Marriage Bill [H.L.]

HL Deb 01 March 1983 vol 439 cc1102-20

7.29 p.m.

Lord Glenarthur

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Glenarthur)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD WELLS-PESTELL in the Chair.]

Clause 1 [Marriages of house-bound and detained persons in England and Wales]:

On Question, Whether Clause 1 shall be agreed to?

Lord Mishcon

I think it may be appropriate if I address my remarks at this stage; namely, on the Question, Whether Clause 1 shall stand part of the Bill? If that is not convenient to the noble Lord opposite or for any other reason is not a suitable course, I shall obviously resume my seat on the slightest hint to that effect. Clause 1 deals with the enabling powers for a marriage to take place where someone is in prison or is otherwise detained in a hospital or similar establishment.

On the Second Reading of the Bill, I ventured to express a fear, and that fear did not relate to the fact of the marriage but to what would be the position of the marriage certificate, as we commonly call it, knowing as one does that the place of abode of the party to the marriage has to be put on the marriage certificate—as does, in fact, the place where the ceremony takes place.

The position up to the passing of this Bill,of course, is that the present procedure is at least open to the parties who want to get married; namely, that someone detained in prison—and that is the case I am trying to bring to the attention of the Committee—has the opportunity to apply for leave for the marriage to take place. Normally, but not always, it would take place outside the prison itself and outside the prison chapel. That would mean—and we were told that there would be a saving by the Bill—that the party concerned would be escorted by prison officers and certain arrangements would be made. However, the marriage certificate would then read that the marriage had been solemnized at St. John's church or at Marylebone registry office, or whatever the case may be.

My problem, which I tried to express on Second Reading, was to safeguard the party to the marriage who is detained and who for possibly a very good reason wishes the marriage to take place quickly and not at the end of even a short sentence—although there may be other cases where there is a long sentence. No longer will he be able to elect—because there will be rules in prisons as a result of this—to have the marriage solemnized outside the prison. He will be told that there is now an Act and the marriage will take place, if he wants it to take place, in the prison. The result of that will be that to the children of that marriage and, indeed, to anyone who applies to see the marriage certificate years afterwards—I put this problem on Second Reading—it would be transparent that the marriage had taken place when one of the spouses was in prison. This is not just an embarrassment: it is in some cases a tragic occurrence for a child who has to produce a marriage certificate afterwards.

The Minister, with his usual courtesy, answered me by saying that it was thought that this might be covered—indeed, that was the thinking at that time—by an address being given which would merely be the road or street in which the prison was located. I immediately ventured to say, having been born in South London and my late father having been the chaplain in South London to Brixton Prison—and I therefore knew it rather well—that I believed the address was Jebb Avenue, and so far as I knew the only thing in Jebb Avenue was the prison. I ought to have added that there were also a few houses occupied by prison officers. Therefore, it would be very well known to everyone in South London, and if the place of the marriage was put on the certificate as Jebb Avenue, and the residence of one of the parties was also entered as Jebb Avenue, Brixton, there would not be the slightest doubt about where the marriage took place.

The noble Lord the Minister was even more courteous after that because he took note of the point that I tried to raise and most kindly wrote to me. With your Lordships' permission, because this is such a serious matter and creates an entirely different situation, I propose to read the letter. We are still faced with a problem, and I hope that the noble Lord the Minister will be able to help, as indeed, may I say, perhaps will Member of your Lordships' Committee. The noble Lord, Lord Elton, wrote to me on 18th February. He said: In your speech during the Second Reading debate on the Marriage Bill on 28th January you expressed concern that the entry in the marriage register book and copies of the entry, commonly called marriage certificates, should not make it obvious to, say, the children of the marriage that the place of marriage was a prison. As Lord Glenarthur explained in his winding-up speech, the intention is that the place of marriage should be shown in the marriage register and in any copies of the entry in the register merely as the postal address of the prison. At the time you suggested that this practice might not be sufficient to conceal the fact that the marriage had been solemnized in a prison establishment, and hence I have looked further into the matter. The present arrangements for the registration of marriages in England and Wales are set out in the Marriage Act 1949 and in statutory regulations. Under these the place of marriage has to be stated. Moreover, under the 1949 Act the place must be set out in the notice of marriage given by the parties to the proposed marriage, and thereafter in the certificate of the superintendent registrar which authorises the marriage to take place. This requirement affords any person who may wish to allege the existence of an impediment to the marriage the opportunity to go to the place of marriage and lodge his objection either before or during the ceremony. By statutory regulations the entry in the marriage register book made immediately after the ceremony must record the place in which solemnization took place. I should explain that under Section 75 of the Marriage Act a marriage may be void if it is not solemnized in the place specified in the preliminary documentation, and hence it is of importance that the place of marriage is recorded not only in the preliminary documents but also in the register of marriages in order that it will be possible, should that be necessary, to confirm or refute claims that a marriage may be void on the ground that it was solemnized in the wrong place. As you will apreciate, a significant change in marriage law would be required if the place of marriage were to be omitted from the entry in the marriage registers and from the copies of entries, and any such change would be outside the scope of the present Bill even were it thought to be desirable in principle. My preliminary inquiries suggest, however, that there may not be the problem that we feared. Because it is already necessary to record in the register the address of a prisoner who marries outside, the difficulty is not a new one and addresses have been formulated accordingly. Thus, to give a few examples, Parkhurst is recorded as Rookwood House, Newport; Walton as 68 Hornby Road, Liverpool, and Wormwood Scrubs as 166 Du Cane Road, Shepherds Bush, W.12. Although I recognise that 1 Jebb Avenue for Brixton may not be entirely satisfactory, there are other houses, albeit prison officers' houses, in the avenue, and I should be hesitant about going to a point at which we could be accused of deliberate concealment. Within this constraint, however, we are looking at the postal addresses of prisons throughout the country as recorded by the local register office to see whether there are any cases in which we should try to modify the postal address in such a way as to make ready identification less easy. I hope that in the light of all the circumstances you will agree that the matter might best be dealt with administratively, particularly as it is clear that this issue is already being dealt with sensibly. I am writing a similar letter to the Baroness Macleod. I have finished the quotation from the letter. With great respect, I wonder whether we as a Committee are doing our duty by leaving the matter to possible administrative action hereafter when the guidance appears to be that, if this Bill is passed, there will be readily identifiable addresses for the press to see, for children to learn about and for third parties to learn about in a way which may be so distressing hereafter. I repeat that that is a position which does not normally obtain now by virtue of the fact that the ceremony normally takes place outside the prison gates either at a church or at a registry office.

