HL Deb 14 December 1938 vol 111 cc545-69

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

Moved, That the House do now resolve itself into Committee.—(Lord Strathcona and Mount Royal.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF ONSLOW in the Chair.]

LORD ALNESS moved to insert the following new clause:

Authority for proclaiming intended marriages, etc.

"1. The following Churches shall be and hereby are authorised to proclaim intended marriages and to issue banns of intended marriages to members or adherents of their respective Churches, and to make such regulations for this purpose, and for the issue of all necessary certificates, provided such regulations are submitted to and approved by the Registrar General of Scotland:

The noble and learned Lord said: I desire, with your Lordships' permission, to make three preliminary observations regarding this proposal. The first is that it gives effect to the unanimous recommendation of the Morison Committee, who indeed placed the proposal in the forefront of their recommendations for immediate legislation. The second observation is this. According to my information, no opposition was offered by the Church of Scotland in evidence before the Morison Committee to the proposed extension which my new clause embodies. The third observation I desire to make is that I am satisfied, from correspondence which I have had with responsible and representative persons in Scotland, that there is a very strong desire in that country in favour of this proposal, and that that desire is by no means limited to the general public, but has been expressed, and is felt, even by members of the Church of Scotland itself. Accordingly I venture to say that this proposal comes before your Lordships' House with considerable credentials.

Now, passing for a moment to the merits of the proposal, again I have just three observations to make. The first is that the proposal, in my humble submission, is a fair proposal. It is fair to the Churches which have a right in Scotland to perform the marriage ceremony, and all of those included in this list have that right. On the other hand, the existing system, which makes the proclamation of banns in Scotland a strictly guarded preserve of the Church of Scotland, I submit is really not fair. It is felt by many to involve a slur on other Churches that have an equal right with the Church of Scotland to perform the marriage ceremony. It seems to me to constitute a real grievance, of which the other Churches are acutely conscious.

I would remind your Lordships that the scheme in vogue in Scotland depends essentially upon mere custom. It is true there is a very old Statute which is directed against clandestine marriages, but the system as you find it in that country to-day depends upon custom. This is not a new proposal, nor is the sense of grievance new. I was interested to find that in the Report of a Royal Commission in 1868, so far as Scotland is concerned, presided over by one of the greatest lawyers in this or any other age, the matter was referred to. Lord justice Clerk Inglis, who became Lord President Inglis, conducted an investigation at that time into the law of marriage in Scotland, and in that Report which he wrote I find this with reference to the existing system of proclamation of banns: It is not unreasonably complained of by the Scottish Non-conformists, who are married by their own Ministers, as being in their case vexatious as well as useless. That it is vexatious I have endeavoured to establish to your Lordships' satisfaction.

That it is useless I think I shall have little difficulty in establishing also, for my second point upon the merits of the proposal I make is that it is a forcible proposal, by which I mean an effective proposal. The proclamation of banns in churches to which one or both of the parties belong, either as members or adherents, is more likely to obtain publicity, which is what is desired, than the proclamation of banns in a church—which may take place to-day in the Church of Scotland—with which neither of the parties has any concern at all. A nominal residence is not infrequently taken in a particular district, and the banns put up in a church of which neither of the parties knows anything. The "fishy customer," if I may use that expression, is more likely to resort to a church of Scotland in a part of a great city where he is quite unknown, and where he may hope to smuggle through a marriage. This could not be done if it were the law, as it should be, that he must be a member or adherent of the church in which the proclamation is made. Again, this is no new thing, for I find that the late Lord President Inglis, in his classic Report, wrote this: This mode of proclamation"— proclamation in a Church of Scotland— tends to promote clandestinity rather than to prevent it, by inducing persons to resort for marriage to places where they are unknown. The third and last observation on the merits that I wish to make is this, that my proposal is not only fair and forcible but also feasible. I heard a suggestion, made I think by Lord Strathcona on the Second Reading, to the effect that it would create endless difficulties. I have not yet heard what those difficulties are. I am not aware of any. All I would say at this stage, with regard to that suggestion, is that I have had many letters from Scotland from persons who have devoted their lives to the practice of registration, and they all assure me that they see no difficulty in practice in working out this clause. What is more important than that is that before the Morison Committee the Registrar-General in Scotland and the President and Secretary of the Association of Registrars in Scotland gave evidence, and nothing was said by those witnesses which prevented the Commission from unanimously reporting in favour of the proposal which I now submit to your Lordships. It is not surprising that that should be so. It is an essentially simple matter. After proclamation in the Church of Scotland a certificate of proclamation is issued by the Session Clerk and that certificate is the warrant for registration. I ask why should not that be carried out equally effectively in any one of the Churches which I have named, and which the Morison Committee named, and in each of which the minister is entitled to perform the marriage ceremony?

