§ Second Reading debate resumed.
§ 4.23 p.m.
§ Lord Mishcon
My Lords, I am confident that your Lordships will remember the lucid speech made by the noble and learned Lord the Lord Chancellor in introducing this important Bill. As he rightly said, there are various esoteric elements in it which I still believe will be understood by your Lordships. It must be so, if I have persuaded myself that I understand those esoteric matters.
About one thing there will be no doubt: we are looking at the principle that those children who, through no fault of theirs, have been born, as we have described them in the past, as illegitimate, have absolutely no rights other than to expect that a civilised society will not punish them for some crime that they have never committed. That has been the story of the past with regard to inheritance and many other provisions. So it is right that a Bill of this kind should come before your Lordships.
In saying that, one cannot take it for granted that there are no disadvantages to society in passing such a Bill. It is a question of deciding that the advantages and the rights exceed the disadvantages and the wrongs.
662 One of the disadvantages may well be a decrease in the number of marriages. Marriage, an instrument of great value in our society, has been degraded over the past years. There are parents who decide that they will marry, despite the fact that they do not believe in the institution, because they say, "It is wrong, is it not, that our child should suffer some defeat of rights by virtue of the fact that we are not married? We had better go through the ceremony and get married." Such parents may now decide that as the same rights, in principle, arc being granted to legitimate and illegitimate children, there is no need to go through that marriage ceremony.
If that is taken account of in our assessment of the Bill, but not to the extent, I submit, that it defeats the main principle, we shall have acted responsibly, because it is something which must be taken into account. Against the backgound of that principle, with which, as I say, I believe that most if not all of us will agree, there have been two examinations by the Law Commission with regard to how to implement that principle in legislation.
I do not quarrel with a commission which changes its mind. I respect that commission. The English Law Commission, as the noble and learned Lord said, issued a working paper and then, in 1982, a report. As recently as October 1986, it issued a second report. May I say, in passing, that we are seeing a historic moment in parliamentary matters when we have a commission report dated October 1986 and we are considering the draft Bill attached to that report in November 1986. May that record be repeated in the future?
§ Lord Mishcon
My Lords, the noble and learned Lord always does his best, and usually it is a good best.
The commission found certain matters in its working paper as being worthy of recommendation. Then, in its first report, it had some second thoughts. In its second report issued last month, it made some modifying recommendations with regard to those first thoughts. I am not going to submit that there is a muddle anywhere; I shall suggest that there are certain aspects of this Bill which, in the course of its passage through your Lordships' House, deserve definite consideration by your Lordships.
I say that because if the commission had some doubts before coming to final conclusions, and then came to different conclusions in the course of deliberations, your Lordships may feel that these are matters that deserve our intense consideration, because last thoughts are not always best thoughts.
May I turn to a few of the matters about which I believe there may still be a little doubt. The first is that it was thought, and rightly so, that we should be careful how we describe, in legislation, legal instruments and possibly, in our everyday conversation, the difference between those who were known as legitimate children and those who were known as illegitimate children.
I am perfectly sure that the noble and learned Lord will know that I lose no reverence for his use or pronunciation of the English language if I pronounce it marital with a short "i" and he pronounces it marital 663 with a long "i". It was a recommendation of the first report of the Law Commission, in order that there should be no suggestion of illegality—the word "illegitimate" in lay language does seem to have the odour of some sort of illegality about it—that these children should be called either marital or non-marital children. The Scottish Law Commission did not like that idea at all.
In discussing this, the Law Commission in the second report acknowledged in paragraph 2.2 on page 2 that the Scottish Law Commission did take rather a different view, arguing that:labels of any kind applied to the child are unnecessary, given that in future 'it should … rarely be necessary to discriminate', and also undesirable, because they would 'rapidly take on old connotations' ".Instead the Scottish Law Commission recommended that:future legislation distinguish, where distinctions based on marriage are necessary, between fathers rather than between children",and that,where it is thought necessary to distinguish between people on the basis of whether or not their parents were married to each other at any relevant time … this should be done expressly in those terms".I do not frankly know what that means. I am sure that that is my fault. But how is one supposed, in the light of that language, to describe those we had previously described as illegitimate children? Am I to say in reference to an illegitimate child, "That is Charles, the son of John Jones and Mary Smith"? Is that how I would have to describe the child, or is some other way being recommended to us? I thought that the Explanatory Memorandum would have taken advantage of that recommendation to define these children. I find, however, that throughout the Explanatory Memorandum they are defined as illegitimate children. I derive, therefore, no guidance, and I turn to the noble and learned Lord to ask whether in his reply he will be good enough to clarify the matter, at least for my sake.
I move to the next examination of this principle. The principle is that parents and citizens of this country, in regard to legal rights, should regard the legitimate child and the illegitimate child on one basis and one basis only; and that is the same. I wanted to see what the Government did in acknowledging that principle. One of the most vital factors in regard to a child's right and status is that of nationality. That was indeed recognised by the Law Commission, which was most precise in regard to the matter. Indeed, paragraph 3.22 on page 13 of its first report states:A legitimate, legitimated or adopted person can derive British citizenship under the new British Nationality Act 1981 from his mother or from his father. An illegitimate person can only derive citizenship from his mother because for the purposes of the Act 'father' means only the father of a legitimate or a legitimated person".So the commission goes on in the course of its report. I shall not have time to give your Lordships all the quotations but I paraphrase the report, very fairly I am sure, when I say that it recommends that the same rights in regard to nationality should apply to the illegitimate child. The report outlines the reasons given by the Government so far for that not having been done. It says, after all, that the English Law Commission was dealing only with English children 664 and that the Scottish Law Commission had still to sit. Well, the Scottish commission has sat, and it has certainly not advised against the grant of nationality status in the same way for both sets of children. When the Bill came before us, I looked immediately to see whether the Government had followed the same principle that is advocated for the rest of the country. I see nothing in regard to this change so that the illegitimate child will have the same rights in regard to nationality and citizenship.
I turn rapidly to the issue of domicile. Domicile in our law follows that of the father, the illegitimate child that of the mother. Are the Government prepared to say, as they should say, that in regard to domicile the rights and status of the legitimate and the illegitimate child should be the same?
I come now to a slightly technical point, although it is not difficult to understand. The commission in its first report decided that it should look at the safeguard given to trustees; executors and trustees in regard to a will or administrators and trustees where someone had died intestate. There was already in existence a statutory provision which said that trustees in those circumstances could distribute an estate without having—again, I paraphrase—to inquire as to whether or not there was illegitimate issue that might inherit or have certain rights. The commission in its first report decided to recommend that the right of trustees and the protection given to the trustees—because the rights of illegitimate children were extended in regard to inheritance—should be extended to cover all the other contingencies that would now be present by virtue of the increased rights of inheritance of an illegitimate child. That was its first recommendation.
In the second report issued last month, the commission instead of extending the right has removed the right. Although the commission gave certain reasons, the removal of the right has been imported into the Bill now before the House. I ask the noble and learned Lord whether this is not a matter that will have to be looked at closely. The removal of the protection of trustees is a most serious matter. It is no use, as the first report of the Law Commission recognised, talking about the ability to advertise. An advertisement in regard to some small estate is quite expensive. But apart from the expense, one does usually see in advertisements the requirement that any claim against the estate should be made by a certain date. A right against the estate would hardly occur to an illegitimate child as being something that constitutes a claim. That is usually interpreted as being a claim of a creditor, not a right to inherit.
If, however, there is no proper protection, one can imagine the embarrassing inquiries, in order to be certain that the trustee has acted responsibly, that would have to be made, for example, of a testator who has left a legacy to "All my grandchildren living at the date of my death". Presumably one would have to inquire further as to whether any of the children of that testator had any illegitimate children. I merely point that out as something that has to be looked at.