So I wonder whether the noble Lord the Minister could help us upon this, because I believe that it is a matter that would be of great concern to many Members of the Committee. I hope that I have not in any way jumped this upon him by virtue of the fact that there is this correspondence. If I have done so, and he is unprepared, then in sheer decency from my point of view I ought to invite—if I may respectfully do this—other Members of your Lordships' Committee to make a contribution to the discussion. Then we will not only hear from the Minister, the noble Baroness, Lady Macleod, and myself but possibly all Members who are interested. Perhaps we can revert to this matter at the Report stage; but I do believe that this is a very important human point.

7.42 p.m.

Lord Teviot

I do not want to add very much to what the noble Lord, Lord Mishcon, has said. He has explained the situation carefully and has also given your Lordships the benefit of details of the letter in which the Government replied—and it was a very good letter.

There is one suggestion that I should like to make to him on this matter. It is regarding the introduction of a short marriage certificate. There is a short birth certificate available which was introduced after the war in order to help people who were born illegitimate when in those days there was a stigma about being illegitimate. They were given the opportunity of being able to buy this short birth certificate. Unfortunately, in the few years that ensued, anybody who produced such a certificate was thought to be illegitimate. However, times have changed.

People buy short birth certificates because they are cheaper than long birth certificates. They can be used for most legal reasons, as the noble Lord, Lord Mishcon, will know as a solicitor. All your Lordships will know that to obtain a passport you only need to present a short birth certificate. I think the short birth certificate more or less does practically everything.

I should like to ask my noble friend to consult, if he has not already done so—and obviously he cannot do so today—not only the Home Office but the Registrar General. I do not think that this suggestion would even need a statute. I think that that would probably be a very good idea.

There was one other point that I was going to bring up which has completely gone out of my head. Perhaps your Lordships will forgive me if I come back to it later, if I feel that it is still important.

Baroness Faithfull

Before the noble Lord sits down, I wonder whether I could clear a point. With regard to the short birth certificate, is it not true that when you want to apply for a top job in the Civil Service or in MI5, 6, 7 or whatever it is, you have to produce the long certificate? Is this not so?

Lord Teviot

I am sure, my Lords, that the noble Baroness has made it quite clear. I think in those circumstances the answer is, yes.

I know the exact point that I was going to bring up. It is of great importance and has to do with registration. Anything on a certificate, I think we must all agree, should be the whole truth and nothing but the truth. There should be no fudging. Whether the marriage laws are going to be changed, or whether they need to be changed, we must explore that aspect. I am thinking of the short marriage certificate. If a person, let us say, applied for a top job in MI5, and if he was married in prison, probably he would not obtain the appointment. But if he had to produce the marriage certificate of his father, then I am quite sure—people are fairly enlightened these days—he would quietly explain his personal circumstances, and I am sure that the marriage in prison would not enter into it. I am very grateful to the noble Baroness for that point.

Baroness Macleod of Borve

May I briefly thank the noble Lord, Lord Mishcon, for reading out that letter which I thought was very, very helpful indeed? I think that we are all worried about this particular point.

If we are talking about prisoners in this particular context, I was wondering whether a prisoner would be able to choose whether he should be married in prison or whether he would have the right to be married outside prison. If he felt very strongly, as is our worry, that perhaps any progeny of his might have an address that would not be acceptable within the family in the future—if he is far-sighted enough to see this point—then he might decide to get married outside prison. I should like to ask my noble friend if he can tell me about that, because that, it seems to me, might help the circumstances.

Lord Mishcon

May I deal with that point very humbly but only because the noble Lord the Minister, as I said, has possibly been caught unaware in regard to this matter? I have already said this and he ought to be treated with a proper amount of consideration as a result. But I did understand from the Second Reading speech that was made by the noble Minister, Lord Elton, that the purpose of this Bill, among other considerations, was to economise on prison officer services. We were told that quite a lot of time was taken up with taking prisoners for this purpose to an outside place.

Once this Bill has become an enactment, my impression from the noble Lord the Minister was that if a prisoner wanted to get married it would be compulsory for the ceremony to take place in the prison. Even if it were left as a discretion to a prison governor, I am not sure, frankly, trying to read a prison governor's mind, that every prison governor would say that it was a proper and legitimate use of a very exceptional right to a prisoner that the one reason that he wanted to get married outside was so that the address of the prison did not apear on the marriage certificate. I doubt whether that would happen.

