bill.
Perhaps I may now draw attention to the general law on legitimacy as it now stands. In various reports on the subject the Law Commissions of England and Wales and of Scotland—the two Law Commissions—recommended, as a matter of general principle, the removal of any discrimination against a person born outside matrimony, whose parents subsequently contracted matrimony. This principle has been adopted by Parliament in various Acts including the Legitimacy Act 1976, the Family Law Reform Acts 1969 and 1987 and the Children Act 1989.
However, as regards titles of honour, the Law Commissions did not propose any change in the law. It might be surmised that this was at least partly because the vast majority of extant hereditary peerages (526 out of a total of 772 entitled to a seat in this House) are peerages of the United Kingdom, created since 1801, while the Law Commissions' remit is confined to their respective regions and countries. There is no Law Commission for the United Kingdom as a whole.
The upshot is that a person legitimated by subsequent matrimony has exactly the same rights and responsibilities as if he had been born legitimate, with the outstanding exception in England, Wales and Northern Ireland, but not in Scotland, of the inheritance of titles of honour. Indeed paragraph 4(2) of Schedule 1 of the Legitimacy Act 1976 expressly provides that apart from Section 1, which deals with void marriages, 358nothing in this Act 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".In this, it simply follows Section 10 of the Legitimacy Act 1926.
This is in marked contrast to the situation in Scotland where it has always been accepted under Scottish common law, subsequently codified by the Legitimation (Scotland) Act 1968, that persons legitimated by subsequent matrimony are eligible to succeed to Scottish titles and do so succeed. Furthermore, we have the extraordinary anomaly that a person legitimated in England by the subsequent marriage of his parents may inherit a Scottish title but would be debarred from inheriting an English, Irish, British or United Kingdom title in the same circumstances. This is surely quite unacceptable. I can see no sound reason why those of us who hold such titles should not benefit from the same regime as the Scots. The United Kingdom is clearly made up of different component parts, but it is still a unitary state.
That is the background to the reform I am proposing. The current exclusion of most but not all hereditary titles from the general thrust of the law on legitimacy across the United Kingdom is clearly discriminatory and my aim is to remove this discrimination. I am glad to be able to report to your Lordships that the Bill has widespread support among representative bodies of the legal profession outside Parliament. It is supported by the Family Law Committee of the Law Society, by the Family Law Bar Association, and by the Solicitors' Family Law Association. They are all united in their opposition to discrimination against any particular category of citizen—correctly, it seems to me. I have also received assurances that this Bill would not be opposed by the Labour Party in another place although of course I obviously will not pre-empt what the noble Lord, Lord Rea, has to say from his Front Bench in this House.
Let me take your Lordships briefly through the Bill. It is my duty to do so. It is always an attractive idea that a one-clause Bill will do the trick for a simple matter. But usually a number of subsidiary and consequential matters need to be taken care of. So this Bill has six clauses and a schedule, all straightforward but the minimum required to do the job efficiently.
Clause 1(1) is the principal provision of the Bill and would enable legitimated persons to succeed and transmit a right to succeed to titles. That is at present excluded by provisions in the current legislation concerned with legitimation in England, Wales and Northern Ireland—provisions which are repealed by Clause 6(1) and the schedule to the Bill. In Scotland legitimated persons can already succeed to titles, as I mentioned earlier.
Clause 1(2) makes it quite clear that the words "lawfully begotten", or similar words in letters patent or other instrument creating a title, will not prevent a legitimated person from succeeding to a title. In the case of a barony by writ, the title has no instrument of creation; hence the acknowledgement in the subsection that not all titles have such an instrument.
359 Clause 1(3) establishes that the Bill covers persons legitimated under, or recognised as legitimated under, the law of any part of the United Kingdom. It also defines "title" widely to cover any dignity or title of honour—and in that it follows paragraph 4(2) of Schedule 1 of the 1976 Act which employs the identical phrase, "any dignity or title of honour". Section 10(1) of the Northern Ireland Act is to the same effect. It is drawn in the same terms. The Bill accordingly goes beyond peerages and would embrace baronetcies as well.