I move, if I may, to a matter that the noble and learned Lord touched on very lightly. It was right that he should. He said that he had answered certain questions of the noble Lord, Lord Sudeley, in regard to 665 the question of inheritance of a Peerage. I have to disclose no interest in this matter at all, having the privilege of being a Life Peer. Having accepted the fact, without any doubt at all, that the commission did not recommend any question of change in this direction—namely, that an illegitimate child could not inherit a Peerage—and that this Bill does not enable either the noble and learned Lord, as the Lord Chancellor, or any successor of his to make rules even under Clause 30 of this Bill to change that situation, I merely ask, since the matter has aroused certain interest in the press, whether he would care to indicate what in his view is the justification, having regard to the principle that we are all enunciating, for saying that an illegitimate child should be barred from inheriting a Peerage. I think that will indeed have public interest.
Lastly, I turn to a matter which I regard as extremely important. I shall be as rapid as possible in dealing with it. I am dealing with the question of a declaration of parenthood. On that issue, the working party made a recommendation that there should be a right for a child to go to the court, serving process on the necessary parties involved, asking the court to declare who was the parent of that child. I do not have time to quote, but I believe that I shall be paraphrasing the findings and thoughts of the commission fairly. In their first report, they say that they have had second thoughts about it. It causes them a great deal of anxiety. With some reluctance, the commission say that we still ought to give this new right of going to the court to declare who is somebody's parent. They realise that it could give rise to rather ugly actions, possibly blackmailing actions. It could also give rise to grave embarrassments which might cause rifts in families, and very difficult matters indeed, but they still thought on balance that the right ought to be given. However, they said there ought to be safeguards. There must be.
There are two safeguards that they put in that I want to mention. The first is that the Attorney-General should be made a party to the proceedings and indeed should be able to intervene if ever he wanted to in any part of those proceedings. Secondly, the court should have the right at a preliminary stage to decide that this was harmful from the point of view of the child involved, and in those circumstances, since a declaration is always a matter of discretion for the court, should say that the proceedings should not continue.
Those safeguards are not reproduced in the draft Bill which accompanied the second report; nor are they reproduced in the Bill now before your Lordships. Although this matter may have to be examined in far greater detail in Committee, I feel that it would be useful to have even on Second Reading some guidance as to why those safeguards are not there and what the noble and learned Lord feels about what is a rather novel proceeding, and possibly a dangerous one: this question of declaration of parenthood as against the declaration of legitimacy, which is a quite different matter.
Having said that, I repeat that I believe all your Lordships will have sympathy with the principle behind this Bill and will be grateful to the noble and learned Lord for the way he introduced it.
§ 4.47 p.m.
§ Lord McGregor of Durris
My Lords, from these Benches I wish to extend a very warm welcome to the Bill and to thank the noble and learned Lord the Lord Chancellor for his careful and lucid exposition. It would he of no help to the House were I to rehearse ground already covered, and I have no intention of doing so. I shall be very brief.
I have to declare an interest in that I am president of the National Council for One Parent Families, a body that was set up in 1918 by Lettie Fisher, the wife of H.A.L. Fisher the historian, with the principal aim to obtain reform of the existing bastardy and affiliation Acts. The achievement of that aim in this Bill makes it a great event for the national council, which in those days was called the National Council for the Unmarried Mother and her Child. It has taken 70 years to reach this point.
I know that the noble Lord, Lord Mishcon, told us that progress has been very swift in 1986, but it has taken a very long time to get to the beginning of 1986. In that period the national council has promoted, or been associated with, some 38 statutes. It would not be helpful to your Lordships for me to recite the virtues of the national council, but we are very grateful indeed to the noble and learned Lord that we are now in a position to see our aim achieved.
The noble and learned Lord the Lord Chancellor quoted a figure—I believe that it was 165,000—
§ Lord McGregor of Durris
My Lords, it was 126,000 for the number of illegitimate children. Lest arguments develop about the possible effects of this legislation on the future numbers of illegitimate children, it may be worth while making two or three comments on them.
First, of these 126,000 illegitimate children, one-half are born to parents who seem to be living in stable cohabitation. I am taking that figure from two extremely helpful pieces of research done by the Office of Population Censuses and Surveys and published within the past two years. It is important therefore to remember that we are not discussing—as we were in 1918—children who had been put, so to speak, into the street or into the care of the poor law. We are frequently discussing children born into families and I have no wish to follow the noble Lord, Lord Mishcon, along the lines on which he opened his speech, beyond saying that I think we should recall that one can put too much emphasis on the significance of marriage and too little emphasis on the importance of the family.
I think that a generalisation which would be approved of by all anthropologists is that it is not marriage that creates the family; it is the family that creates marriage. Any legislation which supports the family—as I believe the Bill most emphatically does—is more likely to achieve the aim which we all have than is the present situation. It is very important to give rights to children in this area. Therefore, precisely because it supports the family I wish to commend the Bill to the House.
§ 4.51 p.m.
§ The Lord Bishop of London
My Lords, generally speaking, we on these Benches welcome the Bill. Many of its provisions implement recommendations which the Church in various ways has been making for a number of years. In expressing certain reservations about it I hope that I shall not be taken in any way to be reducing the welcome which we give to the provisions. We very much welcome that, so far as possible, any stigma or disabilities which flow from being illegitimate should be removed, and we are wholehearted in that view.
Nevertheless, I must say that, as the right reverend Prelate the Bishop of Birmingham, in his speech on the loyal Address foreshadowed, there are two aspects of this Bill which give us great concern. The first aspect is the abandonment by the Law Commission of the distinction between marital and non-marital; the second aspect is the provision for children born as a result of artificial insemination by donor.
As regards the first aspect, I found the reasons in the second report of the Law Commission for abandoning that distinction singularly unconvincing. Reference was made to the fact that it was desirable to follow the Scottish practice, but perhaps I may remind your Lordships that the Bill, as it then was, dealing with the Scottish situation, went through another place (as the noble Earl, Lord Selkirk, said in presenting it to this House) "on the nod". The Second Reading debate on that Bill in this House took 16 minutes. There was no debate at the Committee stage, nor on Third Reading. I do not believe that that is an adequate consideration, certainly by this House, of what is a fundamental change which is being made, and I shall come back to that point later.
However, before I develop that matter I should like to say a word about the significance of legislation. I think that I have made this point to your Lordships before, but I make no apology for making it again. Legislation has certain immediate and specific results which flow from the provisions of the various enactments. What is equally important in my judgment is the overall impact of any legislation on attitudes within the country, and those can often be very different from what people expect.
In view of the time, I shall not go into examples, but one can think of legislation which has been enacted and of how subsequently those who have promoted it have come to say, "What did we do? We did not think it would have this or that kind of effect". I believe that it is very necessary for us to say what is likely to be the impact, not merely in this case, on people living in marriage. Indeed, I am very grateful to the noble Lord, Lord Mishcon, for what he said about the possible effects on marriage. However, I am thinking also of the effects on the attitude to marriage in the family generally in the country—I am thinking of the creation of a kind of popular opinion.
I do not think that anyone would doubt that at present we in this country see—and have seen for a number of years—a weakening of the institution of marriage. I shall say in a moment something about the relationship between marriage and the family. However, I think that it is also true to say there is a weakening of the sense of "family". Whether one links 668 the two together or not, the number of illegitimate children—as we have already heard from the noble and learned Lord the Lord Chancellor—has now reached a very high figure indeed, and so has the number of single-parent families.
The professed aim of this Bill is towards the welfare of the child. I do not think that there could be any doubt about that as being a right and laudable objective. However, it is suggested that that somehow contradicts another concern, which is the preservation of marriage and family life throughout the country. I do not see those two objectives in conflict; I see them as complementary because I do not believe that the child can be considered in isolation from the family. Therefore, I have to look at the Bill and say: "Yes, this is in the welfare of the child, but is it in the welfare of the child not as an isolated individual but in the context of the understanding of marriage and family life in the country? Will it in future encourage that stability of relationships, that fidelity which is in the interests of the child?"
The right reverend Prelate the Bishop of Birmingham in his speech on the loyal Address, said that human beings have evolved with pairing and bonding as part of their nature. That is perfectly true, and one reason for that is simply the fact that the human young has fewer inbuilt instincts than the young of any other creature, and needs that kind of background in order to be able to acquire those instincts from family life.
