Lords Sitting of 24 November 1938

Preamble
The House met at a quarter past four of the clock, The LORD CHANCELLOR on the Woolsack.
The Lord Gisborough—Sat first in Parliament after the death of his father.
The Viscount St. Davids—Sat first in Parliament after the death of his father.

MESSAGE FROM THE KING.
THE EARL OF CLARENDON: My Lords, a Message from the King, signed with his own hand:
"I thank you sincerely for your loyal and dutiful Address expressing sympathy with me in the great loss I have sustained by the death of my aunt, the Queen of Norway.
"I shall not fail to convey to His Majesty King Haakon your message of condolence with him and the Government and people of Norway."

CROPS (PREVENTION OF DAMAGE) BILL. [H.L.]
VISCOUNT MERSEY: My Lords, on behalf of my noble friend Lord Sempill, I beg leave to introduce a Bill for the prevention of damage by rabbits; and to amend the law relating to the use of poison, the prohibition of night shooting, and the use of spring traps above ground for the purpose of killing hares or rabbits. I move that it be read a first time.
Moved, That the Bill be now read 1a.—(Viscount Mersey.)
On Question, Bill read 1a, and to be printed.

MARRIAGE (SCOTLAND) BILL. [H.L.]
Order of the Day for the Second Reading read.
THE UNDER-SECRETARY OF STATE FOR WAR (LORD STRATHCONA AND MOUNT ROYAL): My Lords, in moving the Second Reading of this Bill it will be
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necessary for me to give your Lordships a certain amount of detail relating to the origin of this Bill as the matter is one of considerable public interest. As indicated in the Explanatory Memorandum that accompanies the Bill, the Bill proposes to give effect to certain of the recommendations made in the Report of the Departmental Committee on the Law of Scotland relating to the constitution of marriage. That Committee, of which Lord Morison was Chairman, reported at the end of 1936 and their Report was presented to Parliament in January, 1937. The recommendations of the Committee were made after a very full investigation. The principal recommendation was that the existing form of irregular marriage by declaration de presenti should be abolished and replaced by a simple form of civil marriage in the office of an authorised registrar of births, deaths and marriages after due publication of intention. This recommendation is followed in Clauses 1 and 5 of the Bill.
Marriage by declaration de presenti is constituted merely by exchange of consent. No notice or formality whatever is required. All that is necessary is, first, that the parties shall be legally capable of contracting a marriage; and secondly, that one party should have his or her usual place of residence in Scotland at the date of the marriage or have lived in Scotland for twenty-one days next preceding such marriage. The latter condition is required by the Marriage (Scotland) Act, 1856, which was passed to check runaway marriages from England. This is the form taken by nearly all irregular marriages which at present take place in Scotland, including marriages contracted at Gretna. The Committee's Report points out the evils of such marriages. These are of two kinds. In the first place, such marriages may be contracted on the spur of the moment without any public notice or formality. The validity of the marriage itself may consequently be a matter of doubt; for example, on the question of the residence qualification; and the unfortunate consequences of this require no emphasis. On the other hand, the serious consequences which follow on the contract of marriage may be incurred quite thoughtlessly. In the second place, many marriages of this kind are never registered. It is obvious what difficulty this may cause at a later date in estab-

