HL Deb 23 July 1928 vol 71 cc1232-44

Order of the Day for the Second Reading read.


My Lords, I beg to move the Second Reading of this Bill. It is an amending Bill only. It does not seek to allow marriage in any nearer degrees of relationship than is possible now. If it did so I certainly should not be proposing it to-day. It proposes to amend the Deceased Wife's Sister's Marriage Act, 1907, and the Deceased Brother's Widow's Marriage Act of 1921. I think it is quite probable that if the controversy at that time had been less acute and the opposition less strong these Amendments might have been put in then. Personally, though I voted for the Bill myself in the House of Commons, I could well understand the opposition in 1907, but I cannot understand that the same reasons can exist now for opposing this Bill. No new principles are involved in this Bill and the relationships are still further removed.

We know that at the head of the Table of Kindred and Affinity are the words: Wherein whosoever are related are forbidden in Scripture and our laws to marry together. The law has been amended for the deceased wife's sister and the deceased brother's widow, but not for the sons and daughters of those people. It may be a surprise to some of your Lordships to learn that those marriages are illegal. I think that surprise is hardly a strong enough word to express the feeling of some of those unfortunate people who have made these marriages in the belief that they were legal and have found afterwards that they were not legal. Clause 1 of this Bill seeks to legalise marriage between a man and, firstly, his deceased wife's brother's daughter; secondly, his deceased wife's sister's daughter; thirdly, his father's deceased brother's widow; fourthly, his mother's deceased brother's widow; fifthly, his deceased wife's father's sister; sixthly, his deceased wife's mother's sister; seventhly, his brother's deceased son's widow; eighthly, his sister's deceased son's widow. Briefly those eight categories may be described as four aunts by marriage and four nieces by marriage.

I have received several letters from people who have made these marriages, and I think it is wise that I should give your Lordships some particulars contained in those letters to show how strong is the feeling in favour of the passing of this Bill. The first case I have is that of a man who married a lady who was a good many years older than himself. During their married life he and his wife adopted her niece, and the niece became very attached to them both and did a great deal for them. After his wife's death this man wanted to marry the niece, but it was not legal. The consequence was they had to go abroad to be married. The second case I have is a different one. A man became engaged to his deceased wife's niece, and they bought a house and furniture and made every preparation for the marriage. One day, just before the marriage was to take place, she happened to be talking to her solicitor and found out that the marriage which she proposed to make was not legal. He pointed out to her that her fiancé could marry her mother, but could not marry her. Surely that does seem rather absurd.

The third case I wish to quote is that of a man who had been ten years married to his deceased wife's niece before he found out the marriage was illegal. I have several fairly recent letters from people who have had to go abroad to be married, and from others who are proposing to go abroad to be married unless this Bill passes into law. Another case—and it is the last of the kind I propose to give to your Lordships—is that of a girl who was brought in to nurse her aunt and uncle. After her aunt's death she married her uncle. The result of that marriage was three children. She began to receive her pension under the Widows and Orphans Pension Act, 1925, and one day she looked at her Prayer Book and found that she was not legally married. She applied to the Ministry of Health, I believe, but of course they could not help her as she had done an illegal action. I will give two cases where a marriage of this kind has taken place. A man holding a position which carried a pension married the niece of his deceased wife. The pension cannot go to her on his death unless this Bill passes. The other case is that of a Colonel in the Army who married his deceased wife's niece. The widow received no pension. There were also two daughters and they had to pay Legacy Duty on their inheritance at the rate of 10 per cent. instead of one-half per cent. which they would have had to pay if they had been his daughters by law.

The present position is really an anomaly, because it is legal to marry your deceased wife's niece in the Dominions. I have seen objection raised to this Bill to this effect, that it is progressive and that if you go on in this way you will end in marrying someone nearer than your niece. It is nothing of the kind; it is not progressive in the least; it merely completes the Acts already in existence. I believe this is the first time this Bill has come before your Lordships' House. It has on many occasions been before the other House. It has twice passed its Committee stage in the other House without amendment and this year it passed through all its stages. Those of your Lordships who have been members of the House of Commons know well the difficulty of passing a Private Member's Bill towards the end of the Session, however popular and however unanimous the House may be about it. That nevertheless has been done with regard to this Bill. Fortunately, the member in charge of the Bill this year was able to get it passed by the Commons and I hope the Bill will appeal to your Lordships in the same way. I assure you that there are really a great many people, probably many more than is supposed, who are anxiously awaiting the passing of this Bill, the Second Reading of which I now beg to move.

Moved, That the Bill be now read 2a.—(Lord Wraxall.)