I could give many examples from pastoral experience of the problems that are created by the lack of a stable family life with both parents. In saying that I am not making judgments about single-parent families or illegitimacy; I am stating a fact. I am thinking primarily of certain families I know where, for example, the father dies young, not as a result of any human action but simply from an accident or from some disease, and the lack of a father in that family has undoubtedly, as I have seen later on in the lives of the children, had a very considerable effect on their ability to relate to people and their ability to grow and develop. In looking at the family as a whole, we must not be mesmerised by those who, for one reason or another, have suffered or deliberately chosen to live as single-parent families. It is simply a fact of human nature that we need the whole family in which to grow up and develop.
We on these Benches have long maintained that the present law relating to illegitimacy is most unsatisfactory. We would support all efforts that are made to remove any stigma and disadvantages of one kind or another. Yet if the stigma is to be removed and the rights are to be secured, I believe that that must be done in a way which does not encourage the situations which caused the difficulties.
I hope that I heard the noble and learned Lord the Lord Chancellor aright when he used the phrase: "they sought to eliminate the differences between legitimate and illegitimate". I wrote down that phrase at the time, and I think that it is right. I wonder: did the noble and learned Lord actually mean what he said? He is normally so lucid and clear that I found that phrase difficult to believe.
§ The Lord Chancellor
My Lords, I hope that the right reverend Prelate and I are not going to quarrel, but this point is a false point. The Bill is about the language used in statute and the law. One cannot eliminate the facts of life. My whole speech was about the difference between those whose parents were in wedlock and those whose parents were out of wedlock at the time they were born. One cannot eliminate the facts of life. What we are talking about is not the facts of life as they are but what the terminology of the law should be about them. The purpose of this, and the only point about it, is that some statutes use the word "illegitimate" and some statutes do not. It is the label attached to the child in statute law particularly, but also in common law, that we are talking about.
The view I was seeking to put forward was that concerning terminology, to use the noble Lord, Lord Mishcon's phrase, the label should be attached to the people who were not married and not the child who was the offspring of their copulation.
§ The Lord Bishop of London
My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for his exposition, because he has now made the point for me that I wanted to make. What we are talking about here are the legal points which he made, but that is not how it is necessarily seen in the country. This is my worry and the worry of those of us on these Benches. What is seen is a suggestion—I put it very crudely—that henceforth the Government do not think it is necessary to get married. That, I know, is what the noble and learned Lord does not mean, but that is how I believe it will be commonly understood. I am not alone in thinking that. I am most grateful to the noble and learned Lord the Lord Chancellor for that exposition because, if he had not given that, I should have had to draw attention to the fact that the only way to do what he said, which is to eliminate the differences, would be either to abolish marriage or to compel everybody to get married. Neither would be a practical nor desirable course to adopt.
The point I want to make is that what we have to consider is the impact of this factor. When the Church of England Board for Social Responsibility was approached about the Bill last year it gave general support. But that was in the context of the use of the words "marital" and "non-marital". It did not, and it was not asked, to consider the possibility of removing all references to the distinction between families in which the partners are married and those in which they are not. We feel that we have not had a proper opportunity to give a response to that change in the recommendations of the Law Commission.
We have serious reservations, and to some extent our reservations are for the reasons given by the noble Lord, Lord Mishcon, about this abolition of the distinction. Secondly, we are worried about the provisions regarding artificial insemination by donor. Before I come onto that I should say that I am not, as everybody knows, a qualified lawyer, but I find Clause I extraordinarily difficult to understand. When I read Clause 30 and I find that the noble and learned Lord the Lord Chancellor can apply the meaning of Clause 1 to past enactments, I find myself in a rather humpty-dumpty world. I should be grateful if the noble and learned Lord the Lord Chancellor, when he replies, 670 could relate what he said in his intervention about the law not being able to change fact to what is said in Clause 1 about the way people are treated whatever their relationships may be. I hope he will feel able to do that.
I now turn to the question of AID. We have always maintained that a child should have the right to know about his or her origins. We believe, therefore, that the removal of any stigma and social disadvantage, as is provided for in this Bill, must be based on truthfulness. In a recent report from the Church of England it is said:We would wish to affirm the importance of clarity and truthfulness in these matters and that any use of the practice which involves deceit clouds the genetic identity of a child so brought into the world as offensive to Christian values.".Elsewhere we have said of the arguments we have put forward:All of this goes closely with the insistence elsewhere … that the procedures allow for clarity about the indentity of the child. Our genetic life is part of what it means to be human and children are entitled, therefore, to a clear understanding of their own origins and how they came to be the people they are in the family they are part of".I do not think I need to emphasise this any further. I am simply making the point that as far as I can see—I may have misunderstood—Clause 27 will make that impossible, in that if the husband of the wife who is having artificial insemination by donor gives consent, then he can be put down as the father. That is not true. That is not the situation. I believe that needs to be looked into very carefully, partly for the reasons I have already given about the right of a child to be able to know his or her origins and, secondly, because of possible genetical implications as well. I know that was recommended in theWarnock Report, but I am very unhappy about the isolation of that recommendation from the Warnock Report being treated now apart from the implementation of the other recommendations in one way or another.
I should like to end by saying that we support this Bill in the way in which it relieves the illegitimate child of disabilities in society; that we have no reservations about at all. But we are worried about the impact on society as a whole of the removal of the distinction between "marital" and "non-marital". We believe that will have effects which I am sure are not intended by those who promote the Bill. We are also worried about the provisions in Clause 27. I hope that careful attention will be given to these points during the consideration of this Bill.
§ 5.8 p.m.
§ Baroness Macleod of Borve
My Lords, like other noble Lords, I am most grateful for the usual brilliant and lucid way that my noble and learned friend the Lord Chancellor has explained this Bill to us. Like the right reverend Prelate, I could not quite understand Clause 1; so I am glad to have a friend and I shall not go into that again.
I shall take a slightly different view on this Bill, though I welcome the principle. However, it is perhaps unusual for me to speak both in sorrow and in anger in regard to the necessity for the Bill. We have been told that there are now 126,000 illegitimate (as the word was) children in a certain period of time. I did not quite understand that.
§ The Lord Chancellor
My Lords, my noble friend is quite right. I think I said (and I hope I was right in saying) that that figure was for the calendar year 1985.
§ Baroness Macleod of Borve
Thank you very much. My Lords, I speak in sorrow about this matter, with the noble Lord, Lord Mishcon. I view this Bill as another step in degrading marriage. A few years ago we in your Lordships' House made it possible for people to be divorced, or to take steps to be divorced, within one year of marriage. I think that was a retrograde step.
Secondly, as has already been said, there is no need to marry, but it is vitally important that the family should be formalised. The right reverend Prelate, in my view absolutely rightly, said that stability and security are vital to the children of a relationship, whether it is a marriage or otherwise. It is sad that people in public life today anounce that they are to become parents but that they have no intention of getting married. What an example that is to the younger people in our society today! From my experience (and perhaps it is not so wide as that of some other noble Lords) it is very important that the children of a relationship should know that their parents are together. How easy it is, as we all know, if parents are not married, for one to walk out on the other and to create so much distress within the relationship.
I am also angry because in these days of surely-planned parenthood, surely illegitimate children (as we still have to call them) should not be brought into the world except in unusual circumstances. The noble and learned Lord will probably think that this is not part of what we are discussing today, but I submit that it is part of the background.
I entirely agree with the principle of the Bill, especially when it says that the child should be paramount and all that is pertaining to the future of a child, or children, of marital or non-marital circumstances shall be all-important. I am more pleased than I can say, having had to sit in courts trying to deal with the problems of young people dissolving their marriages, that henceforth the father will have equal rights—where, of course, the father is known to the child and also to the mother—because I am sure that all noble Lords will agree that if a child has a loving father that man ought to be able to enjoy all the rights of parenthood. One knows of numbers of fathers who are excluded from seeing their children, from having anything to do with one or more children. That is very sad indeed. I am also pleased that the Bill makes special mention that, in circumstances of adoption, the father must give his consent.