Lord Mottistone

May I add very briefly the fact that I was very sympathetic to the view that was put forward earlier by the noble Lord, Lord Mishcon? I am not sure, having heard the letter which he so kindly read out to us, whether I am quite so sympathetic as I was. I quite see that when a child was born it would be very nice if we could cover up the precise address of the parents when the parents were married in prison, so that the child would never know about that. But I wonder whether that is not pushing it a bit far in view of all the objections to that which the letter so clearly points out.

Also, I was very struck by the fact that Parkhurst Prison—which is the one of course that I know best, coming from that part of the world—has a very sensible alternative in Brookwood House, Newport, which is exactly what I had hoped that it would have. Naturally in the Isle of Wight people always do things the best way, but I will not pursue that one. I suspect that that is the name of the governor's house or something like that. Would it be possible, where necessary, for all prisons to be given a similar address which would be to everybody, except the really well informed, a sufficient cover?

I do not believe that we will ever get round the people who really know what the form is, and I think that we are going to find it very difficult to keep this information totally from children. I would have thought that this is something that we really cannot pursue more than a reasonable amount. I would have thought that what the Minister says in his letter, with possibly some changes of some of the names that are used for prisons, would be a sufficient safeguard for the superficial reference to the address.

Baroness Faithfull

I wonder whether I may put one point of view that has been put to me. I have not investigated it very closely, but it is that the registrar, presumably, has to be present at the prison at the time of the marriage. Could not the address of the registrar be put on the certificate? Would that be completely outside the possibilities?

Lord Mishcon

I hesitate to come back and I promise the Committee that this is the very last time. I believe that when the noble Lord the Minister wrote to me he very clearly said, and understandably so, that the precise address where the solemnization takes place must be there in the notice, apart from anything else, and in the certificate, because otherwise, if it is at an address other than the one that is given, first there is no right to challenge the propriety of the marriage (if I may put it in those terms) and, secondly, there is a question of whether the marriage would not be void in any event if it were not at the address for which the notice was given.

Lord Glenarthur

I must confess that the noble Lord, Lord Mishcon, has to some extent caught me on the hop with this one. I will do my best to try to explain to him a little in amplification of my noble friend's letter. The situation is as expressed in the letter which the noble Lord read out. It sets out very fully the reasons why I cannot promise more than a sensible approach at an administrative level. There are good reasons, such as being clear about the validity of the marriage—which is the point that the noble Lord himself made when he was answering my noble friend Lady Faithfull about validity—and why a certificate should state the place of the marriage, and at present, as he so rightly says, the address of the prisoner is recorded.

The address of the prisoner has to appear in however imprecise a form on the entry of marriage, even where solemnized in a church or register office, but the Government will do whatever is reasonably possible to adopt addresses for marriages under the Bill which will not disclose that the place of solemnization is a prison. I think it would perhaps be difficult, if not to some extent pointless, to go as far as my noble friend Lord Mottistone suggests in re-addressing prisons and giving them all another name, because those names will become known. I myself did not know the postal addresses of many prisons which have been referred to in my noble friend's letter, but they will become known in time. I do not wish to appear in the least unsympathetic to the noble Lord. I think he makes a point of which the department is aware, but I hope what I said earlier about the Government doing what they reasonably can to ensure some form of address which will not disclose the nature of the place appearing on the certificate will be something that will reassure him in this case.

Lord Mishcon

I am sure that the Committee is most grateful, as I certainly am, to the noble Lord the Minister. May I just explain to him, so that he does not think I was inconsiderate, that I was engaged on another Bill and was waiting for the noble Lord, Lord Elton, to appear to give him advance notice. I apologise.

The problem, in one sentence, is that, possibly without anybody realising it, we are taking away from a prisoner something which at the moment he has: namely, the right to get married outside the prison. I shall leave it at that because I think that is the proper thing to do and ask the noble Lord the Minister whether he will continue the kindness which has been shown to me on this matter about which I am troubled, and other Members of your Lordships' Committee obviously are, and see whether the matter can be carried further.

Indeed, if I may borrow something from what the noble Baroness, Lady Macleod of Borve, said, if something possibly could be written into the Bill which still gives the prisoner the option of marrying—I nearly said marrying out of prison, which sounds a little odd—but having the marriage solemnized outside the prison, then, of course, the reason for part of what I have said disappears. Only part, of course, because many may be thoughtless about this and not realise what it may do to children and so on hereafter. But if the Minister would be kind enough to say that he will consider what I and other Members of the Committee have said and possibly approach it along those lines, I should be very grateful.

Clause 1 agreed to.

Schedule 1 [Amendment of Marriage Act 1949]:

7.55 p.m.

The Lord Bishop of Derby moved Amendment No. 1:

Page 11, leave out lines 28 to 31 and insert— ("(b) stating that in the opinion of the responsible authority the circumstances of the individual case are such as to require the marriage to be solemnized with the precincts of the establishment.")

The right reverend Prelate said: This amendment attempts to set out clearly a matter of principle. The amendment may be defective technically, but if the principle it expresses is agreed by the Committee it would surely be possible for the draftsmen to include the correct wording later in the Bill. The principle is stated in this way. It is stated in the rubric in the Book of Common Prayer, at the beginning of the marriage service: the persons to be married shall come into the body of the Church with their friends and neighbours"; and the same idea is expressed in the preface to the marriage service in the Alternative Service Book, which begins with the words: We have come together in the presence of God to witness the marriage of N and N, to ask his blessing on them, and to share in their joy

The Church considers it important that the largest number of relatives and friends should be able to witness the marriage. If the ceremony is to take place in the prison chapel it is likely that very few guests will be permitted into the prison. The Home Office has said that this will be a matter for the governor's discretion and will depend not only on the character of the detained person but also on the type of prison in which he is held. That seems to be the answer to the inquiry made by the noble Lady, Baroness Macleod of Borve, but her concern, that the prisoner should be able to express his wishes, is an important one.

