§ Order for Second Reading read.
§ 4.5 p.m.
§ Mr. Colville
I beg to move, "That the Bill be now read a Second time."
This Bill is to amend the law governing marriage in Scotland, that is to say civil marriage, for at the very start I wish to make it clear that the Bill in no way interferes with the existing law or practice in regard to marriage by religious ceremony. In Scotland marriages by religious ceremony constitute almost 90 per cent, of the marriages registered, and they are outside the scope of the Bill altogether. The Bill does not deal with religious ceremonies at all. Marriages which are celebrated after banns or after notice given to a registrar are known in Scotland as regular marriages. What the Bill is concerned with is the type of marriage known as "irregular"
For all practical purposes the irregular marriage in Scotland is a marriage by exchange of consent. The principle of Scots law now is that marriage is constituted merely by an interchange of consent. Nothing more is necessary to a valid marriage—no notice, no formality and no record of any kind, and that is an important point. Until 1856 the sole requirement was that the parties should be legally capable of contracting a marriage. This, however, led to run-away marriages by young people south of the Border, and to check these marriages the Marriage (Scotland) Act was passed in 1856. That Act required that one party to a marriage should either have his or her usual place of residence in Scotland at the date of the marriage or have lived there for 21 days previously. There is no other condition besides that.
There has been a growing feeling that the law on this matter left much to be desired. One of my predecessors as Secretary of State, the late Sir Godfrey Collins, set up in 1935 a committee presided over 2247 by Lord Morison to inquire into and report upon the law of Scotland relating to the constitution of marriage and to recommend what changes, if any, were desirable. The committee made a full investigation and reported at the end of1936. It cannot be said that full deliberation has not been given to this very important and rather difficult problem of altering what has been the law for many years in Scotland. The principal recommendation of the committee is that marriage merely by exchange of consent should be abolished and replaced by a simple form of civil marriage, to be contracted in the office of an authorised registrar of births, marriages and deaths, after publication of due notice of intention to marry. No doubt hon. Members have read the report of the committee. What are the considerations which led the committee to this view? I will state them briefly. The evil consequences of marriage by consent, tend to fall into two categories—the evils which may arise from lack of formality, and those which arise from the absence of a proper record.
After all, marriage is among the most important transactions known to the law, and it is indefensible that such a contract can be made simply by the private interchange of consent. But it is far from being a question only of mere legal propriety. It may, for example, turn out some considerable time after a supposed marriage by interchange of consent that the marriage is not a marriage at all. One party may not have been legally capable of contracting marriage. Here the requirement of 21 days' residence in Scotland may prove to be not a safeguard but a stumbling block. The lack of this qualification will invalidate the marriage and may ruin the life of an innocent party. It is within the knowledge of those who practise the law in Scotland that such cases take place. Again, lack of a proper record may make proof of marriage very difficult indeed when it is most important that its validity should be established. If such a marriage is not registered and is disputed it can only be established by proof in the Court of Session of the declaration of consent made by the parties. This proof may obviously be attended by very great and sometimes insurmountable difficulties. Even if the marriage is not disputed, there are many occasions on which it is important to be able to produce proof of marriage, as in 2248 the case of a claim for a widow's pension. Those who are accustomed to the administration of that part of our social services will agree that it is of the greatest importance to have accurate proof of a marriage.
§ Mr. Colville
I was coming to that point later. The marriage can, it is true, be registered. Some 4,000 irregular marriages are registered annually now. But to secure registration it is necessary to appear before the sheriff, and the costs of such registration are understood to be considerable, that is, about 42s.
§ Mr. Colville
It is probably the minimum, so I shall say 42s. upwards, and for people of modest means that is not an inconsiderable charge. As long as marriage is simply a matter of mutual consent, it is clearly impracticable by any legal enactment to make sure that every marriage will in fact be registered. A large number of marriages by consent are not registered now. The extent to which this may be the case is shown by figures of marriages at Gretna given in the committee's report. It is true that the circumstances there are rather special. Gretna Green has had a name, whether enviable or unenviable, in history and romance for a long time. It may be that the conditions are exceptional, but I shall quote the number of registered marriages there to show how many such marriages are unregistered. The committee report that according to the proprietor's books at Gretna Green there were 2,295 marriages performed at the blacksmith's shop at Gretna Green in the 10 years 1926 to 1935, and probably other similar marriages took place elsewhere in Gretna. But only 419 of the Gretna marriages were registered. This is a case where romance ought to give place to good sense. No doubt the evils connected with this type of marriage are specially prominent at Gretna, but legally Gretna is in exactly the same position as any other part of Scotland, and these evils may arise in connection with a marriage by consent contracted elsewhere.
The essential point is that marriage is a contract which, above all others, ought 2249 to be certain. Marriage by the mere interchange of consent without any previous notice or formality introduces large possibilities of uncertainty which may have deplorable results. In no other European country is it possible to contract marriage in such a manner. I have already said that almost all irregular marriages are marriages by consent, but I must refer briefly to two other kinds of irregular marriages. The first of these is marriage by promise subsequente copula, that is promise followed by intercourse. The committee remark that this form of marriage is entirely at variance with the traditions and customs of the Scottish people. Very few marriages in fact have been so contracted, and it is proposed by Clause 5 of the Bill, in accordance with the recommendation of the committee, to abolish this form of marriage.
The remaining form is marriage by cohabitation, or habit and repute. This, also, the committee propose should be abolished. Here is a case in which we depart from the views of the committee. The committee propose that this type of marriage should be abolished, not because of any particular evils attaching to it but because marriage on this basis is very difficult to establish and the case is of rare occurrence. This recommendation has received very careful and prolonged consideration, and we have come to the conclusion that this form of marriage may serve a useful purpose and that on balance it would be better not to do away with it.
It may happen to be necessary to establish the marriage of two people who have lived together for many years where it may be difficult, if not impossible, to produce evidence of the actual marriage. In such a case it is useful that the law should provide that account should be taken of what may amount to presumptive evidence of marriage. If the doctrine of marriage by habit and repute were abandoned it would be necessary to make some alternative provision on this point, as is done in all other legal systems. The existing doctrine does, however, meet the situation very well, and on balance it is considered that this form of marriage should be retained. I do not expect that we shall get through this point without some discussion, but I express my view that there would be a risk of hardship if we abolished this form of marriage, and 2250 in spite of the view put forward by the Committee I am recommending that it should be retained while the other two types of irregular marriage should be abolished.
Having decided to recommend that marriage by consent should be abolished, the Committee fully realised that it was necessary to provide an alternative method of marriage which should be free from the objections to the present system and should also be as cheap and as simple as possible. The method which they propose is embodied in Clause 1 of the Bill. That Clause provides for a form of civil marriage in the office of an authorised registrar of births, deaths and marriages. Particular registrars will be authorised for this purpose by the Registrar-General for Scotland in accordance with the provisions contained in Sub-section (6). These are designed to ensure that adequate facilities for marriage before a registrar shall exist throughout Scotland. Under the new procedure each of the parties to the intended marriage will require to give notice of such intention to the authorised registrar within whose district such party has resided for 15 days immediately preceding. This notice will require to be published, in accordance with the provisions of the Marriage Notice (Scotland) Act, 1878, for seven days. In the case where both parties reside in the same district only one notice is required. As soon as a certificate or certificates of publication of notice have been issued, the parties will be free to marry in the office of any authorised registrar.
Under the Bill all marriages in the office of an authorised registrar will be registered forthwith, and the difficulties which at times arise from failure to secure proof of marriage in these irregular marriages will thereby be obviated. I wish to emphasise the point that a central feature of this reform is to get over the difficulty of lack of registration; it is, perhaps, the most important part of the Bill. A fee of 5s. will be payable in respect of a marriage and a fee of 2s. 6d. for each notice. If therefore the two parties live in the same registrar's district the total cost will be 7s. 6d., and if they live in different districts and two notices are necessary the cost will be 10s. That will be considerably cheaper than the so called "marriage before the Sheriff," to which I have referred earlier, and which costs 2251 42s. or upwards. The facilities will also be increased, because the offices of authorised registrars will be much more numerous than the Sheriff Courts, probably five times as numerous, and the convenience of people who wish to adopt this form of marriage will in that way be greatly facilitated. Therefore, upon the grounds of convenience, of cheapness and, of course, the all-important question of registration, these provisions are to be strongly recommended.
§ Mr. Henderson Stewart
What sort of distribution of registrars' offices does the right hon. Gentleman contemplate? Will there be an office in each big town?
§ Mr. Colville
I think not. I am outlining the main provisions of the Bill, and any points which hon. Members may raise will be dealt with later in the general reply. One further possibility remains to be provided for, and that is the case where, on account of illness or other unforeseen and exceptional circumstances, for example, the necessity for a sudden departure abroad, it is desired that a marriage should take place at short notice. Under the proposals of the Bill, marriage, whether celebrated by a minister or contracted before an authorised registrar, will require to have been preceded by banns or notice. Special machinery to dispense with this requirement in the cases I have mentioned is provided by Clause 2. The provision is that in such exceptional cases the sheriff or sheriff-substitute may issue a licence which will have the effect of dispensing with the proclamation of banns or the publication of notice.
§ Mr. Cassells
What is to be the position if time is fleeting and there is no opportunity of obtaining the necessary authority from a sheriff-substitute? That is where trouble will arise.
§ Mr. Colville
Perhaps the hon. Member will develop that point in his speech. I think the Clause has been drawn wide enough to meet most practical cases. In making this provision we have it in mind that the general rule as to notice ought to 2252 be adhered to, and only departed from in exceptional cases, and I believe the Clause will, in fact, give the necessary latitude to meet any exceptional cases. However, that is perhaps rather a Committee point. Clause 3 deals with Quaker marriages and removes difficulties which have arisen in regard to one section of the Marriage Notice (Scotland) Act, 1878. Clause 4 provides that a regular marriage which has been registered is not to be questioned in any legal proceedings on the ground that the person by whom such marriage was celebrated was not competent or qualified to do so. I hope the House will agree that that is a question which should be regarded as definitely settled. Great hardship would result to innocent people who believe that a marriage had been carried out by a fully qualified person if it were suggested later that it was not a marriage because that person was not so qualified. Clause 5 effects the abolition of the two forms of irregular marriage which I mentioned earlier. Clause 6 simplifies the provision for the registration of irregular marriages established by Declarator in the Court of Session. Clause 8 safeguards the validity of marriages contracted before the date on which the new legislation comes into operation. As I explained in my opening remarks, the Bill does not affect the existing law or practice in regard to marriages by religious ceremony.
Finally, in future, apart from the extremely rare case of a marriage established by habit and repute, all marriages will be regular marriages either by religious ceremony as at present—and these cover about go per cent, of the marriages in Scotland—or in the office of an authorised registrar under the provisions of the Bill. The proposals of the Bill have received a wide degree of support in Scotland. It cannot be said that they have been rushed. They have been conceived as a result of a careful investigation by a committee whose findings have been known for some time. It is a serious matter to make a change in a law of Scotland which has functioned for so many years and around which there has arisen a certain amount of glamour and romance—although a good deal of it I would describe as spurious—but I confidently recommend the Bill to the House as a Measure which will in all good common sense make for the happiness of many people in Scotland in the future.