In Clauses 22 to 26, we come to the registration of the birth of the child. This, I think, is about the most important part of this Bill because there is still and always will be an anomaly in those clauses. A child's mother can and will—and always will be able to do so—refuse to disclose who is the father, either because she does not know or for family or personal reasons (and I can quote incest as one) or because, as a result of a rape, the father will not acknowledge it and she probably does not know the father of the child anyway; or, worse still, because she was the victim of a gang rape, which unfortunately is very prevalent 672 today. In such a case, the father of a child might be any one of five, six or perhaps even seven young men.
So, although registration—that is, through the register—obviously would be a way to find the identity of the father of the child, it is very likely that the mother does not know. I am also thinking of some of our friends who are as British as anybody in your Lordships' House but who have not perhaps been in this country for more than two or three generations and who have, by custom, several fathers for their children. They perhaps will not be able to know—and I have come across this myself in court—the paternity of a child of theirs. I hope that if a child wants to find out, quite rightly, I think, its parenthood, it will not have to go to a court for that. I should have thought that the registrar, who is bound to have a registration of the birth, would be able in all circumstances to provide that knowledge for the child concerned.
As we all know, this Bill is based on the recommendations of members of the Law Commission. I am sure that they are very worldly, up-to-date and wise people. I just wonder whether they realise how much the younger generations, the younger women, in our society are unfortunately—and I say that in view of the figures that the noble and learned Lord has given us—producing babies without having been married to the fathers of the children. I hope that the members of the Law Commission have very much more worldly wisdom than I have. Certainly I do not have as much of those attributes as do the members of the Law Commission; and, because I have not and because I trust their wisdom, I hope that this Bill will go through, probably amended.
§ 5.18 p.m.
§ Lord Silkin of Dulwich
My Lords, all who so far have taken part in this debate have extended a welcome to this Bill. I do so as well because it seems to me to do a measure of belated justice to a growing number of our fellow citizens who, since time immemorial, have suffered injustice. I say, "a growing number" and I echo the concern of the noble Baroness, Lady Macleod, because there is no doubt at all that the growth in the illegitimate population, both in absolute terms and as a proportion of births, must give rise to concern.
In the 15 years from the end of the war, some 6 per cent. of births were illegitimate. By 1980, the proportion had nearly doubled, and by 1985 it was approaching one in five. Even higher was the proportion born to young mothers—as many as one in four. Plainly, there must be many reasons for this swift but steady growth. One, at least, seems to me to be quite clear from the figures. More and more couples create a stable family without benefit of wedlock. A significant sign of this is where both parents register the birth of an illegitimate child—as many as 65 per cent. in 1985 and under 50 per cent. 10 years earlier. And in three-quarters of those cases the two parents give the same address as father and mother. Undoubtedly there are very many couples today who have come to believe that a formal marriage, which can swiftly and easily be dissolved, adds little to a stable union which is based on love and on trust.
It may be said—indeed it was rather suggested by the right reverend Prelate in what he said—that this 673 Bill, in reducing the disabilities of children born to a union of that kind, will encourage the belief that the Bill is an anti-marriage Bill. Even if that were so, I would say that it cannot be right to bolster the institution of marriage by penalising the innocent fruit of the extra-marital relationship. That would not be the right way to do it. However, I do not believe that this Bill is anti-marriage or that it will discourage marriage. I do not believe there is a single couple in the land who, when this Bill becomes law, will say, "Now we are free to live together without getting married".
The truth is that it will remove certain anomalies in the law which have stood in this country when in many other countries they have long since gone. Of course, an Act of Parliament alone cannot alter social attitudes. If the Act reflects them, as I believe this Bill does, it can help to strengthen such attitudes; but no more than that.
I do not believe that illegitmacy bears the stigma it once bore, and I am glad that is so. It seems to me that the stable unions which exist both outside marriage and within it are in a large degree responsible. This Bill will certainly play some part—but let us not exaggerate that part—in strengthening the social attitude which regards a stable union and a secure family life (which I want just as much as the right reverend Prelate wants) as the most important elements in a civilised society. For that, I welcome the Bill.
Having given a very general welcome to the Bill, I should like to refer to one matter of detail. I do so in part because again this is a matter which was developed by the right reverend Prelate. It deals with Clause 27 and the sensitive topic of AID. Certainly I do not want to encourage controversies which perhaps are best avoided; but the matter is before the House and we have to be honest and deal with it. I would not like it to be thought that silence about the clause implies any reluctance to support it or, if I may say so, any reluctance to applaud the noble and learned Lord the Lord Chancellor for including it. After all, he had the temptation presented by the second report to defer the legislation until the achievement of a comprehensive scheme embracing other modern techniques for stimulating birth; but he had the courage to reject that temptation.
Having said that I approve of Clause 27, I must comment that in two ways it is not wholly consistent with the Bill's philosophy. In the first place, the Bill's general philosophy is to recognise the true father as the lawful father of the child; and in the case of AID someone who is not the true father is being so recognised. I accept that inconsistency, for the reasons which are given in paragraph 12.7 of the first report, and particularly because I believe that it will help to promote stable unions. That is surely more important than the dry consistency of the law.
However, in the second place, I find it hard to follow the reasoning of paragraph 12.10 of the first report, which explains why the principle of Clause 27 is not to apply to an unmarried couple. I understand there are some 3,000 AID births a year: it is a well-established method. The use of AID to promote stability within the union of two people is at least as important in the life of an unmarried couple as it is in that of a married couple; indeed, perhaps more so, if marriage itself is a stabilising factor. As paragraph 12.10 comments, the 674 extensions of Clause 27 to cover those cases would be consistent with the Bill's philosophy, and failure to extend it will mean that a new class, by no means insignificant in size, of illegitimate children will be created so that the fruit of the unmarried union will again be at a disadvantage relative to the fruit of the married union.
I hope the noble and learned Lord the Lord Chancellor, who, as I have said, has already shown his courage on this matter, will now display his wisdom. Since this is the only fault of any substance that I can find in this Bill, I wish it success and a speedy passage into law. And, if I may, I should like to wish it thereafter an early commencement. Perhaps I might say just one word in conclusion on the subject of commencement. In a Written Answer given in another place on the 4th June, 1986, at col. 596, the Attorney-General said:the cost implications will have to be considered again when determining the dates on which the provisions of the Bill should be brought into effect.".The Explanatory Memorandum tells us that the cost should not exceed £3 million a year, and so I ask the noble and learned Lord the Lord Chancellor whether he can tell the House what delay, if any, that will cause in bringing this Bill into effect. I hope that any such delay will be insignificant.
§ 5.28 p.m.
§ Lord Simon of Glaisdale
My Lords, this Bill has been introduced to your Lordships by my noble and learned friend the Lord Chancellor with his exemplary and usual clarity and cogency. On balance, it has been welcomed by all those who have addressed your Lordships and also by the right reverend Prelate the Bishop of Birmingham, who referred to it during the debate on the Address. I therefore have no wish to go into details or to explore further its merits. I agree entirely that on balance this measure is abundantly justified.
However, I do share the sense of the moral dilemma posed by the right reverend Prelate the Bishop of Birmingham, and which, if I may say so, was put extremely well by the noble Lord, Lord Mishcon, at the beginning of his speech today, by the right reverend Prelate the Bishop of London and indeed by all noble Lords who have spoken today, including the noble and learned Lord who has just sat down—all, that is, except the noble Lord, Lord McGregor of Durris, who although welcoming the Bill, was inclined to question whether it raised any moral dilemma at all. I differ from him with great diffidence, as he is one of the greatest sociologists in this country and I have had the privilege of working with him on a project. I have every reason to know that what he says should be accorded great respect.
What the noble Lord said was that there were 126,000 illegitimate births last year, but of those, 53,000—half of them—were from stable unions. But he did not draw your Lordships' attention to the fact that that means that 53,000 of them were from unstable unions, in which a child was launched onto the world without the provision of two parents to look after the child.
