Dáil Éireann debate -
Thursday, 27 Mar 1930

Vol. 34 No. 2

Legitimacy Bill, 1929—Second Stage.

Mr. Little

This Bill is a very uncontroversial measure. In case the Minister for Finance may not be remaining in the House, while he is here I would like to mention to him that there is a small section of the Schedule which gives power to the Registrar-General to impose a fee of 10/- in the event of certain things not being done by the parties. I believe this Bill will be passed by agreement, but I would just like to draw the Minister's attention to that particular portion of it. Perhaps he will deal with it in the same way as he is dealing with the Money Resolution under the Moneylenders Bill. It is such a small matter that it might be better if the Minister simply let it remain in the Bill. It is only a matter of fixing a fee of 10/-. If the Minister prefers, we could drop that item and pass the Bill without it. It is really very small and it does not affect actual legitimation.

The object of the Bill is to legitimise children after marriage—to provide that children born out of wedlock shall be legitimised after marriage. The Title of the Bill is "An Act to amend the law relating to children born out of wedlock." There are two principles in the Bill, one in Section 1, and the second in Section 9. Section 1 deals with children who become legitimised either at the passing of this Bill or at the date of the marriage, whichever happens last. It is necessary for me to point out that there was an omission in the printing and the word "last" should occur before the word "happens" in line 16.

Section 1 deals with people domiciled in this country. People not so domiciled must, if they wish to take advantage of this Bill, come under Section 2 under which, by means of the Declaration Act of 1858, they can have a decision of the Court declaring that one of the parents was legitimate. Sub-section (2) of Section 1 points out that nothing in the Act shall operate to legitimate a person whose father or mother was married to another person when the illegitimate person was born, and there is the added crime of adultery. That is in consonance with the Canon Law; in fact, the whole Bill follows very much upon the lines of the Canon Law. Similar measures relating to legitimacy have been adopted in every country in the world except in Albania, Siam and Ireland. It is nearly time that we should become as civilised as other countries in this matter.

The Bill deals with the rights of property which arise after legitimation. According to the law as it stands, an illegitimate child is entitled to no property and if an illegitimate child dies the property goes to the State. I will not delay the House by going into the various details of this Bill or by referring to the various kinds of property and death duties. The principle is a simple one. The principle in Section 9 of the Bill is merely a question of mercy. Where the mother of an illegitimate child dies and there are no next-of-kin the illegitimate child takes the property of the mother. If the child dies the mother is regarded as the sole inheritor of any property that the child may have had. That disposes of that side of the Bill.

The Schedule deals with the re-registration of such children. The Schedule is very important because when it comes to the question of property, although the Bill automatically legitimates, still for the purposes of proving one's title to the property re-registration becomes necessary. Re-registration must be carried out under certain conditions, and it must be on the information to the Registrar of both parents, unless the father has already been registered as the father of the child or the paternity has been proved by an Affiliation Order or by other decree of the court, or else that the declaration of legitimacy of the legitimated person has been made under the Legitimacy Declaration Act of 1858. Those are the main lines of the Bill and I need not detain the House any longer in dealing with it. I think there will be agreement on this Bill. If there is any matter that is not quite satisfactory it can be disposed of by amendment in Committee. I move: "That the Bill be now read a Second Time."

Minister for Justice (Mr. Fitzgerald-Kenney)

I really think that this Bill in its present form is a disgraceful production. It has quite a good Title. The Title is excellent. It reads: "An Act to amend the law in relation to children born out of wedlock." That is quite good, and I think the evidence of any good in this particular production almost ceases with the Title, certainly as far as its form goes. The Deputy opposite and the Party in the House who introduced this Bill set themselves down in moral fashion to copy out the existing English legislation on the subject. But in that copying they showed a degree of ignorance, a degree of inefficiency and a degree of slothfulness that has astonished us. I have not possibly a very high opinion of the abilities or energies of the Party opposite, but I must confess that the way in which they have presented this Bill to the House has astonished even me. I can hardly find a place where there is not mistake after mistake—gross examples of carelessness, piled upon gross examples. Deputy Little says the interesting sections are Sections 1, 2 and 9.