§ 4.25 p.m.
§ Mr. Johnston
This is pre-eminently a subject which we shall all agree ought not to be made the sport of party politics. Probably there are differences of opinion about it which cut across all divisions in party politics, and we may encounter difficulties on the Committee stage. So far as I personally am concerned, and I speak only for myself, there is one part of the Bill as to which I cordially agree with the right hon. Gentleman's attitude and disagree with the recommendations of the Committee, although I happen to be on very good terms with the members of that Committee. I agree with the right hon. Gentleman that we ought not to interfere with marriages "by habit and repute," and I do so not only on the ground put forward by the right hon. Gentleman as to the difficulty which arises when persons are claiming widows' or orphans' pensions. If we take away recognition of the marriage by habit and repute we shall condemn any number of poor people to penury by depriving them of rights which they have enjoyed in Scotland for many years in connection with widows' and orphans' pensions. When a man and a woman living together have been known locally and accepted locally as husband and wife, it is surely wrong of us to interfere and to say that because they have not gone through a form of regular marriage they and their children are to be deprived of certain benefits.
The same observation applies with regard to workmen's compensation. It would be the greatest scandal if this House, under the guise of reforming the marriage laws, were to take away from the orphan children or the widow of a man who had been killed in a pit explosion the right to claim compensation simply because the widow could not produce "marriage lines." If alterations are to be made in the law and custom as affecting the marriage tie they should be the subject of very careful examination in this High Court of Parliament, uninfluenced by considerations of sectarian alignments of any kind. As I understand it, marriage is a civil contract and very often a religious sacrament. We on this side of the House do not intend to divide against the Second Reading of this Bill but we shall have some observations to make and some questions to ask of the right hon. Gentleman and of the Lord 2254 Advocate, and doubtless it will be found that some of my hon. Friends will disagree with my personal attitude upon certain points.
The chief purpose for which the Morison Committee was set up was to stop the flagrant commercialisation of marriage at Gretna. In the light of what the right hon. Gentleman has said, it is evident that there is no virtue in the anvil at all, and that such a marriage need not take place at Gretna. The same kind of farce could go on anywhere.
§ Mr. Johnston
Or Gorbals. Something like £1,300 is admitted by one petition as having been drawn from poor people who imagined that they were having some romantic sacrament of marriage, when, as a matter of fact, they might be having no marriage at all, and, as the right hon. Gentleman said, 419 only have been registered out of almost 3,000. That means that nearly 2,600 of them have never been registered and have only been methods of procuring seduction. With these facts staring us in the face, it is obvious that something must be done to secure a civil register of marriages in Scotland. That is what the Bill is trying to do, to get a record, and anybody who cannot get a record, properly speaking, is not married according to this Bill.
I am not sure that we ought not to endeavour to get the Government to go a step farther than they have gone on the question of irregular marriages. Supposing a man and a woman decide to accept each other as husband and wife, it may be that they have tried to go and give the requisite number of days' notice, but they have been unable, because of the physical disability of one of the parties, to go to the Sheriff, where you require notice to be given. Therefore, it may be that the only way in which they can be married is by a declaration of consent in the presence of witnesses. If that is the last resort, would not the right hon. Gentleman agree that in a case like that the marriage might afterwards be registered by one of the parties? Supposing one of them died, would it not be proper to permit such a marriage to be registered? Supposing a baby comes, or it may be that there are half-a-dozen different sets of domestic situations to be faced, what harm would be done in a case like that? I believe 2255 this point was raised in another place when the Bill was going through Committee there. I heard the reply given then by the Government, and I did not understand it. I therefore ask the Lord Advocate, when he replies, to give us a reasoned statement why, in a case of that kind, they could not agree to legitimate the marriage.
There is one further point on which I should like some information. The committee recommended 11 specific religious organisations which should have an equal right with the Church of Scotland to proclaim banns in the pulpit in Scotland. The committee were unanimous on that point. As the law now stands, only the Church of Scotland has the right to proclaim banns. When I used to sit and listen to these proclamations being given, I used to wonder of what utility they were. There was a time in old Scotland when every village was a Church of Scotland village and where, when announcements were made in the pulpit that it was the intention of So-and-so to marry So-and-so, that was the most valid possible announcement, but that does not apply in large cities like Glasgow, Edinburgh and Dundee, where a notice in the pulpit of a parish church might be valid so far as the members of that church were concerned, but for two Baptists, or a Baptist and a Presbyterian, or a Methodist and someone else, obviously a proclamation in the parish church would be of no service at all. The proclamation rights are retained for the parish church by this Bill, but the committee's recommendation to bring in Jews, Catholics, and members of the United Free Church, and all the rest of them has been turned down, and I think we should be told why that recommendation has not been acceded to.
One more point, and I have finished. The one weak part of this Bill is that it is so confoundedly legal that it is difficult for a layman to grasp it. I took the trouble last night to look up the last report of a committee in Scotland which inquired into the marriage law. It was in 1849, a long time ago, and the then Lord Advocate was in the chair. The first thing that that committee did at that time was to decide, by the narrow majority of one, that nobody but lawyers were to be heard. They ruled out evidence from a man like Dr. Norman Macleod, and 2256 I am sure we should all have welcomed a record of what he would have said on such a subject. To-day, these phrases about cum subsequente copula, de presenti, and so on, make it difficult for us to understand all the implications of the Bill. If the right hon. Gentleman could assure us that there will be no hardships in the case of irregular marriages between people driven by sheer necessity, and that they will not be penalised, but that they will be able subsequently to register the marriage, I, for one, would be satisfied with the Bill.
I cordially congratulate the right hon. Gentleman on taking every possible step to knock the bogus smithy at Gretna out of existence, and I am sure we are all agreed about that. It was just about the last word in commercialised robbery that has been allowed to go on in Scotland. We are all agreed that there should be, so far as possible, a civil record of a union between a man and a woman, in the interests of the State, of society, of the children, and of the parties concerned. I am convinced that the great majority of people in Scotland want a religious sanctity to surround their marriage, and I would ask the right hon. Gentleman to tell us why he has confined the proclamation of the banns to the Church of Scotland.
§ 4.38 p.m.
§ Sir Archibald Sinclair
I wish to join in the congratulations which the right hon. Member for West Stirling (Mr. Johnston) has offered to the Secretary of State on the introduction of this Bill. The irregular marriage, and in particular the Gretna Green marriage, has become a scandal in Scotland, and my hon. Friends and I are glad that the right hon. Gentleman has tackled it. I did observe two differences between the Bill and the report of the Committee, and both have been referred to in the two speeches to which we have listened. The first was the failure of the Government to adopt the recommendation that banns should be called in churches of other denominations than the Church of Scotland. I must say that it seems to me that the case has been most pertinently argued by the right hon. Gentleman who preceded me, and I do not think I can add to the weight of what he said. I should have thought that it would obviously have been a good thing, particularly in large 2257 cities, that other Churches also should have that right, if only on practical grounds, because, as the right hon. Gentleman said, when names are called out in a parish church in a big city, they might be quite unknown to any persons there. I would ask the right hon. Gentleman whether he will explain to the House why that recommendation has not been given effect to.
The other departure from the report of the Committee is the retention of the marriage by habit and repute, and there I think the right hon. Gentleman's decision, which seems to have brought a sword into the family of the right hon. Gentleman who has just sat down, seems to have brought peace to the parties in this House and to have been generally approved. Certainly I would like to express my approval of it. It seems to me that this is a very good Bill and though I do not think there is likely to be an opportunity for voting for it on the Second Reading, it is certainly one in regard to which I am glad to have an opportunity of expressing my support.
§ 4.41 p.m.
§ Mr. Cassells
I think we all agree that this Bill is a distinctly forward step. At the same time, although it possesses certain redeeming qualities, it contains, in my opinion, two definitely backward steps. It is of vital importance to realise, as my right hon. Friend the Member for West Stirling (Mr. Johnston) pointed out, that marriage is a consensual contract, and accordingly it is essential for society that the terms and nature of the contract should be fully appreciated. There is undoubtedly a redeeming benefit under this Bill, and that benefit is the sweeping away for all time of that ignominious blot upon our Scottish judicial system, the system of marriages, if one might so term them, over the anvil at Gretna Green. It is well known in Scotland that there has been a considerable volume of public opinion, not just within recent years, but for many years past, entirely antagonistic to the methods which have been adopted at Gretna Green, and I consider that it is quite fitting and proper that we should make it clear that in adopting the attitude which we are adopting in this Bill, we are not endeavouring in any way to victimise any person or persons in Gretna Green without the most complete justification. 2258 If hon. Members will refer to page 11 of the report, they will find the committee's findings particularised with regard to certain important questions which were asked of the attendant and his wife from Gretna Green. The first question referred particularly to the matter of 21 days' domicile, and the answer which was given was this:I cannot follow people away, and I am not going to do it.If ever there was conclusive proof of shocking laxity on the part of the gentleman in question, you have it there. Let me follow that up by one other illustration spoken to by the Sheriff Clerk of Dumfriesshire, where a petition was presented for a warrant to register. The committee say:On investigation it transpired that neither party could speak a word of English. On the Sheriff Clerk intimating that the appearance of the attendant would be necessary to explain how he had been able to perform the ceremony, in view of the inability of the parties to speak English, no further steps were taken in the application. Before the committee the attendant professed to being able to recollect the case. He declared that the couple came from Finland and that they first came to him with an interpreter. He then explained that they did not have the necessary residential qualification. They thereafter resided in Scotland for 21 days, and then returned to be married. 'By that time,' he said, 'they could speak the language. They learned the words of the ceremony in 21 days.' The interpreter was also present.If any sensible thinking human being believes that people can come from Finland knowing nothing of our language and that after the expiry of 14 days they can come back able to speak the language intelligently and to understand it fully, then the sooner the right of the blacksmith is taken away for all time, the better. Lord Pitman, in a case in the Court of Session, some time ago dealing with Gretna marriages used the following words:There is no special virtue in a Gretna marriage, and the so-called certificate of marriage, issued by the so-called priest, who, by the way, is not even a blacksmith but only a custodian of the smithy, employed by the owner, is just a piece of humbug.It is a piece of humbug, and it redounds to the credit of this House and the people of Scotland that they have taken a firm and resolute stand in connection with this problem.
The second redeeming feature which the Bill possesses is the retention of the 2259 right to establish marriage by habit and repute. The Committee, in its wisdom, make a recommendation suggesting that marriage by habit and repute should be rendered illegal. The right to prove marriage by habit and repute has been part of our Scottish judicial system, I believe, since the year 1503. It is perfectly true to say that marriage by habit and repute in certain very isolated cases does tend to lead to abuse but, as was very properly pointed out by my right hon. Friend the Member for West Stirling (Mr. Johnston), it is vitally important that we should retain the right to establish marriage in these circumstances.
