FAMILY LAW REFORM BILL [Lords]

§ The Attorney-General (Sir Elwyn Jones)

I beg to move, That the Bill be now read a Second time.

This is a very important Measure of law reform, but it is not just a lawyers Bill. It introduces important social reforms and its consequences will be far-reaching. Its purpose is to make three major changes in family law and each of its main parts stems from the Report of a separate Committee. Part I implements, broadly, the recommendations of the Latey Committee on the Age of Majority, Part II implements the Report of Lord Justice Russell's Committee on the law of succession in relation to illegitimate persons and Part III is the result of the Law Commission's consideration of the possibility of introducing blood tests in civil proceedings where paternity is in dispute.

It used to be a reproach against Governments that, when a problem needing solution arose, the matter was referred to a Committee, the Committee produced a Report and the Report was then consigned to a Whitehall oubliette, there to vanish. This Government, at any rate, have an impressive record for early implementation of the recommendations of Committees in the field of law reform.

When I recently moved the Second Reading of the Administration of Justice Bill, I referred to the work of lawyers—judges, barristers and solicitors alike—in recommending and generating interest in law reform today. It used to be a taunt that one could no more expect lawyers to reform the law than tigers to reform the jungle, but that could not fairly be said today, even by the most severe critics of the lawyers.

I should like to pay tribute to all the members of the Latey and Russell Committees, both lawyers and non-lawyers, for the services which they have rendered and the considerable amount of time and energy that they gave to producing their 39 impressive Reports. To the Law Commission, also, we are indebted for the authoritative Reports that it has produced.

There is general agreement, I think, that family law as it stands needs reform. Only recently have we come to think of family law as a specific field of its own. The Law Commission is now engaged in a study of a number of important aspects of family law and I hope that the implementation of the Latey Report will be the first step towards the systematic reform which is clearly needed.

When the Latey Report was published, in 1967, the Government thought that an opportunity should be given for debate both here and in another place. I need not go over what was said here at that time, but right hon. and hon. Members will remember that the Latey Committee decided, by a majority of nine to two, that the age of full legal capacity should be lowered to 18 in the field which it had examined.

It is important to note that the area of dissent in the Committee was in substance confined to eight recommendations about the age at which full capacity should be conferred in the field of marriage, wardship and to some extent of contract. The Committee was unanimous on the other 44 recommendations which it felt were urgently needed to bring up to date the law affecting young people. The Committee, as the House knows, did not consider the voting age. Because it is a constitutional matter, it has always been dealt with separately. But the Government have introduced a provision in the Representation of the People Bill, which is now in another place, to lower the voting age to 18. That goes hand in hand with this Bill.

It was the view of the Latey Committee—and the Government are in full agreement with it—that the law relating to young people must match their needs as much as possible and reflect social conditions as they are today. There is no magic, and there never has been any magic, about the choice of the age of 21. Indeed, it appears that we have arrived at it by a process of historical accident. On mediaeval times the young burgess became of full age when he could count money and measure cloth; the 40 young sokeman—that has no alcoholic meaning, but means a yeoman farmer—came of age when he was 15 and the tenant by knight's service when he was 21.

The latter age, which later became general, apparently had some connection with the ability of the young man to sustain a heavy suit of armour and lift a lance or sword at the same time—not, the House may think, a very relevant consideration today.

Nor are there many indications today of the supposed need in the last century to protect from the clutches of moneylenders infants who were said by the Law Journal of the time to be

§ Mr. J. T. Price (Westhoughton)

The House will be interested in my right hon. and learned Friend's reference to moneylenders. Is my right hon. and learned Friend aware that modern moneylenders are much more efficient than were ancient moneylenders and that the whole question of hire-purchase and money lending for juniors is a vexed question about which I may require to speak later.

§ The Attorney-General

The House will listen to my hon Friend with great attention. Control over money lending and the restrictions related to it are much stricter today than they were in the last century. If I may anticipate what my hon. Friend will say, some of the provisions of the Trades Descriptions Act and of the earlier Acts in regard to misleading descriptions of goods will be of additional protection to those who might be the victims of the potential sharks, many of whom float about in the waters of our society.

There is a lot of criticism of, and a great deal of publicity about, young people at the moment, particularly those at university. I feel that it would not be a bad thing if the TV cameras were turned more frequently on some of the vast majority of young people who leave school at 15 or later, get jobs, marry and have families before they are 21, and lead normal lives, subject, however, to the legal restrictions which at present affect them, but which, in the view of the Latey Committee and the Government, are no longer geared to their needs or their requirements. 41 The weight of the evidence which the Committee received was to the effect that the vast majority of young people today are more mature and more responsible than they have ever been, and it is about time that our laws recognised that fact.

Clauses 1 to 3, together with the three Schedules to the Bill, implement the main recommendations of the Latey Committee. Clause 1 provides in general terms that a person shall attain full age at 18 instead of 21 and that all statutory references to minority and infancy shall be construed accordingly. This has the effect of enabling persons who have reached the age of 18 to hold and dispose of property, to make binding contracts and to make wills. The Clause applies to all enactments whenever made, but it does not apply to private dispositions, such as deeds and wills, which were made before the Clause comes into force. It would not be right to interfere with such dispositions which were made in reliance on the existing law. I feel sure that I carry the House with me in that view.

Schedule 2 contains three exceptions to the general change which is brought about by Clause 1. The first is the Regency Acts. It has long been the case that at the age of 18 the Sovereign becomes capable of exercising his or her functions as such and that the heir presumptive or the heir apparent can act as Regent or Counsellor of State. Other members of the Royal Family cannot act as Regent or Counsellor of State until they are 21, and it is proposed not to alter that provision.

The second exception is the voting age which, as I said, is dealt with in the Representation of the People Bill. The exclusion of Section 7 of the Parliamentary Elections Act, 1695, means that a person would still have to be 21 before he can become a Member of Parliament—so there will be no teenagers in the House yet. The last exception is financial legislation, because changes in taxation are not appropriate to a Bill of this kind and must be considered for a Finance Bill. My right hon. Friend the Chancellor of the Exchequer has this under consideration at present.

Clause 1 with Schedule 2 also makes a number of transitional provisions with which I need not trouble the House at this stage.

§ Mr. Charles Fletcher-Cooke (Darwen)

Would the Attorney-General explain the relation between Schedule 1 and Schedule 2? I understand that Schedule 1 gives a list of those Statutes where the change is made and Schedule 2 gives a list of those Statutes where the change is not made. What is to happen to a Statute which is neither in Schedule 1 nor in Schedule 2?

§ The Attorney-General

I will give consideration to that question and deal with it in due course. I imagine that there must be a simple answer. It is probably that these are the only Acts provisions of which are affected by the Bill.

Clause 2 deals with the age of consent to marry, and it was discussed in general terms in our debate on the Latey Report. It gave rise to an Amendment in another place which would make 20 rather than 18 the age of "free" marriage, as the Latey Committee described it—that is, marriage not needing parental or court consent. It is a convenient if somewhat surprising expression. I must tell the House that it is the Government's intention to move an Amendment in Committee on the Bill which would restore the age to 18. In my view, it would be illogical, irrational and inconvenient should the age of free marriage differ from that of full legal capacity in other respects. But we shall probably discuss that matter in detail in Committee and I will say no more about it now. This Clause also implements a recommendation of the Latey Committee by allowing a superintendent registrar to require written proof of consent to the marriage if he thinks fit in those cases where consent will still be required.

Clause 3 is important in that it reduces from 21 to 18 the age at which a person can make a valid will. The Clause also provides, in effect, that anyone over 18 can take in full right any benefit to which he may be entitled on an intestacy when an intestate dies after the Bill comes into force.

I come to Clauses 4 to 6 of the Bill, which are concerned with the maintenance of children who are, or have been, the subject of guardianship, wardship, affiliation or matrimonial proceedings. It is the intention of the provisions, contained in these Clauses to enable the courts to continue to award maintenance 43 for children up to the age of 21 although other forms of jurisdiction will cease at 18.