Secondly, as I said in the Second Reading debate, the parish church is likely to provide a much more appropriate atmosphere than the prison chapel. To what extent will the wishes of the couple be regarded as paramount in this matter? Representations made on behalf of prison chaplains make it clear that they consider it crucial for the marriage to be conducted outside in the community wherever possible. Surely no bride, or even bridegroom, would want her or his wedding to take place in prison. Whatever the degree of nervousness at the time, the setting is of great importance in retrospect. All that the noble Lord, Lord Mishcon, has said reinforces these considerations that I mention.

And they are human considerations, as he said, and they are not matters primarily, in my mind, of ecclesiastical regulation. To deny a person a wedding in normal surroundings (be it church or register office) on the ground of the cost of providing escorts is not an adequate reason. From information suppled by the Home Office it would seem that we are talking about no more than 300 weddings a year, the majority of which are probably not Church of England ceremonies. By comparison there are thousands of escorts required in a year for court appearances and hospital visits. Wedding escort duty is a tiny proportion of the whole and would make little difference to the total expenditure. The present requirement is that the marriage should be solemnized in the church or register office nearest to the prison, and normally escort there will not be a very expensive matter.

It will probably be said that the Church's proposal relates strictly to the operation of the legislation rather than its content and, whatever policy is followed, could be put into effect without amendment of the Bill. While that is true, it is important to consider what is said on page ii of the Explanatory and Financial Memorandum to the Bill under the heading "Financial effects of the Bill". It is stated that some financial: savings will result from some detained persons being married in their place of detention instead of being escorted to be married elsewhere". Unless the Bill makes clear in some way that the norm is marriage outside the prison, it would seem to be Government policy to require marriage to be solemnized in the place of detention. If this is the Government's intention it should be clearly stated and not brought in under cover of the other considerations.

I am surprised that the present Government should seek to alter the ecclesiastical establishment to even this minor extent in this arbitrary way. It is to try and make the traditional position clear that I propose this amendment. I beg to move.

Lord Glenarthur

The right reverend Prelate has very fairly returned to a point he raised in his speech in the Second Reading debate on this Bill in which he voiced the concern felt by some prison chaplains that marriages of prisoners should, after this Bill comes into operation, ordinarily be solemnized inside prison rather than in a church or register office outside. He has referred in that context to the parish church as the most suitable venue for a Church of England ceremony, as likely to provide a much more appropriate atmosphere for the couple and wedding guests than an institution.

Her Majesty's Government entirely share the view of the right reverend Prelate that the proper place to get married is in a place of worship and that that place of worship should, whenever possible, be outside prison. That is the natural state of affairs and it is entirely appropriate to the beginning of a marriage. But where the bride or bridegroom is a prisoner, I must first ask the right reverend Prelate to remember that there is little more that we are able to provide, in the way of normality, than a few hours of liberty. Prisoners do not, by getting married, bring their sentences to an end. After the ceremony they return to custody and their spouse remains outside. And in many cases where prisoners cannot be left at large without escort, we do not achieve even that degree of normality when we allow them to marry outside the prison. Prison officers cannot be disguised as pages or bridesmaids and there is no concealing the fact of the sentence of which all concerned are in any case aware.

The right reverend Prelate is anxious, I think, for an undertaking that marriages of prisoners will only be celebrated under this Bill—and within the prison walls—if there are overriding considerations preventing their marriage outside. His concern is for the individual prisoner and the spouse, family and guests. I understand that concern, but I have another. I think he mut share a little of it and so I must tell your Lordships about it.

The prison system is at present under very great strain. Shortages of staff mean that we must rely on staff to work high levels of overtime if régimes are to be maintained at an acceptable level. Even so, there are restrictions on the extent to which educational opportunities can be made available to prisoners or on the times when workshops can be kept open. All this is compounded by the need, in many of our hard-pressed local establishments, to provide large numbers of staff to meet the requirements of the courts—such as the right reverend Prelate mentioned himself—and on occasions we are not even able to achieve this. It is in these circumstances that we have to view the provisions of this Bill at present and which leads to our concern.

Our concern is with the large number of prisoners who would be left behind on what, for those to be married, would be their happy day—not merely locked up in prison, as they can expect, but locked up in their cells for almost the whole day simply because staff who could have supervised them at work or recreation are engaged on escort duties instead.

The right reverend Prelate must, I think, allow the prison governor to decide, in the light of the staff available to him at the time, whether he can properly allocate staff to escort duty on the occasion of any particular wedding. If he cannot there is still a place of worship available. It is an essential part of every prison and the right reverend Prelate will not mind my testifying to the devoted work of the Prison Chaplaincy that assures its proper use around the year.

For the present, therefore, while the Government share the Church's preference for venue, I cannot undertake that if the Bill becomes law it will be possible ordinarily to give effect to that preference. If and when at some future time the staffing position eases significantly, my right honourable friend would be prepared to reconsider the position; but in the meantime I have to tell the Committee that the Government can only give such qualified assurance of favourable consideration of individual cases as is appropriate in all the circumstances. I hope that with that explanation the right reverend Prelate will see fit to withdraw his amendment.