Perhaps I might give one typical illustration from my own personal experience, completely vindicating the necessity for the retention of marriage by habit and repute. It concerned a case where a workman resided in a village in Stirlingshire, known as Cowie. He was in the employ of the Alloa Coal Company. For many years he had lived with a certain lady, and they were known by the people in the village as, let us say, Mr. and Mrs. A.B. The lady bore a family to this particular man. He was fatally injured in a colliery accident. With the law as it then stood—it was before the passing of the Workmen's Compensation Act, 1925—if the child or the children of those people had gone out into the world as illegitimate, they would not legally have been entitled to participate in any compensation fund. Fortunately—this is where, I think, the Secretary of State for Scotland to a certain limited extent went wrong on one point—there is a method in our Scottish judicial system which entitles one to establish marriage in the Sheriff Court. You do not need in every case to follow out the lines indicated, namely, by declarator in the Court of Session. We are able in arbitration proceedings under workmen's compensation proceedings in the Sheriff Court definitely to raise questions of status and to have the question determined by the judge of first instance. In this case we were able to do that, with the result that the claim was admitted and compensation was paid.
These are the redeeming features of the Bill, but when one passes from them I am bound to say that there are other points which call for the most complete and justifiable criticism. Take, for example, the point which my right hon. 2260 Friend made. What is to be the position in a case where the Sheriff is not available, the Sheriff-Substitute is not available, the Honorary Sheriff is not available, and even the registrar or, as is mentioned in Clause 1, the registrar's assistant is not available in an emergency? A man becomes suddenly ill. The lady in question is pregnant by him, and it is highly desirable and absolutely necessary that an immediate marriage ceremony shall be carried through. I say this with complete confidence, and I hope that the right hon. Gentleman will appreciate the point I am making. It is not a question of politics but of trying to put a helpful point of view, so that the Measure can go through and work satisfactorily. There is no machinery of any kind in the Bill to meet that sort of case.
A point like this was raised before the committee by one of the persons giving evidence, a gentleman named Mr. Kenneth A. Boreland, a very well known Glasgow solicitor. The suggestion he made on this point was that in these given circumstances the parties should be entitled to enlist the services of a justice of the peace, or a minister, if possible, or even, a worse evil, a member of the Faculty of Solicitors.
§ Mr. Cassells
Or even a doctor. I hope that between now and the next stage the right hon. Gentleman will consider that point and endeavour, if possible, to bring in machinery sufficient to meet it.
§ Sir Douglas Thomson
What is the position at the present time? Does that difficulty arise in England now?
§ Mr. Cassells
I am coming to that point. What I want to know from the right hon. Gentleman is this: what justification is there for taking away from the members of the Faculty of Solicitors a right which they have possessed for very many years? The only justification which I can see is contained in the report of the committee, on page 7, where they say:The procedure is somewhat expensive as compared with the cost of a regular marriage.So far as I can make out, as the days go on, the greater become the efforts of the Government to make the position of the practising solicitor almost impossible. Despite what the Lord Advocate said today with regard to another Clause in 2261 another Bill, there was on that particular occasion a very definite effort made to make the position of the practising solicitor more difficult. This particular ceremony costs £2,or slightly more, and from that £2 there falls to be deducted a fee of 10s. payable to the sheriff clerk. Surely, in these given circumstances there is no reason in the world why the practice should not be allowed to continue, but the cat seems to be out of the bag when we see this statement in the report:It is often associated with an unfortunate feature, the advertisements in the Press of so-called marriage agents, who tout for marriage business.I am not suggesting that there is no justification for that statement. There is. One has only to take up a Scottish evening newspaper or any Scottish daily newspaper to see regularly certain members of the Faculty of Solicitors advertising, but those members who do advertise are definitely in the minority. In my own town there is no question of members of the Faculty of Solicitors putting any advertisements in the newspapers. People come to us naturally. Is it now going to be said that the majority of the members of the profession have to be penalised because there are a few black sheep? The right hon. Gentleman well knows that we have in our Scottish judicial system a committee of discipline under the Solicitors (Scotland) Act, and the function of that committee of discipline is to deal with any difficult circumstances or complaints made against individual solicitors. As a member of the Faculty of Solicitors I am bound to say that, although it does not mean anything to me personally, I do consider that there is not the slightest justification for this particular step suggested in the Bill.
As far as I can make out, the difficulty in the mind of the Secretary of State for Scotland is the question of registration. As the hon. Member for Dumbarton Burghs (Mr. Kirkwood) pointed out, the people are actually legally married before any registration takes place at all. My suggestion is this. I do not object to the system in Clause1 in regard to the registrar, but please still allow the practising member of the Faculty of Solicitors to do what he has been doing in the past. He has undoubtedly been a valuable member of society in matters such as this, and it cannot be said that he has failed in any 2262 way. One knows that the people come to the office, they make a declaration, they sign the document, the witnesses sign the document and forthwith the same morning arrangements are made with the sheriffs clerk and the various contracting parties go before the sheriff and, as the hon. Member for Gorbals (Mr. Buchanan) pointed out, they take the oath. Thereafter authority is given by the Sheriff or the Sheriff-Substitute, as the case may be, to permit of the registration of that particular marriage. Assuming, for the sake of convenience, that you cut out the Sheriff-Substitute entirely, could it not be that you could make it compulsory upon the law agent within a certain period of time, and you could stipulate the period of time, when he shall be legally bound to record that particular marriage, and if he fails in any way to comply with that stipulation he should be subject to certain penal consequences.
There are other points which are capable of being raised in the Committee stage, but at the present time I think that we ought to have some reply from the Lord Advocate on the very proper point raised by my right hon. Friend the Member for West Stirling. What is to be the position in the case mentioned by him? There is absolutely nothing in the Bill to cover that particular case. For example, we find that in one of the Clauses regulations are laid down with regard to the working hours of the registrar. That means that the Department will say: "Your office will open at, say, 10 o'clock, and close at 4 o'clock." What is to be the position after that hour? I hope that what has been said will serve some useful purpose. Speaking on behalf of the Faculty of Solicitors, I can assure the right hon. Gentleman that we appreciate the fact that the Bill has been brought forward and, although it has certain points of justifiable criticism, we welcome wholeheartedly the fact that for all time that blot on our Scottish judicial system, marriage over the anvil at Gretna Green is to disappear.
§ 4.59 p.m.
§ Mr. Henderson Stewart
I am not able to follow the hon. Member for Dumbartonshire (Mr. Cassells) in his discussion of the trials and troubles of solicitors. I always admire a man who stands up for his craft, and the hon. Member has undoubtedly made a powerful appeal on 2263 behalf of the solicitors of Scotland. I did not know they were so hardly done by, but one is always learning. I think the Lord Advocate is the only other bachelor present in the House, so that I feel I must stand by him. I do not know whether my right hon. Friend has lost all hope of finding a wife. He would make a very sympathetic and tactful husband. Personally, I have not lost hope. I always looked forward, if that event took place, to making a romantic midnight dash to the anvil at Gretna Green, and I cannot help shedding a tear to think that that opportunity has now been taken from me. I understand that the ceremony of marriage is to be made easier. I find that in Clause 2, Subsection (6), there is to be a registrar's office in each large burgh, in each small burgh and in as many parts of the landward area as the registrar may think fit. What is more, I understand that this can all now be done for 10s., and if the lady happens to live in the same parish you can reduce the sum to 7s. 6d. That is a very satisfactory state of affairs. I would congratulate the right hon. Gentleman upon encouraging us bachelors upon our difficult and thorny path, and would thank him for having introduced a Bill which all of us so unanimously support.
§ 5.2 p.m.
§ Mr. Barr
I would like to thank the Secretary of State for Scotland for introducing this Measure and, like others, to promise him general support. I should like to address myself first to the subject of the notice to be given in regard to marriage. In this Bill the present system is retained of the Church of Scotland's proclamation of banns, so far as churches are concerned, holding the field. There are really three ways of disposing of this question. The first is that contained in the Measure here. Lord Alness, speaking in another place, said in effect that this arrangement was a slur on the other churches in Scotland, and that it was a grievance which was being increasingly felt by these other churches. That was said long ago in the Royal Commission of 1868, when Lord Justice Clerk Inglis, afterwards Lord President Inglis, said:It is not unreasonably complained of by the Scottish Nonconformists, who are married by their own ministers, as being in their case vexatious as well as useless.2264 Without dwelling on the point, the real slur and the real grievance and the real vexation to us is not that there is this special privilege, but that a privileged church exists at all in Scotland. To me it does not matter a great deal whether they come and say, "We will rectify this little grievance" or not, so long as they continue to perpetrate a great fundamental injustice. If you have a State or established church, a church at the service of the State, it should surely be for just such a subject as this. As my right hon. Friend the Member for West Stirling (Mr. Johnston) said, it wears a strange aspect nowadays. It always seemed to me to be something of a disturbance of the spirit and atmosphere of worship. Also you have this incongruity that you have people coming there to hear these "cries" read out, and for years perhaps they have never been in a church. It always seemed to me something of an intrusion, and it is something which now, if the people were prepared for it, could be served in a much better way.
The second way of dealing with it is that adopted by the report, that all churches should be brought in, that all the dissenting churches should be brought in. I have several remarks to make on that proposal, which was recommended in the report but is not adopted by the Government. My first question is, do these churches really desire it? For my own part, we have been so long accustomed to count it an unjust prerogative of the Church of Scotland that many of us are not anxious for it, although I am not declaring against it without further consideration. It might be interesting, however, if I were to read the decision of the Assembly of my own Church, the United Free Church of Scotland, on this proposal when it was made in the report. In referring to the extension of the liberty to proclaim banns to these other churches, they said:This is a move in the direction of religious equality, but is not Church proclamation as a means of publicity quite obsolete? Marriage, so far as the law is concerned, is a purely civil contract, and publication at the office of the registrar should suffice for all purposes. If greater publicity is desired, why not adopt the modern procedure of intimation in some public newspaper circulating in the district? If any person desires an intimation in Church or any religious ceremony in connection with the marriage, that should be a matter for the 2265 Church and the parties to arrange, and a minister should not act as a civil official in connection with the contract of marriage.That is only saying at much greater length what was said by Lord Thankerton in another place. He was five years the Procurator of the Church of Scotland. He said in another place, on 14th December last—and I do not quote his words— that this was not a religious requisite at all, but a civil requisite.
My second observation on the bringing in of all the churches is, has the report covered them all in the list? To begin with, there is no mention made of the Salvation Army. I believe they have some 500 ministers or officers empowered to perform a ceremony like this, and they have a very large number of corps, or churches, shall we call them, throughout the land. To refer to Lord Thankerton again, he said he could name five or six churches in addition to the Salvation Army. That would be just one of the difficulties if we should depart from what is in the Bill and give, as I am willing to give, some consideration to that proposal. This should be borne in mind: that perhaps Members who are unfamiliar with Scottish customs may be surprised when I say that only a small minority of the marriages in Scotland are in a church at all. In a very long life—I am nearing my jubilee now as a minister—I have not married more than 20 couples in the church. It is generally in their own home, and occasionally in a hotel.
