HL Deb 05 July 1921 vol 45 cc961-74

Order of the Day for the House to be put into Committee read.

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

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF DONOUGHMORE in the Chair.]

Clause 1:

Marriage with a deceased brother's widow not to be void as a civil contract except in certain, cases.

1.—(1) Section one of the Deceased Wife's Sisters Marriage Act, 1907, shall be read and construed as if after the words "deceased wife's sister," where they occur in such section, there were inserted "or between a man and his deceased brother's widow."

(2) Section three of the said Act shall be read and construed as though —

  1. (a) in subsection (1) thereof, after the words "wives' sisters," there were inserted the words "or husbands' brothers' wives"; and
  2. (b) in subsection (2) thereof, at the end, there were inserted the words "or the divorced wife of his brother, or the wife of his brother who has divorced his brother, during the lifetime of such brother."

(3) Section four of the said Act shall be read and co/lamed as if at the end thereof there were inserted the words "or his deceased brother's widow."

(4) Section five of the said Act shall be mad and construed as though at the end thereof there were inserted the words "and the word brother' Shall include a brother of the half blood."

The said Act as amended by this Act shall, so far as it relates to marriages between a man and his deceased brother's widow, have effect as though it had been passed at the date of the passing of this Act.

THE LORD BISHOP OF NORWICH moved, at the end of subsection (1), to insert "and as if the first proviso to that section were extended to the publication of banns as well as to the performance of the marriage service." The right rev, Prelate said: In rising to move the Amendment which stands in my name, I am not at all certain that any such Amendment is really required. I am inclined to believe that the clergy are relieved of any necessity of publishing banns by the terms of. Section 1 of the Deceased Wife's Sister's Marriage Act, by reference to which the deceased brother's widow's marriage is now proposed to be sanctioned At the same time, I must confess that the second proviso to Section 1 of the Deceased Wife's Sister's Marriage Act say; nothing about the refusal of the clergy to publish banns, though it does mention the refusal of the clergy to perform such a marriage. That fact has led me to entertain the doubt I have as to whether, as a matter of fact, the refusal to publish banns comes within the terms of the first proviso. No doubt one of the noble and learned Lords who are present will enlighten me upon that point, and if the Deceased Wife's Sister's Marriage Act relieves the clergy of the obligation to relieve them from which my Amendment is framed, then I would ask leave to withdraw the Amendment. If, on the other hand, that is not the case, I would ask to be allowed to give the reasons why my Amendment should he accepted.

Amendment proposed— Page 1, line 10, at end insert "and as if the first proviso to that section were extended to the publication of banns as well as to the performance of the marriage service."—(The Lord Bishop of Norwich.)

VISCOUNT HALDANE

I feel the doubt which the right rev. Prelate himself feels as to whether his Amendment is proper at the end of the first proviso in Section 1 of the Deceased Wife's Sister's Marriage Act. That proviso reads as follows— Provided always that no clergyman in holy orders of the Church of England shall be liable to any suit, penalty, or censure, whether civil or ecclesiastical, for anything done or omitted to be done by him in the performance of the duties of his office to which suit, penalty, or censure he would not have been liable if this Act had not been passed. If you put in the words that the right rev Prelate proposes, which deal specifically with the publication of banns, it is rather suggested that there is some, limitation in the generality of the words. I read them as intended to exempt clergymen altogether from an obligation as regards matters belonging to the Church.

I think there is a good deal in what the right rev. Prelate says regarding the words of the second proviso which says that he may ask another clergyman who is willing to do so, and is entitled to officiate within the diocese, "to perform such marriage service in such church or chapel." What the right rev. Prelate would wish is that he should be able to ask such a clergyman, being willing, to officiate in publishing the banns of marriage, and I think his point would be met if such words as these were added— to perform such marriage service in such church or chapel or to do anything relating thereto. That would cover the difficulty which the right rev. Prelate feels. It would put the two provisos on the same footing. As I read the Act I do not know that it is absolutely necessary to make this alteration, but I think the draftsman, when he drew up the Bill, did not quite appreciate the question which has now been raised. Speaking for myself, I should be glad to see these words inserted. The right rev. Prelate appreciates what I mean. My meaning is to extend the power to the clergyman not merely to perform a service of marriage, but to proclaim the banns of marriage.