Clause 2 is a technical clause concerning seniority. It would normally secure that the eldest child, if legitimated, would have seniority. The other provisions in the clause concern in particular the case of the holder of a title marrying en secondes notes a woman by whom he has previously had an illegitimate child. But that child's legitimation, and therefore his seniority, would date from the remarriage and he would not be able to displace an heir, albeit younger in years than himself of the first marriage.
Clause 3 makes it clear that the Bill covers existing titles, but that it will affect only successions on a death occurring after the Bill is enacted. It does not bite back into the past and could not therefore disturb any present title holder. Nor could the descendant of someone legitimated in the past, but deceased, disturb the succession to the current line. All successions through a legitimated person who died before the passing of the Act are excluded.
This clause is also intended to secure that the interference with present expectations is the minimum consistent with the aims of the Bill. It is obvious that some hypothetical expectations—and I have reason to believe a very small number of actual expectations—may be disappointed. But here I would point out that the expectation of an heir presumptive can never be other than contingent on the current holder not remarrying, however late in life, and producing an heir. Even an heir apparent—that is, a male child in the direct line of succession—may have his expectation disappointed by untimely death, as recent tragic events have shown in a noble Scottish family. Some expectations exist only as a result of the discrimination and anomalies to which I have referred. Others may be blown away by fate. Expectations are not foolproof or irreversible entitlements.
Clause 4 recognises the fact that under Scottish law legitimated persons are already able to succeed to Scottish titles. It leaves the Scottish law to operate where it operates already and, in effect, ring-fences the Scottish position.
Clause 5 exempts the Crown from the scope of the Bill, making nonsense of the hysterical claim in the Daily Express recently that if the Bill became law,the Queen would not be the Queen".I may add that Clause 3, which I have already discussed, equally makes nonsense of the other assertion in the same column; namely, that,a good half of the Lords would lose their seats".I am not paranoid about the press, but if the Daily Express cannot do better than that, I suggest that it sacks someone in its research department and sharpens up its 360 act. In the meantime, I can assure all noble Lords that as far as their titles go they have absolute security of tenure. As regards a seat in this House, that is a matter for any reform Bill that may be presented to Parliament.
Clause 6 (the last clause) ushers in the consequential repeals in the schedule and gives the Short Title of the Bill.
This is a small Bill designed to tidy up a small corner of the law. We have for some time now ceased to discriminate against children born outside wedlock through no fault of their own, nor often of their parents, as, for example, in the case of a premature birth or a long and complicated divorce procedure in another country. The act and commitment of marriage or remarriage is the important thing, and that is at the heart of the Bill. That is what has been upheld by all family law legislation over the past quarter of a century—and rightly so in my view—as the trigger of legitimacy and all that flows from it.
It might be argued that hereditary peerages are such an arcane and unusual institution that the general law should not apply to them. There is not much foundation for that. The hereditary peerage is certainly not older than the institution of marriage. In fact, as I have already indicated, much of it is of very recent origin. The great majority of current hereditary peerages have been created since 1831 and a large proportion of those since 1918. Taken as a whole, we are not all that far removed from our origins in the business, commercial, agrarian, intellectual and recent political life of this country. That is our strength. There is nothing unusual or mystical about us requiring unusual or mystical rules as for some ancient priesthood.
The one thing that is special about us is the privilege that we enjoy (or most of us enjoy it; there are some exceptions) of a voice and vote in your Lordships' House. However, I think that I have demonstrated that the Bill will have no effect one way or another on that. Peering—if I may be forgiven the pun—a little further into the future of the hereditary peerage, I can well foresee a time when we shall no longer enjoy that privilege as of right. That does not mean that we shall cease to exist unless formally abolished by a republic—an eventuality which may yet be some way down the track, perhaps over the horizon. In the meantime, I venture to suggest that holders of hereditary titles should be in no worse or different a position as regards legitimation and its effects than that enjoyed by the generality of the population of England and Wales and Northern Ireland, as laid down by the statute law of the land, to which I propose these modest amendments. I beg to move.
§ Moved, That the Bill be now read a second time.—(Lord Kilmarnock.)
§ 9.8 p.m.