My Lords, nothing could be more reasonable, moderate and clear than the speech in which the noble Lord has asked your Lordships to give a Second Reading to this measure, but I venture to think it is not altogether desirable that so far-reaching a change as this—and it is far-reaching—should become law without a, good deal more consideration than has so far been given to the matter. You may search the pages of the OFFICIAL REPORT during the present Session in the House of Commons and you will find no reference to the Bill beyond the fact that it was read a second time and read a third time. It was discussed in Standing Committee a little but not in the full House. The matter is one which ought not, I think, to be treated quite in that way. It is a far-reaching measure and raises questions which call, in my judgment, for the utmost care and caution.

The Bill carries one back to the debate twenty-one years ago on the Deceased Wife's Sister's Marriage Bill. I was not in favour of that measure at the time, thought I never was among those who regarded it with such vehement hostility as did some of my friends. I have always recognised both the difficulties of the particular question that was dealt with in that measure and the undoubtedly widespread demand that there was in certain quarters on behalf of the change. The Bill became law and since then it has been worked, I think, with extreme fairness, very much to the credit of the clergy and others who were in positions of great difficulty and had to decide how they would act with regard to it. I am not personally aware of any serious difficulties which have arisen in the matter, though I retain the opinion which I originally held that it would have been better had that measure not become law. But this Bill asks for very much more. It is quite true, as the noble Lord has said, that it does not ask for the legalisation of marriage with nearer relations than would be legal at present, but it does ask for the legalisation of marriage with a very large number. The argument is based usually on logical consistency, on the fact that if you admit the legitimacy of marriage with a deceased wife's sister it is almost absurd not to go further and include various categories which the noble Lord in his speech has enumerated and are set forth on the face of the Bill.

That question was raised very strongly in the debates in both Houses of Parliament in 1907. I myself took part on more than one occasion in debates upon it in this House. The noble Lord is mistaken, I think, when he says that had attention been directed to the matter the thing would probably have been done then. On the contrary, those who were vehemently supporting the Bill then told us quite definitely that they wished to call attention to the fact that they were not doing that which this Bill now does. They said: "We do not want more than this. We ask you to meet a particular demand and we have no intention at all of interfering with the law of affinity. The law of affinity is an ancient law in the Church and we have no intention of interfering with it as a whole." May I refer to a speech made by the Lord Chancellor at the time. He said the demand was real and explicit and that the deceased wife's sister question stood alone. He said there was no demand for anything more, in his view, that no other change was wanted, and that to go further would be to break down the ancient law and the principle of affinity which had stood so well and for so many centuries.

I am not saying that the Bill ought to be rejected but I am saying that it wants a great deal more consideration than it seems to me to have received, and that it stretches a good deal further than some of those who have advocated it appear to realise. It really attacks the whole principle of affinity and that is a principle which has been recognised in the laws of all Christian countries practically for as long as Christian countries have existed. Indeed, it goes very much further back than that of course. I am not claiming Biblical authority for it now, but it is found in legislation many centuries earlier than the Christian era. The principle is laid down in the Old Testament and whatever modification has been made since in the application of it the principle still remains emphatically laid down that affinity is not a thing to be trifled with, that the relations of a man's wife are in a certain sense relations of his own and it is a thing not to be dealt with easily or lightly. The Churches of our land and other lands have guarded these ancient principles, and the very utmost care, consideration and discussion ought to be given to a change so far-reaching as this before it passes into law.

There are practical questions that arise the moment it is looked into. Since I found this Bill was coming forward I have talked with some of those who have experience in populous parishes and are particularly cognisant of the difficulties and problems which arise in connection with marriage usages, or marriage probabilities or possibilities. I have not found any demand whatever of a general kind for this change. The noble Lord has brought forward three or four instances of particular people who, without making proper inquiries as to the law, married and afterwards found that they had acted illegally, with trying consequences. But that is not the kind of demand we want when bringing about such a change as this. Contrast such a demand with the definite demand which was undoubtedly made by a large number of people, rightly or wrongly, for a change in regard to marriage with a deceased wife's sister. There is nothing now corresponding with that demand. My own belief is that many of the best authorities, many who can judge best in this matter, will assure us that to introduce into family life a large group of those hitherto supposed to be outside the range of matrimonial possibilities, to introduce one might almost say sisters and cousins and aunts, is really a step which ought not to be taken without very great caution and care and without thinking of the consequences which may ensue.

