|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
Baroness Chalker of Wallasey: No, my Lords. We shall further develop the subsidiarity principle and strengthen the role that national Parliaments can play alongside the councils and the European Parliament. Another priority is to continue the work, as I mentioned earlier, against the mismanagement that has taken place in the Community budget. Therefore, there is much work to be done and much support for the British approach. There is no great pressure for new Community competences, and there is no plot to collapse the pillared structure of the treaty. We shall not be waiting fearfully to see what others may throw at us. We shall be where we should be: at the heart of Europe, shaping the agenda.
In conclusion, the nations of Europe are here to stay. People are rightly proud of their nationhood, their history, their languages, their culture, their traditions and their heritage. The sense of national identity reflects deep feelings which governments ignore at their peril. As I believe the right reverend Prelate the Bishop of Sheffield said, nationhood can slide all too easily into yobbish nationalismor, at least, extreme nationalisminto xenophobia and hatred.
Twice this century European rivalries have plunged the world into war. We never want to see that happen again. It is not just a truism: it is truly right that the European Union has been central to the stability and the prosperity which western Europe has enjoyed for the past 50 years. It certainly provides a framework which goes well beyond international co-operation. Nations can and will continue to pursue their interests, but enlightened self-interest demands a level of regional co-operation which was never imagined by our forebears. No longer do the nations of Europe protect their markets at the first hint of recession; no longer are they free to subsidise their companies at will.
Similarly, it is not just a question of prosperity. The European Union as a pole of stability in Europe, has buttressed democracy in Spain, Portugal and Greece when those countries emerged from dictatorship. It also provided a framework for peaceful unification in Germany. Now it is, again, proving its value for the democracies that are emerging after the collapse of the Soviet Union. For all its faults, the European Union, with NATO, is a sure foundation for peace in our continent. It is the basis upon which we must continue to build.
I should emphasise that it will, indeed, be an Inter-Governmental Conference; it is not an initiative of the Commission and it is not a report to the European Parliament. It will be a conference between the member governments of the Union to review the treaty. Each government must decide what, if anything, they wish to propose by way of treaty change to their own national Parliaments. I can assure noble Lords that Britain will approach the IGC in a positive spirit. As my right honourable friend the Prime Minister said in another place last week:
Lord Strathclyde: My Lords, my noble friend Lady Chalker has sat down. My noble friend Lord Harmar-Nicholls tried to intervene during the course of my noble friend's speech; but she chose, because of the time limit, not to allow such an intervention. That permitted my noble friend to answer many of the questions posed by speakers in today's debate. As I said, my noble friend has now sat down, and the noble Lord, Lord Jenkins of Hillhead, will now reply.
Lord Harmar-Nicholls: My Lords, is the acting Leader of the House seeking to change the customs of this Chamber? It is accepted that the intervention I want to make is a proper one. I wanted to ask my noble friend
Lord Jenkins of Hillhead: My Lords, I am not a great believer in a second speech from the same person on the same subject on the same day. Therefore, my comments will be very brief. Also I suspect that noble Lords may be beginning to prefer the thought of the first course of their dinner to a second course from me. I thank noble Lords who have participated in the debate which has been a worthwhile one and has struck a new and slightly more constructive note in our European debates than we have heard recently.
For me, the debate would almost have been worthwhile alone for the speech of the right reverend prelate the Bishop of Sheffield in theif I may put it this waycatholicity and generosity of his historical and geographical sweep. He made me almost feel I was listening to an address from John Henry Newman.
Lord Jenkins of Hillhead: My Lords, I will not say at which phase in the career of that distinguished Anglican who became a cardinal. I turn to comment, possibly a shade less generous, about the noble Lord, Lord Pearson. When he was speaking I was reminded of the Manifesto of the Three Tailors issued early in the 19th century which began, "We, the people of England". I thought his doctrine that those who had any experience of these matters and who had been concerned with any political or administrative matters should not speak on them, was interesting and novel. It would certainly leave a good deal more space for him to speak in this House, and we might hear him very frequently in those circumstances.