THE LORD BISHOP OF NORWICH

I appreciate what the noble Viscount has said, and I feel that the introduction of the words he has suggested will amply show that in the previous lines the question of the publication of banns of marriage is covered.

LORD PARMOOR

I entirely agree with what the noble and learned Viscount has said in regard to the words in the proviso of Section 1 of the Act of 1907. The words "performance of the duty of his office" cover the question of the publication of banns. I, therefore, think that the right rev. Prelate, even if he carried his Amendment, would, in some sense perhaps, be thought to have cut down the very general terms which the proviso now contains. On the other hand, I am afraid that I differ from the noble and learned Viscount regarding the second proviso, and I certainly hope that no Amendment will be introduced into it. At the present time, substantially, that deals with cases apart from the publication of banns. Where a licence has been granted, some incumbent may officiate other than the incumbent of the parish. I certainly do not want the alternative incumbent in cases of this kind to be increased. The Act, as it stands, is quite proper, and the second proviso deals with a different subject-matter from the first. I hope, therefore, that the right rev. Prelate will not press his Amendment, because I think the effect of it would he to suggest that there might be liability in respect of matters which, in my opinion, the words in the present Act entirely cover.

THE LORD CHANCELLOR (LORD BIRKENHEAD)

This is a technical matter, and provided the object which is in the mind of the right rev Prelate is attained, no one will be disposed to quarrel with the method adopted. I take the same view as the noble and learned Viscount, Lord Haldane, that the words in Section 1 of the 1907 Act are so wide as to cover the case raised by the right rev. Prelate. The words are— liable to any suit, penalty, or censure, whether civil or ecclesiastical, for anything done or omitted to be done by hint in the performance of the duties of his office. The publication of the banns, or the refusal to publish the banns, must, I think, be construed as an omission by the clergyman to perform what would plainly have been the duties of his office in relation to the proposed marriage of a parishioner. What the right rev. Prelate points out in regard to the words that are used at the end of the proviso is true.

As to the second proviso, it is an error to assume that anybody proposed to amend the second proviso. I did not understand that that was the suggestion of the noble and learned Viscount. The Amendment that is to be made falls to be made in the concluding words of the same proviso. I understand, I think, the point of the very rev. Prelate in that respect. The closing words are to the effect that such minister may ask any other clergy man in Holy Orders to perform such marriage service in such church or chapel. I think the right rev. Prelate makes this comment upon that. Although the substitute is permitted and authorised to perform such marriage service, he is not authorised to take any- steps in the direction of the publication of the banns, and that seems to show that the general words are not wide enough. I believe that is the meaning of the right rev. Prelate, and I cannot see the slightest objection to assuring hint in the way suggested by Lord Haldane, and that is to insert after the words "to perform such marriage service," words something like these: "or to do any act in relation thereto in such church or chapel."

I really cannot see Lord Parmoor's objection to that, inasmuch as the earlier Act authorised the substitute to perform the service in the Church of England if the incumbent was unwilling to do so. How can it increase in any way the mischief—even in the eyes of those who think it is a mischief—that if no provision has been made for the publication of the banns, the substitute, who is authorised to perform the more important thing—the marriage ceremony—shall also be permitted to do the less important thing, and that is proclaim the banns. If this reasoning is accepted, I would suggest to the right rev. Prelate that he should not put his present Amendment to the test of a Division, because it, might actually lead to the conclusion that there was some ambiguity in the existing words, but that he should move as an alternative, after the words "marriage service" in the first proviso, the words "or to do any act in relation thereto." Those words appear to me to be satisfactory, and if verbally they require any alteration, which I do not myself think they will, that alteration could be made on the Report stage. As far as I am concerned, I should be content upon the technical side with that form of Amendment, and it seems to me that it would carry out the purpose of the right rev.Prelate.