It was said by Lord Strathcona that it is more convenient to have this ceremonial rite carried through in a church which has a territorial basis. I am not quite sure that I appreciate the force of that argument. All I would remind my noble friend of is this; that the unit for proclamation purposes is not the parish but the registrar's district, and, moreover, I confess I have some doubt as to whether, strictly speaking, the Church of Scotland, to-day, is organised upon that basis. The Episcopal Church certainly is. I do not want to detain your Lordships unduly, but this is an important matter, felt to be so on the other side of the Border, and I thought it my duty to lay before your Lordships this proposal, well documented by authority as it is, and to ask for it your Lordships' favourable consideration.

Amendment moved— Page 1, line 5, at end insert the said new clause.—(Lord Alness.)

THE UNDER-SECRETARY OF STATE FOR WAR (LORD STRATHCONA AND MOUNT ROYAL)

Although I am aware that there are other members of your Lordships' House who wish to speak on this matter, it might perhaps be for your Lordships' convenience if I gave you now the views of His Majesty's Government. We are not able, I am afraid, to accept this Amendment, which we regard as neither wise nor practical. It is based on the recommendation of the Committee, at page 15 of their Report. It differs, however, from that recommendation in one important respect. The Amendment proposes that proclamation of banns by each of the Churches set forth in the Amendment shall be in accordance with regulations made by that Church and approved by the Registrar-General. The Committee recommended that proclamation by all Churches should be in accordance with the Act of Assembly made by the Church of Scotland in 1932. It is more than doubtful if either scheme would work. It is extremely unlikely that some of the bodies named in the Report would welcome dictation from the Church of Scotland as to the proclamation of banns. On the other hand, it is not appropriate to put the duty of approving or disapproving regulations on the Registrar-General. That is not germane to his functions.

Apart, however, from those difficulties, any proposal to empower Churches other than the Church of Scotland to proclaim banns would give rise to very serious difficulties and would be practically un- workable. In the first place, many religious bodies not named in the Committee's Report or the Amendment would claim, or might claim, a similar right, and endless controversy would ensue. In the second place, it is not possible to graft on to the traditional system a system of publication of banns in the meeting places of all kinds of sects and denominations, which are not organised, as the Church of Scotland is, on a territorial basis. Under the Act of Assembly of June 1, 1932, a church or churches are appointed for the purpose of proclamation of banns for each registration district under the Registration of Births, etc., Acts. If proclamation is to be allowed in churches of other denominations, how is the particular church for each registration district to be determined? In many cases there will be no church of the denomination in question in or anywhere near the registration district in which the parties to, or one of the parties to, the proposed marriage reside. Indeed, we find it difficult to believe that any test could be devised which would fit all denominations.

If the parties to a marriage belong to different denominations, but live in the same district, would proclamation be necessary in a church of each denomination, or would that be left to the regulations made by the two churches? Doubtless many other troublesome questions would arise, and arise after the Bill becomes law. It is accordingly thought that any extension of the power to proclaim banns to other religious bodies is attended with practically insuperable difficulties. Moreover, the selection of the parish church is in all probability not due to ecclesiastical reasons but because it affords a suitable local centre for publicity. Publicity is given to other matters in pursuance of statutory enactment by affixing to the parish church door. Nor are people whose religion makes the parish church unacceptable bound to resort to it for proclamation. There is, of course, the alternative of publication under the Marriage Notice (Scotland) Act, 1878. For these and several other reasons we think this Amendment is unwarranted and cannot be accepted.

LORD THANKERTON

I am glad that the noble Lord who has just spoken on behalf of the Government has taken up the position that he has taken. This question has been familiar to me for many years. For five years I occupied a post in the Church of Scotland, and while it is true, as the noble and learned Lord who proposed this Amendment has said, that the Church of Scotland was always sympathetic to the view, there were always practical difficulties in the way of it. In addition to what the noble Lord who represents the Government has just said, I would like to offer a few observations of my own. In the first place, if there is any question of smuggling (I think that was the phrase of the noble and learned Lord), surely he is going to make it very much easier to smuggle when there is a large choice of churches in which you can have your proclamations. But the important point to remember is this, that this requisite is not really a religious requisite at all, it is a civil requisite. Proclamation of banns is requisite in order to make a good "marriage ex facie ecclesiæ." In the absence of banns the marriage is perfectly good, but it is not a marriage in the face of the Church. It is true that under a very ancient Act passed in the seventeenth century there are penalties on the parties who perform what is called a clandestine marriage.

Another point I would desire noble Lords who are not familiar with marriages in Scotland to remember is that there is no need to be married in a church, and a very large number of the marriages which take place, even of the most firm adherents of the particular church to which they belong, are not in a church at all. Of course, originally there is no doubt that this publication of banns was Church law—not mere custom, it was Church law; and it was in order to preserve the domain of the Established Church for the time being that a good many strict Church laws were passed at that time. That has all passed away, but it remains the fact that the purpose of this publication of banns is in order, first of all, that public notice should be given of a marriage; and, secondly, and perhaps more important, that any possible objections to the marriage should be brought to light. Now if you think for a minute of country districts, the parish church is not only the religious centre, but it is the place where many public notices—Income Tax notices and, if I remember rightly, Diseases of Animals Act and other notices—are by Statute affixed; and in the absence of a town hall or a parish council (though there are no parish councils now, I think) the parish church is the one place where the public generally know they will find or hear of things of this kind. From the practical point of view, even in a town the choice of where you can learn about marriages that may be taking place is very much more limited under the present system.