Lord Jenkins of Hillhead: My Lords, the noble Lord, Lord McIntosh of Haringey, was worried that I was deserting party politics. Parties have their place, but they can get above themselves. Some of the puerility of party politics in this country has done a good deal of harm to our handling of the European issue. The noble Lord rebuked my noble friend Lord Thomson and myself most mightily for not having set out in detail the Liberal Democrat programme. He then spent a good deal of time doing that; and then, at the end, said he had not left himself enough time to set out the Labour programme. However, we are all subject to time factors.
I now turn to the Minister. She is, as always, the acceptable face of Toryism. I thank her for her speech this evening. There were parts of it which I preferred to other parts; but what I thought was the caseand I cannot say better than thiswas that the parts of it I preferred were those which she prepared more herself and had her personal conviction behind them. In any event, I thank her for her reply as I thank all those noble Lords who have spoken. I beg leave to withdraw the Motion.
Its sole aim is to make it possible for persons legitimated by subsequent matrimony to inherit a title throughout the United Kingdom rather than, as at present, in only one part of it; namely, Scotland. It is a modest measure but not, I believe, without importance. I hope it will find favour with your Lordships.
As regards the dilatory amendment in the name of the noble Lord, Lord Morris, I could have wished that the noble Lord had put it down a little earlier, or approached me, so that we could have had time to discussand, I would hope, allayhis fears. As a result of a conversation this morning, I now have an inkling of what disturbs him, erroneously in my view and that of my advisers, and I shall do my best to set his mind at rest. At all events I hope that he will agree with me after this debate that we should continue to pursue any remaining matters of concern in Committee, as happens in the vast majority of cases with Private Member's Bills in your Lordships' House.
Before I proceed any further, two things are incumbent on me. The first is to declare a personal interest in that the succession to my own peerage would be affected if the Bill became law. It would pass from the current heir presumptive who is my younger brother, to my son who would become the heir apparent. There is no disagreement in my family that this is a proper step. But I am aware that there is a question of expectations, which I will address later in my speech.
I also want to make it absolutely clear at the outset that the Bill has nothing whatever to do with reform of the House of Lords. It is exclusively concerned with the succession to hereditary titles. It is up to Parliament to decide whether or not the holders of such titles should be entitled to sit in Parliament. Possibly this question will arise again in the not too far distant future, and possibly not, but whatever the outcome of the next general election and any proposal for reform that may follow it, that will not be affected one way or another by the Bill.
Perhaps I may now draw attention to the general law on legitimacy as it now stands. In various reports on the subject the Law Commissions of England and Wales and of Scotlandthe two Law Commissionsrecommended, as a matter of general principle, the removal of any discrimination against a person born outside matrimony, whose parents subsequently contracted matrimony. This principle has been adopted by Parliament in various Acts including the Legitimacy Act 1976, the Family Law Reform Acts 1969 and 1987 and the Children Act 1989.
However, as regards titles of honour, the Law Commissions did not propose any change in the law. It might be surmised that this was at least partly because the vast majority of extant hereditary peerages (526 out of a total of 772 entitled to a seat in this House) are peerages of the United Kingdom, created since 1801, while the Law Commissions' remit is confined to their respective regions and countries. There is no Law Commission for the United Kingdom as a whole.
The upshot is that a person legitimated by subsequent matrimony has exactly the same rights and responsibilities as if he had been born legitimate, with the outstanding exception in England, Wales and Northern Ireland, but not in Scotland, of the inheritance of titles of honour. Indeed paragraph 4(2) of Schedule 1 of the Legitimacy Act 1976 expressly provides that apart from Section 1, which deals with void marriages,
This is in marked contrast to the situation in Scotland where it has always been accepted under Scottish common law, subsequently codified by the Legitimation (Scotland) Act 1968, that persons legitimated by subsequent matrimony are eligible to succeed to Scottish titles and do so succeed. Furthermore, we have the extraordinary anomaly that a person legitimated in England by the subsequent marriage of his parents may inherit a Scottish title but would be debarred from inheriting an English, Irish, British or United Kingdom title in the same circumstances. This is surely quite unacceptable. I can see no sound reason why those of us who hold such titles should not benefit from the same regime as the Scots. The United Kingdom is clearly made up of different component parts, but it is still a unitary state.