The recommendation of the Latey Committee was that the court should have power to make maintenance orders without any age limit, but the Government do not consider it right to make any change in the existing situation while the Law Commission as a matter of urgency are considering the whole question of financial provision in matrimonial proceedings. This is, therefore, something of a holding operation pending the report of the Law Commission which my noble and learned Friend the Lord Chancellor hopes to receive later in the present session.

Clause 7 will enable the Chancery Division to commit wards of court to the care of a local authority or to order that they should be placed under the supervision of a welfare officer or local authority.

Clause 8 will clear up confusion about the ability to consent to medical treatment by providing that anyone over the age of 16 can give a valid consent to such treatment.

Clause 9 is designed to remove a curious oddity of the law which, in most cases, means that a person attains a given age at the first moment of the day preceding his birthday. The Clause introduces what might be thought to be the obvious solution of providing that a person attains the given age at the first moment of the relevant birthday.

Clause 10 repeals certain enactments relating to minors, like that relating to the fraudulent abduction of heiresses. But it will still be an offence to abduct a girl under 18 whether or not she has property or expectation of it. We move to a previous era in dealing with Section 6 of the Employers and Workmen Act, 1875. This Section, which empowers justices to order imprisonment of an apprentice who fails to comply with direction to perform his duties, is also repealed.

Clause 11, more importantly, will allow persons under full age to be called minors instead of infants, which is the unreal technical name which we give them at the moment.

44 I come now to Part II of the Bill, which is concerned with the recommendations of the Russell Committee on the Law of Succession in Relation to Illegitimate Persons. Its purpose is to give a better deal to children born out of wedlock who have for far too long been the subject of unfair discrimination.

The law of England and Wales is that where a mother dies intestate, leaving an illegitimate child but no legitimate child, the illegitimate child can share in the distribution of her estate. In all other cases, however, the illegitimate child or any person claiming through an illegitimate link has no claim in the distribution. Furthermore, the illegitimate child has no right to apply to the courts for provision out of his deceased parents' estate under the Inheritance (Family Provisions) Act.

There is yet another disadvantage suffered by the illegitimate child, which is that where a testator makes a gift in his will to his "children" there is a rule of construction that the gift is to be taken to be intended only for legitimate children where no contrary intention is shown. So, at present, it is sadly the case that the illegitimate child is virtually excluded from all benefits of his parents' estate unless a specific provision has been made for him.

The Russell Committee considered that this state of affairs should be ended, and so do the Government. This is what Part II of the Bill seeks to do.

§ Sir Hugh Lucas-Tooth (Hendon, South)

I do not think that the right hon. and learned Gentleman means that the Russell Committee recommended in favour of ending this state of affairs.

§ The Attorney-General

As to the rule of construction, I agree. I shall say a little more about that in a moment.

The Committee considered the law both of England and Wales and of Scotland, and the Scottish law has already been altered in the sense of this Bill by the Law Reform (Miscellaneous Provisions) (Scotland) Act, 1968. The principles underlying Part II of the Bill have thus already been approved by the House and are now part of the law of Scotland.

Clause 13 of the Bill provides that an illegitimate child and his parents shall have the same right to share in each other's estates on an intestacy occurring 45 after the Clause comes into force as if be were legitimate. The Clause deals only with illegitimate children and not with remoter descendents because it is felt, by both the Russell Committee and the Government, that it was wisest not to go further than the immediate parent-child relationship. I think, and I hope that the House will agree, that the provisions in the Bill go far enough to remove the basic injustice which I have described. The Government and I are satisfied that in making the reforms proposed by the Bill the institution of marriage will in no way be weakened.

Clause 14 deals with the construction of the term "children" in wills by reversing the current rule by which an expression connoting relationship prima facie means such a relationship traced exclusively through legitimate links. Under this Clause, the presumption will be that expressions of this kind are intended to include relationships traced through illegitimate as well as legitimate links. This is a departure from the recommendations of the Russell Committee which thought that the rule of construction should stay as it is.

There are arguments both ways and the matter is nicely balanced. However, the Scottish Law Commission took the opposite view to the Committee and this has now been incorporated in the Scottish Act. My right hon. Friends and I have considered this carefully and are of the opinion that it would be best to follow the Scots, and that is why Clause 14 appears in this form. I should perhaps add that the abolition of the rule will not affect in any way existing dispositions.

Clause 15 will give illegitimate children the right to apply to the court for provision out of the estate of their parents as if they were legitimate.

§ Mr. Norman St. John-Stevas (Chelmsford)

Before the Attorney-General leaves Part II, may I comment? He said that these provisions would not affect the institution of marriage. Perhaps he would confirm that the overwhelming majority of Christian opinion will support the measures in Part II as righting injustice because very few people today continue in the belief that the sins of the fathers should be visited on the children.

§ The Attorney-General

I am grateful for that intervention. It would seem almost a piece of cruelty to punish a child for the circumstances in which the child was born.

I was turning to Part III of the Bill, which is concerned with questions of proving paternity. [Interruption.]

§ Mr. J. T. Price

I am sorry if I appeared to be muttering. I did not mean any discourtesy. I remarked that there were some cases where there was reward for the sins of the parents, particularly if there were a distinguished or honourable parent. I do not want to argue that now.

§ The Attorney-General

I am sure that my hon. Friend would not be so ungenerous as to say that any child of an honourable Baronet should suffer in consequence of the happy chance of that paternity. What the Bill will do is to see that the illegitimate child is treated as fairly as the law permits. Gradually, the attitude of society itself is changing in this field.

For the third time, I turn to Part III of the Bill, which is concerned with questions proving paternity. About three years ago the judges of the Probate, Divorce and Admiralty Division suggested that it might be useful for the Law Commission to consider the whole question of blood tests in cases where paternity was in dispute. In particular, it was felt that an investigation was required into the question whether the court should have power to direct parties involved in cases of this kind to undergo blood tests.

The result of the Law Commission's considerations of these problems was its Report on Blood Tests and Proof of Paternity in Civil Proceedings, which was published at the end of October, 1968. The Commission annexed draft clauses to its Report. These form the basis of this part of the Bill, although there have been a number of changes since their publication.

It appears that it can now be shown conclusively through blood tests that a particular man cannot be the father of a particular child. It can also be shown, with varying degrees of probability, that a man may be the father of a child. It was the view of the Law Commission, 47 that the civil courts should be allowed to make use of these advances in medical science in assisting them to reach decisions in affiliation proceedings, divorce and nullity proceedings and petitions for declarations of legitimacy.

Blood tests agreed to voluntarily are, of course, not unknown in the courts at the moment and there is a good deal of case law on the subject. But the position, in the view of the Law Commission, is far from clear and the Government accept that it should be regulated by legislation.

In divorce and nullity proceedings, the courts are bound at present by what is known as the presumption of legitimacy. This means that, in the absence of definite evidence to the contrary, a child born to a married woman is held to be the legitimate child of that woman and her husband. The Law Commission has considered this rule and recommends its removal.

Clause 18 of the Bill provides, therefore, that in any civil proceedings where paternity is disputed, the court, on an application by any party to the proceedings—that must intitiate the process; the court does not itself take the initiative—may direct blood tests to be made and the report of those tests shall be receivable in evidence. Affiliation cases constitutes the bulk of such proceedings. At the moment, there is only power in the High Court to order children to be tested and no power at all for an order for adults to be tested; so this provision is a substantial extension of the existing law.

I should make it clear, however, that nobody will be forced to undergo a blood test against his will, but, under Clause 21, the court may draw whatever inference it may think proper from a refusal. The right to refuse is stated expressly in Clause 19.

§ Mr. Robert Maclennan (Caithness and Sutherland)

Will my right hon. and learned Friend spell out with a little more precision the purpose of Clause 21, which appears to give to the court no more power than it would normally have to draw an inference from the fact that evidence has been advanced?