The noble Lord went on to say that it is not true that marriage creates a family; on the contrary, it is the 675 family that creates a marriage. Traditionally, particularly in the case of a lifelong marriage, it has been felt and experienced that marriage does indeed promote the well-being of the family. Particularly in the case of a lifelong marriage I have no doubt at all, from such experience as I can draw on, that it is by far the fairest relationship between a man and a woman. As to the second part of his proposition that the family creates a marriage, I must confess that I simply do not know what he meant. No doubt he will tell me what he meant and I shall understand it in due course, but at the moment it seems to me simply a meaningless proposition.
I come to the position that was put so well by the right reverend Prelate the Bishop of Birmingham and by so many other noble Lords today. We are running a risk. In so far as we derogate from the status of married persons we strike at the institution of marriage which, as I have suggested, is the buttress of the family in this country. The condition of married people is a status, and indeed the condition of illegitimacy is a status. Status is the condition of belonging to a class of people in society to which the law ascribes particular and special capacities and incapacities, and if you whittle away those capacities and incapacities it inevitably follows that you erode the status.
One has only to think of the status of serfdom. As its incapacities were rightly done away with, the status of serfdom disappeared. One can think also—perhaps nearer the matter of this Bill—of the status of concubinage, which our law has never known even in the form of a morganatic marriage. We have not known that because the law does not ascribe any special capacities or incapacities to persons living together in a state of concubinage. The only respect in which I venture to differ from the right reverend Prelate the Bishop of Birmingham is that he appeared to—
§ Baroness Faithfull
My Lords, does the noble and learned Lord mean the right reverend Prelate the Bishop of Birmingham or the right reverend Prelate the Bishop of London, because we have London with us?
§ Lord Simon of Glaisdale
My Lords, I meant Birmingham, as I said, because he referred to an Act of 1984 as being a sort of turning point. It is quite true that that Act, which, as the noble Baroness said, enables divorce proceedings to be taken within one year of the marriage, has resulted, as one saw from figures published only two days ago, in a vast acceleration of the rate of divorce—up 11 per cent. But that trend has been going on for 15 years. Steadily, year after year, the figure has risen.
That takes us back to the crucial measure, the Divorce Reform Act 1969, and for that, in my respectful submission, the church leaders have to accept a very great responsibility; by no means the sole responsibility, because a disaster like that does not happen unless a great many things are going wrong at the same time. I hasten to add that my noble and learned friend is completely exculpated so far as that measure is concerned. But it was from that date that one found the steady, dramatic and appalling increase 676 in divorce which has done so much to destabilise marriage in our society.
I presume to attach some blame to the Church leaders because, if one compares the book that was written at that time, Putting Asunder, with the evidence that was given by Archbishop Fisher not more than a decade before to the Royal Commission on Marriage and Divorce—evidence that was entirely consonant with the traditional stance and doctrine of the Church—one finds the most astonishing dichotomy.
I have long felt that things have to get worse before they get better, but there seems to be today a general recognition that things have reached a pretty bad pass, and I venture to suggest two measures that should be considered or reconsidered. It means going back to thinking again about the grounds for divorce. The first measure is that parents who bring a child into the world owe that child a duty which supervenes their own convenience. The corollary of that is that if they presume to bring a child into the world—and, as the right reverend Prelate the Bishop of Birmingham pointed out, these are days of easy, free contraception—that is a voluntary act which should impose on them a duty together to provide a home for the child until the child is 16.
The other measure that I believe should now be reconsidered is that of allowing couples intending to marry to enter into a binding agreement not to divorce. When that proposal was considered during the discussions which accompanied the 1969 Bill, it was said that it would result in first class and second-class marriages. What a confession—that a marriage which is terminable by divorce is a second-class marriage! Why should people not bind themselves, if they so wish, not to divorce one another? Naturally it would be for the Church to consider how far what has been called a second-class marriage should receive the cognisance of the Church. However, I suggest that this proposal, as well as my first suggestion, ought now to be considered in the light of the dilemma posed to us by both right reverend Prelates, by the noble Lord, Lord Mishcon, by the noble Baroness and by the noble and learned Lord, Lord Silkin.
The initiative in these matters will have to come from Church leaders. It is quite unreal to expect the Government to take the initiative, as the right reverend Prelate the Bishop of Birmingham was inclined to suggest in the debate on home affairs. In any case, tinkering with taxation and mortgage relief is a triviality. Those are matters which are fundamental to society, and I suggest with all humility that your Lordships will be looking to Church leaders to give a lead in this respect.
§ 5.43 p.m.
§ Baroness Faithfull
My Lords, I support this Bill, which is not easy to read. Nevertheless, it has been presented with great clarity to your Lordships' House by the noble and learned Lord on the Woolsack. It would be presumptuous of me to tackle questions of law and the matters so ably raised by the noble and learned Lord, Lord Simon of Glaisdale, and I shall not do so. I propose to concentrate on the feelings, emotions and sense of personal justice of the children who are the subject of our debate today.
677 This morning I was in touch with a vicar of the Church of England—a person I greatly admire and one who is respected and loved by his parishioners. He was born illegitimate. He made two points to me. He said that whatever may be the changes in social attitude in our society in regard to marriage, nevertheless in the mind of the child who is born illegitimate there is a sense of stigma and of being a second-class citizen. Such children, as he has reason to know, have a sense of injustice. He went on to say that many of his parishioners come to him for advice and help when they wish to marry as a result of a pregnancy.
He says that he does not consider that the removal of the status in law of illegitimacy will lower the tone of family life. He pointed out, as has been pointed out earlier in this debate, that sadly the number of single parent families has risen. However, this is not due to illegitimacy. After all, a child who is illegitimate is stated to be illegitimate now. He believes, as the noble and learned Lord, Lord Simon of Glaisdale, said, that we must concentrate in education in the Church, outside the Church and particularly in schools on the need for children to have a stable relationship, whether between husband and wife or between father and mother of a child.
I see the point made by the noble Lord, Lord McGregor, but I say to him that in many cases that I have dealt with where there has been a stable relationship many parents finally get married, perhaps one or two years after the child is born. My experience has been with Barnado's, as a children's officer and as a director of social services. It is agreed and understood in your Lordships' House that illegitimate children suffer from a sense of being second-class citizens. They feel that throughout life. I must also point out to my noble friend Lady Macleod that they feel it when they must use the long birth certificate in applying for certain jobs where one must produce a long rather than a short birth certificate.
Perhaps I may now address your Lordships on the question of this Bill giving rights to fathers of illegitimate children. I believe that we have been wrong in the past in giving full responsibility for illegitimate children to mothers. I think such responsibility should be a joint one of father and mother. Many such children have asked me about their fathers. One of these children said to me, "I feel like Peter Pan. I am out of the nowhere into here. Where do I come from?".
I agree with noble Lords who have stated that one must he strictly honest with children. As regards the question of AID—that is, artificial insemination by donor—this raises extraordinarily difficult questions, but I believe that some children can accept the truth at one age and some at another. I believe that ultimately, by the time they are grown, children must know the truth. However, I believe this question often depends on how and when that truth is told to them. I strongly support that part of the Bill which keeps children in touch with their fathers.
Perhaps I may now speak on a point which is slightly outside our debate today but which I am bound to mention. It concerns the position of the courts. I may have missed something which the noble and learned Lord on the Woolsack said, but I believe that these cases over the whole position with regard to affiliation, 678 money, and the status of children should be dealt with in a particular and very sensitive way in the courts. I need hardly say that I believe that we ought to think very carefully about the whole concept of family courts dealing with these cases.
I shall not speak further, as all the points which I wished to make have been made by other noble Lords. But I wish to make a plea on behalf of the children themselves who feel that they are unjustly treated. If we speak of the next generation and the position of families in that generation, most illegitimate children seek to be part of a stable family when they are grown if they have been helped and if they have had the facts honestly presented to them. I believe that most of those children would say that if the legal paraphernalia of illegitimacy had been taken away, they would not have had quite such a struggle.
My final point concerns the question of marital and extramarital relationships. After a while, those terms will take on the colour of illegitimacy and legitimacy. Therefore I feel that to use them is perhaps not wise. If we do use them, we shall have to have the same debate in your Lordships' House at a later stage, because they will mean just the same thing.