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lishing claims, for instance, for pensions which are dependent upon proof of marriage.
The Committee's Report shows that according to the proprietor's books there were 2,295 marriages performed at the Gretna blacksmith's shop in the ten years, 1926–1935, and probably other similar marriages took place elsewhere in Gretna, but only 419 irregular Gretna marriages were registered. The evils connected with this type of marriage are specially pronounced in the case of marriages contracted at Gretna because of the atmosphere of spurious romance which exists there—legally there is no special virtue in a marriage at Gretna—but such evils arise in connection with any marriage by consent contracted anywhere in Scotland. In recent years about 12 per cent. of the marriages registered in Scotland have been irregular marriages nearly all of this type, and in the War years, taking the year 1915 as the highest figure, they rose to 20.48 per cent. The general conclusion of the Committee was that the present law, which permits a marriage to be contracted between a man and a woman without any intimation or ceremony or procedure is indefensible. It opens a wide door to seduction, deceit and fraud and many other evils which are too apparent to require specification, and which reflect discredit on the habits and character of the Scottish people. In no other European country, according to the Committee's information, is it possible to contract marriage in such a manner. It may be observed that Clause 5 of the Bill also abolishes another form of irregular marriage—namely, by promise subsequente copula. The abolition of this form of marriage was also recommended by the Committee who remarked that "it is entirely at variance with the traditions and customs of the Scottish people." Very few marriages have in the past been so contracted.
In place of the forms of irregular marriage to be abolished the Bill provides in Clause 1 a form of civil marriage in the office of an authorised registrar of births, deaths and marriages. Particular registrars will be authorised for this purpose by the Registrar-General for Scotland in accordance with the provisions contained in subsection (6) which are designed to ensure that adequate facilities for marriage before the registrar exist
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throughout Scotland. Under the new procedure each of the parties to the intended marriage will require to give notice of such intention to the registrar of births, deaths and marriages within whose district such party has resided for fifteen days immediately preceding. This notice will require to be published in accordance with the provisions of the Marriage Notice (Scotland) Act, 1878, for seven days. Where the parties reside in the same district only one notice is required. As soon as a certificate or certificates of publication of notice have been issued the parties will be free to marry in the office of any registrar who is authorised to conduct marriages in accordance with the provisions of subsection (1). Under the Bill all marriages in the office of an authorised registrar will be registered forthwith and the difficulties which at times arise from failure to secure registration of irregular marriages will thereby be obviated. A fee of 5s. will be payable in respect of a marriage and a fee of 2s. 6d. for each notice. The total cost involved will therefore be 7s. 6d. or 10s., according as the parties reside in the same district or in different registration districts. This new form of marriage will supersede the so-called "marriage before the Sheriff," the average cost of which is believed to be in the neighbourhood of 42S.
Turning now to the other provisions of the Bill—I have just explained Clauses 1 and 5 as it seemed better to take these in their logical order rather than in the order of clauses—Clause 2 provides for marriage either by religious ceremony or in the office of an authorised registrar in special cases where, on account of the illness of one of the parties or other unforeseen and exceptional circumstances, a Sheriff or Sheriff-Substitute issues a licence. Such a licence will have the effect of dispensing with the proclamation of banns or publication of notice of the marriage under the Marriage Notice (Scotland) Act, 1878. Clause 3 deals with Quaker marriages for the celebration of which the Departmental Committee recommended further facilities. Under the existing law a marriage celebrated according to the usages of the Society of Friends, after notice to the registrar and the issue of his certificate of publication, is valid if the parties to the marriage are "both of the said Society." Doubts

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have been felt as to whether this requires full membership of the Society on the part of both parties. In Clause 4 it is accordingly proposed to clear this up and also to enable a marriage to be celebrated according to Quaker usage if either of the parties is a member of the Society of Friends or an attender associated therewith.
Clause 4 also provides that a regular marriage which has been registered is not to be questioned in any legal proceedings on the ground that the person by whom such marriage was celebrated was not competent or qualified to do so. Clause 6 simplifies the provision for the registration of irregular marriages established by declarator in the Court of Session. The Bill safeguards the validity of all irregular marriages contracted before the date on which the new legislation comes into operation. It does not affect the existing law or practice in regard to marriages by religious ceremony. In future—if we ignore the extremely rare case of marriage established by habit and repute, a doctrine which has its place in other legal systems—all marriages will be regular marriages, either by religious ceremony as at present or in the office of an authorised registrar under the provisions of the Bill. I beg to move.
Moved, That the Bill be now read 2a.—(Lord Strathcona and Mount Royal.)
LORD ALNESS: My Lords, as Counsel at the Bar, as Minister and as Judge, I have had opportunity for many years of studying the law of Scotland regarding marriage at close quarters, and that must be my excuse for intervening in this debate. The Bill the Second Reading of which my noble friend has moved is, in my humble judgment, as remarkable for what it omits as for what it includes. May I explain what I mean? The Bill professes to be based upon the Report of Lord Morison's Committee. That was a Departmental Committee presided over by a distinguished judge of the Court of Session, and it is surprising to find that three out of the six recommendations which that Committee made have no place in the Bill, whereas one of the remaining recommendations is not only traversed but absolutely rejected. I find that Lord Morison's Committee, when they come to their recommendations, say this:
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"We recommend that legislation should be passed by Parliament to effect the following purposes."
Then follow the six recommendations, three of which, as I say, are not included, and one of which is overruled.
I should like to consider for a moment, first of all, what the Bill does not contain—I shall put that in the forefront—and secondly, what the Bill does contain, because I venture very respectfully to offer objections to both courses. With regard to what the Bill does not contain, the leading recommendation of the Morison Committee was that proclamation of banns in Scotland, which at present is a perquisite and prerogative of the Church of Scotland, should cease to be the prerogative of that Church, and that eleven other Churches, which are enumerated in the Report, should have an equal right with the Church of Scotland to proclaim the banns of a forthcoming marriage. Your Lordships will search in vain in this Bill for anything to give effect to that, the leading recommendation of the Committee upon whose Report the Bill professes to be based.
Another recommendation which the Committee made was that a marriage in Scotland between a minor and a foreigner should be null and void unless it was preceded by the consent of the parent or guardian of the minor. Again, the Bill is silent with regard to that recommendation. Finally, there is this important recommendation—namely, that penalties should be imposed upon all unauthorised persons who profess to conduct marriage ceremonies. Once more your Lordships will look in the Bill for anything giving to that recommendation and you will fail to find it. I think, and I very respectfully suggest to my noble friend, that the omission of three leading recommendations of the Committee upon whose Report this Bill professes to be based is a remarkable omission and requires some justification.
However, I do not want to delay your Lordships unduly, and therefore I pass on rapidly to consider what the Bill does contain. Before I deal with that topic in detail, a preliminary explanation is necessary. This Bill professes, and is mainly intended, to deal with irregular marriages in Scotland, as the noble Lord has already pointed out. Marriage in Scotland is, and for hundreds

