DEGREES OF RELATIONSHIP (Hansard, 28 March 1977)

§ Mr. Harry Ewing
I beg to move Amendment No. 8, in page 20, line 16, at end insert—

';

Father's father's mother;

Father's mother's mother;

Mother's father's mother;

Mother's mother's mother;

Son's son's daughter;

Son's daughter's daughter;

Daughter's son's daughter;

Daughter's daughter's daughter;
180
Father's father's father;

Father's mother's father;

Mother's father's father;

Mother's mother's father;

Son's son's son;

Son's daughter's son;

Daughter's son's son;

Daughter's daughter's son.'.

In Scottish Standing Committee the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) criticised Schedule 1 on the ground that it did not debar a marriage between a great-grandparent and his or her great-grandchild. In this he received the support of the hon. Member for Galloway (Mr. Thompson) and the hon. Member for North Angus and Mearns (Mr. Buchanan-Smith). In view of the strong desire for this possibility to be covered—however remote it may appear in practice to be—I have come to the conclusion that an amendment should be tabled to this effect.
Unfortunately, for drafting reasons, the amendment is not as simple as was suggested in Committee and to cover the one additional generation means adding eight additional relationships to each column. But I think the Committee was prepared to accept a longer schedule as the price for the comprehensive cover it would give.

§ Mr. Fairbairn
I welcome what the Minister has done. It is important that the law should be comprehensive. I am glad that he has accepted that.
Theoretically, one could go on for other generations. I still think that the amendment which we proposed, with ascendants or descendants in the direct line, would have covered the matter and would have covered other generations and other persons of the half-blood who are not strictly covered in the Government's amendment. Therefore, we should be careful to ensure that when we are making a law restricting the degrees of marriage we get it right and not attempt by categorisation, as we have done in the schedule, to do it, in order to save paper, in a manner which does not put detail before principle. But I welcome the amendment.

§ Mr. George Thompson (Galloway)
I congratulate the Minister on showing flexibility in this matter. What he has done in his amendment meets the views of most of the people whom I have been able 181 to consult in my constituency. I congratulate him on yielding on it. As a matter of what I might call petite histoire I checked in the Scottish Prayer Book and found that this possibility was not envisaged in the long line of people one could not marry. I am glad that the Minister has envisaged this and that he has proved how flexible the Government are these days.

§ Mr. Harry Ewing
I beg to move, That the Bill be now read the Third time.
Our recent discussions of the Bill will be fresh in the minds of Scottish Members and I need not take up the time of the House by retracing the ground we have covered. Very briefly, the purpose of the Bill is to modernise and simplify the system of preliminaries to marriage in Scotland, broadly on the lines that were recommended by the Kilbrandon Committee. The Bill has the further important effect that it will be possible for religious marriages solemnised in Scotland by non-Christian denominations such as Muslims and Sikhs to be recognised and registered, thus removing a feeling of discrimination held by those communities. This has been generally welcomed.
The Bill, by clarifying, simplifying and modernising the requirements for marriage, while retaining those of our distinctive Scottish features which have worked well, will bring Scotland's marriage law back into the forefront of marriage legislation throughout the world.
Just is important, the Bill will benefit both the public, when they come for facilities to marry, and the registrars who operate the registration service. This is a service which seldom occupies the limelight and one which so many of us tend to take for granted. But its aim is always to help people at what are the most important points of their personal and family lives; namely, births, deaths and marriages.
Quite a number of difficult issues have been brought to light in the Bill's passage, both here and in another place, and we have done our best to meet them, and to remove possible doubts and ambiguities. I am sure that the Bill has been 182 much improved as a result of the helpful suggestions made by hon. members of all parties, and I commend it to the House.