§ 5.50 p.m.
§ Lord Meston
My Lords, I join in welcoming this important piece of law reform, one which is none the worse for its swift birth after a long gestation period, if that is not an inappropriate phrase to use in this context. It is the result of many years of debate. The Law Commission produced its working paper and two very thorough reports. It is reassuring to know that even the Law Commission can have second thoughts, especially second thoughts prompted by the Scottish Law Commission's work on the same topic.
We should be truly grateful that in the process the dreadful expression "non-marital children" has been discarded. The noble Lord, Lord Mishcon, asked how we should distinguish between such children in the future. Generally speaking, it should not be necessary. We should simply refer to them as children. But if the context requires it, we can refer to them as children born out of wedlock or born in wedlock.
By its recommendations, the Law Commission has endeavoured to bring us into line with European conventions. It is indeed to be hoped that we shall be less vulnerable to admissible applications to the Commission and the European Court in Strasbourg. The law has moved a long way since the common law denied any status to child born out of wedlock. There have been partial and piecemeal reforms, in particular the valuable Legitimacy Act 1926 and the Family Law Reform Act 1969. The stigma of illegitimacy is almost a thing of the past, but it does linger. In seeking to complete the process of removing the legal disadvantages, this Bill reflects the view that the conduct and attitude of the parents should not be a burden on the children they produce. As has often been said (and I think this was once said very effectively in your Lordships' House by Lady Summerskill many years ago) there are no illegitimate children—only illegitimate parents.
This Bill can provide only a framework of rights and responsibilites. The Law Commission did not pretend to do any more. Page 6 of its first report states: 679It has also been suggested that the illegitimate suffer from special economic and social handicaps because society regards their families as anomalous and makes inadequate provision for them. Reform of the law can only make a limited contribution towards resolving these wider problems but the law should not and need not exacerbate them".As the noble and learned Lord the Lord Chancellor has just said, you cannot eliminate the facts of life. It will still be a fact that unmarried parents will tend to be too young, inadequate and immature, and from the lower economic groups. It will still be a fact that a good number of mothers will want to conceal the identity of the father for reasons of hostility, fear or shame. It will still be a fact that fathers will seek to avoid responsibilities. It will still be a fact that, as the noble Lord, Lord Mishcon, said, there will be citizenship problems. There will still be many children deprived of the stability of a two-parent home.
In legal and practical terms, the real problem is not the abolition of the disadvantages of illegitimacy. The real problem for the Law Commission was the definition of the so-called rights of the parents and deciding how to regulate them, because not all illegitimate children are produced by casual encounters and they do not all live in one-parent families. Not all putative fathers are straining to deny paternity or pleading poverty. Many parents are prepared to meet their responsibilities and resent the disadvantages of their own uncertain status.
Indeed, that uncertain status encourages them to avoid their responsibilities if they feel they do not have any rights; for example, if a child is taken into care or is under the supervision of a local authority. All too often one sees in practice that the social workers do not consider or consult the father or his family. The absence of any requirement to obtain or to dispense with an unmarried father's consent to adoption is often the source of dismay and friction. One simply cannot deal in absolutes.
The other side of the coin is that there is a minority of putative fathers who can be seen to be a destructive nuisance asserting rights and complaints under the disguise of what is best for the child. In one ghastly case in which I was involved, an unmarried couple produced a child. They were hopelessly inadequate. The child was placed for adoption and the domineering father bullied the inadequate mother into marriage simply to give him the right to object or try to object to adoption.
I suggest that in this field the Law Commission has the balance right. In a thoroughly argued passage in the report it decided not to give the automatic rights to the father with the onus on the mother to disqualify him, but it preferred to give the father the opportunity to apply for shared rights. It is noticeable, though, that in the Bill appended to the first report it was possible for a father to apply for or to be granted all or some rights. The Bill in its final form refers simply to the grant of all rights. This is the product of the confusion we now have in our legislation. It is the result of trying to fragment parental rights.
The essential conclusion of the Law Commission in this area, the pragmatic solution, is correct. It has done the best it can to mitigate the risk that fathers may well have no incentive to apply for their rights to be 680 recognised until it is too late. Either way, whatever solution is adopted, the intervention of the courts will clearly be all the more important in what may well be fluid and emotional situations. One can see that what is given to the courts by this Bill will be a new and difficult task in deciding whether—certainly in a contested case—a father should be granted the right to share all parental rights.
Likewise, with Clause 27 dealing with AID, a pragmatic solution has been adopted in line with the recommendations of the report of the committee under the chairmanship of the noble Baroness, Lady Warnock. I support Clause 27. It gives a true status to children who are wanted children who have no emotional ties with their biological father and where the only tie they are going to have with a father is with the husband of the mother who bore them. In some respects it can be treated as shortcircuiting the process which the married couple themselves would want to undergo—that of adoption. To that extent I support Clause 27.
The great step forward in the Bill is the wider financial and property settlement powers to be granted to the courts. In passing, I welcome the long overdue need to allow maintenance to wards of courts who happen to be born illegitimate.
I am not able to say whether removing the inequalities which the Bill seeks to remove will somehow undermine marriage. Certainly I doubt whether preserving the inequalities will shore up the institution of marriage. Certainly one can say that if the Bill is passed those who choose to avoid the commitment of marriage and choose to produce children will find the potential consequences far more expensive than hitherto. One can also remark in passing that the illegitimate birthrate has managed to rise year by year unassisted by the prospect of this legislation. The underlying hope of the Law Commission and of this Bill is that a parent should earn his rights by meeting his responsibilities.
I have to say that, speaking personally, I am rather sad to see affiliation proceedings go. I have spent many poorly paid, prurient hours in the magistrates' courts analysing amorous and squalid encounters. However, I admit that the fun has gone out of affiliation proceedings since blood tests have become so accurate. They seem to be able to tell whether one's great-grandmother kissed the milkman! Seriously, I wish to express a little unease at the abolition of corroboration as a requirement of law. Certainly I hope that in appropriate cases it will be established as a requirement in practice, if no longer in law.
The abolition of affiliation proceedings is in part the result of a recognition of the limitations inherent in the magistrates' domestic jurisdiction and procedures, some of which have been referred to in this report and some of which have not, but which will have to be tackled when the family court is considered. When it is considered we shall have to think carefully about the continued role of the magistracy.
I join in welcoming this Bill. I close simply by inviting the attention of the noble and learned Lord the Lord Chancellor to the suggestion in paragraph 3.12 of the first report that when a suitable occasion presents itself the consolidation of legislation dealing 681 with custody and guardianship, on which a substantial amount of work has already been done, should be undertaken. Having said that, one perhaps draws back from that suggestion in the knowledge that the fate of any consolidation Act is for it to be amended within about 12 months of being passed. I welcome this Bill.
§ 6.2 p.m.
§ Baroness Ewart-Biggs
My Lords, I too followed the clear presentation by the noble and learned Lord the Lord Chancellor with great gratitude. Not only did he help me to understand the Bill but, I must say, made me feel that it is quite extraordinary that for so long so many children were discriminated against because of their parentage. However, as the noble and learned Lord said, once the Law Commission made up its mind the decision was taken very quickly.
As other noble Lords have said, and I shall certainly not repeat everything said, it is clear that the intention of the Bill is right. The intention is to remove a label from children and, as the noble and learned Lord said, bring the same kind of treatment and protection to all children regardless of the marital status of their parents. Therefore, it is for the first time that all children will be placed in the same position in law.
The noble Baroness, Lady Faithfull, has made it clear that she sees this Bill as putting the child first—I always think of the noble Baroness, Lady Faithfull, as the unofficial Minister for Children—and getting the priorities right. As the noble Lord, Lord McGregor, said, it is a great triumph for the National Council for One Parent Families, now in nearly its 70th year and with which I am also involved, to see this particular legislation on which it started its campaign. The National Council for the Unmarried Mother and her Child, as it then was, has finally seen this legislation come to light.
I also stress what the noble Lord, Lord Meston said, that on an international level the reforms proposed by this Bill will have the great advantage of bringing Britain into line with our international convention obligations towards both the Council of Europe and the European Convention on Human Rights. That is a very important consideration.