I agree with what the noble Lord has said about the difficulties that would emerge—really practical difficulties—when you are seeking to define the bodies who are to be included in this list, because one thing is quite certain—that the list that is in the Amendment, apart from certain minor inaccuracies, which are not very material, is quite inadequate to cover everybody. I think I could name five or six other bodies that would equally be entitled to claim. The more you spread the provision—the alternative provision, after all—for such things, the less effective you render the real purpose of it. While everyone is from the religious point of view in complete sympathy, certainly in the Church of Scotland, with the ministers of other Churches who are performing the marriage ceremony in their desire that they also should publish the banns, the real question is one of public convenience and public interest. May I remind your Lordships that in I could not guess how many cases, but certainly a great many, publication of banns, even under this Amendment, could take place anywhere but the place where the marriage is to be held or by the minister by whom the marriage is ultimately to be performed. It does not follow, as one knows in many cases, that people are married by their own minister. Perhaps mostly they are, but they may come from other parts. That is not the point I wish to stress. The point is really a practical one. This is a very important check on the contraction of marriage, and it is right we should see that such an important check is not rendered less effective than it is at the present moment.

LORD MACMILLAN

I should like to associate myself with what has just been said by my noble and learned friend. If this were a question of denominational preference, I should be with the mover of the Amendment, but it is not a question of denominational preference in any sense whatever. It is purely a question of expediency. What is desired is that there should be a uniform and simple method of publication of banns for all purposes. The parish church happens to be an institution to be found in every parish in Scotland in the length and breadth of the land. It is the traditional place for public announcements. It is still, under Statute, the place where even such unattractive matters as Income Tax assessment notices are posted, and it is therefore a place which, so to speak, is dedicated to public purposes. The moment you proceed to complicate the marriage law, which it is one of the purposes of this Bill to simplify, by introducing a clause of this sort, it will raise difficulties as to which church you are to select, whether you are or are not a member or adherent—because it is only a member or adherent who is to have this privilege—whether the parties belong to different denominations, or perhaps may not have a church at all in the region where they are residing. All these things seem to be complications introduced into a measure the purpose of which is to simplify the marriage law of Scotland.

If it were a matter of giving preference to one denomination over another, my feelings might possibly be aroused, but when it is a question of what is the convenient method by which notification can be given, is it not better to adhere to the method that has all the sanctity of tradition, which is simple, well known, and well calculated to achieve its purpose? Therefore I should not wish to give a preference to these particular bodies selected here, and if you are to give a preference to them you will have to open the door to all manner of bodies, some of which it would not be easy to identify, and whose places of meeting might also be somewhat ambiguous. In the interests of simplicity and expediency, this Amendment, however well-intentioned, should not be made.

LORD ROCHESTER

There is only one important point I wish to bring to your Lordships' notice, and it is consequent on the reply made by the noble Lord who spoke for the Government. There is certainly one conspicuous omission from the list in this Amendment. If your Lordships should in your wisdom decide to accept it, I wish to enter a reservation in favour of that exception and to reserve my right on the Report stage to move an Amendment to include the body to which I refer. I refer to the Salvation Army. Under the existing law of Scotland relating to the celebration of marriage, the Salvation Army stands on precisely the same footing as all the other religious bodies included in this Amendment. More than that they have in Scotland some 500 ministers—officers solemnly set apart and commissioned for the preaching of the Gospel—and they have some 200 churches known as corps. There appears to be no valid grounds for the omission of so large a body as the Salvation Army, more particularly as under the existing law Salvation Army officers possess and exercise precisely the same powers to conduct marriages, and under precisely the same conditions, as the ministers of the eleven churches mentioned both in the Report of the Departmental Committee and in the Amendment before your Lordships' House this afternoon. I would only add this one word, that I should like to support the Amendment. I regret that the Government have not seen their way to implement the recommendations of the Morison Departmental Committee. If this Amendment should be accepted, I should ask your Lordships' permission to move on the Report stage for the inclusion of the Salvation Army.

LORD GAINFORD

Perhaps it is rather absurd for an Englishman who does not know much about the system in Scotland to speak on this question, especially when very distinguished legal authorities differ; but, if we go to a Division, certainly I shall vote in favour of the Amendment. It does seem to be in favour of religious liberty. In this country of England marriages take place in every kind of church. Even Quakers are allowed to have their own method of issuing what is equivalent to banns by giving notice of intention of marriage, and these marriages are allowed to take place in a Friends' meeting house. In exactly the same way it seems to me that all persons in Scotland who desire to be married in a place of worship ought to be allowed to do so if they so wish.