§ Mr. Fairbairn
This is, as has been the history of the marriage law in Scotland, a very minor change in a law which has existed practically unchanged since 1567. In a way it is a compromise Bill which achieves certain things without going too far in making radical changes.
But it would be wrong if we did not point out that we are making some dramatic changes which were only started off within the last 30 or 40 years. We have now moved from the position which existed totally some 40 years ago, whereby the only legal preparation for marriage was by the proclamation of banns, to a situation through which we have passed, whereby it was also legal to do it by registration, into a situation now in which it is possible to do it only by registration.
This might be a trend which is inevitable but I do not think we should overlook the fact that the function previously exercised by the Church has now been removed from it and put into the hands of the bureaucracy. That is another step in a change in the balance towards the State, which may be good or bad, but it has happened.
Secondly, we should not overlook the fact that a variety of principles of Scots law have been sacrificed for the purposes of the unanimity of the law of the United Kingdom, in particular the law of the forbidden degrees of marriage. I welcome the fact that other religions and their celebrants have been registered and allowed to perform marriages in Scotland. We recognise that there are many people, religions and persuasions which should not be excluded.
I ask the Minister to consider the following point in regard to Clause 26. Whereas those who meet for religious worship are taken to be in recognised religions, those whom we would recognise as being in recognised religions but who do not necessarily meet for regular worship in Scotland are not covered by the Bill. For instance, Sikhs, Baptists or whatever—

§ Mr. Robert Hughes (Aberdeen, North)
The hon. and learned Gentleman should read what is in the Bill.

Mr. Fairbain
They have to meet for regular worship—

§ Mr. Robert Hughes
That is not in the Bill.

§ Mr. Fairbairn
I am referring to Clause 26. It is important that those who are in religions that we recognise but who do not necessarily meet for regular religious worship should be covered. I ask the Minister to consider that matter, which did not occur to any of us in Committee.

§ Mr. Neil Carmichael (Glasgow, Kelvingrove)
I may be rather dull about this, but can the hon. and learned Gentleman give me an example of a religious group that does not meet regularly for religious worship?

§ Mr. Fairbairn
I appreciate the point, but there is a distinction. There are recognised religions which may not meet in Scotland for regular worship but may wish to celebrate a marriage. This is a minor matter, but it has been brought to my attention by certain groups, and it should be considered.
There is one matter that still causes me major concern—the question of forbidden degrees. In 1567 the law of marriage and the law of incest matched one another. If those who were forbidden to marry had sexual relations with one another, they committed a criminal offence. I think that only in this century were exceptions made by various Acts in the case of marriage, so that the laws of incest and marriage were no longer the same.
The Bill makes an advance which I am not sure the Government appreciate. It is now possible for a person to marry the sister of his deceased wife, the sister of his divorced wife or the divorced wife of his brother. It is important to realise that the Bill has made those extensions, I think unintentionally and unexpectedly.
It seems very strange that we in Scotland should adopt the English forbidden degrees to bring the law into unity in the two Kingdoms and make everything clean from a bureaucratic point of view. The laws of Scotland and England differ greatly, if for no other reason than that incest has been an offence in Scotland since 1567 and in England only since 1908. We should consider the matter 184 carefully, because the law of Scotland has always depended on principle.
I realise that the Bill is not intended to make major changes. Indeed, quite fairly, the Minister said in Committee that we should not try to make major changes in the law of the forbidden degrees. But it is a strange situation that the law as we now have it is permitting a change in the law of Scotland which allows one to marry the sister of one's divorced spouse, which one could not do before, but is also forbidding one to marry the former wife of one's grand-stepson, neither of whom may have the slightest relation to one.
It is important that we should consider carefully the concept of the law of affinity. If we are to have, and to recognise, easier divorce, is it reasonable to say that one should be forbidden to marry people who are not related to one, and never have been, and now are not part of one's family, although this Bill now allows one to marry the sister of one's divorced spouse, as opposed to the sister of one's deceased spouse, which previously was not the law of Scotland?
This is phenomenal if one looks at the relationships of adoption. Ministers do not want to change the adoptive degrees, but does it not seem strange that one's brother and sister adoptive, who may be related to one another in blood, and may have been brought up in the same house by the same parents, are allowed to marry one another, whereas, my goodness, when one has done it and one has a grandstepson, one may not marry the wife?
It is because the law has become Law Commission the whole concept of the degrees of affinity and the forbidden ask the Government to put before the absurd in the schedule that we urgently degrees of marriage. In the Bill we are simply creating in the law of Scotland four categories. We are creating people who are permitted to marry but who, if they consummate the marriage, commit the major criminal offence of incest, triable in the High Court. We are creating people who may not marry but can live together and breed together without difficulty. We are creating those who may not marry and may not live together, and those who may marry and may live together.
185 This is wrong and absurd. I know that the Law Commission is considering the law of incest. I think it important that, in doing so, it should also consider the relationships of affinity, because there are very good principles here—one does not want people related in blood to breed together because that creates a weakness, and one does not want people in family to be able to take advantage of their position in that family. The law as it is in the Bill results in an utter absurdity. It is a compromise Bill, albeit well-intentioned, and I ask the Government to look carefully at the absurd position they have come to as a result of that compromise.
I welcome the reform. I welcome any attempt to improve the law of marriage, but in the attempt to do that and not go too far we have created an absurd situation which I think the Law Commissions of Scotland and England must consider with great care and with great dispatch.