Lord Mishcon

I hope that the right reverend Prelate will not do so without a protest or hoping that something more helpful might emerge from the noble Lord the Minister than has emerged at this stage. It was a harsh brief to which we listened. Nobody imagines that a prison warder would dress up as a page and I felt that, although it might bring a smile to somebody's lips, it was not quite the tone that I had hoped the noble Lord the Minister, with his usual kindliness, wanted to bring to the discussion of this matter.

I am a little worried. I see the case completely for those who are disabled and for those who cannot move away from institutions. I am becoming worried about the change that we are being asked to make in the case of prisoners because it is a right that they have at the moment, which is exercised quite freely. The noble Lord the Minister has not spoken about protests from the Prison Officers' Association. I do not know whether he has received any, but if so he will tell us. I have not read about protests from other prisoners concerning being locked in cells while the ceremony is taking place outside. So far as I know, it has not reached the press or the other media. If the Minister can tell us about such protests, I am sure that we ought to know about them.

However, the right reverend Prelate quoted the number of cases—300 or so a year—and he very charitably used another word rather than the word which occurs in the Explanatory and Financial Memorandum. He said that it is expected that, "some savings will result". In fact, it says that "minor savings will result". So according to the Explanatory and Financial Memorandum we are dealing with minor savings. If this were there on its own I would not be as worried as I am having heard the previous discussion that took place on the Question, Whether Clause 1 shall stand part of the Bill? The additional worry is not only that they will not have the privilege that they have now, but that what they will have in addition—what they do not have now—is a marriage certificate that will be identifiably there as evidence that the marriage took place in prison.

The noble Lord the Minister could help us very much if he went halfway and made it an option and said that it can take place in prison under the enabling procedures here if the prisoner so wishes—indeed, there may be many cases where the prisoner will say, "I do not want to go to a church" or, "I do not want to go to a synagogue" or, "I do not want to go to a mosque; I am perfectly happy to have the ceremony here". If that is so, so be it. He has elected to do this. But would it not be proper that this, at all events for a trial period, is made optional? If the Government subsequently find that the hardship on prison officers is really of such startling proportions that one ought to terminate the option, or that the option is not being exercised the right way from the Government's point of view, it will take a very small amending Bill to remove the option.

However, I am unhappy about this, and I believe that other Members of the Committee are, too. If I may say so most respectfully to the right reverend Prelate, I thought that he made his case so convincingly and so appealingly that I hope the Minister will at least say that he will consider the question of the option procedure between now and the Report stage to save some of us from having to put down an amendment on Report which will put the option into the Bill.

Lord Gridley

I should like to say a few words in support of what the noble Lord, Lord Mishcon, has just said about the amendment of the right reverend Prelate. I shall say only a few words, for I did not take part in any of the earlier discussions on this matter. But tonight I have been most touched to think that here is an instance of a man in prison who may have all the desire in the world when he gets out of prison to forget that he was there, or not to let anyone know that he has been there; who has paid the penalty for being there; and who, therefore, if he is able to have his marriage solemnized outside, will have his mind relieved and be helped to forget the past, having paid the penalty for his wrongdoing. This is one reason which strikes me very strongly in thinking about the issue before us.

I am not entirely impressed by what my noble friend on the Front Bench has said about the difficulties of staffing, and so on, in present circumstances when it has been stated that there are only 300 records of marriages taking place outside prison throughout the whole of the United Kingdom in any one year. In a different light, I spent five years in a prison overseas, although not through any fault of my own, when I was incarcerated in a very up-to-date prison which had been designed to hold 500 convicts but which, in fact, held 1,600 of us for four years. Although one had not done anything wrong, after going through an experience of that sort one wants to forget all about it.

For those reasons alone I most sincerely hope that my noble friend on the Front Bench will consider very carefully what has been said this evening and will go away and think about the points that have been made.

Baroness Elliot of Harwood

I should like to add a few words because I spent about 16 years visiting prisons on behalf of the Home Office when I was a member of the Advisory Council on the Treatment of Offenders. I do not want to stress this too strongly because it was a long time ago, and things have changed tremendously. But I remember that on occasions—and they were very rare—when one visited a prison when a marriage was about to take place or had just taken place it had the most extraordinary effect on people. They were all interested. I did not find any of the officers in any way hostile to the job which they had to do, which was to be present when the marriage took place. It had a very friendly effect. It was the kind of effect that made you think that they really wanted to get better, to help and to leave behind their criminal background. This may have been my imagination, but it was the prevailing atmosphere.

As the right reverend Prelate said, these things happen very rarely, but, as has been suggested by the right reverend Prelate, I think it would be very wise to put something in the Bill which I am quite sure would not involve all the extra work and attention that the Minister has suggested it would, because in the very large prison population there are so very few marriages with which to cope. So it is exceptional. On this occasion, when everyone is anxious to have a united Bill, I think it would be a pity if something suggested by the right reverend Prelate should not go into the Bill in some way or another.

Lord Glenarthur

I am certain that my noble friend Lord Elton and the Home Office will read carefully what has been said by those noble Lords, who have spoken tonight on this subject. As I understand it, there are three categories of prisoner with which we are concerned. First, there are those who cannot be let out under any circumstances whatever because they are a danger in whatever way—and I think that all noble Lords who have spoken realise that. Then there are those who can be let out under escort for whatever reason; and then there are those who in some cases are allowed out without escort because they are trusted to return again. It is the second category in which we are interested. I am afraid that what I said before about the staffing arrangements holds good. It is something which the Church of England has been into quite carefully with the Home Office, and the Home Office has made its views plain.