That is the background to the reform I am proposing. The current exclusion of most but not all hereditary titles from the general thrust of the law on legitimacy across the United Kingdom is clearly discriminatory and my aim is to remove this discrimination. I am glad to be able to report to your Lordships that the Bill has widespread support among representative bodies of the legal profession outside Parliament. It is supported by the Family Law Committee of the Law Society, by the Family Law Bar Association, and by the Solicitors' Family Law Association. They are all united in their opposition to discrimination against any particular category of citizencorrectly, it seems to me. I have also received assurances that this Bill would not be opposed by the Labour Party in another place although of course I obviously will not pre-empt what the noble Lord, Lord Rea, has to say from his Front Bench in this House.
Let me take your Lordships briefly through the Bill. It is my duty to do so. It is always an attractive idea that a one-clause Bill will do the trick for a simple matter. But usually a number of subsidiary and consequential matters need to be taken care of. So this Bill has six clauses and a schedule, all straightforward but the minimum required to do the job efficiently.
Clause 1(1) is the principal provision of the Bill and would enable legitimated persons to succeed and transmit a right to succeed to titles. That is at present excluded by provisions in the current legislation concerned with legitimation in England, Wales and Northern Irelandprovisions which are repealed by Clause 6(1) and the schedule to the Bill. In Scotland legitimated persons can already succeed to titles, as I mentioned earlier.
Clause 1(2) makes it quite clear that the words "lawfully begotten", or similar words in letters patent or other instrument creating a title, will not prevent a legitimated person from succeeding to a title. In the case of a barony by writ, the title has no instrument of creation; hence the acknowledgement in the subsection that not all titles have such an instrument.
Clause 1(3) establishes that the Bill covers persons legitimated under, or recognised as legitimated under, the law of any part of the United Kingdom. It also defines "title" widely to cover any dignity or title of honourand in that it follows paragraph 4(2) of Schedule 1 of the 1976 Act which employs the identical phrase, "any dignity or title of honour". Section 10(1) of the Northern Ireland Act is to the same effect. It is drawn in the same terms. The Bill accordingly goes beyond peerages and would embrace baronetcies as well.
Clause 2 is a technical clause concerning seniority. It would normally secure that the eldest child, if legitimated, would have seniority. The other provisions in the clause concern in particular the case of the holder of a title marrying en secondes noces a woman by whom he has previously had an illegitimate child. But that child's legitimation, and therefore his seniority, would date from the remarriage and he would not be able to displace an heir, albeit younger in years than himself of the first marriage.
Clause 3 makes it clear that the Bill covers existing titles, but that it will affect only successions on a death occurring after the Bill is enacted. It does not bite back into the past and could not therefore disturb any present title holder. Nor could the descendant of someone legitimated in the past, but deceased, disturb the succession to the current line. All successions through a legitimated person who died before the passing of the Act are excluded.
This clause is also intended to secure that the interference with present expectations is the minimum consistent with the aims of the Bill. It is obvious that some hypothetical expectationsand I have reason to believe a very small number of actual expectationsmay be disappointed. But here I would point out that the expectation of an heir presumptive can never be other than contingent on the current holder not remarrying, however late in life, and producing an heir. Even an heir apparentthat is, a male child in the direct line of successionmay have his expectation disappointed by untimely death, as recent tragic events have shown in a noble Scottish family. Some expectations exist only as a result of the discrimination and anomalies to which I have referred. Others may be blown away by fate. Expectations are not foolproof or irreversible entitlements.
Clause 4 recognises the fact that under Scottish law legitimated persons are already able to succeed to Scottish titles. It leaves the Scottish law to operate where it operates already and, in effect, ring-fences the Scottish position.
This is a small Bill designed to tidy up a small corner of the law. We have for some time now ceased to discriminate against children born outside wedlock through no fault of their own, nor often of their parents, as, for example, in the case of a premature birth or a long and complicated divorce procedure in another country. The act and commitment of marriage or remarriage is the important thing, and that is at the heart of the Bill. That is what has been upheld by all family law legislation over the past quarter of a centuryand rightly so in my viewas the trigger of legitimacy and all that flows from it.