LORD ALNESS

I merely want, if I may, to reply quite briefly to one or two of the criticisms which have been offered on this proposal. So far as the noble Lord, Lord Strathcona, is concerned, he based his opposition to the proposal on the ground that it is not feasible. All I can say in reply to that is that, having taken the best advice open to me on the matter from the registration authorities, I reached an entirely different conclusion from that which he has reached on the advice he has received. Still more striking is it, as I said, that all the registration authorities in Scotland had a full opportunity before the Morison Committee of offering any criticism of this scheme—and possibly did so—and the Committee reached the unanimous conclusion which I am asking your Lordships to support.

With regard to my noble and learned friend Lord Thankerton, he suggested there might be more smuggling through of marriages under the proposal in this new clause than under the existing system. I am quite unable to follow that argument. It seems to be based on the noble Lord having inadvertently omitted to notice that the proposal is that the banns should be proclaimed in a church of which one of the parties is a member or adherent and in which he is therefore known. Lord Thankerton further criticised the list of Churches which this Amendment includes. That list is not without official authority. It emanated from the Registrar-General for Scotland, and was placed before the Morison Committee. It included, according to the information then available, all the Churches which are entitled to perform the marriage ceremony. That was the test. Now, apparently, from what the noble Lord below me has said, one at least was omitted.

LORD THANKERTON

And others. If my noble friend had looked at the Statute, he would have seen quite clearly that this list is incomplete.

LORD ALNESS

I am not going to criticise the information given by the Registrar-General for Scotland; I do not have the necessary knowledge. All I can say is that this statement was put forward officially by him, and unanimously accepted by the Departmental Committee. But it seems fashionable nowadays to disregard the Reports of the advisers whom you have invited to advise you. My noble friend Lord Macmillan treated this, from beginning to end of his observations, as a question of expediency. I do not so regard it. I regard it as a question of justice and fair play, and on the question of expediency, if that be directed to feasibility, then I do not weary your Lordships by repeating what I have already said. I respectfully venture to think that the considerations which I have put before your Lordships have not been met, but while that is so, having regard to the fact that the Government are opposing this Amendment and that the Government have been supported in that attitude by other noble Lords, I do not propose to put the Committee to the trouble of dividing upon it. I content myself by registering a respectful protest against the decision of the Government.

Amendment, by leave, withdrawn.

Clause 1 [Marriage before registrar]:

VISCOUNT BERTIE OF THAME moved, after subsection (3), to insert the following new subsection: (4) In the case of the illness of one of the parties or other unforeseen and exceptional circumstances shown to the satisfaction of an authorised registrar to exist and to prevent the attendance of the parties in the office of the authorised registrar a marriage may be contracted under this section in the presence of the registrar in any dwelling-house or other building within the area for which the registrar has been appointed to act and which has been approved by the registrar. The registrar shall be entitled to an additional fee of fifteen shillings in respect of a marriage contracted under this subsection.

The noble Viscount said: The Amendment itself is, I think, self-explanatory. I have put it down because I have from time to time read reports in the Press of marriages having been contracted on the death-bed of one of the parties. I understand, under the present law of Scotland, all you would have to do would be to make a declaration before two witnesses in such a case. Therefore it is depriving these people of the right which they now have. It may be an impertinence on the part of an Englishman to move an Amendment to a Scottish Bill, nevertheless I beg to move the Amendment which stands in my name on the Paper.

Amendment moved— Page 2, line 9, at end insert the said new subsection.—(Viscount Bertie of Theme.)

LORD STRATHCONA AND MOUNT ROYAL

The noble Viscount was good enough to give me notice that he intended to put down this Amendment. I told him at the time I did not think he would be able to produce an Amendment that would be workable and I am afraid that is the case. We cannot therefore accept his Amendment. The case the noble Viscount has in mind is a rare and exceptional one, and the need for any provision to meet it is correspondingly small. Where one of two parties who desire to get married is unable by reason of illness or other exceptional and unforeseen circumstances to attend at a registrar's office, the parties are not thereby precluded from carrying through the marriage, for they would have no difficulty in arranging for the attendance of a minister and the performance of the marriage ceremony by him in the hospital, house, or other place in which the party unable to attend the registrar's office may happen to be, and there is no reason why they should not be required to do so, if they wish to get married at once. In this respect the parties are much better off than they are in England where, I understand, a marriage, other than a marriage by special licence, or a Jewish or Quaker marriage, must take place in a church or chapel or other building duly authorised or in a registrar's office.

But whatever may be thought of the noble Viscount's proposal on its merits, the Amendment in which he has embodied it is open to several objections. It cannot be left to the registrar to comply or not, as he chooses, with a request for attendance at a place outside his office. It is equally impracticable to give parties the right to require his attendance at any place and at any hour of the day or night. A via media between those extremes is by no means easy to devise, and the noble Viscount's Amendment does not overcome the difficulty by making the registrar the judge of whether the illness or other circumstances are such as to prevent attendance at his office. That is not a matter which ought to be committed to a registrar. It is not clear what is meant by "the area for which the registrar has been appointed to act." If the expression means merely the parish or district of which he is registrar, the Amendment will not meet the case where the parties, or the one of them who is unable to attend at the office, is outside the registrar's parish or district. If, on the other hand, the area for Which the registrar is "authorised" under the Bill is what is meant, there is no such thing, for the scheme of the Bill contemplates that any authorised registrar may "conduct" marriages, irrespective of the residence of the parties, not that the whole country shall be divided into areas each assigned to a particular registrar for the purpose of the carrying through of marriages.