§ The Attorney-General

It will now have power to extend the field in which the direction can be given. If the party concerned refuses to comply with that 48 direction I think that will certainly extend the ability of the court to take advantage of the situation. I would imagine that it would tend in most cases to draw adverse conclusions in a wider range of cases if without any satisfactory reason there were a refusal by a party to submit to the tests.

I was emphasising that no one will be forced to undergo a blood test against his will. That is an important part of this Measure.

Clause 19 will also make it clear that any person over 16 is capable of giving a valid consent for himself, which is in line with the general rule laid down in Clause 8, to which I have already referred. There will be provision also for consent to be given on behalf of persons under 16 and mental patients. The administrative arrangements for blood testing will be contained in regulations made by the Home Secretary under Clause 20. They will be subject to the negative Resolution procedure.

I referred a moment ago to the presumption of legitimacy. Clause 24 implements the recommendation of the Law Commission in this respect and will make it clear that to rebut any presumption of legitimacy or illegitimacy it will only be necessary to produce evidence that the probabilities are the other way. This provision is contained in Part IV of the Bill, because it goes rather wider than the field of blood tests dealt with in Part III and brings about a general change in the law of evidence.

Finally, Clause 25 deals with technical matters of registration of birth of an illegitimate child and Clause 26 contains the Short Title, commencement provisions and other matters. I apologise for taking some time over aspects of the Bill of a technical nature. I commend the Bill to the House as a very important measure of legal and social reform which, I hope, will command general support.

§ Sir Peter Rawlinson (Epsom)

There are certain characteristics of every debate in which I follow the Attorney-General. First, both of us speak to benches not wild with excitement and enthusiasm and not in a House in which hon. Members are crowding below the Bar listening to every word which either he or I says. Secondly, he always deals 49 with a Bill with great clarity, for which we are always grateful. Thirdly, he always introduces an enjoyable historical anecdote to lighten the general tenor of the debate.

Fourthly, and it is only to this I take exception, the right hon. and learned Gentleman always prefaces his remarks on a piece of legislation with a great flourish about the impressive record of the Government in law reform. The right hon. and learned Gentleman protests too much. In law reform it matters as much how one does it as what one does. One matter which is very much concerning many hon. and right hon. and learned Members is the manner in which the law is being altered, and in which we have before us time after time piecemeal legislation which is rendering the task of those who have to advise many citizens who get involved in questions of law an almost impossible one. This is another measure which alters the law.

§ The Attorney-General

Would not the right hon. and learned Gentleman agree with me, at any rate to this extent, that no Parliament has had quite so much assistance from expert legal bodies outside Parliament as this Parliament has? In this respect, I think that we are very fortunate. I am sure that the right hon. and learned Gentleman will join me in expressing gratitude to those who make our work much easier than probably any of our predecessors found this work.

§ Sir P. Rawlinson

I readily join in that tribute. However, there comes a time when the House should pause and consider the manner in which we are making law by reference. We are continually engaged in lawmaking by referring to previous Acts. For instance, Clause 26(2) says: Except where the context otherwise requires"— that is, the exception— any reference in this Act to any enactment shall be construed as a reference to that enactment as amended, extended or applied by or under any other enactment, including this Act. I, too, pay tribute to the assistance which we are getting, but this is a problem which affects the whole system of lawmaking.

In considering the Bill I bear in mind, as I think many right hon. and hon. 50 Members will, that it is entitled "Family Law Reform Bill". I am a little uncertain as to why it is so entitled. It deals with three separate subjects: it is an amalgam of the Latey, the Russell, and the Law Commission Reports. I do not know whether there will be controversy on all parts of the Bill. There may be on one part and not on others. There will certainly be controversy about the manner in which these changes are sought to be effective.

The Divorce Reform Bill is at present in Standing Committee. That is a Private Member's Bill, similar to one which it was sought to get through last Session. It is a Bill which will affect many thousands of citizens and their families.

§ Mr. Speaker

Order. We are on the Second Reading of this Bill.

§ Sir P. Rawlinson

It is impossible, Sir, to consider this Bill in context and decide whether we approve of it without examining to a certain extent what is the present state of family law.

The Divorce Reform Bill seeks to alter one aspect of it. The Matrimonial Property Bill—another Private Member's Bill—seeks to alter another aspect. Both the Government and the Law Commission have announced that the whole question of the jurisdictional division of family law matters in the High Court is being considered.

§ Mr. David Weitzman (Stoke Newington and Hackney, North)

Is the right hon. and learned Gentleman saying that we should wait for years before making this reform?

§ Sir P. Rawlinson

I should have thought that the hon. and learned Gentleman might have the courtesy to wait and hear what I have to say; it might help him a little. I am saying that this is the context in which any sensible person will consider this Bill.

Part I affects the age of what was previously called an infant, now to be called a minor. It reduces that age from 21 to 18. This must be seen in the context that the Representation of the People's Act has reduced the voting age to 18. Given that context, it will be difficult for many persons whatever their views may be, to object to this provision.

In the context of the present law, if we are giving to these persons various 51 rights, if they be rights—they may be disadvantages—are we willing for them to accept the responsibilities which they will have if adulthood comes at 18? Let us consider the legal consequences in the context of the Bill and by examining the Bill as lawmakers who have a responsibility to enact sensible law which can be implemented and be understood by the citizens and by those who must advise them when they come into contact with legal problems. For instance, in criminal law special provisions apply to young persons aged between 18 and 21. There are restrictions as to the imposition of imprisonment on young persons up to 21.

Clause 20 will effect an important alteration. If we think that minors or infants should properly be released from their responsibilities and restraints at 18, why should they not accept the consequences?

It is such considerations as these which cause me to be concerned about the Bill's introduction at this time. The hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) asks whether we must postpone everything. He said: because it is a good thing, must we postpone it? There may come a time when we shall have to do so. Until we have a system for properly codifying the law and putting the whole of the law with regard to young persons and the family into a sensible shape so that it can be understood it may be wiser, if there is not pressing urgency, to delay its introduction.

§ Mr. Leo Abse (Pontypool)

Is not what we are seeking to do today on the law of illegitimacy to undo some of the things done in the Statute of Merton of 1236? Does not the right hon. and learned Gentleman believe that even somebody on his side can agree that we are not being particularly precipitate in making these changes today?

§ Sir P. Rawlinson

That was a particularly offensive intervention by the hon. Gentleman, who will try, as ever, deliberately to distort or to misunderstand any argument which is being advanced. He had better understand what I am saying—that we as Parliamentarians should consider carefully before we bring the 52 whole of the law into total disrepute by enacting law which is not understandable or acceptable.

This process started because of certain desires to get pieces of legislation through. Unlike the hon. Member for Pontypool (Mr. Abse), I am not dealing with this matter particularly on a party basis. This started by the Government's desire to get such matters as Corporation Tax and Capital Gains Tax through in one Measure at one time without any regard to the strength with which the form of the legislation could be criticised. Other examples are the Land Commission Act and various Acts dealing with property law, as well as Acts dealing with parts of the criminal law.

Though there may be parts in this Bill which will be approved without controversy and which some of us accept wholly, I nevertheless utter this caveat before taking the Bill straight away to look at it in the context in which it is presented. I am provoked all the more into doing this by the Attorney-General's reference to the Government's impressive record in law reform. The major task for anyone who seeks to have an impressive record in law reform is to convince the citizens that we can afford a proper form of redress of grievances in which the citizen comes up against the State.

§ Mr. Weitzman

The Government appointed three Committees, which spent a considerable time going into the three problems which are dealt with in the Bill. Those Committees submitted Reports. The Government are now implementing recommendations of those Committees. Is that wrong? Is the right hon. and learned Gentleman saying that we should wait until a future date before implementing those recommendations?

§ Sir P. Rawlinson

The hon. and learned Gentleman can have his little party piece if he wants to. I agree that it was an excellent thing to set up the Law Commission. I remind the hon. and learned Gentleman that I knew and worked with the Lord Chancellor for many years before he was appointed to that high office and I have sympathy with many of his aims.