§ Lord Morris rose to move, as an amendment to the Motion that the Bill be now read a second time, to leave out ("now") and at end insert ("this day six months").
§ The noble Lord said: My Lords, I am sure that we are all grateful for the very clear way in which the noble Lord, Lord Kilmarnock, has introduced his Bill to the 361 House. I found his silence on the effect of his Bill deafening. Let me explain what I mean by that. What any reasonable man should seek in the law is clarity, brevity and, above all, certainty. While I suppose we should be grateful to the noble Lord, Lord Kilmarnock, for the brevity and clarity of his Bill, I am of the opinion that the effect of the Bill wars most heavily in its effect against certainty.
§ We must first look at the nature of hereditary peerages—and we must not forget of course baronetcies. They are created by letters patent under the Great Seal in a form prescribed by rules under the Crown Office Act 1877, which limits succession to the heirs of his body lawfully begotten.
§ To put this another way, the creation of an hereditary title and the rules of succession are a question solely—I repeat, solely—of Royal Prerogative. It is my view that it is quite wrong for a Member of this House to attempt to usurp that prerogative.
§ Let me attempt to illustrate the uncertainties that the Bill will create. In marked contradistinction to the Legitimacy Act 1959, which enabled children of putative marriages to succeed to titles, this Bill, as drafted, would affect those born before as well as after the commencement of the Act. This would inevitably have the effect of depriving some heirs apparent of their title in favour of persons born out of wedlock, and legitimated not by the will of the Crown, so to speak, but by the parents of the previously illegitimate child.
§ At this stage, the noble Lord, Lord Kilmarnock, was totally silent on the question of entailment. This is of critical importance. It is a lawyer's term of art for the movement of property which flows with the title. All those property rights and expectations would be lost.
§ A slightly more complex case is where a Peer has one son out of wedlock, marries the mother and then has a second son. The second son, who will at present expect to succeed, would be deprived by the Bill since his elder brother will, by Clause 2, be deemed to have been born by the date of the marriage.
§ Rather more difficult and doubtful is the case where a Peer has a son legitimated by a subsequent marriage and, before the commencement of the Act, dies, so that the collateral line, or the younger legitimate son in my previous example, succeeds to the title. The legitimated person, however, is still alive at the commencement so that his line of succession is not barred by virtue of Clause 3. The question then arises of whether the legitimated person's claim revives when the succession next opens on a death after commencement, so that he may assert it against, for example, his nephew (the son of his younger legitimate brother in the example I gave). It is not clear whether the Bill is intended to cover that position; but it is arguable that it does, and with the effect of reviving the claim of the legitimated person or a claim made through him by his son.
§ I can see another and not unfanciful mischief that this ill-begotten Bill provides. Let us say that the son, a legitimate heir of most probably, I suspect, a Liberal Peer, with the assistance of several willing ladies, sires 362 a string of sons out of each of these ladies. He then waits until they are all of personable age and decides which of his father's grandsons shall succeed to the title.
§ I shall not weary the House further with a catalogue of the uncertainties and harm that the Bill would create. One thing is certain: to move, as this Bill most certainly does, the power away from the intention of the person creating the honour—namely, the Crown—to the holder or the heir presumptive of the title is to encourage irresponsibility and is clearly wrong. The ability to create uncertainties in the succession of titles by virtue of this Bill is limited only by the imagination of man. Families can be quite revolting enough as it is. This Bill positively encourages them to be more so. I beg to move the amendment standing in my name.
§ Moved, as an amendment to the Motion that the Bill be now read a second time, to leave out ("now") and at end insert ("this day six months").—(Lord Morris.
§ 9.14 p.m.
The Viscount of Oxfuird
My Lords, the very term "heirs of the body" evokes a form of comfort which appears to have no contradiction until one looks into the depths of the inheritance laws of the Peerage and the root of their existence, and the importance of the Crown prerogative.
Thus it is that one must return to col. 685 of Hansard of 27th November 1986, and to the speech of my noble and learned friend Lord Hailsham when he was Lord Chancellor, at the Second Reading of the Family Law Reform Bill, which is now an Act.