Even if this difficulty were got over, the Amendment might involve the absence of the registrar from his office for long periods to the grave inconvenience of the public and the registrar whose expenses might exceed the proposed fee. The Amendment requires the registrar to approve the building in which the marriage is to take place. This is not an appropriate matter to commit to the registrar, and it would have the effect of enabling the registrar to attend or not according as he chose. The Amendment is accordingly unacceptable inasmuch as it seeks to meet a case which is already sufficiently provided for, and for that reason I am afraid the Government cannot accept it.

VISCOUNT BERTIE OF THAME

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clauses 2 to 4 agreed to.

LORD ALNESS moved, after Clause 4, to insert the following new clause:

Marriages of female minors with aliens.

". No marriage in Scotland of a female minor between the ages of sixteen and twenty-one years with an alien shall be lawfully contracted unless with the prior written consent of her parent or guardian."

The noble and learned Lord said: The argument does not appear to carry any weight with the Government, but I venture to repeat it, that this new clause exactly carries out the recommendation of the Departmental Committee which was appointed by the Secretary of State for Scotland. In the second place, the Amendment carries out the wishes of quite a number of representative and responsible organisations in Scotland; for example, the Edinburgh Women's Citizens Association, whose views I think have been communicated to my noble friend Lord Strathcona, and various other bodies.

I would further remind the Committee, if I may, and the Government, that even if this new clause be adopted the law of Scotland on this matter will not approximate to the law of England as it is to-day. I speak with all reserve on the subject, but according to my information and reading, by the law of England a marriage of a minor cannot be contracted, save in the most exceptional circumstances, without the consent of that minor's parent or guardian. The proposal which I now make, so far from being a new one, was made as far back as 1868 in the Royal Commission to which I have already referred and to which Lord Justice Clerk Inglis put his hand. This is what he wrote regarding this matter: We think that the present law of England and Ireland—requiring such consent—should be extended to all marriages in the United Kingdom, and that no notice of marriage should ordinarily be received from any minor without the consent in writing by the proper parent or guardian. That was a proposal made seventy years ago. It has not yet received effect. It would not receive full effect even if my new clause were adopted. The proposal in the new clause is a modest one, that where there is a marriage between a minor and a foreigner, the consent of the guardian or parent of the minor should first be obtained, and obtained in writing.

My noble friend Lord Strathcona, when I mentioned the matter on the Second Reading, said that the intention of the Committee was to deal with marriages between Scottish girls and Indian students, and reminded the House that an Indian was not a foreigner. I cannot deal with what was in the mind of the Committee. All I can look at is the unanimous recommendation of the Committee and the use of the word "foreigner." However that may be, certain it is that many marriages take place to-day between Scottish girls and foreigners—not Indians, but foreigners in the strictest sense of that term. Marriages take place between Scottish girls and foreign sailors and many other types of foreigner. That is well-known and familiar to all of us who are familiar with the domestic economy and marriage problems of Scotland. If that is so, the sooner that sort of thing is stopped the better, for the consequences are disastrous.

What are the consequences? Very often, though the marriage is valid according to the law of Scotland, it turns out to be wholly invalid according to the law of the country to which the foreigner belongs, and the wife or the wife and children may find themselves stranded in a foreign land. Again the wife, if deserted by a foreign husband, may find herself left without any redress according to the law of Scotland. Consequences so dire as these ought to be prevented if it is humanly and reasonably possible to do so. This Amendment, if adopted, would provide a certain check and safeguard, and therefore, without delaying your Lordships with further argument, I submit it for the consideration of the Government, and I bespeak for it a more friendly reception than my first Amendment had.

Amendment moved— After Clause 4 insert the said new clause.—(Lord Alness.)

LORD STRATHCONA AND MOUNT ROYAL

I am sorry that we cannot accept this Amendment of the noble and learned Lord. It is true, as he said, that this Amendment is based on the recommendation of the Committee, at page 16 of their Report, but reading that recommendation in the light of what is said on page 5 of the Report, what the Committee had intended was apparently that a marriage between a Scottish minor and an alien, which is invalid according to the law of the alien's domicile, should require the consent of the minor's parent or guardian. The Amendment therefore does not exactly carry out the recommendation. In either form, however, the proposal is very hard to justify. We do not see why a Scottish minor should be free to marry, without her parent's or guardian's consent, a British subject of the worst possible character, but should require such consent in order to marry a foreigner of the highest possible character. A rule of law which requires parental consent to any marriage whatever of a minor is intelligible, but it is difficult to see any justification for requiring such consent in some cases only, especially when those cases are selected on grounds which may be quite irrelevant to the wisdom or unwisdom of the proposed marriage.