As regards approaches from the Prison Officers' Association, there have been no formal approaches but I think it is fair to say that prison officers generally are unhappy about escorting prisoners to weddings because, among other things, the prisoner cannot be married in the sense of cohabiting, and other prisoners suffer as a result. At present, prisoners are not allowed out freely to marry and we have to impose restrictions to keep the escort commitment within bounds. The Bill will enable us to reduce these restrictions considerably.

The right reverend Prelate quoted a figure of 300 weddings a year. I am afraid I have to tell him that we do not, in fact, have any figures from any central registry of the number of prisoners who have got married. I should also say that I did not intend in any way to introduce any note of frivolity in what I said. It is a serious point that prison officers are bound to be there.

I take the points that have been made. I shall certainly read them and they will be carefully and sympathetically studied. But I am afraid that at this stage I cannot say that I can take this away and consider it and come back with my own amendment at a later stage. Therefore, I hope that the right reverend Prelate will not press his amendment.

The Lord Bishop of Derby

What we are all trying to do in this matter is to stand in other people's shoes—the shoes of brides and bridegrooms, the shoes of prison governors and prison officers. We are all seeking to do that, and I am sure that this is true of the noble Lord the Minister. Of course, the circumstances of a wedding outside prison are not normal; but it is not the length of time away from the prison with which I am concerned, it is the actual place of the wedding. It has nothing to do with extended and uproarious wedding receptions; it is the actual place of marriage which will be fixed in people's minds. Certainly I realise the difficulties that governors and prison officers must have, and I am sure that it is necessary to take full account of what the Minister has said, although it seems to me that the situation of not being allowed to permit any exception can land you in a difficult position.

What concerns me is the real danger in this Bill that in the future the marriages of prisoners will, as a matter of course, always take place in prison. I believe that some freedom in this matter is necessary. What the amendment seeks to do is to make sure that there is some careful consideration and justification of refusal of marriage outside. I must consider bringing this matter back in some form or other at the Report stage, but in view of the serious points that the Minister has made I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

8.21 p.m.

Lord Mottistone moved Amendment No. 2:

Before Clause 2, insert the following new clause:

("Informing nearest relative

. The managers of a hospital or the governor of a prison in which a patient or prisoner is detained in accordance with section 1(3)(a) above shall take such steps as are practicable—

1. (a) to inform in writing the person (if any) appearing to them to be the nearest relative of the patient or prisoner at the time when notice of marriage is given to the superintendent registrar that the notice has been given; and
2. (b) to inform in writing the person (if any) appearing to them to be the nearest relative of the patient or prisoner of—
1. (i) sections 28 and 29 of the Marriage Act 1949; and
2. (ii) section 12 of the Matrimonial Causes Act 1973; and
3. (iii) Part VIII of the Mental Health Act 1959.").

The noble Lord said: At Second Reading the right reverend Prelate the Bishop of Derby made the point that it is difficult, when a question of mental health is involved, to be certain that at the time that the wedding is proposed and takes place the persons concerned (or the person concerned if there is only one mental patient involved) are sure of the responsibilities they are taking on. The right reverend Prelate made the point, which I thought was relevant, that Article 12 of the Human Rights Charter, when read in full, says: Men and women of marriageable age have the right to marry and to found a family according to the national laws governing the exercise of this right". The problem there is the phrase "and to found a family" and the implication of responsibility that that is going to cast on the couple. Therefore, I suggest that we need to be quite sure that every possible opportunity is given to be certain that all viewpoints about the behaviour of these people who are mental patients have been taken into account before the marriage is allowed.

The Bill makes provision in Clause 1 for certain safeguards, in effect, by the way in which it is set out. In effect, this puts the weight on the medical officers concerned with the patient to give the necessary authority for the wedding to take place. What my amendment seeks to do is to widen this—not very much—by making sure that the nearest relative (if there be such a person; and, of course, there is not always) is informed about the marriage taking place, and also informed under paragraph (b) of my amendment of all the relevant Acts of Parliament to which they can have resource in the event that they feel that the marriage should not take place.

This is a reasonable precaution to take, because experience has shown that in hospital people possibly present a different appearance from that when they are outside and allowed to live with their families. As your Lordships will probably know from what I said at Second Reading, the amendment has the support of the National Schizophrenic Foundation, and it is schizophrenic patients in particular who are so difficult to assess and to know when they are responsible for their actions. I would hope that my noble friend can either take this amendment or, as is so often the case, if it is not quite perfect that he will be able to accept the principle of what I have said and help me with an amendment of his in its place. I beg to move.

Baroness Lane-Fox

Being myself a senior citizen spinster it may be thought that I have little right to speak in this Committee, but I crave eligibility on the grounds of familiarity with this particular subject. Today such a lot is spoken of rights, but sometimes rights can turn into wrongs. An example is that if we have the real interests of the schizophrenics and the mentally defectives at heart, and particularly if we have close connections with such cases, we must provide for their limited ability to make decisions and fully to understand the implications of their actions.

They sometimes make their decisions in a mischievous vein, and with others there is extra sentimentality. Obviously their nearest and dearest need to know that in this unusual situation caring guidance should be given through probably the Court of Protection. It is much better that this should happen before a marriage, which could lead to the avoidance, therefore, of so many complications. The nearest relative, or nearest caring person, is likely to feel the worst repercussions of unwise marriage plans of this kind. Those of your Lordships who know enough of these people feel keenly that they should in these cases be protected from their whims. For these reasons, I support the amendment of my noble friend Lord Mottistone.