§ Mr. Barr
Yes. I speak somewhat familiarly because, although I do not say that the hon. Member for Gorbals (Mr. Buchanan) attended my church often, his mother was a constant attendant in the front of the gallery. I am afraid that my sermons to the young were not always quite effective. Again, there is the question of the disturbance of worship. If there is any intention to bring in the recommendation in the report of the Committee and it is to serve any purpose, proclamation should be only of those who' are members or adherents of the particular church, as Lord Alness proposed in another place. That should apply not only to the miscellaneous group of churches, but to the Church of Scotland as well. If such an Amendment should be thought of or the report should be given effect to, I would differ seriously from 2266 what is in the report, that it should be according to the regulations of the Church of Scotland as made out in 1932. If the other churches were to be brought in, they must be brought in with equal status, and with full powers to make their own regulations with the approval of the Registrar-General. While my prejudice is against accepting it as commended by the report, and I am inclined rather more to favour the proposals of the Government, I still retain an open mind, but I can see the great difficulty of extending it so widely.
The third matter is that of the public notice at the registry. That is known as the Marriage Notice (Scotland) Act, 1878, Chapter 43. Under that form of notice at the registrar's office a notice of the approach of an intended marriage is put up in a conspicuous place on the door or on the outer wall of the office. Now that notice is declared to be of equal value and authority with that made from the pulpit. It is one of my own lifelong regrets that I was "cried" in the church instead of being proclaimed on the board. It is a thing you cannot remedy very easily, but at the time I could not help feeling that the lady would feel that it was not giving her sufficient status if it were put on the board. But she said she never expected but that I would put it on the board; so she was more democratic than I was then. I hope that that will be the main form of notice—I believe that the Government take this view of the matter—and that this form of notice will become more common with the advent of the new form of civic marriage, and that we shall ultimately aim at a proper public proclamation.
Another point which I wish to raise is that contained in Clause 3 dealing with the usages of the Society of Friends. Some may wonder why this matter is brought into the Bill, but it is in most of the Marriage Acts both for England and for Scotland. The Government are not quite fair, and not quite so advanced as they should be in their legislation in this regard. Perhaps I might trouble the House for one minute or so in regard to this position. It is away back in 1695, in the reign of King William, that there was the first Act that I know of saying that members of the Society of Friends, commonly called Quakers, could contract marriages according to their usages, provided that the parties to the marriage 2267 were both members of the same society. In 1844 that position was extended to Ireland and to the Jews, but both the parties had to be members of the society or profess the Jewish religion. An advance was made in 1860 in the general legislation for Great Britain, that Quaker marriages could be solemnised in England or Ireland where one only, or where neither, of the parties was a member of the Society of Friends,provided only that the party or parties who shall not be a member or members of the said society shall profess with, or be of the persuasion of, the said society.They might not be full members or even adherents, but they needed to make a profession.
In England in 1872, all that was cancelled and those who were officiating in the Society of Friends could perform the ceremony for those who did not adhere to that Society, but might have a certain desire to be married by a Quaker. In the Clause now before us the Government do not go so far as the English law. They extend the older provision, in that one of the parties must be a Quaker or an attender at their ceremonies and services, but the Government do not go the length of giving the power to the Society of Friends to marry those who are not connected at all with the denomination. I am aware that in the Scottish law of 1878 —and I speak subject to the correction of the Lord Advocate in these matters— the Section runs thus:and every such marriage is hereby declared and affirmed as a regular marriage, provided that the parties to such marriage be both of the said society or both persons professing the Jewish religion respectively.In Scotland, in 1878, they still had to be both members, whereas in 1872 in England the fuller freedom had already been given to Quakers. I am well aware that Scotland has always lagged behind in matters of religious tolerance, and that the Presbyterians have lagged behind the Independents in that regard. I hope this Clause will be discussed in Committee, and be changed so as to go at least as far as the legislation for England went in 1872, when it cancelled the requirement that the parties must profess the tenets of the Society of Friends.
In the last place, I come to the Gretna Green abuses. I have a considerable 2268 knowledge of that district because I had a brother-in-law who was minister there for many years. I agree with the report that many of the relics are spurious. I know that I cannot refer to a case that is pending at the moment between two of these institutions, but, if I may say so, it seems to be a case of the pot calling the kettle black. These ceremonies are said to be performed in the old blacksmith's shop, but there never was a blacksmith's shop in the old days in this connection, nor were the marriages performed over an anvil. In the earliest days it was some old soldier, a weaver, or a fisherman in the village who performed the ceremonies; and if he was called a blacksmith in those days, it was not because "his brow was wet with honest sweat," but because he welded couples together. That was the origin, I understand, of the phrase that he was a blacksmith. Robert Elliott was one of those famous welders, and in a book which he issued called "Gretna Green Memoirs" he claimed to have united 7,744 couples between 1811 and 1839. He describes the form of ceremony he had.
In those days it was a kind of aristocratic fashion to get married at Gretna Green. Lord Deerhurst was married there; Lord Chief Justice Erskine was married there in 1815, and in 1816 he was in the Law Courts seeking to prove that Gretna Green marriages did not hold in law. He was unsuccessful in that contention. Lord Westmorland was married in that way, and he would have failed in his runaway purpose, had he not fired a shot at one of the horses in the carriage in which the bride's father was pursuing him. These marriages were a most lucrative adventure in those early days. Lord Erskine paid £20, but these other two noblemen paid 100 guineas each. They were aristocratic clients. Now, as has been pointed out, Gretna was the place for run-away marriages because, without any residence to begin with in Scotland, you could be married on the spot. As has been stated by the Secretary of State for Scotland, the Marriage (Scotland) Act, 1856, was designed to prevent and to check those run-away marriages by insisting upon the residence in Scotland of one of the parties for 21 days next preceding such marriage.
There are two ways in which the Gretna Green laxity prevailed. The first was by 2269 getting round the residence qualification, which was not observed, as was stated in the report read by my hon. Friend the Member for Dumbartonshire (Mr. Cassells). Within my own knowledge a Member of Parliament was married at Gretna Green, and I took the trouble to go into the Library of the House where I found that he had made 26 Divisions during the 21 days that he was supposed to be resident in Scotland. It is true that he was aided in his Divisions by an all-night sitting, but the validity of his marriage could have been questioned at once on that ground. Those of us who represent Scotland are in the habit of being a good deal in Scotland and a good deal here, but we have not yet attained what was attained in that case, the power of making numerous Divisions in this House and yet being in continuous residence in Scotland. Next, there was the laxity of registration—about which figures have been given—with its disastrous effects. I am very glad that these abuses are in the way of being ended. Nothing could be further from the sanctity that is rightly attached to marriage. The Roman Catholic Church regards marriage as a sacrament, and the Protestants hold it in equally high regard. Such places as Gretna Green have tended to bring the whole institution of marriage into discredit and scandal, and even into contempt.
It remains that I should say one or two words more on the civil marriage that is proposed. The report proposes that these civil marriage facilities should be introduced in certain populous districts in Scotland, whereas Clause 1 (6) states that there are to bereasonable facilities in every part of Scotland for marriages in accordance with this Section.What pleases me much more is that it is emphasised in the Bill—it cannot be over-emphasised—that these civil marriages are to be counted as regular marriages. There has been a great deal of confusion and injustice in the past in the use of the words "regular" and "irregular." The form of marriage by consent was according to the law of Scotland, and such marriages were lawful, yet I know there was a measure of reproach in speaking of all those non-religious marriages as irregular marriages. I have known a minister of religion flout one of his members and taunt him that 2270 he had made an irregular marriage, whereas the marriage ceremony that had been conducted in that case was just as lawful and, for special reasons, may have been just as worthy as the marriage status of the minister himself. It is definitely emphasised in Clause 4 that such marriages are to be valid and regular in all respects. I am pleased to notice that in another place Lord Strathcona, speaking on the Second Reading of the Bill, emphasised in the same way that all these marriages will be regular marriages. I should like to add not only that I would put no inferior status on these civil marriages, but that I know many men who are devoted sincerely to religion and who hold that one solution of some of these difficulties is that there should be a universal civil marriage, and that those who desire should have a religious service imposed upon it.
My great predecessor, in my ministry of Govan, the Reverend Dr. Howie, who was one of the most evangelical ministers, held the view both that notice should be on the board, and that there should be a universal civil marriage, those only who desired it having a religious service superimposed. I am not advocating that; I take the framework of the Bill; but it is a little disconcerting to see the numbers who come to go through a religious form and take religious vows, but who otherwise have no connection with the Church, and make no profession of religion. I believe that the whole subject would gain in sincerity and in power if the civil marriage became more general, with, in the case of those who desire it, the religious ceremony superimposed upon it. It is for the Church to advocate the religious value and the sanctity of the religious part of the service. I was glad to hear from the Secretary of State for Scotland the statement, which I know is accurate, that 90 per cent. still have the religious service, and, even if the civil marriage should become very widespread in Scotland, and it should be left to those who desire it to have in addition a religious service, that would only enhance the value of the religious conviction, and would put the religious practice on a voluntary basis,. on which it should, most of all, repose.
§ 5.32 p.m.
§ Mr. Robert Gibson
If it were necessary for me to apologise for taking up a little-of the time of the House on this occasion,. 2271 the apology might be that, when I took silk in1931, although my clerk did not say that I had the most lucrative practice at the Scottish Bar, he claimed that I certainly had the most extensive, and a large part of that practice dealt with cases having relation to the subject-matter of this Bill. And his claim was never disputed. Accordingly, certain parts of the Bill have impressed themselves on me as giving cause for very great concern. When the report of the committee was first published, I made certain statements which were published in the Press, and, in the Scottish Letter of the "Sunday Times," mention was made of those statements and the view was therein expressed that there would be considerable opposition to the Bill if it proceeded along the lines of the report.