In response to the question from the noble Lord, Lord Mishcon, "Why not titles of honour?", my noble friend went on to say:Far more important than … hereditary Peerages is the descent of the Crown. It would raise serious questions if I were to embark upon this delicate field in relation to the Family Law Reform Bill. The patent which creates the Peerage, except in those few Peerages which are created by writ, where different and common law considerations arise, is normally to the heirs of the body lawfully begotten and to be begotten".My noble friend went on to say (at col. 686):It is part of the Crown's prerogative to ensure that it descends through the married line. What is far more convincing to my mind is that even in 1926, when we legitimated children per subsequens matrimonium, thereby following the Roman Catholic Church and not the Church of England, the question of the descent of titles of honour was expressly reserved. They can only be legitimated if lawfully begotten at the time".Perhaps we believe that we sail in so-called "charted waters" with the legitimacy Acts, but there are also the gods of the copy book headings, and they are to be respected. Acceptance of this Bill could have severe consequences, particularly in connection with its retrospective effect.
I cannot support this Bill and will support my noble friend's amendment.
§ 9.17 p.m.
§ Lady Saltoun of Abernethy
My Lords, when I first glanced at this Bill, I thought it was pretty innocuous. But when I came to examine it more carefully, I began to have misgivings. Upon further investigation, my misgivings increased to the point where I shall support 363 the amendment of the noble Lord, Lord Morris. Having said that, I think that there is not one of us here who does not sympathise with the noble Lord, Lord Kilmarnock, in his predicament. But it seems to me that his Bill, if enacted, would make bad law. I wonder whether there might not be some other way of achieving what he seeks.
There are two principal aspects of the Bill which I find totally unacceptable: first, its retrospective effect, and, secondly, the disappointing of legitimate expectations. That is what Clause 3 does. If the Bill receives a Second Reading, I shall seek to amend Clause 3 at Committee stage, so as to remove the first and avoid the second.
The noble Lord, Lord Kilmarnock, dismisses legitimate expectations in a somewhat cavalier manner. But the disappointing of them can be the cause of much sorrow and bad blood in a family, and is something to be avoided wherever possible. God may blow them away, but that is no reason for us to do so.
The noble and learned Lord, Lord Keith of Kinkel, in his judgment given in 1986 on the appeal of Dunbar of Kilconzie, clearly thought that both retrospection and the disappointing of legitimate expectations should be avoided; and although his judgment applies to Scotland and this Bill is not, I understand, supposed to apply to Scotland,—although I do not find that that emerges very clearly from reading the Bill—the principle applies equally to England and Wales. I am very sorry that the noble and learned Lord is not hem this evening to contribute to this debate. There is a way in which what the noble Lord, Lord Kilmarnock, seeks might be achieved without the damage that this Bill will do.
In Scotland, in the early days—by that I mean before 1603 —it was, by the law of Scotland competent to the grantee of a peerage, or any of his successors, to resign such grant into the hands of the Crown in return for a new grant which could limit the destination in such manner as the grantee, with the consent of the sovereign, might direct. Indeed, it was customary to resign any peerage to the Crown on the accession of a new sovereign, and hope for a re-grant, which could of course be dependent on past good conduct. I believe that that law has not been repealed.
I should be happy to support such legislation for GB and UK peerages, provided of course that no legitimate claimants existed or that their consent had been obtained before any alteration was requested in the destination. That would also enable peerages which are in danger of extinction, for want of male issue, to be revitalised.
It occurred to me that another way of doing this might be by a personal Bill. But I believe that the Personal Bills Committee might think otherwise. So that may not be a very practical suggestion. As it stands, I shall support the amendment of the noble Lord, Lord Morris.
§ 9.21 p.m.
§ Lord Teviot
My Lords, it is a great pleasure to follow the noble Lady, Lady Saltoun of Abernethy. I support the noble Lord, Lord Kilmarnock. This Bill is a "Legitimated Persons" Bill. It dwells on those who have been illegitimate and who have suffered in the past. I 364 speak now as a genealogist. I can tell the House that I have looked at parish registers and illegitimate issue have been referred to as "base child", "bastard" or "son (or daughter) of a harlot". We are all Peers in this House and we are all equal. We are all addressed as noble Lords, apart of course from Dukes, who are not very numerous.