It might be argued that hereditary peerages are such an arcane and unusual institution that the general law should not apply to them. There is not much foundation for that. The hereditary peerage is certainly not older than the institution of marriage. In fact, as I have already indicated, much of it is of very recent origin. The great majority of current hereditary peerages have been created since 1831 and a large proportion of those since 1918. Taken as a whole, we are not all that far removed from our origins in the business, commercial, agrarian, intellectual and recent political life of this country. That is our strength. There is nothing unusual or mystical about us requiring unusual or mystical rules as for some ancient priesthood.
The one thing that is special about us is the privilege that we enjoy (or most of us enjoy it; there are some exceptions) of a voice and vote in your Lordships' House. However, I think that I have demonstrated that the Bill will have no effect one way or another on that. Peeringif I may be forgiven the puna little further into the future of the hereditary peerage, I can well foresee a time when we shall no longer enjoy that privilege as of right. That does not mean that we shall cease to exist unless formally abolished by a republican eventuality which may yet be some way down the track, perhaps over the horizon. In the meantime, I venture to suggest that holders of hereditary titles should be in no worse or different a position as regards legitimation and its effects than that enjoyed by the generality of the population of England and Wales and Northern Ireland, as laid down by the statute law of the land, to which I propose these modest amendments. I beg to move.
We must first look at the nature of hereditary peeragesand we must not forget of course baronetcies. They are created by letters patent under the Great Seal in a form prescribed by rules under the Crown Office Act 1877, which limits succession to the heirs of his body lawfully begotten.
To put this another way, the creation of an hereditary title and the rules of succession are a question solelyI repeat, solelyof Royal Prerogative. It is my view that it is quite wrong for a Member of this House to attempt to usurp that prerogative.
Let me attempt to illustrate the uncertainties that the Bill will create. In marked contradistinction to the Legitimacy Act 1959, which enabled children of putative marriages to succeed to titles, this Bill, as drafted, would affect those born before as well as after the commencement of the Act. This would inevitably have the effect of depriving some heirs apparent of their title in favour of persons born out of wedlock, and legitimated not by the will of the Crown, so to speak, but by the parents of the previously illegitimate child.
At this stage, the noble Lord, Lord Kilmarnock, was totally silent on the question of entailment. This is of critical importance. It is a lawyer's term of art for the movement of property which flows with the title. All those property rights and expectations would be lost.
A slightly more complex case is where a Peer has one son out of wedlock, marries the mother and then has a second son. The second son, who will at present expect to succeed, would be deprived by the Bill since his elder brother will, by Clause 2, be deemed to have been born by the date of the marriage.
Rather more difficult and doubtful is the case where a Peer has a son legitimated by a subsequent marriage and, before the commencement of the Act, dies, so that the collateral line, or the younger legitimate son in my previous example, succeeds to the title. The legitimated person, however, is still alive at the commencement so that his line of succession is not barred by virtue of Clause 3. The question then arises of whether the legitimated person's claim revives when the succession next opens on a death after commencement, so that he may assert it against, for example, his nephew (the son of his younger legitimate brother in the example I gave). It is not clear whether the Bill is intended to cover that position; but it is arguable that it does, and with the effect of reviving the claim of the legitimated person or a claim made through him by his son.
I can see another and not unfanciful mischief that this ill-begotten Bill provides. Let us say that the son, a legitimate heir of most probably, I suspect, a Liberal Peer, with the assistance of several willing ladies, sires
I shall not weary the House further with a catalogue of the uncertainties and harm that the Bill would create. One thing is certain: to move, as this Bill most certainly does, the power away from the intention of the person creating the honournamely, the Crownto the holder or the heir presumptive of the title is to encourage irresponsibility and is clearly wrong. The ability to create uncertainties in the succession of titles by virtue of this Bill is limited only by the imagination of man. Families can be quite revolting enough as it is. This Bill positively encourages them to be more so. I beg to move the amendment standing in my name.
The Viscount of Oxfuird: My Lords, the very term "heirs of the body" evokes a form of comfort which appears to have no contradiction until one looks into the depths of the inheritance laws of the Peerage and the root of their existence, and the importance of the Crown prerogative.