To my mind, really the most interesting section of all is Section 8, and the profession of political faith and political belief that Section 8 contains. We have heard a great number of speeches upon external association, about having a showdown with England, and there is the Referendum and all that. But here is a very solemn document. The Bill which the Party opposite fathers is to be taken as a surer expression of their views than any casual speeches may be. I discovered that they have gone most beautifully British the whole way. They have absolutely steeped themselves, so to speak, in British legislation, as Section 8 would show. While I will not point out all the faults with which this Bill is reeking, I think it is only fair to the House that I should point out some few of those faults. Deputy Little himself discovered a fault in sub-section (1) of Section 1. That was a clerical error. If there were only one clerical error or two or three clerical errors in this Bill, one would pass them over. But there are errors in the Bill which I say are utterly inexcusable. Take Section 2: "A person claiming that he or his parents or any remoter ancestors became or has become a legitimated person." In the case of his grandfather or his grandmother there need only be one of them legitimate.

In the case of his parents both of them must be legitimated. It is not either of his parents, but both of them. "Whether domiciled in Saorstát Eireann or elsewhere." The Deputy, of course, in explaining the Bill said that Section 2 did not apply to persons domiciled in Saorstát Eireann. Obviously it does.

Mr. Little

Or elsewhere.

Mr. Fitzgerald-Kenney

"Whether a natural born Irish subject or not." That phrase gave me a little bit of trouble until I came to read a little later on that Saorstát Eireann means the whole country and not merely twenty-six counties. "Whether a natural born subject or not, present a petition under the Legitimacy Declaration Act, 1858." There is no such Act in Ireland as the Legitimacy Declaration Act, 1858. That is purely an English statute. In copying out the English statute the Deputy copied blindfold. There is an Act called the Legitimacy (Ireland) Act, but it is not of the year 1858. Even to verify a matter like that was too much trouble for Deputies opposite. They proceeded to put in the English Act. To let this stand as it is now means that it becomes meaningless, because there is no Act to be put into operation, as the Act mentioned never applied to this country. "And that Act, subject to such necessary modifications as may be prescribed by Rules of Court, shall apply accordingly." Rules of Court cannot legislate or make an English Act apply to Ireland. Now take Section 3. Sub-section (1) is as follows:

Subject to the provisions of this Act a legitimated person and his spouse, children or more remote issue shall be entitled to take any interest:—

(a) in the estate of an intestate dying after the date of legitimation;

(b) under any disposition coming into operation after the date of legitimation; and

(c) by dissent under an entailed interest created after the date of legitimation.

There is no such phrase known to Irish law as "entailed interest." That is purely an English phrase. Because it was in an English Act Deputies opposite took it. It is a new term created to apply to the modern law of real property in England known as Lord Birkenhead's Act of 1925. If Deputies opposite had gone to the trouble of reading the definition section of the English Act they would have seen that "entailed interest" is a new phrase created under that Act.

Mr. Little

Does the Minister suggest that there are no estates entailed in Ireland?

Mr. Fitzgerald-Kenney

If the Deputy used the phrase "estate tail" it would be sensible, but "entailed interest" is quite different. Why did not the Deputy use the phrase "estate tail" if he meant it? That is a laziness to which I object. It is unfair to the House. If the Deputy read through this he would not have come here with the Bill so full up to the brim with mere acts of what I call gross slothfulness. Now come to sub-section (3). What is the meaning of it? It has a meaning in the English Act, a very real meaning, but it has no meaning in this Bill, because the section that made it necessary in the British Act has been left out of this Bill. Sub-section (3) says:—

Where property, real or personal, or any interest therein is limited in such a way that, if this Act had not been passed, it would (subject or not to any preceding limitations or charges) have devolved (as nearly as the law permits) along with a dignity or title of honour, then nothing in this Act shall operate to sever the property or any interest therein from such dignity, but the same shall go and devolve (without prejudice to the preceding limitations or charges aforesaid) in like manner as if this Act had not been passed.

What do Deputies opposite mean when they insert that section?

Mr. Little

Does the Minister suggest that there are no titles attached to property in Ireland?

Mr. Fitzgerald-Kenney

To begin with, I think it is highly improbable that there are, because they are mostly by statute. Assuming there are, under this Bill the title goes to the legitimated son. Under the English Act it does not. There is an exception in the English Act which says that titles of honour shall descend to the person who need not be legitimated but who would be entitled to succeed if that Act had not become law. This sub-section was put in the English Act in order to make the section sensible. Under this Bill, because a person is made legitimate for all purposes, the title descends to the legitimated son if he is the eldest son, and that becomes absolute nonsense.

Mr. Little

Surely this clause prevents any devolution upon legitimated children except in one case of disposition.

Mr. Fitzgerald-Kenney

Does not the Deputy understand the title under the Bill which he introduces goes to a legitimated person if he is the eldest son?