With regard to succession, there have been many what I might call eccentric legal arguments. But a case can be made. There have been various Acts on legitimisation in England and Scotland. An illegitimate person can inherit. On the rare occasions on which it might occur with regard to this House, illegitimate people could well inherit. I see no reason for any objection, whatever the legal argument. But we have to look at what might be called the basis of the argument.
Perhaps I may make just one final comment. I have already spoken for one minute and would like to extend my observations to one minute and a half. In 1968, in a debate in your Lordships' House, the late Lord Ramsey, Archbishop of Canterbury, in the days of his primacy, quoting an old hymn said:There is room for fresh creationsIn that upper home of bliss".I support the noble Lord, Lord Kilmarnock.
§ 9.23 p.m.
§ Lord Sudeley
My Lords, I rise to intervene rather than to make a speech. The Bill has been criticised as a personal Bill and perhaps I may be allowed to declare a personal interest. There were two English kings who had a good brood of bastards: Henry I and Charles II. It is from Charles II that some of our Dukes are descended. I am proud of my illegitimate descent from one of the illegitimate children of Henry I. Whatever modem American women may say, in those days there was honour in being a royal mistress.
The fate of the legitimate son and heir of Henry I is well known. He would have survived the sinking of the White Ship, if he had not sought to rescue his illegitimate half-sister, the Countess of Perche. They both drowned together and there followed all the misery of the contested succession under Stephen and Matilda, when the government were so weak and the Church so strong that canon law exceeded all proper bounds into probate and so on.
What is the practical outcome of an old inheritance, a peerage and a bastardy? Let me cite just one example. The Earl of Egremont, patron of Turner, had only illegitimate issue. Queen Victoria said of that:A barony is enough for a bastard; an Earldom is too much".Egremont mortgaged the Orchard Wyndham property in Somerset, entailed on the legitimate line, to the hilt. To pay off the mortgages the legitimate line was unable to pay for their daughters' dowries. They had to lock up all their daughters, a tragedy surely of a large scale if we have any feeling. I should like to oppose the Bill.
§ 9.25 p.m.
§ Lord Rea
My Lords, although I speak from this Bench, I do so in a personal capacity since the Opposition have no set views on this issue, if such a 365 term is allowable, considering the nature of the Bill. However, I think that my views would be acceptable to most members of the Labour Party. I congratulate the noble Lord, Lord Kilmarnock, on bringing this small measure before your Lordships and on his, as usual, very clear method of presentation.
The Bill itself, in my humble view, is very carefully drawn up and I hope will need no amendment. In supporting the Bill I, like other noble Lords who have spoken, wish to declare an interest in that I have a grandson who is legitimated in the eyes of the law and falls into the category covered by the Bill. In fact, my interest is really of a technical nature since no one in my family takes the matter terribly seriously. We all assume and, in fact, hope that the right of hereditary Peers to sit as legislators will finally have been abolished long before the time this three year-old could inherit his title. But I have to say that I have always thought, since my early adulthood, that that time would have come to pass before I inherited the title. So I have to enter the caveat that perhaps he will still be able to sit in the House of Lords, although the noble Lord, Lord Kilmarnock, said that that is not the point of the exercise.
Without this archaic privilege, which we all enjoy, of sitting in your Lordships' House and being able to speak and vote, the possession of an hereditary title is merely an historical curiosity, especially when it is not accompanied by a stately home or a fortune. But I accept that such a title means a lot to some families, especially if the title represents an ancient lineage, even if it were not to be associated with the right to attend and vote in your Lordships' House. Certainly, hereditary peerages on the Continent continue. Some people take them seriously although others regard them as an object for ridicule.
As the noble Lord, Lord Kilmarnock, said, the 1976 Act to legitimate children was really a consolidation measure. The question of the inheritance of titles was omitted because it would have required new legislation. This Bill provides the opportunity to remedy that deficiency and to correct what, as the noble Lord has described, amounts to a real discrimination against legally legitimated persons. The anomaly in which male legitimated persons, or female in some cases, can inherit Scottish titles but not English, British, UK or Irish titles should surely not be allowed to persist.
