MARRIAGES PROVISIONAL ORDER BILL. (Hansard, 11 July 1923)

THE CHAIRMAN OF COMMITTEES (THE EARL OF DONOUGHMORE)

My Lords, on this Motion I should like to be allowed to say a few words and to ask a question of my noble friend who represents the Home Office. It is a question which arises out of certain correspondence which has taken place. I desire to express my feelings of obligation for the assistance I have received as the result of that correspondence. But I feel some difficulty concerning this particular Bill, or rather as to one paragraph of the Schedule, paragraph (3), which your Lordships will see on page 3 of the Order. It reads as follows: A minister who has solemnized any marriage referred to in the first and second paragraphs of this Order shall not he liable to any proceedings for penalties whatsoever or to any ecclesiastical censure by reason of having solemnized the marriages. I am not concerned with the question of the merits of this or any other Bill. My difficulty is that I am unable to find any authority for this provision in the Provisional Order in the Act of 1905, under which the Provisional Order is made.

The operative portion of that Act, which I have before me, says: A Secretary of State may, in the case of marriages solemnized in England which appear to him to be invalid or of doubtful validity by reason of some informality, make a provisional order for the purpose of removing the invalidity or doubt. It is quite clear that a Provisional Order can be made; but those who drafted the Act did not insert a provision enabling this indemnity to be given to the clergyman who officiates—who may be acting perfectly rightly but may, of course, be acting perfectly wrongly—until what has gone wrong has been put right 928 by Parliament. The matter is important not so much from the point of view of this particular Provisional Order as from the point of view of all Provisional Orders. The Provisional Order system is one created by Parliament to facilitate legislation on certain lines and I think it is obvious that it would be very inconvenient if those lines were to be departed from. To a very great extent the Provisional Order system is in substitution for the familiar one to which Standing Orders and the Borough Fund Acts, and so on, apply. Those things do not apply to Provisional Orders, and if we misuse the privilege of Provisional Orders we are avoiding the Standing Orders of your Lordships' House and kindred provisions which safeguard these matters.

I do not for a moment desire to ask my noble friend in charge of this Bill to alter it, but I think I should be lacking in my duty to this House if I did not point out that the practice of Parliament ever since the passing of the Act of 1905 has been somewhat irregular and that, though Parliament can do anything almost, I do not think Parliament should act irregularly. I would therefore invite my noble friend to make some statement upon this point. I would remind your Lordships that it is usual to put into Provisional Order Bills a provision that a Minister in making a Provisional Order may do anything that he may deem to be necessary in the way of supplemental provisions for the purpose of carrying it out in a satisfactory manner. It is noticeable that no such section is to be found in the Act of 1905, and I would suggest to my noble friend that when His Majesty's Government have time to look into this matter and to consider it at greater leisure and in greater detail, it might be advisable to fill up this blank in the Act of 1905 and so regularise our procedure and make it more in accordance with what has been the practice since the passing of the Act.

THE PARLIAMENTARY SECRETARY OR THE BOARD OF EDUCATION (THE EARL OF ONSLOW)

My Lords, my noble friend has called my attention to this irregularity and I admit everything that he has told your Lordships. I propose, therefore, to explain how it has grown up. It has been the custom ever since the validation of marriages by Provisional Order procedure was made possible by the Act of 1905, from which my noble 929 friend quoted, to draw these Orders in accordance with the precedents contained in the earlier public Acts called Marriage Legalisation Acts. It was under those Acts, of course, that marriages were validated. So that for the past eighteen years, a provision relieving the officiating minister of liability to any proceedings for penalties or to ecclesiastical censure has been inserted in Provisional Orders of this kind.

My noble friend has called attention to the fact that in the 1905 Act there is no saving clause whereby the Secretary of State can add anything of that sort to a Provisional Order; but so conscientious have my Department been that they have always called your Lordships' attention to the fact that the minister has not been culpable. I should like to say that the Act of 1905 does not in terms authorise the Secretary of State to include such a provision in the Order, but it does expressly state that the Order shall be of no force unless confirmed by Parliament. Therefore, although the Secretary of State may have tempted Parliament to err in this direction, it is really Parliament which has committed the error. The authority for the relief of the officiating minister from any consequences of his act is therefore not the Secretary of State but Parliament. I venture to hope that my noble friend will agree that in the present case it is desirable to exculpate the minister