During the debate two points were frequently made. One was the worry that marriage would be undermined. That point was brought up by my noble friend Lord Mishcon and the right reverend Prelate the Bishop of London, and others. But there are two ways of seeing this. My noble and learned friend Lord Silkin made the point, as did the noble Lord, Lord McGregor, that there are different ways of viewing the effect that this will have. Although from my observations young couples seem to have less respect for institutions—and perhaps less respect for the institution of marriage—they appear to have great respect for all the values which go towards making a strong and stable relationship. They practice tolerance, devotion and loyalty to each other; which are, of course, very important links in keeping together two people who wish to share their lives in the long term.
In view of that, the clauses which give unmarried fathers the right to apply to share with the mother parental rights and duties over the child appear to make this particular family unit, which clearly is 682 growing, very much stronger in spite of the fact that, as I said, it is a different sort of marriage on an informal basis, foregoing the marriage rites. It could even be said—as I have often heard and, I imagine, other noble Lords have—that young couples in some cases deliberately do not enter into formal marriage, feeling that by foregoing the encircling and embracing framework of a formal marriage the onus to forge a strong and lasting relationship based on discipline and commitment will he much greater for each of them. That is an argument I have often heard put forward by young couples.
Indeed, the fact that, as has been said, 126,000 children were born last year out of marriage, despite the availability of free contraception, must mean that a growing number of couples enter into long term relationships without getting married. They do that completely of their own choosing and because they think it might result in a more stable relationship in the long run. Indeed, when they look around and observe the graveyard of formal marriages and the spiralling divorce rate, one is perhaps not so surprised that they are choosing that less formal structure of binding their lives together.
There is no doubt that this Bill will give them support in their efforts to join and unite and to bring up their children, with the result that this new family unit will be very much strengthened. Therefore, I should like to think that marriage will not necessarily be undermined and that to compensate for any danger that might exist this new and perhaps stronger family unit will emerge.
The other point made, with some anxiety, relates to Clause 27, which allows for a child to be registered as a child of a husband and wife where the child is born as a result of artificial insemination. The whole subject of AID is an important and crucial one. However, this Bill must not be used—and I hope it will not happen in Committee—as an opportunity to discuss the social, ethical and medical implications to which AID might give rise.
I very much took to heart the point made by the right reverend Prelate the Bishop of London about the right of a child to know who he or she is. The noble Baroness, Lady Faithfull, is right to say that there is a time during the life of a child, a young person, adolescent or even a young adult when this truth could be related. However, it can do nothing but harm if a child is told too early that it has been born through artificial insemination.
My noble friend Lord Mishcon brought up the question of nationality. I hope that perhaps the noble and learned Lord the Lord Chancellor will tell us whether the child of parents who are unmarried will be able, through this Bill, to inherit British citizenship from its father, or whether this will not be possible.
I should like to end by saying that of course we should all like to see the institution of formal marriage continue. We have known and respected it for a long time. Practically all of us have been part of that old institution of marriage, and we see the legitimate family consisting of married parents. We see it as an institution that needs support from government and from the attitudes of society, but I do not think that necessarily makes us intolerant of social trends and a change in attitudes which takes into account the less 683 formal arrangements made between men and women about the way in which they wish to lead their lives. I think therefore that I see this Bill very much as a positive way of strengthening a different kind of family unit rather than as undermining the traditional one. Finally, I see it as supporting the child and giving it the most prominent position, which I think is the position that the child should always hold.
§ 6.11 p.m.
§ The Lord Chancellor
My Lords, I begin by thanking all noble Lords who have taken part in this debate. In seeking to reply as shortly as the circumstances permit, it is obvious that I shall deal more in detail with the arguments of those who have expressed some reservations about the Bill than of those who have wholeheartedly supported it, for whatever reason. I should like in particular to thank the noble Lord, Lord Meston, who on these questions with which he is professionally proficient has always seemed to me to speak very much on the same wavelength as I do. I also thank the noble Lord, Lord McGregor of Durris, my noble friend Baroness Faithfull in particular and the noble and learned Lord, Lord Silkin, for the support that they have given me on what have been the relatively minor points of criticism to which the Bill has been subjected.
In opening I was not anxious to enter into profound questions of morality or theology. I simply say as a matter of record that I share the view of my noble and learned friend Lord Simon of Glaisdale—both he and I are members of the Church of England, and practising members I think—and I should not like to see anything done which undermines the institution of marriage. As a matter of sheer history my noble and learned friend on the Cross-Benches was perfectly correct when he said that I was on record as being highly critical of the 1969 legislation, which I think is quite irreversible. It was very largely orchestrated by the Church of England itself and particularly the episcopate, so that, if I belong to God's holy Opposition, if I may call it that, I may be forgiven for not taking all that seriously the strictures of the right reverend Prelate the Bishop of London about this modest or comparatively modest little Bill. However, I say this to him. If he runs away with the idea that, because we remove the terminology of the law which imposes an inevitable stigma on the child born out of wedlock, the people of this country will be so stupid as to run away with the idea that the Government are trying to undermine the institution of marriage, I think he gravely underestimates the intelligence of the people of this country.
Even to the extent mentioned by the noble Baroness who has just spoken, I shall not now go into the necessity for the relationship of marriage. On any view, marriage—religious or irreligious—is a contract giving rise to a status. The essential nature of it is that, if people choose to live in an irregular way, in a state of what my noble and learned friend called concubinage—whether the relationship be a marriage or a shacking-up—the man is usually able to show the woman the door without the smallest remedy being available to her except in respect of the children of whom he can be proved to be the putative father.
684 Secondly, as regards the children of a union, they are assumed to be children of that union if there is a marriage status. Therefore all I can say to the argument that in altering the terminology of the law by removing the stigma of the use of the Norman French words "legitimate" and "illegitimate" you are trying to undermine the institution as an institution, is that such is not the view of the Government, and I should like to see a Lord Chancellor who is serving as what I hope is a trusted colleague of the present Prime Minister put forward any contrary view. He would get a poke in the eye with an umbrella before he knew where he was! I think that there is absolutely nothing in that criticism.
I go so far as to agree with my noble friend Lady Faithfull that if we substituted the original terminology of the English Law Commission—namely, "marital" (I insist on pronouncing it mer-eye-tal because I was brought up on Latin poetry and know where the quantities lie) and "non-marital"—for the existing terms of "legitimate" and "illegitimate", we should very soon be having the same debate about the stigma attaching to "marital" and "non-marital". I think that the noble Lord, Lord Meston, made the same point.
I think the real truth is that it is far better to label the parents than to label the children. It is more just and more correct because, as the noble Lord, Lord Meston, said—or perhaps it may have been the noble Baroness, Lady Ewart-Biggs—there are no illegitimate children; there are only illegitimate parents. Children are only children.
However I now turn to the more technical side of the matter, having left theology for the moment. The first technical point, which was made by the noble Lord, Lord Mishcon, and echoed in one or two of the speeches, was why the Bill does not deal with nationality? The reasons are largely technical but I shall rehearse them. They coincide with the report of the Law Commission and, as may have been observed in this House when I put forward a Bill, in general my policy is normally to follow the recommendations of the Law Commission if I can. There are occasions when I cannot.
In the first place, this is a Bill for England and Wales and it is not a Scottish Bill. Reverting for a moment to the question of terminology, it is very much better that English law should follow Scottish law wherever possible, or that Scottish law should follow English law wherever possible. This is a Bill for England and Wales, and it does not extend to Scotland. I am sorry to say that those who made the point before me forgot that there is a third part of the United Kingdom called Northern Ireland. The Law Commission recognised that before we could legislate on citizenship wide consultations would be necessary. These have not been held. Experience has taught me that unless such consultations are held, law reform has a poor chance of survival. The difficulties in producing satisfactory legislation on this point have not yet been resolved and a United Kingdom-wide Bill dealing with nationality is not at the moment in practice.