LORD NEWTON

This is a highly technichal matter on which I hardly venture to express an opinion, but I should think an answer to the right rev. Prelate is this. This Act has been in existence for fourteen years, and so far as I know no one has got into trouble for proclaiming or failing to proclaim banns. I should also have thought the point was decided once and for all in the case of Banister v. Thompson, which went to the Dean of Arches Court and finally came to the House of Lords. I find that Lord Loreburn, then Lord Chancellor, stated in his judgment— The immunity granted by the first proviso to the Section to any clergyman of the Church of England from any suit, penalty, or censure … is limited to the subject-matter of the enacting clause and relates to matters connected with the solemnisation of the marriage. I should think, in my ignorance, that that settled the point once for all, and that there could be no such danger as is anticipated by the right rev. Prelate.

VISCOUNT HALDANE

It is true that that was said in this House sitting judicially, and of course it is the law, but it does not touch the point which the right rev. Prelate is making. I think that the noble Lord opposite is right in thinking that the proviso is wide enough to carry what he says, but the right rev. Prelate's difficulty is this. There may be another clergyman in the diocese willing to come to the church and celebrate the marriage, but how are the banns to be proclaimed? There is no power to bring that clergyman in for the purpose of proclaiming the banns if the doubt which the right rev. Prelate entertains is well founded, and the only question is whether we should make it quite clear that the second proviso has the scope which Lord Loreburn intended, but which is not given by the first proviso. The second proviso, as the noble Lord will appreciate, gives no power, in terms at any rate, to the outside clergyman to come in to publish the banns.

THE LORD CHANCELLOR

It is not the second proviso, I think.

VISCOUNT HALDANE

Yes, it is the second proviso, really. You may do it as you please; perhaps we had better leave it to the Report stage.

THE LORD CHANCELLOR

I think the words can be moved now and altered later if necessary.

LORD PARMOOR

The object of the suggested new Amendment is directly in the teeth of that proposed by the right rev. Prelate. I agree with Lord Newton that we ought not to alter the provisions of the Deceased Wife's Sister's Marriage Act, which has been in operation a long time, by an Amendment to this Bill. The right rev. Prelate desires to make it clear, upon the face of the Bill, that a clergyman is absolved from the publication of such banns. I agree with the Lord Chancellor that this is so at the present; the point clearly comes within the words "duties of his office." The other proviso is of an entirely different character. It would enable a foreign clergyman to come into his church and publish banns when he himself was not liable to publish them and did not desire to publish them. The second proviso is used in cases in which licences are granted, but it has never been suggested that a foreign clergyman should come in and. publish the banns, and I hope any such idea, introduced at this stage, will not be brought into the provisions of the Bill. I hope the right rev. Prelate, if he with- draws his Amendment, will not fall into the mistake of proposing one which, in substance, is entirely opposed to that which he brought forward in the first instance.

THE LORD CHANCELLOR

The suggested Amendment is not opposed to the one moved by the right rev. Prelate. I cannot understand the reasoning of Lord Parmoor. The right rev. Prelate was apprehensive that there was no power in the case where an incumbent refused to have the banns proclaimed, and he argued that unless it is expressed in an exclusive manner there is no provision at all for the publication of the banns. The right rev. Prelate wants one; the noble and learned Lord does not. The right rev. Prelate wants one thing; Lord Parmoor wants another. I want the Bill to be a working Bill, and I do not think we shall do any harm by inserting the words I suggest. We make it sure that the argument cannot be used against the right rev. Prelate hereafter.

THE LORD BISHOP OF NORWICH

May I again explain my position? I should be perfectly satisfied to withdraw my Amendment on the assurance which has been given that a clergyman is not bound to publish the banns. The point with regard to the intruding clergyman was that the Act, as it stands, gives him leave to celebrate the marriage, but says nothing about publishing the banns. That made me fear that the clergyman whose conscience is now being considered was himself bound to publish the banns. Having heard that he is not, I am satisfied to leave the matter there. I have no wish to improve or alter the Act, or to say anything about facilities for publishing the banns, provided. I am quite certain, as I am, that a clergyman is not bound to publish the banns.