§ Mr. Deputy Speaker
It would be comforting to the Chair if this matter were not pursued further. I am beginning to wonder whether I am legally married.

§ Mr. Hector Monro (Dumfries)
In a few words, and in words that will reassure you, Mr. Deputy Speaker, I should like to voice my views, which are similar to those of my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn).
We are all glad that the marriage law relating to non-Christian denominations has been clarified and regularised. This is essential in Britain today, but I share with my hon. and learned Friend the disappointment that we are moving further away from the Church in relation to marriage. We all hope that as many people as possible will be married in church because the ceremony there is most important in the lives of most people, but it is unfortunate that the weight of evidence of the Law Commission and the drafting of the Bill have taken away the importance of the church marriage ceremony and placed the legal side in the hands of a registrar.
My other point is on the schedule and the law of affinity, which will inevitably cause conflict. The situation is still in a state of confusion. In fact, the confusion 186 may have been compounded by what has been done here. I hope that the Minister will ask the Law Commission to look at the situation as the Bill operates in the years ahead. It seems that the situation is more chaotic now than it was before.
I put on record my disappointment at the decline in the importance of the marriage service in church, of the calling of banns and all that that means, and of the procedures preceding a marriage in church. I am disappointed, too, that the Law Commission and the Government have not produced a Bill that is more in keeping with what most people in Scotland think.

§ Mr. Thompson
I was going to express the wish that the Bill might last for as long as the Marriage Act 1567, but, having heard what was said by the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn), I fear that that is not likely to be the case.
I took up the question of affinity with the people with whom I discussed the problem of someone marrying his great grand-daughter or his great grandmother, or vice versa. I discussed the matter with, among others, Church of Scotland ministers. No one raised any objection to the abolition of affinity creating forbidden degrees. That rather surprised me, but apparently that is the direction in which thought is moving.
To the hon. Member for Dumfries (Mr. Monro) I simply say that the other Churches in Scotland, apart from the Church of Scotland itself, have celebrated the sacrament of matrimony with reasonable effect without any necessity for the legal recognition of their banns. The Church of Scotland will, I am sure, continue to solemnise matrimony in the way that it has always done, and with good effect.
The Marriage Act 1567 was greatly amended in 1939. I was just old enough to be interested in the kind of marriages being abolished then—the old irregular marriages that took us back to the Middle Ages.
It is not possible for the House, which is capable of doing so many things, to legislate for the happiness of married couples, but I express the hope that those who marrry under the law as amended by 187 the Bill will have long life, health, wealth—if the Chancellor will permit it—and certainly happiness. I congratulate the Minister on having piloted the Bill through.