The Law Commission is dealing with the whole subject of family law. Is there this tremendous urgency for us to push 53 ahead with these pieces of piecemeal legislation which are being thrust before us? Would it not have been better to hasten a little more slowly? I know that the hon. Member for Pontypool will go back hundreds of years, even to the Statute of Merton. I am concerned not only as a lawyer, but as a Member, about the reputation of the House and the state of the law. Though some people such as the hon. Member for Pontypool are able to find their way through the law with the greatest of ease, the rest of us find it very difficult.

Part I of the Bill has been introduced under the Latey Report. It is introduced against certain illogicalities. It makes the teenager of 18 responsible for his debts. It therefore hardens the position against him, and it may be right that it should. It is said that he is more mature and, therefore, more responsible. In various circumstances, however, we do not accept that all along the line. We do not accept it, for instance, in the Finance Bill, 1968, by which the income of an infant who is 18 and under 21 is amalgamated with the parents' income, and is liable to the highest rate of the parents' tax.

The best possible hint was given by the Chief Secretary that the law should be changed in 1969. The Lord Chancellor made a similar comment in another place when dealing with this matter. This merely demonstrates that because no Chancellor can anticipate what he is going to put into his Budget, this piece of law-making which people think to be sensible has to wait and we have this untidy position for a matter of a few months.

We must also see the position that we are getting into if we consider Sections 364 and 397 of the Income Tax Act 1952. The Bill does not take into account, as the Attorney-General will agree, and as the Latey Report recommended, that the parents' responsibility for the tax of a defaulting child, though adult and over 18, is wholly unfair. What we are saying here is that a minor now earns so much more money and that, therefore, he should be able to enter into a contractual relationship and should be on his own feet. Yet at the same time we maintain the situation whereby the parent has this responsibility. This is another indication of slovenly law-making.

54 I do not know whether this matter has been closely considered by the Government but, as the Attorney-General will appreciate, wills usually contain a contingency provision in respect of reaching the requisite age. The age being 21 and the interest falling to the beneficiary at that age, when the age of adulthood is reached there is no contingency to prevent a person selling that reversionary interest, because 21 is the age of adulthood and is the age of vesting. Now it is proposed that this can happen between 18 and 21, against the wishes of the trustee and the testator.

Although I accept Part I as meeting to some extent the requirements of modern conditions, there are matters which will have to be looked at with great care. Otherwise, we shall find that there are situations which have not been considered and that this Measure has not been carefully dovetailed into the present circumstances.

I listened with interest to hear what the Attorney-General would say about Clause 2 and the marriage age of 20. If this age remains at 20 as opposed to 18, I think there will need to be considerable provisions made with regard to sanctions and the wardship of court.

Now I turn to Part II and the Russell Report with its humane objects. As the Attorney-General will appreciate, unlike foreign systems of law, our law of inheritance bases itself on the Inheritance (Family Provision) Act, 1938 and our law on intestacy is based on the Intestates Estates Act, 1952. The object of those Acts was to provide to a spouse or a child relief which the testator refused to give or under the 1952 Act because he failed to make a will.

The meaning of the words "child" and "nephew"—I am not dealing with the merits; I am dealing with how the principle is affected in the Bill—is such that under the present law gifts to illegitimate children conceived after the testator's death are void. Therefore, we have to consider how that is altered.

May I say through you, Mr. Speaker, to my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) that, having read the Russell Report and having at first not been in sympathy with what he said in his dissenting report, I confess, on reflection, that what he has 55 said is far more acceptable to me than the majority report. I feel that unless those provisions are adopted—perhaps made less generous—there will be the likelihood of spurious claims, it will be extremely difficult and costly for rightful successors to refute such claims and may lead to the likelihood of blackmailing.

Unless the father has acknowledged the illegitimate child in his lifetime, or has recorded it on the certificate of birth, or unless, as my hon. Friend suggested, there is a duly prescribed document, it will be very difficult for a family to resist what could easily be a spurious claim. I know that the right hon. and learned Gentleman has received from the Life Offices' Association, as I have, representations expressing its concern. It has been its custom, in connection with these small estates, to pay out advances to the families.

If the Association now has to wait to see whether there are to be any claims by an illegitimate child, or by someone who claims to be a child, that puts it at risk and produces difficulties which may prevent it from making advances, as it has done in the past, to small families who are perhaps much in need of the money. This must be considered. We may all pay tribute to the intention of this provision, but, as I said before, how it is carried out matters. Clause 14 needs either to be amended or to be removed.

I turn to Part III, under the Law Commission Report, relating to blood tests. This would appear to be, and is regarded by most people, as something which would be most acceptable in assisting in the decision as to the legitimacy or illegitimacy of a child. But it affects the rights of the individual. The Attorney-General said that there is really no sanction, but, of course, the inference that can be drawn by the refusal is really the sanction. There are people with conscientious objections to that sort of thing. It has been so in the past in other matters, and it remains so now. We have to decide where the balance of advantage lies in relation to effectiveness in resolving a particular dispute and the right of an individual to resist and reject certain procedures.

In my view, these are sensible provisions which will be of assistance, and 56 they weight the balance in favour of effectiveness in resolving a dispute as against what one must accept as conscientious objections. The court must—I hope that it will—reasonably take into account that there are many people who have such objections.

Perhaps my views on the detailed provisions of the Bill have to some extent been sidetracked, as it were, by my introductory observations expressing the concern which I feel both as a lawyer and, more important, as a Member of Parliament responsible for the making of law, but I hope that the warning which I sounded has not altogether concealed from the House the approval which I feel for some of the changes which are made. On the three main matters to which I have referred, my objection is to the manner in which the changes are made. In that sense, therefore, I welcome the Bill, altough there is much in its separate provisions which I shall wish to amend.

My final word is to repeat the warning. I hope that the House will think carefully about the present state of the law and the manner in which we, as a law-making body, are dealing with it.

§ Mr. Leo Abse (Pontypool)

The right hon. and learned Member for Epsom (Sir P. Rawlinson) usually engages the House with the grace with which he presents his case. Usually, his elegance of expression and the manner in which he contributes are matched only by my right hon. and learned Friend the Attorney-General, but today he has fallen far short of his accustomed style. The right hon. and learned Gentleman tried to put in dispute a Measure which is throughout informed with compassion and understanding, and I regret that he has used this occasion to controvert the reasonable presentation of the case by the Attorney-General.

The right hon. and learned Gentleman told us that what he objects to in the Bill is not so much its content, but the manner of its making. For my part, I could hardly think of another Bill which had so enlisted the aid of sections of the community outside the House in drafting its provisions. I regard it as a model in many ways of how a Bill should come before the House. Instead of having 57 before it a Bill produced by party caucuses or by legalistic lawyers, the House now has a Bill which, as a result of a sensible decision to draw upon thinking outside itself, reaches us in admirable form.

The members of the Russell Committee and the Latey Committee and the Law Commissioners, people from many disciplines and with wide knowledge, have contributed greatly in the preparation of the Bill, giving us the advantage of expertise which we do not have here. If ever there was a Measure coming before the House in which we have had the benefit of participation by disciplines outside Parliament, this is it.

It was churlish of the right hon. and learned Member for Epsom not to pay greater tribute to every member of those outside bodies. It was churlish of him not to acknowledge the work of the Law Commissioners who, when the matter was referred to them, ably and speedily presented us with their conclusions and with the draft of the Bill in embryo.

§ Mr. St. John-Stevas

The hon. Gentleman is guilty of a little hyperbole in praising the Bill so unreservedly. It has some good features, but there are some grave omissions, particularly with regard to illegitimate children. The Bill improves their position, but it does not, for example, provide any means by which a father can recognise an established legal relationship with his illegitimate child. It is not such a wonderful Bill as the hon. Gentleman suggests, although it is a useful Measure.