Amendment, by leave, withdrawn

VISCOUNT HALDANE moved, at the end of subsection (1), to insert "and as if the words to do any act in relation thereto' were added to the end of the proviso in the second paragraph of that section." The noble and learned Viscount said: The right rev. Prelate having been satisfied that the proviso covers the case of conscience, what remains is this. A clergyman is bound to celebrate the marriages of his parishioners. The civil law has been altered, and a certain marriage has been made lawful which was not lawful before. The Legislature inserted in the Deceased Wife's Sister's Marriage Act a proviso, which is continued in the present Bill, exempting a clergyman from all obligations to celebrate that marriage in the church. The Legislature said that if the clergyman was willing to invite some other clergyman who does not share his objection to celebrate the marriage then that other clergyman can do so. If he is willing to allow the other clergyman to come in and celebrate the marriage it must be right, if he is willing, to let the other clergyman come in and publish the banns. The only purpose of the words is to carry out what really was accepted, and to say that permission, if the clergyman so chooses to give it, extends to all that marriage implies—proclamation of the banns as well as the celebration Of the marriage. As the right rev. Prelate has withdrawn his Amendment I would suggest the insertion of my Amendment, upon which I have settled after consultation with the learned Clerk of the Parliaments.

Amendment moved— Clause 1, page 1, line 10, at end insert the said words.—(Viscount Haldane.)

LORD PARMOOR

I must protest again. We have got to a very difficult and dangerous point as regards the views of many members of the Church of England. There is no right for a foreign incumbent to come into the church of another clergyman and publish banns in a particular case. That is admitted, and there is a great objection to any such right being conferred. The noble and learned Viscount is really not cognisant of Church matters. What is done is this. A licence is asked for, and it may be granted if a clergyman is found who is willing to perform the service, although the incumbent is unwilling to perform it. What the right rev. Prelate desires is entirely different. He wants it to be quite clear that the incumbent himself is not obliged to publish banns in cases of this kind. The answer is to propose to allow a foreign clergyman to come in and publish the banns in these circumstances. But it has nothing to do with the right rev. Prelate's original Amendment, and I hope that an Amendment such as that moved by the noble and learned Viscount, which will be highly resented, I know, by the lay opinion of the Church, will not be introduced in this way. If an Amendment of this sort to the Deceased Wife's Sister's Marriage Act is desired, let it be moved to that Act and not to the present Bill. I hope, also, that no Amendment will be carried which is really antagonistic to the original Amendment of the right rev. Prelate.

LORD PHILLIMORE

I do not desire to speak on this particular point, but I was going to recommend the right rev. Prelate to withdraw his Amendment, as he has done, and not to fall into the slight snare of supporting the present Amendment, which is, of course, rather in the opposite sense to that which he desires. It would be quite ridiculous in working. Imagine that a clergyman has been found who will be ready to undertake to marry these two people. It is proposed to have them married by banns. The clergyman of the parish stands upon his right and says, "I will not marry them and I will not give out the banns." When the time comes for giving out banns a clergyman is to be brought from a distance—I am sure I do not know what his fees will be—he is to rise suddenly in the middle of giving out of banns and say, "And I give out the banns of A and B." He is to do this three times. Anything more absurd and impracticable I cannot conceive. I therefore venture to think that the Amendment now proposed is unnecessary, and to hope that it will lie defeated.