Baroness Elliot of Harwood

I, too, should like to support this amendment, I have had a lot to do with the schizophrenic society. I have also unfortunately in the the course of life had quite a lot to do with people suffering from this mental disability. It is such a strange illness because so often people can go on for days, and weeks, without any seeming disadvantages and then suddenly they change into something quite different. It generally makes any decision they take under those conditions unwise.

The proposals in this amendment for a consultation with the nearest relative, with somebody who is devoted, are important. It might be a son, daughter, or a brother, or anyone they know very well and to whom they are devoted. They are the people who understand and know the character better sometimes then even a doctor, although of course they are under doctors' supervision. It is important that the family should be brought in because there is nothing more tragic than for a fatal mistake to be made without knowing it. That is the point. You can sometimes avoid making mistakes in life when you know what those mistakes are, or what they will lead to. But the people concerned coping with this kind of mental illness—and other kinds of illness too—do not realise what the difficulties can be, and how strange the reactions can be. One can sometimes almost change character altogether under stress, or under this particular mental illness, or mental weakness.

What the noble Lord, Lord Mottistone, has said is right. It would be wise. It would not withhold liberty from anybody. It would simply be a matter of consultation and taking advice, if they want to take the advice. If they do not want to take the advice, of course they do not need to take it, but the advice would be there. It is the kind of advice which people understand even better than the medical advice they get, and I therefore hope that the Minister will consider the amendment to be wise, to be worth including in the Bill, and to be for the advantage of the people concerned.

Lord Mishcon

I promise the Committee that my observations will be brief. The noble Lord, Lord Mottistone, fairly said that the form of the amendment might not be precisely acceptable to the Government, but he hoped that something near it would be and that the Government would be constructive in their approach. I have agreed with every word spoken so far. My only fear—and I deal only with the form of the amendment; the noble Lord, as I said, invited the principle to be accepted and the form to be looked at—is the mandatory nature of the proposed clause.

In other words, I think it would be an extremely good idea to write into the Bill that where practicable—that where advantageous, if you like—the notification shall be to the nearest relative. But as to having to notify the nearest relative when the doctor concerned knows perfectly well that one of the difficulties from which the patient is suffering is the relationship with certain members of the family, it would obviously be wrong to make it mandatory that that person must be notified. Obviously my point is not one of great substance; but only because, as I said, the noble Lord, Lord Mottistone, was so fair in the way he put his case, with which in principle I agree, I suggest that it should not be mandatory but a matter of persuasion for the medical officer concerned, or for the board of the hospital or whoever is looking after it. In other words, it should be persuasive that there should be consultation with the members of the family.

Baroness Macleod of Borve

I agree with the noble Lord, Lord Mishcon. There must be many cases where a patient has been in a hospital in a schizophrenic stale for many years and suddenly falls in love with a pretty young nurse and wants to marry her, but for all sorts of reasons, does not want his relatives to know about it. We are surely talking only about people of marriageable age; we are not talking about youngsters under 18. Therefore, when they have their sane moments, they are, we hope, able to make up their own minds.

With respect to my noble friend Lady Elliot, I should have thought that the people with day-to-day knowledge of the state of mind of a schizophrenic patient are far more able to know whether that patient should or should not enter into a form of marriage with anybody at all. Under Sections 28 and 29 of the Marriage Act 1949, even if the patient decides that he will marry whoever it is a caveat can be entered by the psychiatrist or anybody else who is in loco parentis as regards the patient. I am not certain that the amendment is necessary. If it is mandatory that they shall be notified, it is possible that there might be a great deal of friction. Accordingly, I would prefer to leave it to the psychiatrist or to the people in charge of the patient to decide whether the patient is or is not in a fit state to marry.

Lord Glenarthur

As the Committee will be aware—though I think it needs reinforcing—the Bill deals only with the place of marriage, not with the law in relation to who has or has not the capacity to marry. My noble friends and those who advise them, and other noble Lords who have spoken, might feel that in some way the Bill introduces some new right to marry. I felt that I should preface my remarks by saying that.

My noble friend Lady Macleod is right in what she said: consent is of the essence of a valid marriage. If someone lacks the mental capacity to consent, there can be no marriage; and, as she said, under Section 29 of the Marriage Act 1949 anyone can enter a caveat with the superintendent registrar to stop a certificate for marriage. The case can go to the Registrar General on appeal, and if the person is found to lack the capacity to consent no certificate will be issued. All this will be drawn to the attention of the hospital authorities, who will consider whether to enter a caveat.

Although the opening lines of the amendment refer to prisons as well as hospitals, I must assume that my noble friend's intention is to provide principally for the case of persons described in Clause 1(3)(a); that is, detained patients. No prisoner can be a detained patient within the meaning of the Bill, but I would add that many of the points I shall make would apply also to the circumstances of prisoners.

I appreciate my noble friend's concern that the patient's nearest relative should know about the marriage. I think it virtually impossible that they will not be aware of it, provided they have remained in contact with the patient. Such marriages have been very rare and take place (under the present law, always outside the hospital) only after very careful consideration by the doctors and professional staff caring for the patient, as to the validity of the patient's consent. If the patient's nearest relative has kept in touch with the patient, he will be well aware of what is going on, and, I expect, would normally be asked to the wedding, whether it is to be held outside or inside the hospital. However, it may reassure my noble friend if I confirm that in the guidance we shall be issuing to hospitals about the Bill, if it is passed, we shall advise them to inform the nearest relative if the patient agrees.

The amendment would require the managers to inform the nearest relative of certain very complex and, I would say, rather inappropriate legislation. For example, Section 12 of the Matrimonial Causes Act 1973 deals with the grounds on which a voidable marriage can be annulled after the event by a court. The provisions are no concern of the nearest relative, since proceedings for annulment can be brought only by one of the parties to the marriage; the nearest relative has no locus whatever.