Two characteristics, at any rate, stand out regarding the constitution of marriage in Scotland, which make such constitution distinctly different from what appertains in England, and perhaps this may interest the hon. Member for South Aberdeen (Sir D. Thomson), who asked a question earlier in the discussion. These two characteristics are, first, that in Scotland a marriage may take place in any place; and, secondly, that it may take place at any hour of the day, and that either in the presence of and through the instrumentality of a minister of religion or no. These Scottish liberties are very valuable, and ought to be retained. They are struck at very seriously by Clause 5 of the Bill, which abolishes marriage by declaration de presenti, and also marriage by promise subsequente copula. In place thereof, Clause 1 introduces a novel form of marriage into the law of Scotland, but let it be observed that it is marriage in the office of an authorised registrar, and nowhere else. Therefore, it is limited to place. And it is also strictly limited as to time, because Sub-section (5) of Clause 1 provides for a limitation to:the hours during which registrars shall be required to give attendance for the purposes of this Section.In my humble submission, that is not an adequate counterpart of what is taken away. I do not at all seek to support any of the excesses that have been so generally condemned in regard to Gretna, but I do ask the House and the right hon. Gentleman opposite to give careful 2272 attention to the following considerations. It may be claimed that this new form of civil marriage is of a national type, that it is in accordance with the Socialist principle; and secondly—
§ Mr. Gibson
This sudden conversion of the Secretary of State for Scotland to Socialism may be quoted against him with deadly effect at some future time. At present, as was indicated by my hon. Friend the Member for Dumbartonshire (Mr. Cassells), solicitors do business by carrying through marriages by declaration. It is usual, where statutory restrictions are placed on persons practising a profession, that those who are practising should have their rights carefully preserved. That was the case with regard to notaries; it was the case with regard to dentists; about a year ago it was the case with regard to architects; and only yesterday, in a Bill that was brought before the House and read a First time, it was the case with regard to hairdressers. But here there has been an example of nationalisation without compensation, and I would respectfully suggest to right hon. Gentlemen on the other side that -they might dilute their rather strong draught of Socialism with a dose of Fabianism.
I think the Lord Advocate will readily agree that solicitors render very useful service in this way to the State and to their clients, and, although their services with regard to marriages by declaration may not be so cheap as the new method introduced by this Bill, their services have this advantage, that they are available at any time and in any place. In particular, they are available at a death-bed. It is within common knowledge that a solicitor very often appears at a death-bed for the purpose of making a will. A man may be on a death-bed because, say, of a street accident, and it may bean exceedingly valuable thing for a woman to have the status of being the widow of the man whom she loved. Under Clause 1 of the Bill, the registrar cannot give that service, but a lawyer certainly could.
I do not know that everybody who desires to be married by declaration, and has been married by declaration, desires or desired to do so on a cheap basis. My hon. Friend the Member for Coat-bridge (Mr. Barr) has given certain in- 2273 stances of large fees paid at Gretna. It is rather interesting to note that, shortly after the publication of the terms of the Bill—I believe actually the next day after —a peer in Scotland was married by declaration, and I should be surprised if he was very anxious to jump at the chance of having that service rendered for 5s. rather than for £5 or some other adequate sum. Accordingly, I suggest very strongly to the Lord Advocate that a solicitor should have the right and the duty that is accorded to the registrar by Subsection (2) of Clause 1, of causing the particulars of every marriage carried through by him to be entered in the register. That would ensure registration, but, of course, it is trite law that people in Scotland may be legally married though their names do not appear in the register of marriages. I suggest, further, as a counterpart to the giving of that right and duty to the solicitor, that this further duty should be placed on the registrar, namely, that he should be required to send an extract of the entry of the marriage to each of the contracting parties. That would get over any possible question of error in the register itself, and, of course, if that were done, both the new Socialist system that this Government have so eagerly snatched at and the private enterprise system operated by the solicitors would work side by side; but they would dovetail into one another and render a service that would be exceedingly valuable in that it would permit of a marriage being constituted in any place and at any time of the day—as at present.
I would emphasise the fact that the solicitors are a disciplined body. Apparently it is suggested against them in the report that they advertise. I have reason to know that that matter came before the Discipline Committee, but the objection "fell to the ground at once when it was pointed out that the most eminent solicitors advertise that they have houses to sell and to let, and they advertise as solicitors; they advertise, as solicitors, that they have executries to wind up, and that they have money to lend, and they advertise that money to lend in their capacity as solicitors. They go further, and advertise as solicitors that they have clients who are desirous of borrowing money on good security. Accordingly, any question of advertising seems to me to fall to the ground altogether. People in humble 2274 circumstances do not have a great deal of business for solicitors to transact. They are not in a position to buy houses, and they are not in a position to lend large sums of money, on whatever security, to clients of solicitors.
It may be suggested—it has not been suggested so far—that a solicitor may be deceived by witnesses who say that the residential qualification has been fulfilled whereas in fact it has not; but, if a solicitor is deceived by witnesses, what certainty is there that a registrar will not be equally deceived by witnesses? The registrar is just as fallible as anyone else in that respect. It does not appear that the witnesses appearing at the registrar's office must be put on oath, but nevertheless those witnesses have to give information. At present, before the sheriff, it is the witnesses who are put on oath, and not the contracting parties, and, if those witnesses who are put on oath before the sheriff swear falsely, they commit perjury.
With regard to the residential qualification, the Secretary of State, in moving the Second Reading, pointed out that this residential qualification under Lord Brougham's Act was for the benefit of the run-away people from England. The real ground for it was the protection, or alleged protection, of English heiresses—or, more probably, the protection of English heirs, against the attacks of adventuresses. I am not aware that any Scotsman, or Scotswoman, ever got any benefit at all under Lord Brougham's Act. So far as the law of marriage is concerned, England has drawn from the law of Scotland very great benefits by adopting its provisions —to take only one case, the legitimation of children by the subsequent marriage of the parents. This matter of subornation of perjury, I consider very serious. If persons come to Scotland and they are not going to take the trouble to stay in Scotland for the requisite time, what happens? Witnesses are got—and got by very obvious means—to swear what is untrue, and that is a very unfortunate thing indeed for Scotland.
Marriage by promise subsequente copula is struck at in Clause 5, whereas marriage by cohabitation, habit and repute is not struck at. That seems to satisfy my right hon. Friend the Member for West Stirling (Mr. Johnston), but he apparently has forgotten that before a marriage can be constituted by cohabita- 2275 tion, habit and repute the parties should live together for a long time, and live together as husband and wife for that time, and that they should be generally reputed by people round about, and especially by their own relatives, to be husband and wife. My right hon. Friend seemed to think that that was a sufficient type of irregular marriage to fill up all the gap between the limited new type of marriage in the approved registrar's office and a marriage by a religious ceremony.
§ Mr. Johnston
I distinctly recollect saying something else. I recollect making the suggestion to the Government that they should consider whether a declaration by consent before witnesses should not be made a regular marriage subsequently by permitting one of the parties to register.
§ Mr. Gibson
I agree. But I do not see exactly how that is going to be carried out. Perhaps in Committee we may be able to get something definite. I think that what I have suggested is perfectly definite. It may be that the right to register could be more liberally distributed, but if that were the case there might again be loopholes leading to serious abuse.
I wish now to say something about the form of marriage by promise subsequente copula, because this is dismissed in a very summary fashion in the report. The suggestion seems to be that there are very few cases. I know differently, from my own practice. This type of marriage means that where there has been a promise, and intercourse follows on that promise, according to the law of Scotland, provided the promise is proved in writing, the people are married. Let us follow it up. I have a profound respect for my hon. Friend the Member for Dumbarton Burghs (Mr. Kirkwood). It was brought very much to my notice when this Bill first appeared in draft. The report had recommended that all forms of irregular marriage in Scotland should be abolished, but cohabitation, habit and repute has been saved. Before the Bill was printed I had had a very careful discussion with my hon. Friend about marriage by cohabitation, habit and repute, and he was so impressed that he said he would go to a certain quarter and make certain representations. I have a very great respect for his skill as a diplomat, and 2276 his success as a negotiator. Perhaps it is a case of post hoc propter hoc; at any rate, this Bill does not attack marriage by cohabitation, habit and repute.
As regards marriage by promise subsequente copula, I have found that that has been a powerful safeguard for the chaste young woman of a humble home in Scotland whose chastity has been attacked by a man under promise of marriage. The young woman is wooed in secret. She does not surrender without a promise —and, there being secrecy, she does not surrender without a promise in writing. Consider what happens if the man seeks to throw her over. I will consider the matter from two points of view: (1) where the man is wealthy, or the son of a wealthy father; and (2) where she is of the same degree as the man. In the circumstances I have described she has the right to the status of being the wife of the man. If he tries to throw her over, and she is properly advised—and I have frequently advised in such circumstances—she raises an action for declarator of marriage, or alternatively for damages for breach of promise of marriage; and the summons is served at the home of the man. That is an entirely different thing from bringing an illegitimate child and leaving it on the doorstep of the man's father. This is a matter of bringing to the doorstep the daughter-in-law of the man's father.
There are not two counsel in Great Britain who have settled more cases with one another than the Lord Advocate and I have done, but we have never settled an action like this. The reason is that actions of this sort are settled before they get to counsel for the defender at all. And they are settled on a very definite basis—that the woman has the right to have herself declared the wife of that man straight away; and she will surrender that right, if properly advised, only on very strict terms. Time and again a young woman has been brought to me by friends in a position of that sort. I have found out at once whether she had a solicitor, and if not I have at once put her into touch with a solicitor, so that she was safeguarded by an action taken forthwith. On one occasion, the woman did not see a solicitor at once, but the next morning she turned up at the office of the solicitor whose name I had given her, with a bundle of pound notes in her hand, and said, "I do not require your services; I have settled this case." But it was 2277 settled on an entirely different basis than it would have been if her true rights had been kept in view. That is very important.
I will interpolate a word with regard to the objection about the difficulty of proof. Under the Workmen's Compensation Act, incidental matters in connection with the determining of the question of liability may be proved before the county court judge, or, in Scotland, the sheriff substitute. It has been held quite recently, in a case decided on 19th March, 1935—I was counsel in the case— that a marriage by declaration de presenti could competently be proved before the Sheriff-substitute. That did not set up the marriage except before the Sheriff, but at the material time it was sufficient for proof of the question of whether the man who had been killed had been married to the mother of certain children, to be led before the Sheriff-substitute and determined there in connection with her and their claim for workmen's compensation. Accordingly, what appears on pages 11 and 12 of the report is rather a gloss on the law of Scotland, as judging the matter from my own experience in this branch of the law, it is misleading. The expense would simply be an incident in the expense of workmen's compensation proceedings there, and proof would be a relatively easy matter.
Take the case of a woman, and a young man of her own degree. The great purpose of marriage is the procreation of children, and, with regard to a promise of marriage subsequente copula, the law of Scotland has in view the status of legitimacy of the children. These children are entitled to the status of legitimate children. The importance of the case of Mackie in 1917, which is mentioned in the report, was that that status could be acquired by the child even though one of the parents was dead. The abolition of marriage subsequente copula will mean, undoubtedly, a very definite increase in the number of illegitimate children in Scotland, and that, in my humble submission to the House, is a very serious matter indeed. Just consider the case of a young woman vis-a-vis a young man of her own degree. There is, in these circumstances, about the strongest possible incentive for marriage; and, the law standing as it does at present, what happens? That position is recognised, and immediately a ceremony of marriage 2278 is gone through. But suppose Clause 5 is passed; the man knows quite well that he can snap his fingers at the girl, go away, and leave her altogether. At present she can raise an action and have her position regularised, but this Bill proposes to take that right away. The woman in these circumstances would be left stranded.