§ Mr. Harry Ewing
With the leave of the House, Mr. Deputy Speaker, I will seek to reply to the points which have been made.
The hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) began by saying that the Bill achieved small changes in the law of marriage. I do not think that anyone has claimed that we are making major changes in the marriage laws. We have always said that we seek primarily to recognise non-Christian marriages and remove the feeling of discrimination that the non-Christian communities—the Muslims and Sikhs—feel under our existing marriage laws. The Bill is greatly welcomed for that reason by these communities in Scotland, as I know the hon. and learned Gentleman appreciates.
The hon. and learned Gentleman complained about the Scots law being sacrificed for the sake of unanimity with the United Kingdom law. It is very important to make the legal position in regard to marriage abundantly clear to young people on both sides of the border who may want to marry. We would have been failing in our duty if we had left doubt in the minds of young people in England about the marriage law in Scotland and, equally, if we had left doubt in the minds of young people in Scotland about what the marriage law was in England.
It is clear, as the hon. and learned Gentleman said, that Clause 6 clearly defines a religious body as meaning an organised group of people meeting regularly for common religious worship". The House will agree that it would be dangerous to ge beyond that definition, otherwise all sorts of bizarre situations could arise.
We have asked the Scottish Law Commission to examine the law of incest and the Commission has accepted our suggestion that it should do so.
I will consider asking the Law Commission to examine the question of forbidden 188 degrees. I cannot hold out any hope that the Commission will do so. I do not speak for the Commission, but I know that it is rather over-burdened with work at present.
The hon. and learned Gentleman said that a person is now able to marry his deceased wife's sister. I am sure that he did not mean to convey the impression that this was only as a result of the Bill.

§ Mr. Fairbairn
Divorced rather than deceased.

§ Mr. Ewing
That position obtained previously and does not arise merely as a result of the Bill.
The hon. Member for Galloway (Mr. Thompson) made some kind remarks which I appreciated. I share his hope that marriages will be long-lasting, happy and prosperous. However, that is not in my hands.
I was a little disappointed that the hon. Member for Dumfries (Mr. Monro) managed to inject some political feeling into what has basically been a non-political debate. It was, to put it mildly, a misrepresentation of the facts to suggest that the Government and the Kilbrandon Committee are responsible for moving away from the Church on the question of marriage. It would be a great pity if such an impression were to go out from the House tonight.
To reinforce my remarks, I turn again to a minster who during the discussion on this Bill appears to have become a very good friend of mine by correspondence. I have the feeling that I almost know him. I refer to Rev. James L. Weatherhead who is from Montrose in the constituency of the hon. Member for North Angus and Mearns (Mr. Buchanan-Smith). I shall not read the whole letter, but it was dated 25th March, and in it, speaking on behalf of the Church of Scotland, the Rev. James L. Weatherhead said: I have also noticed that the word 'Established' has been removed without fuss, and that the minor amendment we suggested to Clause 14(a) has been incorporated. In short"— this is worth recording— all the matters we have been concerned about have now been dealt with in the way we wanted, and we are very grateful"— this is the Church of Scotland— to all concerned. 189 It is not the purpose of this marriage law reform Bill to remove from the people of Scotland the significance or importance of being married in church. I recall that in Committee I read from a letter from a minister in Ayrshire who argued that there was no evidence to suggest that people had banns proclaimed merely in order to be married in church and that if we removed that legal requirement people would as a result stop being married in church.
The one point on which I can join in agreement with the hon. Gentleman is in hoping that a great many couples will continue to have their marriages solemnised in church, which I think could be for benefit of all concerned. It is not the purpose of the Bill to do anything which would damage that arrangement.
I am grateful to the House for the opportunity to reply to this short debate, and I commend the Bill for Third Reading.