I find it curious that any noble Lord can oppose this manifestly fair Bill. I certainly was not convinced by the arguments of the noble Lord, Lord Morris, which were rather far-fetched and unrealistic. He said that families are revolting and this Bill will make them worse. I found that an extraordinary statement because I believe that exactly the reverse is the purpose of this Bill, bringing to the first-born child of a couple the justice that should be his. This House and the Peerage which fills it is only here because of tradition. That has many anomalies. This Bill will help to reduce those anomalies and bring the Peerage up to date. It will make fairer an ancient institution.
§ 9.30 p.m.
§ Baroness Trumpington
My Lords, the noble Lord, Lord Kilmarnock, has given us an opportunity to consider the topic of this Bill with a closer focus than was possible when the noble Lord, Lord Mishcon, with his customary thoroughness, raised it during the passage of the Family Law Bill in 1986.
Legislation enacting reforms in this area has not been the province of any one party in government, and the government's position is neutral since it seems that the issue to be decided is where and how one is to draw the line between the principle of non-discrimination and the principle that those with a genuine and well-founded expectation of succession should not be unfairly deprived.
The Legitimacy Act 1959 which put children of certain void marriages on the same basis as those of valid marriages for all purposes including succession to titles drew the line on the side of existing expectations and applied the change as it affected titles only to those born after the passing of the Act. Where the line might be drawn in the present case and how this might affect the Bill are pre-eminently matters for this House to decide on a free vote.
Care has been taken to limit the effect of the Bill on existing expectations, but the Government see some difficulties with the Bill as it is currently drafted. In order for the Bill to avoid destroying any genuine existing expectations, it would have to be limited in such a way as to change its character in what may be felt to be a fundamental way. For example, it might be limited so as to affect only those born after its passing, or to come into force in relation to any particular title only when every person living and with a genuine expectation at Royal Assent had died.
There may be changes, depending on your Lordships' views of the nature of the line to be drawn, which could be made short of those I have described but dealing with the more difficult cases. There is one area in particular where the Bill is at least unclear and in which it may have effects which would cause anxiety. That concerns the case in which a legitimated person has before the passing of the Bill been passed over for the succession to a title but is alive and legitimated at the time the Bill is passed. It is not clear whether the Bill is intended to, or would, have the effect of reviving the legitimated person's claim and enabling him to transmit it so that it might be asserted when the succession next opens, but it does seem that it might have that effect as currently drafted.
That is connected with another issue, which is the way in which the Bill relates to Scottish law. It is, as I understand it, the intention that the Bill should not affect Scottish law, which is already broadly in line with what the Bill sets out to do. But it is not clear why the Bill is not simply excluded from applying to Scotland. Indeed, there is a possibility that the Bill might, as currently drafted, have the effect of changing Scottish law if it has the effect which I have described of reviving the claim of a legitimated person previously passed over.
367 That is because that point has been considered in the Scottish context, where the Legitimation (Scotland) Act 1968 retrospectively legitimated certain people. It was decided that considerations of reason and justice favoured the conclusion that the claim of a person thus legitimated many years after the succession passed over should not be revived; and the Bill's effect on this decision is not clear. It may well be that it would have the effect of reversing the decision, which would call into question the way in which the Bill deals with Scottish law.
I think it proper to confine myself to giving the Government's view of the Bill as currently drafted. I know that my noble and learned friend the Lord Chancellor has written to the noble Lord, Lord Kilmarnock, pointing out his worries on the various issues that I have raised. I have drawn your Lordships' attention to certain aspects of the Bill which seem to the Government to he important. Views may differ on the question of whether those matters and others which have been raised are of a nature suited to discussion and resolution in Committee or whether they go to the heart of the Bill. Those matters and the question of whether the Bill should receive a Second Reading are, as I have said, pre-eminently matters for decision by this House on a free vote.
I accordingly wish simply to close on a note of gratitude to those who have taken part in this debate and to the noble Lord, Lord Kilmarnock, for initiating it.
§ 9.36 p.m.