§ Mr. Abse

I shall come to that point, which the hon. Gentleman is quite right to raise. For his part, he should note that his own Front Bench suggests not that we should assimilate law reform research as far as we have gone and remedy at least some of the troubles but we should postpone action and legislation to the indefinite future.

That is something which those of us who know how changes can be brought through the House cannot accept. So often, against the sort of conservatism which the right hon. and learned Member for Epsom has expressed, we have to proceed by gradually eroding the prejudices of the community so that we may through legislation educate the 58 public to accept what we believe to be principles corresponding with social realities.

§ Sir P. Rawlinson

I am sure that the hon. Gentleman is not doing it purposely, but he is misrepresenting what I said. I thought that I had made clear to the House, if not to him, that it is the manner of effecting changes or of making law which cause me concern, not the particular changes proposed in the Bill.

§ Mr. Abse

It is the manner in which the Bill has come to the House, after having engaged the attention of wide sections of the community outside in consideration of the problems raised, which I so much approve. I regard it as a highly desirable way to reach such conclusions.

The Bill is a welcome advance. It frees us from some of the most ugly, unjustified and punitive attitudes which are at present embodied in the law, particularly relating to illegitimacy. The Attorney-General is right to claim that we are, literally, freeing ourselves from the incubus of feudalism which for so long has borne upon certain parts of our family law. He rightly pointed out that the age of majority was determined by the age when a man could wear heavy armour and carry a lance.

But that is not the only way in which the Bill makes changes. It frees us from the branding of the bastard which took place seven centuries ago, when the stubborn barons refused to countenance any change in the status of the illegitimate. When the Statute of Merton was passed, so that nothing should be done about the status of the illegitimate the barons roared out, "Nolumus mutare Angliœ leges" —we will not change the laws of England. Today, the right hon. and learned Member for Epsom has echoed that cry. The cynics who, too often, denigrate Parliament's zeal for reform should note that the Bill is further evidence of dramatic changes which are being made in social reform, and are being made by our Labour Government.

The old linking of the age of majority with a particular capacity to take part in battle underlines some of the techniques which were adopted by the elders of society to contain the disturbing assertions of manhood by their young men. 59 Since the last quarter of the 18th century the intervals between wars fought by European nations or the United States have been remarkably constant, ranging from 18 to 24 years, and averaging 19½ years, just about the time required for a generation born during or just after the last war to reach manhood. The classical method hitherto of releasing the inter-group tensions prompted by the clamorous young men was to send them off to wars for, at the best, initiation, or, at the worst, death.

This ploy will clearly no longer work; it will no longer save the old men from the challenge of the young now that an H-bomb war would wipe out the old and young with the most inconsiderate lack of discrimination. There is no Empire, and hence there are no natives on whom young men can be unleashed. Therefore, the old have to find a more rational way of coming to terms with the young men.

One of them is to acknowledge the reality that they have attained manhood, to welcome them into the community as adults, as the Bill does. But, clearly, for the hereditary peers, just as for their ancestor barons in 1236, these changes are too much. It was the vote of the hereditary peers that wrenched from the Bill the proposition that young people may marry without their parents' consent at 18. If it were not for the hereditary peers' vote against the proposition, which I am pleased to learn the Government intend to put back in Committee, the vote would have been derisory. Doubtless, the peers are concerned about their precious titles and perhaps their landed estates, and want to determine what girls should marry their well-endowed sons.

But life is lived very differently in my South Wales valley. My Cwmbran Council, long before the Government appointed the Latey Committee, pressed me to raise, as I did, the anomalous position of the large number of married young citizens of 18 and 19 able to afford and wanting to buy houses but, because they were under 21, barred from obtaining local authority mortgages. The fact is that our much maligned and ever so cool young people have a veritable passion for domesticity.

Marriage has rarely been so popular amongst the young, and it is particularly popular among the 4,300,000 young men 60 and women under 21 who are living away from home. Unlike many of the scions of the inherited peerage, they are supporting themselves. Indeed, 42 per cent. of all the women who marry in England and Wales marry under 21. Despite this huge figure of early marriage, only 600 cases came to the courts as a result of dispute with parents last year, and in 350 of them the courts decided that the young were wiser than the parents and gave consent.

I can think of no more bizarre proposal than that offered to us today by the other place. The Lords are inviting us to give an unfettered right to the under-21s to buy a house. They are suggesting that there should be an unfettered right to obtain a mortgage and to enter into hire-purchase agreements to buy furniture, beds and bedding, but wish to refuse the self-same people the right to marry.

As an old-fashioned, middle-aged man, I am shocked by these immoral and unexpected proposals, which seem to have emanated from Lord Brooke of Cumnor and Baroness Summerskill, and which are self-evidently a deliberate incitement to young people to live in sin. I was told by the late Rev. Llewellyn Williams, when I first came to the House, that the only Motion that would gain support from every section of the House was one directed unequivocally against sin. I hope that when it deals in Committee with the question of the age of consent the House will not depart from its traditional unanimity on that subject.

Apart from that blemish, which can be remedied, there are other flaws in the Bill, which can also be remedied. They are perhaps more noticeable in this Bill, precisely because so much of it is beyond criticism. In a Bill that wipes out so many of the disabilities of the illegitimate, and some of the handicaps suffered by the unmarried mother when seeking to prove paternity, it is unfortunate that all the legal obstacles still in the way, apart from blood tests, have not been finally resolved.

To that extent, I agree with the right hon. and learned Gentleman the Member for Epsom. But if he levels reproach at us for that sort of omission he should also level it at his colleague on the Front Bench, the right hon. and learned Member for St. Marylebone (Mr. Hogg), with whom I was glad to be associated 61 not so long ago in another piecemeal reform which at least helped to take away some of the difficulties suffered in the matrimonial courts by unmarried mothers who could not receive more than 50s. in respect of their children. But why are we now dealing with the blood tests in affiliation proceedings and not with all the other notorious difficulties to be found in the Affiliation Proceedings Act? Is it not time to deal with the time limit of 12 months in which proceedings have to be started, and should we not deal with it in the Bill?

That is an unreasonable period, placing as it does the necessity for decision on a woman when she may be ill-fitted to reach a sound decision as to the best interests of herself and the child. The fact, too, that the father must be resident in this country for an order to be made against him takes little account of the reality of modern life.

There is no procedure for the registration of voluntary agreements between unmarried parents dealing with the maintenance of their child. The wretched woman has no alternative but to take the sometimes equally unhappy man to the magistrates' court, if she is to have the benefit of an affiliation order. As the Chairman of the Law Commissioners has said, it is a pity that affiliation proceedings should carry with them the atmosphere of crime and the criminal courts. There is so much that could sensibly have been done, in addition to dealing with the question of the blood test, valuable as that is, and I am bound to regret that it has not. It is a pity that we have not altered the law that neither lump sums may be made nor settlements made.

But beyond maintenance and property there must loom the whole problem of status. I do not know what society gains by branding children as illegitimate. The whole question of the status of the illegitimate child is at present under study by the Society of Public Teachers of Law, as a result of the invitation of the Law Commissioners. I trust that it will not be long before we can have another Bill embodying the human and civilised proposals that I hope will emerge from that study.

This is a time of a rising incidence of abortions among unmarried mothers, to which the hon. Member for Chelmsford 62 has rightly drawn attention. The consequently clogged gynaecological waiting lists of our hospitals are causing widespread concern. The civilised reaction to this state of affairs is to demand the legal and social changes which would encourage the unmarried mother to keep and not to destroy her child. There is no more vulgar error than to imagine that all unmarried mothers have children by mistake. Every social worker knows that many unmarried mothers have their children, wanting to give and to receive the love denied them in their own home situations. To destroy the unborn child, in so many cases, is to prompt the unmarried mother's half-conscious yearning to lead to yet another conception.

The long-delayed changes in the Bill, and the fact that even with these changes which are being made we still have not come to the end of the road of needed legal changes in our laws of illegitimacy, shows how far we still are away from required changes in our social attitudes.