It is probable that what the Committee had in mind, as has been said, was chiefly marriage with Indians, where the Scottish wife finds sometimes that, though she may be her husband's only wife in Scotland, in India she may be only one of several. This happens whether the Scottish wife is under twenty-one or over it. Moreover, Indians are not aliens but British subjects, as I told your Lordships on Second Reading. On political grounds it is obviously undesirable to single out foreign countries or particular Dominions or Colonies for exceptional treatment as regards marriage to Scottish women. The Amendment makes no provision for the case where the parent cannot be found or unreasonably refuses his consent, and where there is no guardian. A glance at the Guardianship of Infants Act, 1925, Section 9 and Schedule, will show that elaborate provision is required to meet such cases. In terms of the Amendment the marriage in question would be invalid if the consent of the parent or guardian were not obtained. If so, the cure seems worse than the disease. In England, where the consent of the parent or guardian is required to the marriage of a person under twenty-one (not being a widow or a widower), the marriage is not invalid if the parties succeed in carrying it through without consent For these reasons it seems clear that any enactment on the lines of the Amendment would do more harm than good and I hope that the noble and learned Lord will not press the Amendment.

LORD THANKERTON

I would like to add a few words to what the noble Lord said and to join in his request to my noble and learned friend to withdraw the Amendment. The noble and learned Lord makes a proposal which is entirely novel in the law of Scotland, that a marriage of this kind should be null and void, and in my humble opinion it is a very dangerous proposal. It is not the law of England. Further, the Report of the Committee was very strongly against insisting on the parents' consent to a minor's marriage and it was only in a more limited case than the Amendment provides for that they suggested such a course might be taken. It is true they suggested that in that event the marriage should be null and void, but that would be going far beyond anything I know in any other country.

Personally I would like to know the kind of case that is really in the mind of the noble and learned Lord. Take the case where a Scottish girl, a minor, marries an alien who is polygamous. That marriage would not be valid, as I understand the law of Scotland, according to the law of Scotland. There is no need for legislation in that case, and that would apply to most of the suggested line of thought. Beyond that, which I think is already sufficiently protected, I would like to be given an illustration of what is covered by the Committee's view. This would go far beyond the Committee's view. Whether the marriage was valid in another country or not this Amendment would cover it. On the other hand, there might be no suggestion of invalidity in another country and yet the marriage would be null and void if it took place without the parents' consent, even if the parents could not be found. Personally I cannot think of the class of case that is thought to be affected, and at any rate I am quite satisfied that this proposed method would be a very dangerous precedent. It is not the proposal of the Report of Lord Justice Clerk Inglis. He suggested assimilating it to the law of England or Ireland, which does not make the marriage null and void, but arms the parents with means by which they can prevent the certificate of the banns and so on by notice. There are certain penalties—I do not know whether they are in force—but the marriage is not null and void either in England or Ireland. I suggest that this would be a very dangerous precedent to set up.

LORD ALNESS

Perhaps I may be allowed to say a few words in reply to the two speeches we have just heard. The argument of the noble Lord, Lord Strathcona, seemed to be, as I understood it—I hope I did not misunderstand it—that the Amendment does not go far enough, and that it would be more logical to provide that in all cases where a girl who is a minor marries the consent of her guardian or parent should be required. I am entirely of that view, if I may respectfully say so, but it would not be relevant to introduce such a provision in this Bill. My view is that it would be wise to take one step at a time, and, having taken the step which this Amendment proposes, then to extend it on the lines of the suggestion made by Lord justice Clerk Inglis to Scotland as a whole, thereby assimilating the law of Scotland to the law of England, and also giving effect to the Report of the Royal Commission. With regard to what my noble and learned friend Lord Thankerton said, I should have thought that my Amendment exactly gave effect to the recommendation of the Morison Committee, which I hold in my hand. The Morison Committee recommended that a marriage contracted by a minor in Scotland with a foreigner should be null and void.

LORD THANKERTON

"In such circumstances."

LORD ALNESS

In the circumstances set out in the second paragraph in the Report.

LORD THANKERTON

And then, if you go back to page 5, you will find there is a qualification which is not in your Amendment.

LORD ALNESS

I am sorry I am unaware of any qualification. I am looking at paragraph (2) on page 5 at this particular moment. There I find this statement: In recent years young Scottish women have contracted marriage with foreigners which, though valid according to the law of Scotland, are invalid according to the law of the foreigner's domicile. We suggest that where a Scottish minor purposes to marry a foreigner in such circumstances the consent of the minor's parent or guardian should be required. That is a narrative of what the Committee thought, but when one comes to the recommendation it is as clear as words can make it—the marriage shall be "null and void"; and that is exactly what my Amendment proposes. In the circumstances in which I find myself—namely, that the Government have resisted the Amendment throughout—I feel that it would be hopeless to press the matter to a Division, and accordingly I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 5:

Abolition of irregular marriage by declaration and by promise subsequente copula.