Thus it is that one must return to col. 685 of Hansard of 27th November 1986, and to the speech of my noble and learned friend Lord Hailsham when he was Lord Chancellor, at the Second Reading of the Family Law Reform Bill, which is now an Act.
Perhaps we believe that we sail in so-called "charted waters" with the legitimacy Acts, but there are also the gods of the copy book headings, and they are to be respected. Acceptance of this Bill could have severe consequences, particularly in connection with its retrospective effect.
Lady Saltoun of Abernethy: My Lords, when I first glanced at this Bill, I thought it was pretty innocuous. But when I came to examine it more carefully, I began to have misgivings. Upon further investigation, my misgivings increased to the point where I shall support
There are two principal aspects of the Bill which I find totally unacceptable: first, its retrospective effect, and, secondly, the disappointing of legitimate expectations. That is what Clause 3 does. If the Bill receives a Second Reading, I shall seek to amend Clause 3 at Committee stage, so as to remove the first and avoid the second.
The noble Lord, Lord Kilmarnock, dismisses legitimate expectations in a somewhat cavalier manner. But the disappointing of them can be the cause of much sorrow and bad blood in a family, and is something to be avoided wherever possible. God may blow them away, but that is no reason for us to do so.
The noble and learned Lord, Lord Keith of Kinkel, in his judgment given in 1986 on the appeal of Dunbar of Kilconzie, clearly thought that both retrospection and the disappointing of legitimate expectations should be avoided; and although his judgment applies to Scotland and this Bill is not, I understand, supposed to apply to Scotland,although I do not find that that emerges very clearly from reading the Billthe principle applies equally to England and Wales. I am very sorry that the noble and learned Lord is not here this evening to contribute to this debate. There is a way in which what the noble Lord, Lord Kilmarnock, seeks might be achieved without the damage that this Bill will do.
In Scotland, in the early daysby that I mean before 1603 it was, by the law of Scotland competent to the grantee of a peerage, or any of his successors, to resign such grant into the hands of the Crown in return for a new grant which could limit the destination in such manner as the grantee, with the consent of the sovereign, might direct. Indeed, it was customary to resign any peerage to the Crown on the accession of a new sovereign, and hope for a re-grant, which could of course be dependent on past good conduct. I believe that that law has not been repealed.
I should be happy to support such legislation for GB and UK peerages, provided of course that no legitimate claimants existed or that their consent had been obtained before any alteration was requested in the destination. That would also enable peerages which are in danger of extinction, for want of male issue, to be revitalised.
It occurred to me that another way of doing this might be by a personal Bill. But I believe that the Personal Bills Committee might think otherwise. So that may not be a very practical suggestion. As it stands, I shall support the amendment of the noble Lord, Lord Morris.
Lord Teviot: My Lords, it is a great pleasure to follow the noble Lady, Lady Saltoun of Abernethy. I support the noble Lord, Lord Kilmarnock. This Bill is a "Legitimated Persons" Bill. It dwells on those who have been illegitimate and who have suffered in the past. I
With regard to succession, there have been many what I might call eccentric legal arguments. But a case can be made. There have been various Acts on legitimisation in England and Scotland. An illegitimate person can inherit. On the rare occasions on which it might occur with regard to this House, illegitimate people could well inherit. I see no reason for any objection, whatever the legal argument. But we have to look at what might be called the basis of the argument.
Perhaps I may make just one final comment. I have already spoken for one minute and would like to extend my observations to one minute and a half. In 1968, in a debate in your Lordships' House, the late Lord Ramsey, Archbishop of Canterbury, in the days of his primacy, quoting an old hymn said:
Lord Sudeley: My Lords, I rise to intervene rather than to make a speech. The Bill has been criticised as a personal Bill and perhaps I may be allowed to declare a personal interest. There were two English kings who had a good brood of bastards: Henry I and Charles II. It is from Charles II that some of our Dukes are descended. I am proud of my illegitimate descent from one of the illegitimate children of Henry I. Whatever modern American women may say, in those days there was honour in being a royal mistress.
The fate of the legitimate son and heir of Henry I is well known. He would have survived the sinking of the White Ship, if he had not sought to rescue his illegitimate half-sister, the Countess of Perche. They both drowned together and there followed all the misery of the contested succession under Stephen and Matilda, when the government were so weak and the Church so strong that canon law exceeded all proper bounds into probate and so on.