§ Dame Joan Vickers (Plymouth, Devonport)

The hon. Member has mentioned unmarried mothers, saying that it is very wrong to blame them for abortions, but can he say what proportion of married women have abortions?

§ Mr. Abse

From figures given in the Press, and in today's Daily Mail, it is quite clear that it is a disproportionate number of unmarried mothers who are now receiving abortions and it is no use retreating from the situation. We should acknowledge that the social attitudes of the community are such that too many of the unmarried mothers are turning more to abortion than to maintaining their children.

The punitive community should stop dumping the pregnant single girl on to the overstrained health services. The need is for the housing authorities and our social insurance schemes to enable the unmarried mother to keep her child, as she is able to do in countries like Denmark. Then doctors would be able to get along with their proper function of receiving children into this world and not sending them to the next.

So far as the Bill goes—and it goes a very long way—it is excellent. It shows that the Government are certainly not prepared to allow the dust to gather 63 upon the work done by able committees. It shows the Government's insight and understanding of problems which have been neglected for centuries, and by recent Governments, who have persistently neglected them. The speech of the right hon. and learned Gentleman the Member for Epsom was one which gave a clear declaration to the lawyers and social workers throughout the country that all that they can expect, if ever we have a Conservative Government, is yet more delay in social reform.

§ Sir Hugh Lucas-Tooth (Hendon, South)

The hon. Member for Ponty-pool (Mr. Abse) condemned the conservatism of the mediaeval barons. I think that he might remember that it was their obduracy which led to the best and freest system of law and government which the world has ever seen.

The changes proposed by the Bill are due to the changes in the social and economic structure of our people. Changes in family law are necessary, and I am glad that the Government have seen fit to introduce a Bill in this connection, but I entirely agree with my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson) that the Bill is incomplete. In some respects it is clumsy, and indeed, dangerous.

What astonishes me is that the Government have seen fit to introduce a Bill dealing with these particular subjects and, at the same time, allow legislation dealing with the far more important question of divorce to be conducted by a private Member. It is that which seems to me to be wrong about the Government's attitude to this matter—to be wrong and to be lacking in courage.

I was thinking that when, 45 years ago, I first became a Member of the House, the structure of our society was somewhat different from what it is today. A relatively small number of rich and well-educated men controlled the great mass of manual and clerical workers. Now, in 1969, there is a far wider distribution of ownership and education. Those who own, those who manage, and those who work, whether manually or otherwise, enjoy standards of living which are much closer together than they were 45 years ago.

64 It is that change which has led to such practical results among them, as that, in the first place, our young people have much greater independence. They are better off, and that enables them to be much freer. Secondly, many more people are able during their lives to make some accumulation of wealth. I do not mean great fortunes, but at least they buy houses of their own and are able to leave some invested capital. It is these results which have made changes proposed in the Bill necessary.

I have no objection at all to any of the main proposals contained in the Bill. As for Part I, I find in my own constituency, and I think that it is true everywhere, that the vast majority of young people, of both sexes, are earning their own livings and often living away from their parents, and many of them hold responsible positions. It is ridiculous that those people should not be responsible for their debts and their contracts. I personally would go somewhat further than the Bill goes. I was glad to hear what the Attorney-General said about Clause 2. On that I, personally, would support him. I think that the restriction against marriage is not right, but I am also quite certain that freedom in that respect must be accompanied by financial freedom, and I am quite certain that before the Bill is passed the Government ought to indicate their general intensions, at any rate, with regard to the taxation of minors, and as soon as possible.

I want to say something about Part II. I was a member of the Russell Committee. As I say, I am sure that there is a need for changes to be made, mainly because many people nowadays have something to leave, and this means that the kind of family in which the parents are not married and their children, therefore, are illegitimate is often nowadays what might be called relatively well off. This is a circumstance which rarely, if ever, existed half a century ago.

In particular, I welcome Clause 17. I will use the word "bastard" because it was used by the Committee and it has the great convenience of being clear when one utters it and of assistance to those who report our debates. Clause 17 enables the bastard to obtain maintenance from the estate of his deceased parent. I 65 welcome this reform, which is long overdue. I entirely agree with the proposal that the bastard should share in the estate of his deceased mother. The vast majority of mothers in distributing their worldly goods after their death would wish their legitimate and illegitimate children to share together; but I cannot agree that the same argument is true of the father.

Since I wrote the note of dissent to the Russell Report to which my right hon. and learned Friend referred, my views are on record. This matter can be discussed in detail in Committee, but there are some broad aspects which can properly be referred to on Second Reading. The Russell Committee passed all its recommendations on the principle that an illegitimate child should have the same rights as a legitimate child. The Committee fully acknowledged the practical difficulties to which this would give rise.

In discussing whether there should be some limitation on the power of the bastard to claim from his father, paragraph 39 of the Russell Report says this: We reject in principle the suggestion that succession should be limited to cases where there has been voluntary recognition whether formal or informal: though we recognise that the result of our views later expressed may be, in fact, to exclude nearly all other cases. In other words, a bastard's right in his father's estate, in accordance with the recommendations of the Committee, and, therefore, in accordance with the proposals in the Bill, will be very far short of genuine equality as between his parents. The Russell Committee and those who support its views are salving their consciences towards bastards by inflicting distress and probably expense on legitimate relations.

When a child is a member of what can conveniently be called an illegitimate family, that is to stay, a stable union, where the parents are not married, I entirely agree with what is proposed in the Bill. There is no difficulty of proof; it can be shown that the child is living with both his parents, and there would be no repercussion on a legitimate family. If either the father or the mother subsequently marries, the earlier conduct of that parent will be generally well known to the subsequent spouse.

66 Similarly, when the father of a bastard has given open recognition to his child, there is no difficulty of proof and no danger of subsequent repercussion. But with bastards who are not members of a stable illegitimate family the difficulty of proof will be immense and opportunities for legal blackmail will occur.

Those who have studied this question will know that an affiliation application may be made by a woman already pregnant who thereupon seduces the best-off man she can find with a view to making a claim against him. Again, an entirely promiscuous woman will often choose to make a claim against the best of the men with whom she has been living. Cases of this sort must be borne in mind.

When a claim for maintenance is made, either under an affiliation order or under Clause 17, the difficulty of proof is not so great, because the claim for maintenance must be made within a relatively short time; indeed, if it were not, it could hardly succeed.

Here we are dealing with a totally different case. The father of a legitimate child is usually a young man, probably between 20 and 25 years of age at the most. The present expectation of life is about 70 years, so that the average lapse of time between the birth of the child and the possibility of its making a claim under Clause 13 of the Bill will be nearly 50 years. That is the difficulty which the Bill creates and which we are proposing to throw into the lap of the courts for them to work out the rules for dealing with it.

It may be said that a man should pay for his wild oats; but it is not the man who will pay for his wild oats, it is the man's widow and his legitimate children. It may be that hon. Members wish that to be done; but the man is not being made to pay; he must be dead before a claim can be made against his estate. That is why, on practical grounds, the proposal is wrong.

§ Mr. Abse

Would not some of the hon. Gentleman's apprehensions be mitigated by a procedure of registration of recognition, something other than is obtained in the affiliation case which, as the hon. Member will know, affects only a small proportion of illegitimate children?

§ Sir H. Lucas-Tooth

I could not agree more strongly with what the hon. Member has said. If he will do me the honour of reading my minority report, he will see that that is precisely what I suggested. The majority of the Russell Committee are doing lip-service to something which is called equality, but the probability is that the courts, after a great deal of heart burning and litigation will arrive at this result, and, therefore, I think that this part of the Bill ought to be amended.

There is a difficult moral problem as well as the practical one. On the one hand, we all have sympathy with the bastard. Whoever may be guilty, certainly he cannot be. On the other hand, no one would be prepared to say that there is not a need to sustain the principle of the legitimate family. It is the very basis of our civilisation.