Again. Part VIII of the Mental Health Act, also referred to in the amendment, consists of 22 complex sections about the Court of Protection. I think my noble friend would be imposing a somewhat daunting task on the managers if they were to be required to inform the nearest relative of all these Part VIII provisions. The only one of possible relevance is that the Court of Protection may undertake divorce or nullity proceedings after the solemnization of a marriage on behalf of the patient, but, again, the nearest relative has no locus. I cannot think that my noble friend would seriously consider that because the patient wishes to get married the managers should suggest to the relative that he is clearly incompetent to manage his own affairs and should be put under the care of the Court of Protection. Only a small minority of detained patients are, in fact, candidates for the Court of Protection, which mostly deals with people who are not compulsorily detained.

The only provision mentioned in the amendment of direct interest to the nearest relative in the context of the Bill is Section 29 of the Marriage Act 1949, dealing with the entering of a caveat with the superintendent registrar. It seems to me that there are two strong arguments against bringing this especially to the notice of relatives. One is that if the professional staff who know the patient well, in particular his doctor, consider that he does not have the capacity to consent to marriage, or are doubtful about his capacity, they will themselves cause a caveat to be entered, so that the issue can be considered by the superintendent registrar and, if need be, by the Registrar General. We shall be advising hospitals about this. It could be very confusing to the relatives for the hospital managers to write and appear to suggest that the relative should enter a caveat when those in the best position to judge the patient's mental condition either have not felt it necessary to do so or have themselves done so.

Secondly—this is a fundamental point which I have made before but must emphasise again—the Bill should not be used to deprive detained patients of their rights. As I have said, under the law as it stands today detained patients already have the right to marry if they have the capacity to consent to marriage, and such marriages have, albeit very infrequently, occurred. All we are doing in the Bill is permitting the marriage of a patient to take place in hospital, rather than necessarily ouside. In no way does the Bill enlarge a detained patient's right to marry by modifying the law as to capacity and under the Bill no detained patient who does not already possess the right will get the right to marry. What my noble friend's amendment proposes or implies is a new curb on patients' rights; one which many patients, and I believe the staff who care for them, will resent and find distressing, and which moreover may well confuse and distress a patient's relatives.

I have given a lengthy explanation to my noble friend, and I hope that he accepts it. I hope, too, that in view of what I have said, he will feel able with confidence to withdraw the amendment.

Lord Mottistone

I have confidence about all kinds of things, but not about withdrawing amendments. I greatly thank my noble friend for his very full reply, which I shall read with great care, and so will those with whom I have consulted. I might come back with something quite different on Report; but, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 2 to 12 agreed to.

Schedule 2 [Application etc. of Marriage Acts in Northern Ireland]:

Lord Glenarthur moved Amendments Nos. 3 to 5:

Page 16, line 38, leave out from second ("Act") to end of line 48.

Page 17, line I, after ("(c)") insert ("but as if").

line 3, at end insert ("and

(b) subject to such other modifications as the Department may prescribe.").

The noble Lord said: With the permission of your Lordships' Committee, I should like to take Amendments Nos. 3, 4 and 5 together. The amendments make a minor change in relation to the preliminary procedures for certain marriages under the Bill in Northern Ireland. The existing law of Northern Ireland is complex in this matter, but perhaps I may describe it as follows. After notice of marriage has been given to the registrar, the registrar has to carry out certain procedures which include sending a copy of the notice to the minister of the Church which the parties usually attend. If there is no minister of a Church which the parties usually attend, the registrar must instead publish the notice in a newspaper in the case of a register office marriage, and the cost of that falls on the parties to the marriage.

Paragraph 13 of Schedule 2, as drafted, removes for marriages under the Bill the registrar's duty to send the notice to the minister, or to publish it in a newspaper. That was because the circumstances of housebound or detained persons are, or may be, at variance with regular attendance at Church. However, concern has been expressed by the Presbyterian Church in Ireland over the possible effect of this on how Churches provide pastoral care; and I am grateful to the noble Lord, Lord Blease, (who is not present this evening) for bringing this matter to the attention of my noble friend Lord Elton. Accordingly, the Government have reconsidered the matter, and the present amendment allows a more flexible approach. Publication in a newspaper remains inapplicable. But sending the notice to the minister will not be simply disapplied; instead it will now be possible for the Northern Ireland Department of Health and Social Services to make regulations modifying the provision, and so to retain it to the extent that it can usefully apply to marriages under the Bill.

What the regulations will say will be a matter for consideration in consultation with the religious bodies affected. But it is envisaged that as regards the party who is not housebound or detained, notice might be sent to the minister of a Church which he or she usually attends; as regards a housebound or detained person, it might be the minister of the Church previously attended. In neither case would a refusal by the parties to specify a church that they usually attend be an obstacle to the marriage proceeding. I beg to move.

Lord Mishcon

First, I should like to thank the noble Lord the Minister for his kindly reference to my noble friend Lord Blease, whom I know felt very deeply about this matter. Representations have been made to many of us, and I had the privilege of a conference with a representative of the clergy almost immediately after he had seen the noble Lord. I know that this matter has caused great concern, and there was conveyed to me an expression of gratitude for the way in which the Government had accepted the representations which have led to the amendments.

Lord Glenarthur

I am very grateful to the noble Lord for his remarks.

On Question, amendments agreed to.

Schedule 2, as amended, agreed to.

House resumed: Bill reported with the amendments.