Mr. Little

The property goes to a legitimated person, but where the title is concerned it is the same as if this Bill were not passed.

Mr. Fitzgerald-Kenney

Where does the Deputy find that? It is in the English Act, but it is not here. Will the Deputy show it to me if he knows the contents of his Bill?

Mr. Little

Would the Minister mind reading through sub-section (3)?

Mr. Fitzgerald-Kenney

What is it put in for except as an unintelligent copy of the English Act? I have read sub-section (3): "In like manner as if this Act had not been passed." Of course a person inherits the estate, and if he is legitimated he inherits the title.

Mr. Little

"Nothing in this Act shall operate to sever the property or any interest therein from such dignity, but the same shall go and devolve (without prejudice to the preceding limitations or charges aforesaid) in like manner as if this Act had not been passed."

Mr. Fitzgerald-Kenney

What is the reason for that?

Mr. Little

In order that we would not legislate for honours.

Mr. Fitzgerald-Kenney

There is reason for it in the English statute, because under a section of the British Legitimacy Act, titles do not descend to legitimated persons. It becomes sensible there, but here, where there is no such provision, it becomes unnecessary.

Mr. Little

It is not unnecessary, because we do not propose to legislate where titles are concerned.

Mr. Fitzgerald-Kenney

You do, because you say that a person shall be legitimated for all purposes. One of the purposes would be the descent of a title.

Mr. Little

This is an exception.

Mr. Fitzgerald-Kenney

It has not been put in. Sub-section (1) of Section 8 says:

Where the parents of an illegitimate person marry or have married one another, whether before or after the commencement of this Act, and the father of the illegitimate person was or is at the time of the marriage domiciled in a country other than Saorstát Eireann by the law of which the illegitimate person became legitimated by virtue of such subsequent marriage, that person, if living, shall in Saorstát Eireann be recognised as having been so legitimated from the commencement of this Act or from the date of the marriage, whichever last happens, not withstanding that his father was not at the time of the birth of such person domiciled in a country in which legitimation by subsequent marriage was permitted by law.

That is a very nice, clear, and definite statement, "a country other than Saorstát Eireann." In other words, Saorstát Eireann is a country and not twenty-six countries. Section 8 is much more important than all the referendum and other speeches from which platforms are occasionally used by eloquent speakers. Here is a statement solemnly introduced by the Party opposite, in which they state that Saorstát Eireann is a country. Sub-section (3) runs as follows:—

For the purposes of this section, the expression "country" includes England, Scotland and any other part of his Britannic Majesty's Dominions, as well as a foreign country.

Why poor little Wales is left out of that I do not know. Possibly the geographical knowledge of the Party opposite is not sufficiently large to know that there is a place called Wales, even though it is inhabited by the Celtic race. They do not seem to know that there is such a place as Wales. All this talk about external association, etc., absolutely goes. It used, at one time, to be a term of obloquy to call a person a West Briton, but here the Party opposite are quite determined it is to be British, that it will be known to be British, and that it will blazon as far and as widely as it can the fact that it wishes to be known as British. It is not "his Majesty" at all, which is the ordinary thing in an ordinary statute. That does not go far enough for Deputies opposite. In order to show how completely British they are they must bring in this term.

Mr. Little

May I ask the Minister is it accurate or inaccurate?

Mr. Fitzgerald-Kenney

The Deputy is most anxious, in fact, so anxious that the term "his Majesty's Dominions" will not do him. The Deputy goes on to show how completely wrapt up he is and how anxious he is to be considered British that he has to bring in the word "Britannic." Then they had to go on to add: "As well as a foreign country." We are no longer to have any ideas that any part of his Majesty's Dominions are to be regarded by the Party opposite as foreign countries. Oh, no, they are not foreign! We have it definitely put down that they are not foreign to the Deputies opposite. They are very opposite.

We come now to Section 9. Here again they start by showing this absolutely sheer carelessness in drafting, want of thought and seemingly extraordinary and inexplicable want of knowledge. Sub-section (3) of Section 9 states:—

This section does not apply to or affect the right of any person to take by purchase or descent any entailed interest in real or personal property.