What is the practical outcome of an old inheritance, a peerage and a bastardy? Let me cite just one example. The Earl of Egremont, patron of Turner, had only illegitimate issue. Queen Victoria said of that:
Egremont mortgaged the Orchard Wyndham property in Somerset, entailed on the legitimate line, to the hilt. To pay off the mortgages the legitimate line was unable to pay for their daughters' dowries. They had to lock up all their daughters, a tragedy surely of a large scale if we have any feeling. I should like to oppose the Bill.
The Bill itself, in my humble view, is very carefully drawn up and I hope will need no amendment. In supporting the Bill I, like other noble Lords who have spoken, wish to declare an interest in that I have a grandson who is legitimated in the eyes of the law and falls into the category covered by the Bill. In fact, my interest is really of a technical nature since no one in my family takes the matter terribly seriously. We all assume and, in fact, hope that the right of hereditary Peers to sit as legislators will finally have been abolished long before the time this three year-old could inherit his title. But I have to say that I have always thought, since my early adulthood, that that time would have come to pass before I inherited the title. So I have to enter the caveat that perhaps he will still be able to sit in the House of Lords, although the noble Lord, Lord Kilmarnock, said that that is not the point of the exercise.
Without this archaic privilege, which we all enjoy, of sitting in your Lordships' House and being able to speak and vote, the possession of an hereditary title is merely an historical curiosity, especially when it is not accompanied by a stately home or a fortune. But I accept that such a title means a lot to some families, especially if the title represents an ancient lineage, even if it were not to be associated with the right to attend and vote in your Lordships' House. Certainly, hereditary peerages on the Continent continue. Some people take them seriously although others regard them as an object for ridicule.
As the noble Lord, Lord Kilmarnock, said, the 1976 Act to legitimate children was really a consolidation measure. The question of the inheritance of titles was omitted because it would have required new legislation. This Bill provides the opportunity to remedy that deficiency and to correct what, as the noble Lord has described, amounts to a real discrimination against legally legitimated persons. The anomaly in which male legitimated persons, or female in some cases, can inherit Scottish titles but not English, British, UK or Irish titles should surely not be allowed to persist.
I find it curious that any noble Lord can oppose this manifestly fair Bill. I certainly was not convinced by the arguments of the noble Lord, Lord Morris, which were rather far-fetched and unrealistic. He said that families are revolting and this Bill will make them worse. I found that an extraordinary statement because I believe that exactly the reverse is the purpose of this Bill, bringing to the first-born child of a couple the justice that should be his. This House and the Peerage which fills it is only here because of tradition. That has many anomalies. This Bill will help to reduce those anomalies and bring the Peerage up to date. It will make fairer an ancient institution.
Baroness Trumpington: My Lords, the noble Lord, Lord Kilmarnock, has given us an opportunity to consider the topic of this Bill with a closer focus than was possible when the noble Lord, Lord Mishcon, with his customary thoroughness, raised it during the passage of the Family Law Bill in 1986.
Legislation enacting reforms in this area has not been the province of any one party in government, and the government's position is neutral since it seems that the issue to be decided is where and how one is to draw the line between the principle of non-discrimination and the principle that those with a genuine and well-founded expectation of succession should not be unfairly deprived.
The Legitimacy Act 1959 which put children of certain void marriages on the same basis as those of valid marriages for all purposes including succession to titles drew the line on the side of existing expectations and applied the change as it affected titles only to those born after the passing of the Act. Where the line might be drawn in the present case and how this might affect the Bill are pre-eminently matters for this House to decide on a free vote.
Care has been taken to limit the effect of the Bill on existing expectations, but the Government see some difficulties with the Bill as it is currently drafted. In order for the Bill to avoid destroying any genuine existing expectations, it would have to be limited in such a way as to change its character in what may be felt to be a fundamental way. For example, it might be limited so as to affect only those born after its passing, or to come into force in relation to any particular title only when every person living and with a genuine expectation at Royal Assent had died.