One can fulfil one's feelings about the first by abolishing illegitimacy. I am not certain that the hon. Gentleman did not come near to saying that in his speech—

§ Mr. Abse

Quite right.

§ Sir H. Lucas-Tooth

If that is done, one abolishes legitimacy at the same time and, therefore, undermines the very basis of the legitimate family.

This case does not arise where there are no children, by definition, and, if it is made no longer worth while marrying because nothing is gained from it, I think that there will be a lot of people who will adopt that attitude. From some of the divorce figures and other matters now appearing, there is a tendency for people to feel that way even now, and that is why I say that some of the provisions in the Bill are dangerous. By that, I do not mean in the short-term. The Bill will not upset the country in a few months or a few years. Its ill-effects will be felt 50 and 100 years ahead. I think that this House has a duty to consider that point.

This country is not unique in confronting these problems. One of the matters which the Russell Committee considered was what has been done in other countries. Some of them are more liberal-minded than we are. We took evidence from all that we could and, if hon. Members look at Appendix IV of our Report, they will see that in every case in which 68 a bastard is entitled to some share in his father's estate, the condition is laid down that the father has recognised the bastard. I believe that we shall be driven to that, either by an uncomfortable process of litigation, or by an Amendment of the Bill, or by some other means if the Bill goes through as it is drafted at present. Before it is passed, I hope that the Government will agree to an Amendment.

Clauses 14 and 15 make a gift contained in a will or deed to a child, either of the giver or of some other person, include an illegitimate child or someone who is related through an illegitimate link. This is contrary to the recommendation of the Russell Committee. This is not a very important point, as a general question. It is a mere matter of construction, and convenience probably should prevail. As the Government have framed this proposal, if property is left for life to the child of a testator or some other donor and the recipient of the gift has no children to succeed him, assuming that the meaning of "child" is altered as the Government propose, the result will be that he need only go out and get an illegitimate child in order to find an heir to the property that he has enjoyed during his life. That does not seem to be a very moral proposal, on the face of it, and I can imagine that it might lead to worse than that.

Under Clause 25(2) a father and mother together can re-register a child. I cannot see that it would be easy to disprove that a person who claimed himself to be the father of an illegitimate child was not the father. Reregistration would open the door to the arrival of a little heir without any difficulty. The individuals concerned would be tempted to make a somewhat fraudulent bargain which, although it would be illegal, would be almost impossible to get at under the law as it now stands.

I hope that the Government will look at this aspect of the matter. It would be better if these provisions were removed. Certainly, I do not wish to encourage immorality or fraud, and I fear that that is what the Government are tending to do in this connection.

I hope that the Bill will be amended as I suggest and, with those reservations, I wish it a swift passage through the House.

§ Mr. Gordon Oakes (Bolton, West)

In his concluding remarks, the hon. Member for Hendon, South (Sir H. Lucas-Tooth) suggested that fraud or immorality may arise from the Bill. However, in my view, the terms of the Bill are the very negation of that view. They attempt to get rid of the fraud which arises so often in affiliation proceedings by allowing the court to order a blood test. Then, as my hon. Friend the Member for Pontypool (Mr. Abse) said earlier, the provisions of the Bill reduce the possibilities of immorality.

I welcome the Bill but, at the same time, I have a lot of sympathy with the views of the right hon. and learned Member for Epsom (Sir P. Rawlinson) about (he form of it. I think that he overstated his case and was far more aggressive on a party political basis than one is accustomed to hearing him, especially in a legal debate. However, my hon. Friend the Member for Pontypool was equally aggressive in defending this three-in-one Bill.

In winding up the debate in another place, my noble and learned friend the Lord Chancellor admitted: This is not the right way to draft legislation, but those who manage our Parliamentary time say that three Bills always take up more time than one and, therefore, if you want to get your thing in you have to put three in one."—[OFFICIAL REPORT, House of Lords, 26th November, 1968; Vol. 297, c. 1194.] I do not think that we ought to put three Bills into one, which is what the right hon. and learned Gentleman was saying. I do not think that he was attacking any of the Bill's principles. He was attacking its form—

§ The Attorney-General

I thought that the right hon. and learned Member for Epsom (Sir P. Rawlinson) was also suggesting that there should be a postponement of partial measures of reform in family law until the whole position is codified. In my view, that would substitute altogether the good for the best. That is the part of his proposition which I find unacceptable.

§ Mr. Oakes

I was about to come on to that because I, too, find it quite unacceptable. However, there is no reason for not bringing in three little Bills, each 70 of them carrying out the intention of the three parts of the Bill, rather than lumping them together in this Family Law Reform Bill.

I wish that we had a real Bill dealing with all the matters about which we have heard today, including illegitimate persons, marriage, families, maintenance and the collection of maintenance. Some day, I hope that we shall have a Bill setting up a family court, so taking away the stigma of criminal proceedings which still attaches itself to matrimonial and affiliation proceedings. Practising in the courts, I have heard many times the chairman of a bench of magistrates say in affiliation proceedings, "We find you guilty." But there is no questtion of guilt or innocence involved in civil proceedings where a mother brings the putative father to court.

I welcome very much what my right hon. and learned Friend said about Clause 2, that we will endeavour in Committee to set aside the ridiculous proposition put before us by the other place. The other place is often unpredictable—that is one of the alluring things about it—but when it suggests, as it does in Clause 2, that the age of marriage shall be difference from the age of majority generally, it is behaving not with unpredicta bility, but like an eccentric recluse.

§ Mr. Emlyn Hooson (Montgomery)

Is is not equal criticism of this House that we are too predictable?

§ Mr. Oakes

That may well be. The other place has said that a person reaches full age and full legal capacity at 18. This House has said that a person shall have full citizenship at 18 in a separate Bill. In Committee, the hereditary peers, to whom my hon. Friend referred, descended upon the other place in droves and altered that provision concerning marriage, so that a person should not be allowed to marry without parental consent until the age of 20. I wonder whether my right hon. and learned Friend or anyone in this House can think of any country in the world that advances the proposition that a citizen of full age and of full legal capacity should not have the right to marry without consent. That is the hotchpotch that the other place made of Clause 2 by altering the age from 18 to 20.

71 A lot of people are involved. By that Amendment I calculate, from the figures given by my noble Friend Lord Wells-Pestell in the other place, that no less than 88,961 women and 30,252 men, a total of 119,213, of the ages of 18 and 19 were married in 1966. That is a great number of people of those two ages—equal to the population of a very large town—getting married in one year. Yet the other place wishes to set back the law and say that they shall not marry without parental consent.

I ask the House to consider another proposition which we may be neglecting: whether a person under the age of 18 should be able to marry at all, with or without the consent of the parents. We say that a man must be able to support his wife and family, so we will give him the legal capacity to buy a home, which more and more young people wish to do—and the Latey Report states that these young people honour their financial obligations better than older people. We also say that young people between the ages of 16 and 18 can marry with the parents' consent, even though they cannot go into a public house to buy half a pint of beer. I wonder whether it would be more advisable to have a uniform age of marriage, namely, 18 years of age. Below that age 25,000 people got married in 1966.

According to the Latey Report, the vast majority of those young people got married at the age of 16 or early 17 because the girl was pregnant. I think that the House will agree that that is the worst possible reason, at that age, for two people to get married. I suggest that if the girl is having a baby she should have it and wait until she is 18 years of age, by which time the two young people concerned are better able to decide whether they wish to marry than in the emotional stress of what in other respects we consider a child, and what we consider in the Children and Young Persons Act to be a child—someone under 18 years of age. I think that we should seriously consider permitting such young people to marry at all.

§ Mr. Abse

I am rather shocked by my hon. Friend's proposition. Surely he appreciates that every child should, if possible, have two married parents. In 72 the early formative years of life this is very important. Is my hon. Friend not considering it a little abstractedly?