I should like to quote the words used by the Lord Chancellor on the occasion to which I referred. He was speaking in support of the Bill and he said:— I am not aware of any other change in the law of marriage that I desire, or that ought to be made. … What I have felt it my duty to call your Lordships' attention to is that you do not know how far reaching a change in the marriage law may be; and that, therefore, if in desiring a logical system, you lay down for the sake of logic broad propositions in regard to marriage, you may find you have done a great deal you never intended to do, which may really have the effect of destroying the system of marriage laws. … I am not prepared to ask your Lordships to reject the Second Reading of this Bill, but I want it to have further consideration, and before the Committee stage I am prepared to go into it to see whether we cart suggest anything to remedy the difficulties I feel, although I am not very hopeful of being able to do so. But I do ask to be assured before we pass this measure into law that there is a genuine demand for it. No such evidence was brought forward in the House of Commons—at all events in the whole House—and we have not before us more to-night than those instances I have already described which were brought forward by the noble Lord. Without desiring to be obstructive in a matter of this kind or to say that the thing is bad and ought not to be considered, I want to say we should have more evidence of popular demand outside before we pass a measure which may be so far-reaching in its consequences.


My Lords, I find myself on most occasions so very much in sympathy with the observations that fall from the most rev. Primate that I regret that on this occasion I have some little difficulty in quite understanding his attitude on this Bill. He began, as your Lordships will remember, by complaining that the Bill passed through another place without a Division and without discussion. Those of your Lordships who are familiar with the procedure in another place will realise that that means a very large measure of unanimity, because there are plenty of people always ready to delay Bills and discuss them if they do not approve of their principles. It is, therefore, I think, fairly obvious that members of the House of Commons, in touch with public opinion as they are through their constituents and representing all shades of opinion in the country and all localities in the country, found nothing to object to in the Bill. Otherwise it would not have had so easy and unobstructed a passage. I do not suppose the most rev. Primate really argues that the Bill had not the assent of the House of Commons. What he feels is that it had not sufficient consideration.


I said there was no evidence of demand.


I am coming to the demand in a moment. I think that probably your Lordships will appreciate that individual members, and probably groups of members, had considered the Bill and had found nothing to object to in it, and accordingly did not find it necessary to have any public discussion. The most rev. Primate went on to refer to the discussions, with which most of your Lordships are familiar, which occurred so often upon the question of the deceased wife's sister. I have some sympathy with the view which the most rev. Primate expressed that we then made inroad upon the people whom it was possible to have in your house with the certainty that they could not be the objects of marriage and were therefore unlikely to be the objects of the affection that leads to marriage. That is true, and I think there is a good deal to be said for that view, but that inroad was made, and it was made in the most obvious and serious case, that of the sister of the wife, a person of approximately the same age and of exactly the same family. It may be called an extension of that principle to extend it to remoter relations than the wife, but I should rather call it a logical development of it.

We do not in this country regulate our legislation by strict logic, but there is no reason why we should not occasionally pay some attention to it and, if you can marry, should you desire to do so, the sister of your deceased wife, there could be no reason why you should not marry your niece or your aunt. Of course your Lordships will appreciate—the most rev. Primate was perfectly fair on this point—that there is no question of anything incestuous here, except in the technical sense of the word, and certainly not in the sense in which it is defined either by the Incest Act or as people ordinarily understand it. Technically, of course, and according to the Prayer Book, there is. I think I am right in saying, speaking subject to correction, that the Roman Church has granted dispensation in some of these cases where there is this relationship but no consanguinity, and therefore there would appear to be no ecclesiastical objection to it in the older Communions.

I should like to say one word on the question of demand. Your Lordships will appreciate that this is the sort of thing about which it is very difficult to have a demand, and I would invite you, should this Bill go forward, as I hope it will, to look before the next stage at a speech made by Lord James of Hereford in this House on the Deceased Wife's Sister's Marriage Bill in which he asked what sort of demand you could expect to get for this legislation. A great many people, when they married a deceased wife's sister, did not want it known, and certainly did not want to advertise the fact. They were not likely to attend public meetings and to say that technically they were living in sin and they wanted the position put right. That is not the sort of thing for which you get large and enthusiastic public meetings. I think there may be a grievance and a hardship, and I hope that your Lordships will give as much time for discussion as anybody could desire. One might say, and I think it would be fair to say, from the appearance of the Episcopal Bench to-day, that the Bill does not seem to have created great apprehension or great alarm among the Episcopate.

Do not let the Bill lose its chance at this end of the Session when there is not very much time left. After it has passed in another place—and all your Lordships know the difficulty that a Private Member's Bill has in passing in another place—I do not think your Lordships ought to refuse it further facilities here unless objections are taken to it upon its merits. To be perfectly frank, I did not gather from the most rev. Primate's speech that he had any serious objection upon the merits of the Bill, but that his objection was based upon the general idea that I have already mentioned, that it was extending the range of people with whom it is possible to contract marriage and about whom there may be certain awkwardnesses in having them in your house. I hope that your Lordships will not be deterred from letting this Bill go forward unless some really serious objection on merits is put forward.