THE LORD CHANCELLOR

I wonder if either of the noble Lords who have spoken on this point will be good enough to resolve my doubts upon one point. Supposing that the clergyman who, if he did not object, would be the proper clergyman to perform this function, says "I will not do it; I disapprove of marriage of this sort, and I will not perform the ceremony of publishing the banns "; and supposing, furthermore, that the licence is refused. The noble and learned Lord is familiar with these matters, and he will bell me whether I am right in supposing that there are cases in which the licence is refused. The original clergyman, therefore, has refused to publish the banns, and the licence has been refused. Is there any other means by which banns can be obtained? There is no other. It is here suggested that the banns shall be made unobtainable, although Parliament is now legislating in order that this marriage may be legalised in church, should the proper clergyman refuse, by another clergyman. You are going to deny to that other clergyman the power to take that step which, if it is not taken, renders the whole thing nugatory. No wonder the noble and learned Lord, Lord Phillimore, and the noble and learned Lord, Lord Parmoor, who are convinced objectors on principle to this proposal, as they were to the. Deceased Wife's Sister's Marriage Act, take the view which they appear to take on this Amendment; but why anyone should sympathise with them, I cannot imagine. Was the noble and learned Lord in favour of the substituted Amendment—

LORD PHILLIMORE

Will the noble and learned Lord allow me to point out that I never had any occasion to vote or to speak upon it? I was not a member of your Lordships' House when the Deceased Wife's Sister's Marriage Act was passed.

LORD PARMOOR

Since the noble and learned Lord has referred to my attitude in this matter, may I be allowed to say that he is under a great misapprehension? I was one of those who were not opposed to the Deceased Wife's Sister's Marriage Bill. I thought that it was a matter of social life and not of religion, and, therefore, quite distinct from divorce. But when you come to the question of services in the Church an entirely different question arises. It may be that the clergyman is willing to publish the banns, but is not willing to perform the ceremony of marriage, or it may be that a licence may have been obtained, and therefore banns are not necessary; but the present position is that a foreign clergyman may come in and perform the marriage service. The effect of the Amendment is that the foreign clergyman would come in and take part in the ordinary service of the church. I think this Amendment is quite outside the present Bill. I do not wish to argue the point any further, but, as the Lord Chancellor has appealed to me, may I merely point out that I was not opposed to the Deceased Wife's Sister's Marriage Bill, but spoke in favour of it, though I was in a minority of churchmen in doing so?

THE LORD CHANCELLOR

Both the noble and learned Lords have been good enough to make observations but neither of them, by an accidental omission, has dealt with the only point which I wish to see cleared up Is it not a fact that both noble and learned Lords were opposed to the legislative facilities which were given by the Deceased Wife's Sister's Marriage Bill for bringing in, possibly against the will of the original clergyman, a substitute to perform, the marriage service? I should be very much astonished, having been a student of the utterances of both the noble and learned Lords on this and cognate questions, if I am not well founded in the supposition. Parliament has given that power. What is the position of the noble and learned Lord, if he is not opposed to that? He is not opposed to Parliament having authorised substituted clergymen—he does not feel that his conscientious scruples prevent him from approving of this—but he is opposed to giving that substituted clergyman the power to do an act which, it is conceded, is a necessary condition precedent—does the noble and learned Lord challenge that? Why does he shake his head? It is a necessary condition precedent to a marriage by banns, and (the noble and learned Lord having conceded that) if the license is refused, as it may be, the power given by Parliament can be rendered absolutely nugatory, unless some such provision as is involved in the Amendment of the noble and learned Viscount is made.

I assume that when your Lordships decided, as you have decided, that a substituted clergyman may be called in to perform the ceremony of marriage, where the original clergyman feels conscientious scruples against doing so, it was the intention and desire of your Lordships' House that that substituted clergyman should be able to do all acts which might be a necessary condition precedent to the marriage. The noble and learned Lord, Lord Phillimore, tries to frighten your Lordships by suggesting that a service will be interfered with because a strange clergyman will come in and interrupt it by proclaiming banns. I do not do so much injustice to the propriety and decorum of priests. I assume that the original clergyman who objected to performing the ceremony will, as a law-abiding citizen, acquiesce in the will of Parliament, and that the clergyman who takes his place in proclaiming the banns will be given leave to do so at ally moment in the service when it is proper and decent and reverent that these banns should be proclaimed. I do not think so little of the clergy as to suppose that this will cause the slightest interruption of the decorum of the Church services. I shall certainly support the Amendment.