It cannot be too emphatically affirmed that there is still the double moral standard. A man may marry again after having left a young woman stranded, and it does not matter much to him. People say, "He has sown his wild oats, and he has turned over a new leaf." But with regard to the woman it is a different thing entirely. Her character has gone. It requires a most courageous man to marry her, and, even when he does, the world says, "We will not call !" From sheer knowledge of practice and of things as they are I say with very great regret but most emphatically that Clause 5, in its present form, makes this Bill nothing short of a bastardising Bill. For that reason I would respectfully invite my colleagues and the House to see that a very grave wrong is not perpetrated on the people, and in particular on the children of Scotland, by passing Clause 5 in its present form.
Right throughout our history in Scotland the law of Scotland has dealt with marriage, and with the rights of women in particular, in a much more kindly fashion than has the law of England. This Bill seems to be an attempt to bring our Scottish law down to the lower level of the law of England, whereas we have in quite recent years enriched the law of England by England incorporating certain very valuable principles taken from our law of marriage. Certain recommendations were made in the report with regard to the matter of notification that do not appear in the Bill. Notification, as it is at present, is far from being effective. In a city either banns in a church or a notice on the notice board at a registrar's office is a very ineffective way of publishing the intention of parties to-marry. I do not know that even the recommendations that appear in the report would make matters very much better. It is unfortunate that so large a proportion of our population seldom go near a church, and when they do, it is not necessarily by any means the Established Church of Scotland.
2279 I do not think that notification of marriage can be made really effective unless we enrol the assistance of the Press of the country. The Press of the country might be put under an obligation to publish once a week a list of names obtained from the registrar of persons intending to marry. That information would reach practically all the homes of the country and prove to be a very effective way of notifying intention to marry. But, as has been indicated during the Debate already, very often for private reasons people do not desire their marriage to be known. A woman might desire to remain in employment after she has been married, and in many cases that would be impossible if her marriage were known. There are very obvious cases of school teachers and of bank clerks and so on. I do not want to dwell on that matter because these things are outside the present Bill.
While the initial purpose of the Bill is undoubtedly sound, and we want to get rid of abuses, nevertheless, we ought, when changing the law, to preserve for the citizens of Scotland the rights that they have had from time immemorial; and in particular we do not want to do anything to our Scottish law of marriage that would increase at all the number of children in Scotland to whom the stigma of illegitimacy would be attached.
§ 6.7 p.m.
§ Sir D. Thomson
The hon. and learned Gentleman the Member for Greenock (Mr. R. Gibson) said that he was going to reply to a question which I had asked the hon. Member for Dumbartonshire (Mr. Cassells), but he did not do so. What I asked the hon. Gentleman—and I should be glad if the Lord Advocate would let us know—was not what was the difference in procedure between England and Scotland, but whether any practical difficulty arises through marriages not being able to take place at any hour of the day or night in the office of the registrar. The question was whether in practice the point which the hon. Member for Dumbartonshire made was a practical one or not. I congratulate the Government upon bringing in this Bill. The Scottish marriage laws have not been an example to England in recent years, as far as Gretna Green marriages are concerned. I think that the hon. and learned Gentleman the Member for Greenock will agree 2280 with that. I disagree completely with the hon. and learned Member with regard to Clause 5. A marriage of habit and repute is entirely different from a marriage by promise subsequente copula, about which he was speaking. His description of the girl who, having been told of this method of marriage, was seen the next morning with a handful of pound notes at the solicitor's door was a little unfortunate. The purpose of the Bill is to create a popular and satisfactory form of marriage and not to allow anybody to appear with pound notes as damages. We want to get the marriage laws of Scotland in as sound and good a position as we can, and I think that particular instance was a bad one.
I do not agree with the hon. Member for Coatbridge (Mr. Barr) on the very small point about civil and religious marriages. I would hardly dare challenge him on religious subjects, but I would be sorry to see the present system thrown aside and that it should be considered necessary for everybody to have a civil marriage, and, if need be, to have a religious marriage on top of it. He seemed to take the line that if they did not come to church, in any event, they should not come there to be married only. One could also take the opposite line that it would be a very good thing if they at least came to be married, and I would not at all support his views on that matter. I do not wish to delay the House any longer but to offer my congratulations to the Government and to express the hope that the Bill will have a speedy passage into law.
§ 6.10 p.m.
§ Mr. Buchanan
There is one good thing about the Bill, and that is that, in having the Lord Advocate to advise on the very difficult legal problems, we shall be sure of sound and capable advice. I am completely at a loss to understand many of the phrases used in this Bill, and, apart from his politics being completely wrong and usually entirely misguided, we are fortunate, from the point of view of being legally advised on this Bill, in having the assistance of the Lord Advocate. When the Bill was first talked about I thought there was a great deal of nonsense spoken about this problem. I do not defend Gretna, or anything about Gretna. The thing is silly. But this Bill does not abolish Gretna; it abolishes the marriage 2281 by consent, whether it be at Gretna or any other place. We not merely abolish marriage by consent at Gretna, but we abolish it throughout Scotland as a whole. I believe that if the newspapers had not given Gretna so much publicity and boosted it so much, possibly Gretna would never have existed at all. Certain people seemed to want some kind of romantic marriage, and Gretna seemed to provide it.
I wish to say a few words about other matters which ought to be given some consideration. There is the point that was raised by the right hon. Member for West Stirling (Mr. Johnston) and subsequently by the hon. Member for Dumbartonshire (Mr. Cassells) of the availability of the registrar in the case of sudden emergency. That suggestion ought to be supported, and it should be looked at sympathetically by the Government. There is another matter I would ask the Lord Advocate to consider. Do I understand that the First Schedule to the Bill would be exactly what would be published in the window of the registrar's office?
The Lord Advocates
No, the Schedule is not the notice which goes up in the registrar's window. The schedule of marriage has to be completed by the parties when they get married at the registrar's office. It is a private document.
§ Mr. Buchanan
What will be the nature of the notice that is issued? A difficulty also arises as to the details required in the schedule of marriage. A man may be illegitimate. He is not to blame for that. Nine times out of 10 he may not know who his father is, and it is impossible for him to state the "Name, surname and rank or profession of father" for inclusion in the schedule of marriage. Perhaps he has not told the woman that he is illegitimate. What is the sense of it? Why should that fact be published to the world when it is something for which the man is not responsible? Like a wise man he tries to put it aside as a thing that should be dead and buried. Why should he have to produce all that information? Cannot the Lord Advocate consider some way of getting over that necessity? One of the reasons why I have sometimes found people going in for a religious ceremony as against an irregular ceremony, is that in the religious ceremony there is less of 2282 this sort of thing than there is in the irregular marriage ceremony. I was married in the United Free Church and I paid a little extra to get all the "cries" shouted on one Sunday, so that nobody would come listening for two or three Sundays. I confess that I do not like the idea of putting all these things in this document. They are not essential. The essential information is the residence of the man and the residence of the woman, and their age qualifications. I hope that the Lord Advocate will consider amending this particular Schedule.
I did not hear the whole of the speech of the hon. and learned Member for Greenock (Mr. R. Gibson), but on Clause 5 I take the view which I understand he takes. I have a great deal of doubt as to the wisdom of this Clause. In working-class circles you very often find that marriage arises because there is going to be a child. Let us be frank about it. They are not bad people, and very frequently the man decides to marry the woman because he wants to see the child with a proper parentage. I have very often found that these marriages are just as happy as most other marriages. But seduction has taken place and a child is born. The courts now have the power, if the woman takes the case to court, to say that a promise has been made and can declare that a marriage has in fact taken place. I understand that that is abolished by this Clause, and that the power of the courts to declare a marriage has gone. I question the wisdom of that. I would not like to see the woman and particularly her child treated in that unfair fashion, and I hope the Lord Advocate will look at the point again.
I am pleased indeed that the Government have decided to retain "habit and repute" as against the Committee's recommendation. I have had similar cases to those quoted by the right hon. Member, for West Stirling and the hon. Member for Dumbartonshire dealing with "habit and repute." I had the case of a man who had lived for 51 years with his wife. She claimed a pension. We had great difficulty in establishing the claim because all the children had been registered as illegitimate, but I am glad to say that the sheriff procurator held that marriage had in fact taken place by "habit and repute," and allowed an old age pension to the woman and to the man. I am glad that "habit and repute" is 2283 retained. If a man without any legal ceremony lives with a woman and carries out all his social duties without the power of the law which compels the rest of us to do so, then I say that that man is just as good a husband and father as any other member of the community.
I have a great deal of sympathy with the plea of the hon. Member for Dumbartonshire for fair treatment for practising solicitors. We are all inclined to kick the ordinary practising solicitor, but in large towns like Glasgow many of the poor people are indebted to practising solicitors for seeing that many of their rights are maintained, and I shall never join, in what is so easy an occupation, in attacking the legal profession. On the other hand, I have never seen any great enthusiasm on the part of lawyers for this class of work, and I do not think any of them will be very grieved at losing this particular job. I do not think they will miss it very much. While sympathising with my hon. Friend in many respects, on balance I prefer the cheap and simple marriage which is now proposed to the form of marriage which has now to do with the legal profession.
The hon. Member for Coatbridge (Mr. Barr) referred to religious marriages and their extension. I agree with him that if you are going to extend them you must extend them to every one. You cannot stop at a Baptist and leave out the Salvation Army; you cannot stop at a Methodist and leave out the Baptist; you must include them all. I represent at least between 20 and 30 different religions, which include all sorts of devoted and earnest people. If you are going to limit it you will have to choose one of two alternatives. You must say that the Church of Scotland is a State church and is therefore entitled to this prerogative or you must say that there is to be no church at all unless the persons themselves desire it, and then have a special declaration. If you extend it to all religions you must be prepared to include all religions, some of which to-day are not very easy to find. I take the view that on balance it is not wise to extend it on religious grounds.
My last word is this: We are here discussing marriage and its complications. I wish the Government would try to look at it from other aspects. Many of the evils arising under the marriage laws in 2284 Scotland do not arise from the facilities which the Church and the State give. The hon. Member for Aberdeen, South (Sir D. Thompson) said that people went to church only once a year. Some of them do not go at all, but some of the problems which arise in Scotland are due to some extent, perhaps not altogether, to the social conditions under which these people have to live. When you have people herded together, men and women living in close proximity to each other, with no privacy in life at all, with eight and nine and 10 families living in a seven and eight apartment house, you have all the opportunities for vice and seduction and marriages which are not a credit to any of the parties concerned.
I am not going to oppose the Bill and I shall come to the Committee with an open mind ready to hear what can be said. I am glad that "habit and repute" is going to be retained. I am more interested in that than in anything else. But our marriages will never be properly clean and pure until the Government tackle not merely the machinery of marriage but its soul and its spirit, by seeing that the social conditions give our people a chance of contracting a marriage bond which will be lasting and decent.
§ 6.26 p.m.