My Lords, perhaps it may be convenient if I say one word regarding the attitude that is taken by the Government and the Home Office on this matter. It is said that this Bill is complementary to Acts already passed by the Legislature, and the Government do not offer the smallest opposition to its Second Reading. The drafting of the Bill has been carefully considered by Parliamentary counsel, and they consider that all the possible degrees of relationship within which marriage will be allowed have been considered and are duly recorded in the Bill. Accordingly the Government offer no opposition.


My Lords, may I ask about the widow? Is she not going to be allowed to marry her uncles and her nephews? This clause applies only to the widower, who is given eight new choices, but it seems to me that the widow is left out. The noble Lord shakes his head. Does that mean that the widow does not want to marry again? My experience is the reverse. Or does it mean that the widow's case is already covered? It seems to me that we might take eight other cases exactly similar to those set out in Clause 1, and then you would need words providing that a woman should be entitled to marry her deceased husband's brother's son, her deceased husband's sister's son, her father's deceased sister's husband, her mother's deceased sister's husband, her deceased husband's father's brother, her deceased husband's mother's brother, her brother's deceased daughter's husband, and her sister's deceased daughter's husband. Is any provision made or contemplated for these cases? I should like to know because, if we are going to consider this Bill in Committee, this will take some little time. We shall have to go into all these cases.


My Lords, the cases put forward by the noble Viscount are not, I fear, included in this Bill. The Bill is before us as it passed the House of Commons, I think on three occasions, and, so far as I know, the cases that he has put forward were not included in any of the Bills. I fear that I cannot entertain the idea of adding them to this Bill, because I should hesitate to do anything that would imperil the passage of the Bill as it now stands.


My Lords, the noble Earl opposite called attention to the fact that no objection had been taken to this Bill on its merits, but that objection was confined to doctrinal questions. It is perfectly plain that, even if it were considered logically, from that point of view many suggestions might be made as to why certain other persons should not be inserted. I will not go into that point. It seems to me that the noble Lord who introduced the Bill gave what appeared to me to be two objections on its merits. They were to be found in the suggestion that somebody might wish to marry some woman in order that their children, who are now illegitimate, might be quartered upon the State and be eligible for pensions. It does seem to me that any kind of extension of the pension system in this country is an objection on merits which deserves to be met. There is no reason whatever why people should be allowed to alter the degrees that exclude persons from marriage simply for the purpose of getting some sort of allowance. In addition to allowances there is the question of pensions. I think the noble Lord mentioned a Colonel whose wife had died and who wanted to bestow the pension upon somebody and, for the sake of bestowing a pension which somebody else would have to pay, he desired so to alter the law as to be allowed to marry that person who, when he died, would receive a pension which it was never contemplated that she should receive. The noble Lord himself, in introducing the Bill, provided us with those objections upon its merits. If one only had time I have no doubt one could find a great many more instances. I think that more time might be given to this matter, and we ought not to hurry such an alteration of the law as is suggested by this Bill.


I am afraid that I did not make myself quite clear as to the two instances referred to. In the first case the wife, or rather the widow, was receiving the pension, and it was not a question of the daughter receiving a pension at all. As for the case of the Colonel, he married his deceased wife's niece and there were two children, and of course there was in the circumstance no pension to go to his widow.


My Lords, I think that three speeches by one noble Lord in the course of a single discussion somewhat exceeds the usual allowance. Our rules of order do allow a noble Lord to reply at the end of the discussion, and he then can sum up everything, and answer fully all the questions which have been put to him. I venture to think, however, that to answer every speech in the course of the debate tends unduly to prolong discussion.


My Lords, the noble Earl is perfectly right. We are a little bit free in the way in which we administer the rules of order. It is perfectly true that the mover of a Motion has only a right to speak twice, but I do not think it is necessary that the second speech shall be at the end of the discussion. That is the usual practice, undoubtedly, but I think we may leave it to the noble Lord to determine at what point he will exercise his second choice. The noble Earl complained that my noble friend Lord Wraxall has spoken three times. The question is: Does an answer to a question, in order to clear up a point, amount to a speech? In another place, where the rules of order are more rigid, a member is allowed to get up and explain some misunderstanding which has arisen. I admit that sometimes the explanations which noble Lords make go rather beyond the limits that I have suggested, but I do not think one ought to say that Lord Wraxall exceeded the limits. At the same time I support the noble Earl opposite in his desire to restrain, as far as possible, the practice of some of your Lordships of speaking several times upon a Motion.

On Question, Bill read 2a, and committed to a Committee of the whole House.