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of years has been, constituted by consent exchanged between the parties. That is just an example of the Roman consensual contract—namely, consent makes very marriage. Of those irregular marriages in Scotland, there are three types, and they are all based upon that principle. The first type is marriage by exchange of consent, by declaration de presenti. A man says to a woman "I take you to be my wife," and the woman says to the man "I take you to be my husband," and if that is solemnly done a marriage is, and as I say for hundreds of years has been, effected in Scotland, without notice, without a priest, without witnesses. Witnesses are no doubt valuable if the marriage should be subsequently challenged, but they are not necessary to the constitution of the marriage. That is and has been the law of Scotland for generations, and it has worked, apart from the exception with which I shall deal in a moment, without any detriment as far as I know.
The second type of irregular marriage is based on implied consent, the type known as marriage by promise subsequente copula. If intercourse takes place following upon a promise of marriage between two people, the law implies their consent to a marriage, and a marriage is held to be constituted. Then the third type is what is known to the law of Scotland as "marriage by cohabitation, habit and repute." That sounds a formidable phrase, but it really means that the parties are held and reputed to be married. It is the same doctrine as one finds in the law of partnership—namely, the doctrine of holding-out. Of this type there are many romantic examples upon our books. If a man introduces a certain lady to his household as his wife, if she sits at the head of his table, if she is received among his intimates and friends as his wife, then the law presumes, though no ceremony of a formal kind may have taken place, that those two are married persons. These are the three types of irregular marriage according to the law of Scotland to-day; in the first, exchange of consent is based upon express, and in the other two upon implied, consent.
With that preliminary explanation, may I for a moment, with your Lordships' permission, see what this Bill does
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with regard to these three types of marriage? The first—namely, exchange of consent de presenti—is swept away altogether by this measure. That, to my mind, speaking as a Scottish lawyer, is an iconoclastic proposal. Why is it made? I think the reply, in a single word, is "Gretna." Now with regard to Gretna, I am not concerned to deny that there is, and has been for years, an abuse of marriage procedure in that locality. The blacksmith's shop, the anvil and museum, and all the paraphernalia attaching to them are, in view of what I have already ventured to say to your Lordships, an irrelevance, a superfluity and even an impertinence. I should be the last to maintain that that abuse should not be checked. But behind that lies a very different question—namely, whether that local abuse is appropriately checked by proposals which involve sweeping changes in the law of Scotland as it has stood for centuries. I should have thought that, by means of local regulation applied to Gretna and the neighbourhood, regulations the infraction of which would be appropriately fenced by a penalty, the same result could be achieved without what I have ventured to call this iconoclastic procedure. Indeed, the same result might be achieved by following the recommendation of Lord Morison's Committee, which has been disregarded—namely, that in order to prevent the traffic in marriages such as takes place at Gretna, penalties be imposed on all unauthorised persons who attempt or profess to conduct marriages or marriage ceremonies. My complaint in regard to that part of the Bill is that a purely local abuse is attempted to be cured by an invasion of the principles of the law of Scotland which I venture to regard as sanctified by long use and tradition.
Then, when one comes to the second form of irregular marriage—that is, marriage subsequente copula—what does the Bill do? The Bill sweeps that away also; and why? The Report says nothing about any abuses which are attached to that particular form of ceremony, and I know of no reason for the change unless it be a passion for uniformity. I cannot imagine why this form of marriage should be swept away here and now. I find that in the Morison Report all that is said about this form of marriage is what is said by the Church. This is the passage—it