§ Mr. Oakes

I think my hon. Friend will agree that the marriages of a large number of young people who marry at 16 and 17 years of age end in divorce and tragedy. That is only the tip of the iceberg. They are the ones who actually go to court. But there may be many other broken marriages that really just hang together. I put the proposition to the House that if we are to be logical in considering reducing the age of marriage without parental consent from 21 to 18, we should also consider whether we will permit to be married people whom we will not allow to go into a public house to buy a drink.

I welcome most warmly the second part of the Bill concerning illegitimacy. The hypocrisy with which this country, this House and the law of this land has regarded illegitimacy over the centuries is astounding. We have a completely dual standard. Little opprobrium rests upon the head of the man. That is understandable, because even in the Bill we do not say that the bastard child is his. He still has no rights over the child, as my hon. Friend pointed out. However, we heap opprobrium upon the girl's head, although she is only one of two parties. In addition, the law over the centuries has done the unforgivably cruel thing of laying opprobrium on the innocent child of the union, although the child clearly could not be responsible for being born. The Bill attempts to redress the balance a little in favour of the illegitimate child. I do not like using the expression "illegitimate child". The hon. Member for Hendon, South used the word "bastard", which is a much better expression. How can a child, a being, be illegitimate, unlawful, as the term implies?

I have a minor criticism of the provisions of Clauses 4 and 5 and perhaps my right hon. and learned Friend will consider it when he replies to the debate. In Clause 4(2) we see that a minor, who has been the subject of custody proceedings under the Guardianship of Infants Acts, can take his father, or one party of the marriage, to court provided that his parents are not residing together. I do not like the phrase "not residing together". I do not know what it means. Many separated families in this country 73 live in the same house. Residing together and living together as man and wife can mean two very different things. Perhaps in Committee we will have a close look at the words "residing together".

The legitimate child has that indisputable right. But the illegitimate child, in Clause 5(2), appears to have that right only if his mother is dead, of unsound mind, or in prison. If she does not come under any of those categories, there is a distinction between the legitimate and the illegitimate child. There may be a reason for this. Perhaps my right hon. and learned Friend will explain it to me and to the House at the conclusion of the debate.

Concerning blood tests in bastardy proceedings, I think that the House should unreservedly welcome this proposal. This protects the putative father just as much as it is of value to the mother. It is shameful that a man, disputing the proceedings, who asks for a blood test can be denied a blood test because the mother refuses to allow one on the child. The mother who was doubtful about the parenthood of the child would be the very one to refuse a blood test in that child's case. Now the court can order a blood test. I think that that is a wise provision which will prevent a great deal of injustice. It should have been done a long time ago in affiliation proceedings.

This is a good Bill, even though it is a little cramped, dealing as it does with three subjects in one Measure which I do not particularly like. Nevertheless, I hope that the House will give the Bill a Second Reading. I hope, too, that, as my right hon. and learned Friend said, we shall restore the sense of the original Bill to make 18 the age for marriage without consent, just as it is the age for legal capacity in other respects.

§ Mr. Norman Miscampbell (Blackpool, North)

I welcome the Bill. I should not have voted, and did not vote, for bringing the voting age down from 21 to 18, but now that it has come down for voting I see no reason why it should not come down for other legal obligations.

I am sorry that the Government did not decide to bring in three small Bills. Had they done so, they would not have 74 had the face to bring in a second Bill which dealt with illegitimacy in such a short Measure as this, and it is to this part of the Bill that I wish to address my remarks.

I want to follow some of the thoughts put before the House by the hon. Member for Pontypool (Mr. Abse), because I agree with him that we need a real family law Bill dealing with illegitimacy. We in this House need to have another full look at the whole problem of the illegitimate child. I welcome the steps taken in the Bill, but I am disappointed that it does not go anything like far enough.

Anybody who has been to a magistrates' court and seen affiliation proceedings must realise what a game they are. The legal obstacles have been enumerated by the hon. Member for Pontypool, and I shall not go over them again. They are there because we have inherited a tradition that it is not a great sin for a boy to create a child but for a girl to do this is something wrong and wicked. It has always been made difficult to bring the father to book, and it is still difficult to do so in the courts today. I think that it is time we had a serious look at the legal obstacles which stand in the way of proving paternity, but that is not the real point that I wish to make.

My hon. Friend the Member for Hen-don, South (Sir H. Lucas-Tooth) said that some hon. Members might want to abolish illegitimacy. I wish that we could. That is exactly what I should like to do. I do not for a moment believe that by abolishing illegitimacy we shall undermine marriage in the slightest. I do not believe that people who are married and have happy homes will find that their homes and their marriages are the slightest bit undermined if we take away this abominable stigma, which, as a society, we still place on people who are so unfortunate as to be born out of wedlock.

It is not just for this House to abolish that stigma. We can do something about the law, but what is required is a change in the social climate, a change in how people view these things. I am glad to say that this is coming rapidly in this country, but we, too, have our duty to do. We should make it possible for the girl who has an illegitimate child easily to bring up that child, and to have a 75 real status. There should be no stigma attaching to her. There should be no inhibitions on that child being brought up as if it were being brought up within a marriage. Until we make that change injustices are bound to continue, and I hope that we shall soon have before us a Bill to make that alteration.

§ Sir H. Lucas-Tooth

Does not my hon. Friend agree that if we succeeded in removing the stigma to which he referred, and also in removing the financial incentive, a large number of people would not get married? There would be no conceivable purpose for doing so, other than the purely theological.

§ Mr. Miscampbell

This is a matter of judgment, and my judgment is simply that that is just not right. I do not think that people would not get married. I cannot argue from instances, but I do not know that I should not have got married simply because it was possible to have a large illegitimate family, and I suspect that that goes for most people.

It is unfortunate that the theological grounds for staying married are, unfortunately, waning. We know from statistics that we are a minority Christian country. Only 10 to 12 per cent. of the people go to church. I deplore this, but I recognise it as a fact, and thus that tie is lessening, but I do not think that the practical ties, the advantages of having a stable marriage, are any less today than they have ever been, and I do not for a moment believe that they would be undermined by changing what I consider to be not only an anomaly, but a grave injustice. I am sorry that this provision is not in the Bill, but I am glad to have had the opportunity of saying that it should have been, and that I hope we shall very soon have a Bill which deals with this whole problem.

§ Mr. Robert Maclennan (Caithness and Sutherland)

I shall not detain the House for long, because my principal interest in the Bill is in Part I, and we had an opportunity to discuss this during the debate on the Latey Committee's Report, when I made my views clear.

I thought that the speech of the right hon. and learned Member for Epsom (Sir P. Rawlinson) was extraordinarily 76 disappointing, and I take issue with the manner and substance of what he said about the Bill. The right hon. Gentleman did not make clear his objections to the Bill, and I think that it behoves the principal Opposition spokesman to do so. The right hon. and learned Gentleman said—and said at some length—that the manner in which this legislation had been brought forward was in some respect faulty. It was not clear whether he thought the Bill was too wide-ranging, or not sufficiently wide-ranging, on the matters of family law with which the Bill is concerned.

The right hon. and learned Gentleman instanced the fact that the Bill does not deal with certain tax matters, despite the fact that my right hon. and learned Friend the Attorney-General had explained that these matters were proper for consideration in a Finance Bill introduced by Chancellor of the Exchequer. The right hon. and learned Gentleman also made some passing allusion to the criminal law, and seemed to imply that we should not seek to amend the family law until we took into account the possible consequences on criminal law.

§ Sir P. Rawlinson

Perhaps I might make my position clear. I obviously did not do so when I spoke earlier. I thought that what I was saying was that it behoved us all to look carefully at how we effected law reform and changes in the law. I referred to the fetish that we could not change even some of the financial provisions which follow from this Bill, because we have to wait for a Finance Bill.

Secondly, I though I made it clear that, with certain Amendments which other hon. Members have suggested, all three parts of the Bill were acceptable to me, but that as we were dealing with a Bill concerned with the law we should think about the way in which we are getting the law into such a mess by all this cross-reference and