There again, Deputies opposite follow up the wording of a British Act of Parliament which in itself refers to an Act applicable only to England and Wales and they use the term "entailed interest in real or personal property," a thing which is meaningless in this country. "Entailed interest" does not exist here. There is no such term known to law. It is a new term created in 1925 in England but so completely captured, by steeping themselves in precedent, are the Party opposite, they think that any wording, whether applicable in this country or not, seems to be quite good enough, provided it was good enough for England which has its own laws, in some respects differing entirely from ours. I do not think it is possible in copying out an Act—and this was mere copying—to show so little intelligence, to show such gross negligence, such complete Parliamentary inefficiency as the Party opposite have shown in practically every single section of the Bill.

I think it is not fair to the House or to any Committee of the House. I do not say that I have pointed out even now all the faults there are in the Bill. I do not think it is fair to a Committee of the House to bring in a Bill in the crude, unthought-out fashion in which this Bill is introduced. I think it is only fair to a Committee of the House that when a Bill is introduced the person or the Party on whose behalf it is introduced will at least go to the trouble of seeing whether the Bill copies an English Act or whether it does not copy an English Act, that it has, at any rate, half an hour of intelligent reading given to it. If half an hour of intelligent reading, by an intelligent, instructed person, had been given to this Bill it would be quite different to the measure which the Deputy has brought in.

It seems to me that absolute inefficiency could not be more completely shown. I do not say the Deputy was wrong—the Deputy may be perfectly right—in saying that there are a great number of people who have an interest in this country and also an interest in England and that the law should be the same here as in England. I daresay the Deputy is right in that, and I do not quarrel with him. It may be considered advantageous that the law should be the same in both countries, but what I do say is that if an English statute is going to be adopted and is going to be copied, it should be copied intelligently, so that when the draft comes before the House in its first form it should be workable, that its phrases should mean something, and that the very machinery should not be the machinery of a British Act but of an Irish Act.

Mr. Fahy

The Minister for Justice is evidently very sore over something. I wonder is it something that has happened in the last half-hour? In his speech he has given us a lecture, but he has not indicated whether he is in favour of this Bill or against it.

Mr. Fitzgerald-Kenney

I told you it had a good Title and that it could be amended. I started off by saying the Title was perfectly excellent.

Mr. Fahy

This Bill was brought in owing to the neglect of the Government to bring in legislation in a matter on which representations have been made to them for years. We are not expert draftsmen. We have not the staff of draftsmen which the Government have at their disposal and who are paid by the State. I think that with the record which the Government have of amending Bills in regard to land and other matters, that it would well befit the Minister to be silent on that matter.

Mr. Fitzgerald-Kenney

You admit your inefficiency.

Mr. Fahy

I do not admit any such thing. I admit there are mistakes in the Bill. The Minister gave us a lecture, I think, on five points of the Bill. He elaborated at great length on the difference between "entailed interest" and "estate tail." That is a matter that could be remedied in five minutes by his draftsmen. We have not the slightest objection to the draftsmen of the Government taking the Bill and putting it in shape, once the principle is accepted. As regards sympathy with people who have interests in Ireland and interests across the water in England, I am sure the Minister is much more in touch with such people than we are, that he has been in touch with them for years, and has much more sympathy for them too.

There may be a few mistakes in phraseology; the technical terms may not be correct. That is a matter that can be very easily rectified. I find the exact number of mistakes in phraseology or in the technical terms that the Minister referred to are four. There is a paragraph there which he says should not be in it because it simply showed that we do not want to legislate on the question of titles.

Mr. Fitzgerald-Kenney

It does not.

Mr. Fahy

I should not like to differ from the Minister on a point of law, being ignorant on the matter, but that is how it appears to me. We want to know does the Minister accept it. We are quite willing to amend it in the shape he wants it, if he accepts the principle, puts this on the Statute book and passes legislation that the Government have neglected to bring forward for the last 7 or 8 years.

Mr. T.J. O'Connell

I want to say that I would have preferred to hear a good deal more, and I thought I would have heard a good deal more from those who fathered this Bill, as to the general principles that are embodied in it. I certainly would have expected to have heard something on those lines from the Minister. The Minister was within his right in pointing out errors in the drafting to Deputy Little but I think with all due respect to him he overdid it on this occasion. As Deputy Fahy says, private members cannot hope to be expert draftsmen even though they may be skilled in the law.

As far as I know, and I do not profess to know very much as to the necessity for the Bill, this is a matter that has been agitated in this country for some time. I think it is a Bill which is worthy of support so far as the general principles are concerned, and as far as I am concerned I will vote for the Second Reading. As I say, I hope Deputy Little will throw a little more light for the uninstructed on these matters when concluding. As I say, it is a social problem that has been debated for some length in this country, and that has been rectified in England. I think it is a matter which is worthy of the consideration of the House, and in order that we may get to each section, and debate each section, and understand perhaps more clearly what is implied in those sections, I am prepared to give it a Second Reading.