§ Mr. Mathers
The considerations which have been advanced by speakers in the latter part of the Debate have caused me to wonder whether we may not in this Bill be using as ledge-hammer to crack a nut. The nut is the Gretna Green form of marriage, where, before a so-called priest, who never was entitled to the name of priest, who is also described as a blacksmith, and who never was a blacksmith in his life; in what is described as a smithy but which never was used as a smithy, marriages are contracted which in many cases are not marriages at all. There is a complete sham about the Gretna Green ceremony which should be exposed. It is within living memory that the so-called smithy at Gretna was previously a cottage inhabited by ordinary tenants, and never was used as an actual smithy. The idea that there was some romantic connection with the old runaway marriages of loving couples from the English side of the Border to unite themselves at Gretna Green, is a completely spurious idea, and I am glad that we are in process of sweeping it away. But in 2285 doing that it is obvious, from the powerful considerations advanced by the hon. and learned Member for Greenock (Mr. R. Gibson),that there are many other things being done by the Bill which may not be so happy in their consequences, and I am sure that in Committee some of his considerations will require to be looked at very carefully indeed. In Scotland we are very generous and kindly in our consideration of human frailties. We have not been inclined to call "poor Frailty names," we have not "tied ourselves up in godly laces "; we have had that consideration for human frailties which is the stamp of real sympathetic consideration and indeed the stamp of real civilisation.
I do not, however, rise to make observations in a general way on the Bill, but to raise one particular point, and it is rather surprising that after all the time we have debated this Bill, the opportunities which we have had of looking at not only the Bill itself but also the report of the Departmental Committee which was appointed to inquire into the law relating to marriage in Scotland, there should still remain one point which has not been referred to. That is the recommendation of the committee that there should be a limitation, a restriction, upon the marriage of a minor with a foreigner as set forth in paragraph 2 of the report, and that the minor should not be permitted to marry a foreigner without the consent of the parents or guardians. It is true that in Scotland, as far as minors are concerned, we have not, in a general way, kept them in swaddling clothes until they were 21 years of age. We have looked upon them as being grown up and able to decide their own destiny in life to a much greater extent that has been done on the English side of the Border. In making a plea that this point should be considered, I know that I am asking for a limitation upon the freedom that has been accorded to minors in Scotland up to the present, but I have had experience, more particularly when I was representing West Edinburgh—now represented by the right hon. and learned Gentleman the Lord Advocate—which has brought to my knowledge the bad circumstances and evil consequences that have arisen through the marriage or association of young women in Edinburgh with men of foreign nationality.
2286 I have recollections of many pitiful letters from the parents of girls who had gone through an irregular form of marriage or entered into a union with foreigners and then found that they had put themselves in a very difficult position. This question raises the whole matter of the possible loss of nationality. It is not always that a British woman who marries a foreigner loses her nationality, but sometimes it happens, and sometimes the woman finds that she has no nationality, and because of that union is a citizen of no country. There are powerful considerations advanced by those who are interested in this matter with regard to the recommendation of the committee, to which effect has not been given. I hope that even in the Second Reading Debate we may have some indication from the Lord Advocate as to why this recommendation has not been put into effect, and some assurance that on the Committee stage, if there is an opportunity to put this right, it will not be looked upon with hostility by the Law Officers of the Crown. I promise that there will be that opportunity, because it is the intention of certain hon. Members to put down Amendments that would enable this matter to be dealt with. However, before we reach that stage, it would be useful if the general considerations relating to the matter were stated from the Government Front Bench.
§ 6.34 p.m.
§ The Lord Advocate
With the exception of the speech of the hon. and learned Member for Greenock (Mr. R. Gibson), I think I can claim that every contribution, to the Debate has taken the form of approval, either enthusiastic or guarded and discriminate, of the principle of this Bill. Therefore, I propose to devote the greater part of my remarks to answering, as far as it is possible to do so in a Second Reading Debate, the numerous questions that have been put to me and dealing with the numerous suggestions that have been made from various quarters.
Before doing that, may I, in answer to the hon. Member for Linlithgow (Mr. Mathers), assure him that this Bill for the reform of the marriage law of Scotland does not find its cause, but merely its occasion, in the Gretna scandal? It is over 150 years since a Bill was first introduced into this House for the purpose that is intended to be achieved by 2287 the Bill to which I now ask the House to give a Second Reading. Time and again Commissions and Royal Commissions have investigated the matter. The right hon. Member for West Stirling (Mr. Johnston) referred to one Commission. There was another Commission in 1868. As far as I know, the result of all those examinations of the problem has been the same, namely, to advocate the modernisation—one might almost say the civilisation—of the Scottish law of marriage; but for one reason or another, and possibly because of that inertia which characterises the attitude of the legal profession to changes in legal principles—of which we had an example from the hon. and learned Member for Greenock this evening—nothing has been done; and I am bound to say that I regard it not as a taunt, but as a compliment, that the hon. and learned Gentleman should regard me as being Socialistic for having been associated with what I regard as a long overdue measure of reform.
I am not going to speak of the social side of the question with which my right hon. Friend dealt, but of the legal side. There is as much spurious glamour associated with the Scottish law of marriage as there is with the Gretna smithy, because the bulk of the marriage law, as far as it exists in Scotland to-day, is derived from the old Canon Law of the Middle Ages as that law was before the Council of Trent in 1563. The authentic exponents of the old Canon Law, the Roman Catholic Church, have long since discarded these doctrines. There is not a State in Europe—and indeed, there are very few civilised States in the whole world—which did not discard these doctrines long ago; but in Scotland, and in one or two of the States of the United States of America, these doctrines still survive as obsolete and useless relics of mediaeval principles which no longer meet the requirements of a modern State.
I would go further and remind the House—and the hon. and learned Member for Greenock will, no doubt, confirm me in this respect—that there is the very highest authority, that of Lord Fraser, our principal writer on the law of husband and wife in Scotland, for the view that the Scottish doctrine of marriage by consent, which is the basic doctrine of the law, depends upon a mistaken view 2288 of the Canon Law promulgated by an English judge in an English case, and subsequently confirmed by the House of Lords, and introduced into Scotland by mistake. If that be so, the ancestry of the whole doctrine certainly is in no sense a credit to the law of Scotland. Indeed, the last word on this subject was uttered more than a century ago by a famous Scottish judge, Lord Hailes, who, speaking of the law as it was in his day, said:What was the law of Scotland while Europe was barbarous is still the law of Scotland when Europe has become civilised.
§ The Lord Advocate
The hon. Member may be right. Perhaps I should say I am speaking of Europe as it was a few years ago. Is it to be wondered that all those who have the interests of the Scottish people at heart, not only from the standpoint of the new social services and similar matters referred to by the hon. Member for Gorbals (Mr. Buchanan), and from the standpoint of the credit of Scottish law, should welcome the opportunity which this Bill affords of civilising the principles of our law in regard to what my right hon. Friend has rightly described as the most important transaction known to the law? After all, the first and vital requirement of any law of marriage is that it should be simple and certain. The present law of Scotland on the subject of marriage is neither the one nor the other. In the preparation of this Bill, full regard has been paid to the progress that has been made in other countries—in England, France, and the other States of Europe, and in America and elsewhere—and with that experience before us, we have tried to bring the Scottish law in this respect up to date. I mention that because of certain criticisms that were addressed to the new form of civil marriage, to the requirement of notice and other features in the Clauses of the Bill.
I would mention in passing one other consideration as a justification for the departure proposed by the Bill. The great bulk of the irregular marriages to use an expression which the hon. Member for Coatbridge (Mr. Barr) rightly criticised, are, in fact, "marriages before the sheriff." I have been at pains to make inquiries to ascertain to what extent that process is absorbing the time of the sheriffs and the sheriff court officials. I 2289 find that during the Fair Holiday last summer in Glasgow sheriff court alone 183 marriages were carried through, and during the hogmanay period, last year, 126. The total number of marriages in the Glasgow sheriff court for 1938 was 2,753. Speaking from my own special standpoint, I feel that an intolerable waste of the time and energies of the judicial officers and the officers of the court is involved in the performance of so large a number of marriages in a year. The function is fundamentally one for the registrar and not one for the sheriff, because, as any hon. Member knows who has seen a marriage before the sheriff, it is a pure formality, and the sheriff is merely seeing that the proceedings are conducted in an orderly way and the marriage registered. Therefore, from my point of view, I should welcome the speeding up which would arise from releasing the sheriffs of Scotland from this quite inappropriate function which is thrust upon them as a result of the obsolete marriage law.
§ Mr. Cassells
Has the right hon. and learned Gentleman received any application from the Association of Sheriff-Substitutes on this point?
§ The Lord Advocate
I cannot answer the hon. Member. I should not expect to receive applications from the sheriff-substitutes in relation to a subject of this kind, but I will make inquiries and give the hon. Member an answer at a later date. Coming now to the specific points that have been raised, I will preface my remarks by making it plain that anything I say to-night is not to be accepted as indicating that either my right hon. Friend the Secretary of State or I have closed minds on any of the interesting topics that have been raised. I have been invited, and I intend to accept the invitation as far as I can, to indicate our general view on the various contentious topics, but I do not want any hon. Member to suppose that in so doing I am necessarily tying my hands against compromises or suggestions whether they come from hon. Members or from other quarters.
First of all, a good deal was said with regard to the type of case in which, for reasons of extreme urgency, illness or the like, the normal procedure of notice and of marriage in a registrar's office cannot be undertaken. I would like to hear more 2290 on this point, and no doubt I shall when the Bill goes upstairs, but I would make two observations upon that subject. In the first place, Clause 2, which provides for a joint application to the sheriff and for what I may call a special emergency licence, has been drawn on lines designed, as I thought—wrongly perhaps—to cover the great majority of cases that might reasonably be expected to arise in actual practice. If it can be improved in drafting, I have no doubt that suggestions to that effect will be made later, but hon. Members must not imagine that Clause 2 involves a sick man or sick woman appearing personally before the sheriff. All it contemplates is that a joint application is to be made to the sheriff. Some hon. Members said that it might not be possible to get a sheriff or a sheriff-substitute or an honorary sheriff in a case of emergency, but in my official capacity I often have to secure at short notice and for very urgent purposes access to sheriffs or persons who are in a position to exercise the functions of a sheriff, and I am bound to say, looking back over my experience of the last four years, I cannot recall a case in which even in circumstances of compelling urgency, I have not been able to get what I wanted.
§ The Lord Advocate
The suggestion I understood was that sheriffs or sheriffs-substitute or honorary sheriffs were not readily available, but, as a matter of fact, a great deal of trouble has been taken to ensure that they reside where they are readily available.
§ Mr. Buchanan
When the ordinary layman wants to get the sheriff it is necessary to get in touch with the procurator-fiscal and in Glasgow up to the time of the present procurator-fiscal, nobody could do so because he was not even on the telephone. I once desired to bail out some of my constituents, and I had to go miles in a motor car in order to get the formalities completed.
§ The Lord Advocate
I am sorry that the hon. Member was put to that inconvenience, but of course we are not concerned here with the procurators-fiscal.
§ Mr. Buchanan
But that is the method of getting in touch with the sheriff—through the procurator-fiscal.