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is quite a short one—with which I venture to trouble your Lordships. The Church of Scotland say about this particular form of marriage:
"In the opinion of those now appearing on behalf of the Church of Scotland no harm would be done if on the recommendation of the Government Committee this class of marriage were to be made wholly to cease."
"No harm would be done!" I venture to think that your Lordships' House is not in the habit of passing measures merely in order that they should be innocuous, but rather that they should be remedial. While that is so, I assent to the view that this type of marriage is comparatively rare, and for myself, apart from its long association with our law in Scotland, I am not prepared to shed tears over its disappearance.
But now I pass to the third and last type of irregular marriage, and I inquire how the Bill deals with it—marriage by cohabitation, habit and repute. Surprisingly, I find that that type of marriage is allowed to remain. The Morison Committee were at least logical: they recommended the abolition of the three types of irregular marriage; but this measure, while abolishing two, retains the third. I have listened to my noble friend with attention without discovering why that anomaly should take place. It is a piece of legislative surgery which amazes me and passes my comprehension. I think some justification is required, apart from that hinted at by my noble friend in his speech, for the retention of one form while abolishing the other two.
What does it all come to? It really seems to me that the Government regard the Morison Report as like the traditional curate's egg. I am inclined to regard this Bill in the same light. I am not concerned to deny that this Bill has good parts as well as bad parts. For example, the new form of regular marriage, to which my noble friend has referred, constituted safely and registered cheaply, marks a distinct step in advance, and I welcome it. But, my Lords, speaking as a Scottish lawyer and speaking for myself alone, I cannot help viewing with regret and even resentment the abolition, en bloc, of principles which have been accepted in the law of Scotland for generations and of which no abuse has been suggested, except local abuse in that
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corner of Scotland known as Gretna. I venture to think that the punishment in this case does not fit the crime. I venture to think that the remedy is not appropriate to the disease, even assuming, as I do, that that disease exists. The Bill can no doubt be improved in Committee, and therefore I do not, for myself, oppose this Second Reading. But I adopt that attitude, if I may humbly say so, with acquiescence rather than enthusiasm, and with reluctance rather than with satisfaction. I will only add that I regret to feel constrained to criticise a Bill emanating from the Scottish Office, my old Office, but I hold strong views with regard to this measure, and I should not be true to those views if I did not express them, as I have endeavoured to do, in your Lordships' House, quite brifly, but frankly and, I hope, fairly.
THE EARL OF MANSFIELD: My Lords, it is with very considerable trepidation that I have to follow the noble and learned Lord, Lord Alness, who has, of course, a justly distinguished repute as a Scottish lawyer. My comments upon his criticisms will, of course, be confined to directions other than legal. There is very little doubt that this measure is welcomed by the vast majority of the people of Scotland. I think also that it is unlikely that it would have been introduced had it not been for the unquestioned abuses that have taken place in the part of Dumfriesshire known as Gretna Green. The noble Lord, Lord Alness, has made his objections to the treatment which the Government have accorded to Lord Morison's Report. On several of these objections I can offer no comment myself, because I naturally do not know what is in the Government's mind. On the question of proclamation of banns, one may perhaps assume that it was thought that this prerogative of an established Church ought to be confined to that Church. On the question of the marriage of a minor and an alien without the consent of their parents, it would certainly seem to require some explanation, which I have no doubt the noble Lord will be able to give when he comes to reply.
It is, however, on the general question of whether legislation was necessary to deal with irregular marriages that I should like to ask your Lordships to dwell for a few moments. It seems to me that legislation of this kind was certainly required. The main question is,