5. No irregular marriage by declaration de presenti or by promise subsequente copula contracted after the commencement of this Act, shall be valid.

LORD ALNESS moved, after "copula," to insert "or by cohabitation habit or repute." The noble and learned Lord said: I apologise for inflicting myself once more upon the Committee, but I shall be extremely brief in dealing with this Amendment. I think a word of explanation is perhaps required of me in view of what I said on the Second Reading of this Bill. At that time I entertained the view, which I still entertain, that it was unjustifiable in this Bill, in order to remedy a local grievance at Gretna, to abolish almost in its entirety the whole law of Scotland relating to irregular marriage. It seems to me that the same purpose could be achieved quite easily and effectively by providing that these irregular marriages should immediately be registered. I still think so, but, having had an opportunity of conferring with the authorities of the Scottish Office and with my noble friend Lord Strathcona and Mount Royal, and having received a large volume of correspondence from Scotland on the subject, I have come, rightly or wrongly, to the conclusion that there is a large body of opinion in that country which desires to see the law of irregular marriages in Scotland abolished, and which takes the view that Gretna, if not the cause of that abolition, should at least be adopted as its occasion.

I hope, if I may say so, that I am a good democrat, even to-day, and, as such, I bow to the opinion that has been expressed in Scotland on this subject, although I do not share it. But, having taken that step and reached that conclusion, I find myself up against the problem of whether, if the law of Scotland relating to irregular marriages is to be dealt with, it should be abolished entirely, or whether, as the Government propose, only two-thirds of it should be abolished. As your Lordships will notice, in Clause 5 it is proposed to get rid of two forms of irregular marriage in Scotland—namely, interchange of consent, and what is known as promise subsequente copula. The third form, marriage by cohabitation, habit and repute, according to this Bill will remain untouched. I venture to think that that is a most illogical performance and once more—but that argument seems to be of no avail—to sin against the unanimous Report of the Morison Committee. The truth is that this form of marriage is not really, in the strict sense, marriage at all. It proceeds upon a fiction, and only if the fiction is successful does marriage emerge as a consequence. I am not aware of any system of law in any country which embodies this particular form of marriage, either regular or irregular.

I am aware—I again speak with all reserve—that in the law of England cohabitation after a certain time raises a presumption of marriage, but that is quite different from our law in Scotland. I think my noble and learned friend Lord Thankerton, who has differed from me so often this afternoon, will agree with me on this occasion. Cohabitation, habit and repute constitute under the law of Scotland a valid marriage. As a famous old Scottish Judge wrote many years ago, the fact of a man allowing a woman to take the station of and be called his wife is a constant and continued declaration of consent. And of course, as your Lordships have heard in these debates, in Scotland, up to now at least, consent makes a valid marriage. It has been said—and my noble friend Lord Strathcona stated it on the occasion of the Second Reading debate—that this form of marriage might cure informalities in an otherwise properly contracted marriage. I am afraid—it may be my own fault; it probably is—that I do not fallow that argument, because the extract certificate of marriage records the necessary and mutual consent of the parties.

In any event, just think for a moment of the means that would have to be adopted in such infrequent cases as my noble friend referred to in order to achieve the purpose in view. It would involve raising in the Court of Session a very costly, probably a prohibitively costly, action of declarator. The proof in that action of declarator would, as the Morison Committee stated, bristle with difficulties. I cannot better illustrate that to the Committee than by giving an example from a very old case, which is reported in the Law Reports, where a marriage of that sort was sought to be established by bringing a declarator. What was proved was that the alleged husband said to his alleged wife in the presence of her family: Maggie, you are my wife before Heaven, so help me God. Notwithstanding these formal and solemn words, the House of Lords on appeal held that there was no marriage and no real intention to effect a marriage, and accordingly the suit failed. Therefore, even in the infrequent cases which I understood my noble friend Lord Strathcona to adumbrate on the Second Reading, the prospect before anybody who essayed such an action would, to say the least of it, be extremely bleak. Accordingly, I suggest that if a surgical operation is to be performed on the law of irregular marriage in Scotland, it ought to be complete in its character, that it should not excise two-thirds of the law and leave the remaining third standing, contrary to the advice of the Departmental Committee of the Scottish Office. I beg to move.

Amendment moved— Page 4, line 4, after ("copula") insert ("or by cohabitation habit and repute").—(Lord Alness.)

LORD STRATHCONA AND MOUNT ROYAL

The noble Lord's Amendment proposes to abolish marriage by cohabitation, habit and repute. It is true that the Departmental Committee recommended abolition. It has, however, on full consideration been thought desirable that this form of marriage should be retained and I will endeavour to give the reasons for that decision. In the first place, though the formalities attendant on the only two forms of marriage possible when the Bill becomes law—namely, religious marriage celebrated by a minister, and marriage in a registrar's office—are so simple that the chances of a successful challenge to the validity of a marriage on the ground of non-compliance with the necessary formalities are extremely small, it is desirable to obviate, so far as possible, any such challenge.