§ The Lord Advocate
Let me put another point. Is this the sort of thing that is likely to happen with sufficient frequency to render necessary further provisions than have been made up to the present. Speaking like the hon. Member for East Fife (Mr. Henderson Stewart) from a detached standpoint, I am sorry that some hon. Members should apparently regard matrimony as a thing which a man contemplates only when he has the imminent prospect of death before his eyes, but in regard to the cases of emergency which have been mentioned, I would say this. As far as I am aware, in very few other countries are the provisions for dealing with cases of this kind any greater than, or indeed as great as, those which we propose in this Bill. For example, I understand that in England it is not possible even in the case of danger of death to get married at any hour of the day or night. Hon. Members will bear in mind that in considering these matters we must keep in view the general provisions made over the whole field of jurisprudence.
§ Mr. Kirkwood
The right hon. and learned Gentleman said just now that it was not possible at present to get married at any hour of the day or night.
§ Mr. Kirkwood
But I am talking about Scotland and we are dealing with Scotland, and it is possible now to get married at any hour of the day or night. A solicitor can do it. I know of a case in which a man was in danger of death as the result of an accident and wanted to have his child legitimised, and he was married by a solicitor shortly before his death.
§ The Lord Advocate
I think the hon. Member must have misheard me. I was referring definitely to England. In Scotland as the law is at present, of course you can get married at any hour of the day or night, but what a number of hon. Members have omitted to observe is that the services of a solicitor are not necessary at all. That would justify me in making a few comments upon the plea of the hon. Member for Dumbartonshire (Mr. Cassells) on behalf of his own branch of the legal profession, but I do not propose to go into that point. What I am concerned to say in regard to Clause 2 is that my right hon. Friend and I are willing to examine it further, and also to 2292 examine sympathetically any Amendments to it which are proposed. It has been drawn on lines which will afford under the new system facilities, at least as great as those which are normally afforded in all modern states and I think, subject to further suggestions which may be put forward, it provides a safeguard for emergency cases sufficiently general to cover the great majority of those cases which are likely to arise.
§ Mr. R. Gibson
Would the Lord Advocate go as far as this? Would he consider Amendments to Clause 2 designed to ensure to the people of Scotland facilities equal to those granted by the present law of Scotland and make the law under the Bill as civilised as it is at present?
§ The Lord Advocate
On the contrary. I would regard that as equivalent to leaving the law of Scotland in the medieval darkness in which it at present stands. I am not committing myself or my right hon. Friend as to our attitude on specific Amendments, but on the broad point, which the hon. and learned Gentleman puts to me, I am afraid that my present attitude is one of resolute opposition. I do not linger longer on that point, because there are several others to which I wish to direct attention.
I next take the subject of the banns of marriage and the suggestion that the privilege, falsely so-called, enjoyed by the Church of Scotland in this respect should be extended to certain other denominations. On that point may I remind the House of the purpose of prior intimation of marriage, whether by banns or in any other way. Its justification, or perhaps I should say its alleged justification, is twofold. In the first place, it provides for publication and thereby gives, at least theoretically, an opportunity to persons to intervene to prevent a marriage which is objected to on some sufficient ground. Secondly, it secures an opportunity for due deliberation on the part of the contracting parties. Those are the two justifications alleged in all works on the subject for prior notice, and prior notice is common practice in most countries of Christendom.
According to the present law and practice of Scotland, the sole purpose of banns is to satisfy the requirement that there shall be publication in the parish church of the parish, not because it is the Church of Scotland's church, but because it is 2293 the recognised public place in every parish where publication is made of public communications. Hon. Members who are familiar, as most of them are, with parish churches in rural areas are no doubt familiar with the oddly assorted array of public notices to be found in and around a church porch, including notices about diseases of potatoes and of animals and about Schedule A Income Tax. I have no right to speak for the Church of Scotland, and this House cannot legislate for the Church of Scotland even it desired to do so, and the present procedure relating to banns is governed by an Act of Assembly of 1932. But I, personally, share the views expressed by the hon. Member for Coatbridge when he suggested that the reform which would be most in harmony with modern ideas would be not the extension but the contraction of the practice of proclaiming banns. The ground for that view is that the publication of the banns in church does not achieve sufficiently the sole object which publication is intended to achieve, namely, wide publicity among those who are interested in the matter. Everybody knows that banns are frequently proclaimed in a church to which the persons concerned do not go and of whose body they may not be members at all, with the result that the proclamation, in many cases, is little more than an unfortunate intrusion in Divine service. That however is a topic which, fortunately or unfortunately, we cannot pursue on this occasion. I mention it only for this reason, that the arguments adduced by certain hon. Members on this topic have the effect of magnifying and intensifying the uselessness of this form of publication rather than the opposite effect.
In addition to that, I would ask where is this matter to end? The hon. Member for Gorbals said there were 20 or 30 different religious denominations in his constituency. I can go further than that. The Registrar-General for Scotland informs me that his Department have recognised as ministers of religion for the purpose of celebrating regular marriages, the ministers of no fewer than 80 distinct sects or denominations. The moment you contemplate the extension of this right to anything like that number of separate sects and denominations you have to face the practical difficulty which arises from this fact. No church, or sect, or denomination in Scotland except the Church of 2294 Scotland is organised on a territorial basis. The Church of Scotland has a church assigned to each registration district. No other religious body has, and I am bound to say that all attempts to frame provisions that would work in relation to all these various denominations, have broken down because of the difficulty of determining in what church and in what circumstances the publication is to be made. I do not want to preclude argument or to suggest that the answer which I have given is final. I do not wish to suggest that my mind is closed to further consideration of the matter, but, for the reasons which I have indicated, I think the Government were well advised in rejecting that proposal.
There appears to be general agreement that whatever else the Bill does, it ought not to abolish the system of marriage ''by habit and repute." The House may be interested to know that the Royal Commission of 1868 took exactly the same view. They reported that this principle was not peculiar to the law of Scotland but was common to every system of enlightened jurisprudence. It is a principle which is found in the law of England, although that is not very generally known. As there has been little if any criticism of this aspect of the Bill and of the proposal to break away from the recommendations of the Morrison Committee in this respect, I propose to say no more about that subject.
As regards the question of the Quakers and the provisions of Clause 3, the hon. Member for Coatbridge surprised me by the fact that he was more Royalist than the King, because, while I am only too glad to go further into this matter, I am in a position to tell him that Clause 3 was submitted to and approved by representatives of the Society of Friends as meeting their wishes. I admit that the effect of the Clause is not to go quite as far as is the case in England, but, according to my information and recollection of a meeting which I attended, the Society of Friends are content that their right to celebrate marriages should be confined to the case where either of the parties to the marriage is a member or an attender associated with the Society of Friends that they have no desire to secure the right to celebrate marriages between parties neither of whom is a member of their particular faith.
§ The Lord Advocate
I intended to cover that by my opening remarks in which I advocated the sweeping away of this old medieval Church Law, which has long since been discarded by every other State in Christendom, except a few States in the American Union. It would make confusion worse confounded if an attempt were made to retain the old system side by side with the new.
As regards the final point made by the hon. Member for Linlithgow about the marriage of minors, his suggestion, I gather, was that the marriage of minors should only be rendered subject to the consent of their parents in cases where the marriage was with a foreigner, and probably only where the marriage would not be recognised by the law of that foreigner's domicile. As far as that is concerned, there is one entirely new factor in the situation which has emerged since the committee reported, and indeed, within the last few weeks, and that is that the wider problem, of which this is merely one example, has just been referred by the Lord Chancellor to an expert committee, with a Scottish representative, under a remit which will enable careful investigation to be given to the wider aspects of the problem. The remit, of which I have obtained a copy, asks the Committee under the Chairmanship of Sir William Graham Harrison to investigate the law relating to the celebration of marriages in the United Kingdom—it is an English as well as a Scottish problem—where the marriage is not recognised as valid in the country of the nationality or domicile of each or either of the parties, with special reference to the Marriage with Foreigners Act, 1906, and the position under the law of the United Kingdom with regard to the recognition of marriages in cases where the personal law of the parties, or either of them, is inconsistent with the principles of English marriage law.
When that committee reports, in all human probability United Kingdom legislation of a comprehensive character will be required and, without developing the further arguments which seemed to me to render it unfortunate that we should attempt to introduce this new idea into the Scottish law now, I am content to leave the matter for the moment in this way, 2296 that the committee is now actively investigating this problem and may be expected to report within a measurable period of time, and that it would be a mistake to trench upon this very delicate problem until full investigation has been completed. I will only hint, if I may, that there lurks a very real, almost a political difficulty in this question, because a great deal, though not all, of the practical difficulty which arises in connection with these polygamous or non-Christian marriages is associated with India and parts of the British Dominions. No one would wish light heartedly to embark upon interference with a question of that character. My advice to the House would be, subject to any further examination that may be necessary upstairs, to leave the matter alone until the committee has reported.
§ The Lord Advocate
Yes, I said so just before the hon. Member came in. There is a Scottish representative on the Committee. I think those Members who have raised points with which I have not specifically dealt will appreciate that it is hardly practicable in a Second Reading Debate to go into greater detail. My own feeling as a lawyer is that, looking over the 150 years and more during which this subject has been the matter of repeated suggestions for reform, I count myself fortunate that it has been my privilege to take part in framing and introducing legislation which will achieve a long over-due improvement in an important chapter of Scots law.
§ 7.7 p.m.
§ Mr. Markham
In this discussion there has been one aspect of the report which has not been referred to, and that is the commercialisation through museum methods of irregular and semi-irregular marriages, which was condemned in no unmeasured terms by the report.
§ Mr. Markham
I am aware that the commercialisation of marriages has been referred to, but what has not been referred to is the commercialisation through a special angle, that of the museum.
§ Mr. Buchanan
The hon. Member might be fair to many of us who have sat throughout the Debate. He said the subject had never been referred to, and it has been referred to by every speaker.
§ Mr. Markham
I say that, as far as I am aware, the position of the commercialisation from the museum angle has not been referred to.
§ Mr. Buchanan
The hon. Member said that this commercialisation had never been referred to. I say that every speaker has referred to it, and I want the hon. Member in common fairness not to say these things which are not true.
§ Mr. Markham
There is a misunderstanding. I am aware that the commercialisation of these irregular or semi-irregular marriages has been referred to many times, but there is one aspect of them which has not been referred to, and which was brought out in the Morrison report. I refer to the commercialisation of these marriages through the museum angle. Scottish Members know that at Gretna, for example, there is a public museum going on there, well advertised, exhibiting forgeries, and obtaining money under what cannot be described as anything but false pretences. This practice was condemned by Lord Morrison in very outspoken words. By this Bill we abolish the irregular marriage, but we do not abolish the commercial swindle of the museums that have grown out of them. I should like to see these museums closed, and in this respect I can say fairly to the House that the point has not been dealt with. I hope the Minister will take steps to see that the public are no longer gulled in this manner.
§ Question, "That the Bill be now read a Second time," put, and agreed to.
§ Bill read a Second time, and committed to a Standing Committee.