There may be changes, depending on your Lordships' views of the nature of the line to be drawn, which could be made short of those I have described but dealing with the more difficult cases. There is one area in particular where the Bill is at least unclear and in which it may have effects which would cause anxiety. That concerns the case in which a legitimated person has before the passing of the Bill been passed over for the succession to a title but is alive and legitimated at the time the Bill is passed. It is not clear whether the Bill is intended to, or would, have the effect of reviving the legitimated person's claim and enabling him to transmit it so that it might be asserted when the succession next opens, but it does seem that it might have that effect as currently drafted.
That is connected with another issue, which is the way in which the Bill relates to Scottish law. It is, as I understand it, the intention that the Bill should not affect Scottish law, which is already broadly in line with what the Bill sets out to do. But it is not clear why the Bill is not simply excluded from applying to Scotland. Indeed, there is a possibility that the Bill might, as currently drafted, have the effect of changing Scottish law if it has the effect which I have described of reviving the claim of a legitimated person previously passed over.
That is because that point has been considered in the Scottish context, where the Legitimation (Scotland) Act 1968 retrospectively legitimated certain people. It was decided that considerations of reason and justice favoured the conclusion that the claim of a person thus legitimated many years after the succession passed over should not be revived; and the Bill's effect on this decision is not clear. It may well be that it would have the effect of reversing the decision, which would call into question the way in which the Bill deals with Scottish law.
I think it proper to confine myself to giving the Government's view of the Bill as currently drafted. I know that my noble and learned friend the Lord Chancellor has written to the noble Lord, Lord Kilmarnock, pointing out his worries on the various issues that I have raised. I have drawn your Lordships' attention to certain aspects of the Bill which seem to the Government to be important. Views may differ on the question of whether those matters and others which have been raised are of a nature suited to discussion and resolution in Committee or whether they go to the heart of the Bill. Those matters and the question of whether the Bill should receive a Second Reading are, as I have said, pre-eminently matters for decision by this House on a free vote.
Lord Kilmarnock: My Lords, I am most grateful to all noble Lords who have spoken although not all have spoken as I would have wished. I should like to refer first to the speech of the noble Lord, Lord Morris. The noble Lord is under a misapprehension. There has been no interference whatever with the Royal Prerogative. The Royal Prerogative has been placed by Her Majesty at the disposal of Parliament and of this House for the purpose of this Bill. In fact, the noble Earl, Lord Airlie, came from the Palace precisely to make that declaration to your Lordships shortly before Christmas. As I said, there is absolutely no question whatever of unwarranted interference with the Royal Prerogative. I am very surprised that the noble Lord, Lord Morris, was not aware of that.
It is not true that patents are absolutely sacred. The noble Earl, Lord Russell, has drawn to my attention cases in which patents have been varied. As your Lordships know, the noble Earl is a distinguished medieval historian and he has drawn my attention particularly to the case of Lord Brooke in 1628 who succeeded his cousinby whom he had been adopted when but four years of agein the peerage under the the special limitation of the patent. It is not true that patents have never been varied. They are not, in that sense, completely Holy Writ.
In regard to the interesting speech of the noble Lady, Lady Saltoun of Abernethy, I was surprised that she referred to the Bill as "bad law". In fact, it attempts to replicate the law of Scotland. We often say in your Lordships' House that they order things better north of the Border. Indeed, that was one of the assumptions of the Bill. I therefore found that a rather strange remark. With regard to the noble Lady's point about retrospection, I draw her attention to Clause 3, which I have quoted. It is absolutely clear that that is not retrospective.
The noble Lady referred to the case of Dunbar of Kilconzie, of which she kindly sent me copies. I read it with great care. This Bill would not have gone against the ruling which the noble and learned Lord, Lord Keith, delivered in that case, and so it would be entirely on all-fours, all square with that ruling.
With regard to the very interesting suggestion the noble Lady made of re-grants, I venture to say to her that I do not believe that this particular procedure has been used since the Act of Union, 1707. It would seem to me to place a tremendous burden on the Crown if people were always petitioning, let us say, to jump over a black sheep in their family in order to award the title to someone whom they thought would bear it more honourably or more reputably. It seems to me that what we have here is very much more simple than the procedure that she has proposed.
Back to Table of Contents
Lords Hansard Home Page