§ Lord Kilmarnock
My Lords, I am most grateful to all noble Lords who have spoken although not all have spoken as I would have wished. I should like to refer first to the speech of the noble Lord, Lord Morris. The noble Lord is under a misapprehension. There has been no interference whatever with the Royal Prerogative. The Royal Prerogative has been placed by Her Majesty at the disposal of Parliament and of this House for the purpose of this Bill. In fact, the noble Earl, Lord Airlie, came from the Palace precisely to make that declaration to your Lordships shortly before Christmas. As I said, there is absolutely no question whatever of unwarranted interference with the Royal Prerogative. I am very surprised that the noble Lord, Lord Morris, was not aware of that.
I must refute the noble Lord's comments about lack of clarity. I should like to take just a moment to read out Clause 3 which states:This Act applies to persons legitimated before as well as persons legitimated after the passing of this Act and has effect in relation to titles created before as well as titles created after that passing, but it shall have effect only in relation to succession on a death occurring after that passing, and no person shall by virtue of this Act have any right of succession to a title based on a relationship to a legitimated person who died before that passing".I should have thought that that was crystal clear.
I understand the reference by the noble Viscount, Lord Oxfuird, to "heirs of the body" and to the phrase "lawfully begotten". Clause 1(2) extends the definition of the words "lawfully begotten".
368 It is not true that patents are absolutely sacred. The noble Earl, Lord Russell, has drawn to my attention cases in which patents have been varied. As your Lordships know, the noble Earl is a distinguished medieval historian and he has drawn my attention particularly to the case of Lord Brooke in 1628 who succeeded his cousin—by whom he had been adopted when but four years of age—in the peerage under the the special limitation of the patent. It is not true that patents have never been varied. They are not, in that sense, completely Holy Writ.
In regard to the interesting speech of the noble Lady, Lady Saltoun of Abernethy, I was surprised that she referred to the Bill as "bad law". In fact, it attempts to replicate the law of Scotland. We often say in your Lordships' House that they order things better north of the Border. Indeed, that was one of the assumptions of the Bill. I therefore found that a rather strange remark. With regard to the noble Lady's point about retrospection, I draw her attention to Clause 3, which I have quoted. It is absolutely clear that that is not retrospective.
The noble Lady referred to the case of Dunbar of Kilconzie, of which she kindly sent me copies. I read it with great care. This Bill would not have gone against the ruling which the noble and learned Lord, Lord Keith, delivered in that case, and so it would be entirely on all-fours, all square with that ruling.
With regard to the very interesting suggestion the noble Lady made of re-grants, I venture to say to her that I do not believe that this particular procedure has been used since the Act of Union, 1707. It would seem to me to place a tremendous burden on the Crown if people were always petitioning, let us say, to jump over a black sheep in their family in order to award the title to someone whom they thought would bear it more honourably or more reputably. It seems to me that what we have here is very much more simple than the procedure that she has proposed.
§ Lady Saltoun of Abernethy
My Lords, would the noble Lord give way? I think I suggested that the Crown would only give a re-grant, with a destination as the Peer wished, if all other claimants were in agreement or had died out.
§ Lord Kilmarnock
My Lords, I appreciate that, but I think it still would impose a burden on the Crown. There would be constant petitions going to the Crown. That is one of the reasons, if I recall correctly, why your Lordships were not very happy with a Bill of the noble Lord, Lord Diamond, which required these constant approaches to the Crown. I thought it was an interesting suggestion, but obviously it would be an entirely different Bill from this one if the noble Lady felt inclined to introduce it. If she did, however, I am sure we would discuss it with great interest. Obviously I am grateful for the support of the noble Lord, Lord Teviot, with his great genealogical knowledge, and also to the noble Lord, Lord Rea, from the Labour Front Bench, for the stress that he placed on discrimination against those who are legitimated.
369 I am also extremely grateful to the noble Baroness, Lady Trumpington, for having replied on behalf of the Government and set out a neutral position. Very properly, I thought, she set out various concerns which, in my submission, could or should be properly addressed in Committee. The noble Baroness herself made a number of suggestions and in effect produced a "menu" of possible amendments. I, as promoter and mover of this Bill, would be very happy to consider any or all of those when we come to the Committee stage. It seems to me that the Government are completely correct and proper in the matter of this Bill and I hope that we will follow what I take to be her suggestion; that we should be able to proceed and to discuss these various ideas, and if necessary change the Bill.