LORD PHILLINDRE

The noble and learned Lord's zeal has carried him over some very rough country. He is entirely mistaken about myself. When the Deceased Wife's Sister's Marriage Bill was passed, I was a Judge, having no right to take part in politics. I was not, at that time, in this House or in the other House. As I understand it, the frame of this Bill is that, mutatis mutandis, for "deceased wife's sister" is to be read, "deceased husband's brother." Let it be so. Why add anything more to it? The noble and learned Lord was mistaken in thinking that I imagined there would be any brawling in church.

THE LORD CHANCELLOR

I did not say so.

LORD PHILLIMORE

What I wanted to bring before your Lordships' House was the absurdity and ridiculousness of a clergyman suddenly popping up, like a jack-in-the-box, and saying: "Now I come in here to give out the banns of A and B," which the incumbent will not do. I do not suppose the incumbent would mind, but I should think the congregation would be astonished and amused. Even supposing a clergyman were willing to do such a thing on three consecutive Sundays, I cannot believe that any couple would really desire that their marriage should be advertised by such a proceeding. All I wish to say, however, is that this proposal would be absolutely nugatory in practice.

LORD NEWTON

This debate has fallen largely into the hands of experts. I confess that I am very much at sea as to the arguments which have been employed, and I daresay that many other members of your Lordships' House are in the same position. I cannot understand what all the controversy is about Here is an Act which has been in existence for fourteen years and which, so far as I know, has created no difficulty whatsoever. No clergyman is obliged to celebrate one of these marriages, nor is he obliged to proclaim the banns. Where is-the grievance? Where is the danger? I gathered on the authority of an ex-Lord Chancellor, Lord Loreburn, that the clergyman who proclaimed the banns ran no, danger of any penalty whatsoever. What further assurance can noble Lords desire? Personally, I am in favour of leaving the Bill alone. My intelligence is not capable of following all the abstruse arguments of those experts, whose feelings seem to have been considerably injured in the course of the discussion, but I recognise that the noble and learned Viscount opposite is a warm supporter of the Bill, and, without pretending to understand his Amendment, I am prepared, in the faith of my simple nature, to accept it.

VISCOUNT HAIDANE

Before your Lordships go to Division I should like to explain one point. The noble and learned Lord seemed to have the impression that, in some fashion, the clergy are going to be compelled to let somebody come in and celebrate the banns. But in the proviso, as it stands, the clergyman is not compelled; it is only by his permission that this can be done. If he objects to celebrate a marriage, he can allow the other clergyman to come in and do it. It will be only by his permission, if this Amendment is accepted, that the other clergyman will come in to proclaim the banns. That is a very small matter and cannot give rise to the confusion that my noble and learned friend, Lord Phillimore, supposes will take place. It really is a blot on the law as it stands to-day that you have the right to get somebody to come into the church to marry you, if the clergyman agrees, but you have not the right to ask him, if he is willing, to come in to proclaim the banns. It seems a reasonable Amendment and brings the clause into relation with the proposals of the right rev. Prelate.

With regard to Lord Parmoor's views, I have a dismal recollection of a night to which my noble and learned friend, the Lord Chancellor, has already referred, on which he and I sat up all night fighting every line of a Bill which is now an Act. I was the Minister in charge of it in 1907, and I suppose I was put in charge because I was then Secretary of State for War, but at any rate we sat up all night and, with the assistance of my noble and learned friend opposite, at about 6 o'clock in the morning we got the last clauses through, but I have not much recollection of receiving much benevolence from my noble and learned friend, Lord Parmoor.

LORD PARMOOR

It shows how mistakes arise. I was not in the House at the time Misfortune had overtaken me in 1906.

VISCOUNT HALDANE

Therefore, I do not remember it.

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2 agreed to.