Under the existing law, validity could never be questioned, for the parties interchanged consent, a religious marriage, even if bad as a regular marriage, would still be a good irregular marriage by declaration de presenti. Accordingly, if marriage by declaration goes, it is necessary to make some provision to prevent the validity of a marriage being challenged or successfully challenged on the ground of some trifling informality. The retention of cohabitation, habit and repute marriage exactly meets this, and that seems more satisfactory and simpler than abolishing it and reintroducing by positive enactment something very similar. This course is all the more justifiable when it is kept in view that none of the social evils referred to in the Committee's Report are associated in any way with marriage by cohabitation, habit and repute. It is anticipated that the doctrine will be resorted to very rarely indeed. Cases are not common under the existing law, but they will be much less common in future, for under the existing law the doctrine can be utilised in cases where there really has been marriage by declaration de presenti or by promise subsequente copula, of which, owing to lapse of time, proof is not available. I hope I have succeeded in my endeavour to explain to the noble and learned Lord the reason why we think this Amendment should not be accepted.

LORD THANKERTON

My Lords, the noble and learned Lord asked me to associate myself with him in his view of the law of England, amongst other things. Let me say that I was sorry that I was not present when he spoke on the Second Reading, because I read his speech afterwards and I was surprised to find that after his long experience in office, and his considerable connection with Church matters, he remained what I may describe as an unrepentent Conservative sentimentalist. Ever since my earliest days, when I went to settle in Scotland, where for a number of years I was associated with Church matters, there has always been an outcry on the part of the Churches and others against irregular marriages, including the Hogmanay marriages, and whilst in one sense the Gretna Green marriages certainly were the occasion of measures being taken to set up this Committee, it was the occasion that moved Government circles, but not that which moved the Church of Scotland. They have ever been against these irregular marriages.

I agree that when one looks at the Report of the Morison Committee and considers the matter logically, one would expect this aspect of the marriage law of Scotland to be cut out as well. I rather differ from my noble and learned friend in this respect. Marriage by habit and repute—and the reference he made to an old case sounded more like a marriage de presenti than a marriage by habit and repute—was merely the means by which you got evidence of consent, which was necessary under the law of Scotland. In the English case, where there is a presumption that everything has been correctly carried out, it is very similar. It is a presumption of evidence, and it is one that leads you to presume that there has been a valid marriage. I do not see any very great difference between the two, but I do think it is up to the Government to justify this little thing being left in. For my own part I think there may be cases, such as for instance where it is desired to prove legitimacy in an important case, years after the marriage has taken place, and after the presumed marriage parties have died. You do not know where they have been married, and you cannot prove that they had been married, but it is never doubted that they were married, and they have lived together on a respectable standing as husband and wife. It is perfectly true that there may be such cases in which this doctrine will be of advantage.

It has a very limited extent, and therefore for myself I am not prepared to object in any way to the view of the Government. I do not think it can do any harm, and in certain cases the retention of this form of marriage may be useful, as, for instance where, because of the lapse of time, you cannot get evidence. I should be very loth in such cases to alter the present law so as to exclude the chance of proving a marriage as you can at present. Therefore I am not prepared to support the noble and learned Lord's Amendment.

LORD SALTOUN

My Lords, I do not want to intervene in the argument which the noble and learned Lords have mentioned, but I would like to ask one question. Is it not the case—I was always under the impression it was—that where the doctrine of marriage by cohabitation, habit and repute was involved was really in the case of a death, to clear the way of a woman who might not be able to prove her marriage, and thus enable her to take her proper share of the estate?

LORD THANKERTON

Might I answer the noble Lord on that? I think it is quite true that for some years before the principal Statute it might have occurred. If it was still available I do not think any harm would be done, and I think it would be unfair to cut this Provision out of the law.

THE EARL OF MANSFIELD

My Lords, if a layman may presume to interfere in this battle at the Bar, I would humbly put forward a small argument in favour of the attitude of the Government and of Lord Thankerton rather than that of Lord Alness. This system of irregular marriages which we now, for all practical purposes, are abolishing, did lead to a great many abuses, bigamies and so forth, which were of course the cause of the Bill. At the same time it must be realised that by far the greater number of the marriages hitherto regarded as irregular were firm and perfectly respectable unions, but I think there is no doubt that a great many of them never were properly registered. For at least a century we are going to have the possibility, amounting I think to a probability, of cases, usually on demise, of persons coming forward seeking to prove that they are either the widow or the heir-at-law of the deceased. It would be a great pity, when in many cases there can be no real legal proof of the legal nature of that marriage, though it was nevertheless undoubtedly a perfectly regular marriage, if in those circumstances the marriage has to be declared invalid and the children, possibly, illegitimate. For this reason I would suggest that the retention of this part of our old law is fully justified.

LORD ALNESS

Having regard to the attitude which His Majesty's Government have taken up on this matter, I feel that it would be otiose on my part, or worse, to divide the House on this Amendment. Accordingly, I beg leave to withdraw.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 agreed to.

Remaining clauses agreed to.

Schedules agreed to.

Bill reported without amendment.