The Law Commission makes some interesting proposals on citizenship which the Government have studied carefully, but it has not yet proved possible to identify arrangements which are fully in accordance with the approach to citizenship in our nationality law 685 and which will be clear and reliable. The Law Commission's approach to children in this country, of requiring declarations of parentage, would break new ground in our citizenship law and would not deal with the formidable practical and legal problems of children born abroad, which need more careful study.
The difficulties, as I see them, are formidable. I doubt whether we should be doing a service to the Bill if we were to attempt to resolve those difficulteis during its passage. If I may say so, with respect to the noble Lord, Lord Mishcon, who also raised the question of domicile, that is a thicket of private international law considerations in which I should hope not to enmesh myself even in Committee.
The next point made by the noble Lord, Lord Mishcon, related to trustees. That is a technical point. Broadly speaking, the answer is that the Law Commission's second report, as he rightly said, reversed its original recommendation. It removed the protection at present given by Section 17 of the Family Law Reform Act. The Law Commission gave four reasons, which I put before the House in answer to the noble Lord, Lord Mishcon. On balance I find them convincing.
They were that, first, it may be no more onerous to ascertain whether there is anybody entitled through an illegitimate person than it is to ascertain the other matters which arise under the general duty imposed on trustees to distribute the estate to the right beneficiaries. Secondly, as I think the noble Lord, Lord Mishcon, recognised, adequate protection may be said to be given under the existing Section 27 of the Trustee Act 1925. Under this provision a personal representative or trustee may advertise for claims. He is then free from liability to all claimants except those of whose claims he has notice.
Thirdly, any question of embarrassment being caused to personal representatives and trustees was not thought to constitute sufficient justification for the present statutory protection on the ground where there is some reason to suspect that there may be an illegitimate link. A conscientious personal representative or trustee would normally make inquiries, however embarrassing, if only to be sure that he would not be exposing the other beneficiaries to a later action against them. Fourthly, it may not be in the interests of the other beneficiaries that the personal representative's duty to distribute the estate to the right beneficiaries should be qualified by Section 17. A person claiming through an illegitimate link would then still be entitled to trace the assets through the personal representatives' hands and they might have understandable reason to complain if reasonable inquiries before distributiion would have disclosed its existence.
I think that the next point that the noble Lord, Lord Mishcon, made was: why not titles of honour? I can see that my noble friend Lord Sudeley is in the House. I think the answer is rather simple. I do not know why the noble Lord should confine himself to Peerages. Far more important than the question of hereditary Peerages is the descent of the Crown. It would raise serious questions if I were to embark upon this delicate field in relation to the Family Law Reform Bill. The patent which creates the Peerage, except in those few 686 Peerages which are created by writ, where different and common law considerations arise, is normally to the heirs of the body lawfully begotten and to be begotten.
I remember hearing those words read out for the first time again when my noble friend Lord Whitelaw was introduced into the House. It is part of the Crown's prerogative to ensure that it descends through the married line. What is far more convincing to my mind is that even in 1926, when we legitimated children per subsequens matrimonium, thereby following the Roman Catholic Church and not the Church of England, the question of descent of titles of honour was expressly reserved. They can only be legitimated if lawfully begotten at the time.
§ Lord Mishcon
My Lords, I wonder whether the noble and learned Lord will forgive me. Everything that he says is, as usual, correct. I merely invited him to tell the House whether Her Majesty's Government would be prepared to advise a change in that procedure in view of the principle that he has enunciated with such eloquence, that legitimate and illegitimate children should be treated in the same way.
§ The Lord Chancellor
My Lords, I thought that I was dealing with that point. All that I can tell the House is that Her Majesty's Government have no plans, at any rate in this Bill, to alter the descent of titles of honour or the descent of the Crown. I think that I have explained why. Anyone who expects to get absolute consistency in the law in this field is following a will-o'-the-wisp.
A question was asked about Clause 30 and the powers which enable me, by statutory instrument, to apply the rule of construction established in Clause 1 to those existing enactments by which it is expressly provided that illegitimate relationships should be treated in the same way as legitimate ones. There was a good deal of discussion on this point, but the provision contained in the Bill was recommended by the Law Commission in paragraph 2.6 of its second report, and I think that it is a useful one. The type of provisions to which the power may apply are Section 113(2)(d) of the Housing Act 1985 and Section 19(2)(b) of the Registered Homes Act 1984, which refer, in terms, to an illegitimate child. If I had the power and used it, such provisions would be repealed and the provisions to which they relate would be made subject to the principle contained in Clause 1.
I concluded that the clause should be retained but only for use in those cases where it is found, in practice, that somewhere about the statute book there are statutes in which the provision equating illegitimate children with legitimate is badly expressed, and could be better expressed by the application of Clause 1. It is not intended to alter children's substantive status.
I hope that I am not outstaying my welcome. I am trying to deal with all the points, and some of them were rather intricate. The right reverend Prelate, to whom I now return, expressed worries about AID. I am not sure that I wholly understood his point. What he was apparently saying was not material to the Bill's text or provisions. He argued that the facts of physical paternity should be on record and that children born as a result of AID should be allowed access to that 687 information. That suggestion conflicts with the Warnock report recommendation that on reaching the age of 18 a child should have access only to the basic information about the donor's ethnic and genetic origin.
I do not want in this Bill to express an opinion as to whether that suggestion or the Warnock suggestion is correct, because responsibility does not rest with me and a decision has not yet been taken on it. The Government announced on 25th November that a consultation paper inviting views would be published before the end of the year. That publication will be available from Her Majesty's Stationery Office.
The provisions in this Bill dealing with the legal status of AID is compatible with whatever amount of information about the donor's identity it is eventually decided should be made available to the child once he has reached the age of 18. The criticism that is made does not really therefore affect the text of the present Bill. The criticism, if it be a criticism, is a little premature in that it anticipates a government decision that has not been made that we should exclude the provision of certain parts of the information from the knowledge of the public or the knowledge of the individual child. That has not been made. Therefore the Bill would require no amendment whichever way the decision ultimately went.
I agree tentatively with those of your Lordships, notably the noble and learned Lord, Lord Silkin of Dulwich, who have supported the inclusion of Clause 27. I believe that if we clarify the position of children hitherto regarded as illegitimate and born out of wedlock, it would be a mere injustice to exclude any clarification whatever of the position of children who were born within wedlock but avowedly under the process known as AID. It would be an injustice and it could not ultimately be tolerated. It was for that reason, despite the weighty opinion to the contrary of the Law Commission, that I insisted on keeping it in the Bill. I do not believe that the Bill would founder without it but we would be doing a real injustice if we did not have Clause 27.
There are of course other and genetic problems raised by those who are keen on imagining the extremely unlikely. They are problems relating to the results of adulterous intercourse and premarital intercourse that is not adulterous but is the result of fornication. As anyone who has read the recent series of biographies about late Victorian, Edwardian and neo-Georgian aristocracy will realise, these are difficulties that do not arise normally out of AID at all but are much more likely to arise in relation to what I have said.
My noble friend Lady Macleod of Borve, who, like me, applauds the institution of marriage, was not quite right when she said that we had recently degraded that institution by allowing divorce within a year. That is not correct. We have prohibited divorce within a year. The change in the Bill that is now the Act of 1984 was that in place of a three-year period of delay, but with an exception that could be exercised within a week of marriage, we put on an absolute provision for one year. This resulted in a slight head of steam leading to a burst of petitions for dissolution. But that is, I am 688 happy to say, plateauing out, and as the Scots, who never had the three-year period, have had ample experience to tell us, it makes no ultimate difference to the frequency of divorce, because they already know that.
I was most grateful for the speech of my noble and learned friend Lord Simon of Glaisdale, for reasons that I have already given. But he will probably excuse me if I do not comment on his two suggestions about the grounds of divorce. I do not believe that I would be able to put them forward at the Committee stage of the Bill because they would be outside the scope of the legislation. Although they were very interesting, I would prefer not to be drawn.
I am grateful to noble Lords for the general welcome given to the Bill. If there are questions that I have not answered, I shall be happy to answer them now, during the Committee stage or by correspondence. I believe, however, that I have covered a good deal of the ground. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.