On the point made by the noble Baroness about reviving the claim of a legitimated person previously passed over, I think she was not quite correct. In fact, the Bill provides against that and, as I said to the noble Lady, Lady Saltoun, it would not affect the ruling of Lord Keith in the Dunbar of Kilconzie case. I believe the Bill has been well enough and tightly enough drafted to avoid the eventuality mentioned by the noble Baroness.
For all these reasons—and we have had an interesting debate—I feel it would be in accordance with the normal procedure and traditions of this House that a Bill, albeit a modest Bill, that has aroused a considerable amount of interest—in fact, rather more interest than I thought it might—should be allowed to proceed to the Committee stage. I would therefore say to the noble Lord, Lord Morris, before he decides what he is going to do, that I very much hope that he will not press his dilatory amendment and that he will agree that the Bill should go forward so that we are able to discuss some or all of these matters—some of which are very detailed and quite technical—in the proper setting of a Committee. I hope that he will take up that suggestion in the perfectly friendly manner in which it is proffered to him. I look forward to hearing his concluding remarks.
§ 9.45 p.m.
My Lords, critically in his first speech the noble Lord, Lord Kilmarnock, prayed in aid organisations outside Parliament concerned with family law reform which he had consulted. They happened to be the Family Law Bar Association, the Family Law Committee of the Law Society and the Solicitors' Family Law Association. My God, they would support the Bill, would they not, because of the chaos that it will cause. They will have God knows how many briefs winging in their direction. I pray in aid a much higher authority than that.
Every Sitting Day in Parliament we beseech Almighty God, among other things, that,laying aside all private interests, prejudices and partial affections",we work towards the,peace and tranquillity of the Realm, and the uniting and knitting together of the hearts of all persons and estates within the same, in true Christian Love and Charity".370 There is no Bill better designed to war against that principle than this Bill, and I feel that I must take the opinion of the House.
§ 9.46 p.m.
§ On Question, Whether the amendment shall be agreed to?
§ Their Lordships divided: Contents, 46; Not-Contents, 14.
|Division No. 1|
|Annaly, L.||Long, V.|
|Brantford, V.||Lucas of Chilworth, L.|
|Brougham and Vaux, L.||Lucas, L.|
|Burnham, L.||Lyell, L.|
|Carnegy of Lour, B.||Macleod of Borve, B.|
|Chalker of Wallasey, B.||Massereene and Ferrard, V.|
|Cranborne, V. [Lord Privy Seal.]||McColl of Dulwich, L.|
|Cumberlege, B.||Melville, V.|
|Dean of Harptree, L.||Montgomery of Alamein, V.|
|Denton of Wakefield, B.||Morris, L. [Teller.]|
|Elles, B.||Newall, L.|
|Faithfull, B.||O'Cathain, B.|
|Falkland, V.||Oxford, V. [Teller.]|
|Fraser of Carmyllie, L.||Plumb, L.|
|Gardner of Parkes, B.||Rodger of Earlsferry, L.|
|Goschen, V.||Saltoun of Abernethy, Ly.|
|Gray, L||Seccombe, B.|
|Hayhoe, L.||Shrewsbury, E.|
|Henley, L.||Shuttleworth, L.|
|Hooper, B.||Strathclyde, L.|
|Inglewood, L.||Sudeley, L.|
|Lindsay, E.||Trumpington, B.|
|Lindsey and Abingdon, E.||Wynford, L.|
|Clinton-Davis, L.||Monkswell, L|
|David, B.||Morris of Castle Morris, L|
|HolmPatrick, L.||Ponsonby of Shulbrede, L.|
|Kilbracken, L.||Prys-Davies, L.|
|Kilmarnock, L. [Teller.]||Rea, L. [Teller.]|
|Mar and Kellie, E.||Strafford, E.|
|McNair, L.||Teviot, L.|
§ Resolved in the affirmative, and amendment agreed to accordingly.