Mr. Law

I believe that there is general agreement in the House— probably it will be found in all Parties—in favour of the principle of this Bill. I do not believe there is any considerable body of opinion in the country which is against legitimation by subsequent marriage of natural born children. If that is so the point which we have reached is this—and I would like to have a little further information from the Minister on it—he has pointed out that, as the Bill is drafted, it is extremely defective, so defective that the question arises whether it can, in its present form, be conveniently amended.

Mr. Fitzgerald-Kenney

I think the Bill can be built up on the title, and I do not intend to vote against it.

Mr. Law

I did not hear that. If the Minister thinks this Bill can be properly amended as it stands I am quite satisfied.

Professor Thrift

In view of what the Minister said it seems to me that the Special Committee would have an almost impossible task, and I suggest that the right course to adopt would be for the Minister to bring in a Bill embodying the same principle and for Deputy Little to be allowed to withdraw the present one.

Mr. Fitzgerald-Kenney

I have seen a deputation of the bench of Irish Bishops on this matter, and I undertook to prepare a Bill. The heads are ready, and I was going to introduce it at the earliest opportunity, but on the last day of the last sitting Deputy Little forestalled me, and in consequence this Bill is here and not mine.

Professor Thrift

Would the Minister give an undertaking to introduce a Bill?

Mr. Fitzgerald-Kenney

I can introduce a Bill in a very short time.

Mr. Little

If the Minister, at the time I had lodged this Bill, told me he had his Bill ready, I would be very glad to have accepted it, because I have not, at my disposal, expert draftsmen and the whole Department of Justice behind me. I do not believe that the Minister has that Bill ready now.

Mr. Fitzgerald-Kenney

I told the Deputy that I had the heads of a Bill ready; the drafting of the Bill then is a simple thing.

Mr. Little

Apparently drafting is not as simple as it looks. It is fairly intricate. The way the Minister has misled this House is ghoulish as well as scandalous. There is one mistake in a date, and this is one of the irreparable things in the Bill that makes it impossible of amendment! I have here the Legitimacy Declaration Act of 1858, that should be eighteen hundred and something else. I have in this Bill the words "entailed interest created" instead of "interest in tail." This is a deplorable mistake in the Bill which cannot be amended! I have the word "Britannic" somewhere, which can be dropped out; it cannot be dropped out without a new Bill! I have not put other foreign countries here to please the Minister. Where, in the substance of this, with the exception of one clause about titles, about which we may have controversy, is there anything that does not meet the situation? He admitted himself that it may be well at this time to get our legislation more or less pari passu with the English legislation; anything else is impossible at present because a change of legislation must be a matter of growth, and whether we like it or not, we cannot jump from one system to a new system. We must do it gradually. I stand over this Bill, and if the Minister, between this and the Committee Stage, introduces his Bill, I will withdraw it, but I hope the House will not be misled by the nonsense he has talked here this evening. I do not blame him, poor fellow; he got a bad beating a few minutes before I brought in this Bill.

In my annoyance with the Minister. I did not treat Deputy O'Connell very well. To me the principle is a simple one, as I am sure it is to the Deputy. It is merely a question of legitimating the child after the parents get married where the child has been born out of wedlock. It is strictly in consonance with the Canon Law. Once that principle is established, this Bill automatically legitimates a child by the marriage. Then there arises the question of property. That is more or less an intricate matter. Various kinds of property devolve in different ways, and so it is necessary to bring the Bill into touch with the various laws dealing with property, but the way in which persons will prove that they are legitimated is by showing that they have been re-registered. That really covers the one main principle in the Bill. There is another principle in the Bill, and that deals with the illegitimate child. The mother may inherit the property of the child or the child the property of the mother.

Mr. T.J. O'Connell

I was rather anxious to have some information as to the size of the problem in this country.

Mr. Little

It is difficult to know. After it had appeared in the newspapers that we were introducing this Bill, one person came to me to know if it would deal with certain persons. As a matter of fact, the Bench of Bishops sent a special deputation to the Minister to have this Bill passed. So there must be a fair number of cases.

Mr. G. O'Sullivan

"To have this Bill passed"?

Mr. Little

To have a Bill passed dealing with this principle.

Question—"That the Bill be read a Second Time"—put and agreed to.