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of course, the abolition of the old-established marriage by consent, and I must say that I share the regret of Lord Alness that this very ancient custom should be so entirely abolished. I would like to have seen it kept in a modified form, but at the same time I think we must ask ourselves whether there would be any real advantage in keeping it. Have not the conditions which brought it into being, and kept it in being for so many centuries, practically passed away? Scotland remained a turbulent country for some considerable time after England. Conditions were often very much disturbed, especially in the more remote districts, and it was often a matter of difficulty to obtain the services of a minister or priest to solemnize marriages. In those circumstances there was a very great deal to be said for a system whereby marriage by consent, in the presence of reputable witnesses, could be made legal. But those conditions, fortunately, have now passed away, and I can hardly see that there is likely to be any necessity in the future for anyone to be married in such a hurry that it cannot be done in a more or less regular fashion. The only occasion which occurs to me might be when two people are engaged and one becomes involved in a serious accident, or becomes unexpectedly and critically ill, and they wish to have the marriage registered before the death of the afflicted person, purely for sentimental reasons. Those cases are, however, I think, so rare that it is hardly necessary to consider them.
Then there is the question of the abolition of the marriage by promise subsequente copula. It seems to me that a very strong case has been made out for that abolition, because in the past advantage has been taken of that by a considerable number of unscrupulous married men, in order to take advantage of young girls, who have imagined that they were subsequently going to be married, and then found that it was impossible for this to happen owing to the lover having a wife already in existence. It may be said that some hardship may be caused to some persons who were about to be married, as happened a few years ago, when a man was killed in an accident and the intended marriage was subsequently registered, and the child born later was made legitimate, by this provision of subsequente copula. But it is not, I think, a
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habit which should be encouraged in Scotland or elsewhere, and I do not think that its disappearance is going to do harm.
Next there is the retention of marriage by habit and repute. It is not an uncommon habit for men and women in Scotland to live together for practically all their lives, remaining perfectly faithful to each other, without troubling to go through the ceremony of marriage. It is so common that I think at would be a misfortune if the children born of such an irregular, but permanent, connection should be registered as illegitimate. For that reason I think that the provision for retaining marriage by habit and repute is well justified.
When it comes to the question of the irregular marriages at Gretna Green, I think everyone is agreed that those marriages ought to be swept away altogether. It is a very spurious flavour of romance which attaches to them. As your Lordships are aware, the whole question of Gretna Green arose at a time when those living near the Border, and desiring to get married without paternal approval, crossed the Border and got married at the first possible place, which chanced to be Gretna Green. Many abuses occurred in connection therewith, and an Act was passed compelling one of the parties to have been resident in Scotland for not less than twenty-one days before the ceremony. Thereafter, the whole reason for Gretna Green ceased to exist, because, as Lord Strathcona has said, Gretna Green is no more entitled to have irregular marriages than any other part of Scotland, and one sees young couples, prompted by a spurious romance, hurrying from other parts of Scotland to Gretna Green to take part in a marriage by a blacksmith, who would have swooned if asked to shoe a horse, when they might just as well have been married elsewhere before a butcher or baker or candle-stick maker.
I do not think anyone will doubt that the custom of marriage is not elevated by this sort of thing, and that the law of Scotland is thereby brought into disrepute. The noble Lord, Lord Alness, I think suggested that the difficulty might be met by merely scheduling a certain area around Gretna, wherein such marriages might not take place, but I am afraid that the ingenuity of those who make money out of these ceremonies,

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coupled with the pseudo-romantic tendencies I have mentioned, would result in the setting up of such places in other parts of the country very rapidly. With regard to penalties to be imposed upon persons who conduct such marriages, I do not think they would be very satisfactory either. All that would happen would be that the parties would be married by consent in the presence of witnesses, in a house kept by an alleged blacksmith, who would not marry them but would merely act as a witness, and get his fees without laying himself open to any penalties.
I confess I should like to have seen marriage by consent kept to some extent, if it were found possible, but it seems to me very difficult to do this without permitting the abuse of Gretna either to continue in its present form or to be revived in some other fashion. Although, therefore I have every sympathy with the views of Lord Alness, and share his regret at the disappearance of this very ancient Scottish custom, I do feel, on the whole, that Scottish law, the Scottish people, and the Church of Scotland will gain rather than lose, by its disappearance.
LORD GORELL: My Lords, I would like to say one or two words from a wholly different point of view from that of other speakers. In spite of having a percentage of Scottish blood in my veins I should not for a moment have attempted to follow on matters of purely Scottish law either of the two noble Lords who have last spoken, but there is one topic in connection with this Bill which it seems to me is deserving of being brought to your Lordships' attention. When I heard the gracious Speech, with its mention of this topic as being the subject of a Bill which would be passed into legislation in the forthcoming Session, I hoped that it was going to be an example—perhaps I was a little optimistic—of hold leadership, and that it would be a Bill which would deal broadly with a very important subject. When I saw the text of the Bill I realised that it was very limited in its scope. It seems to me that a big opportunity is being missed.
For generations we have been accustomed to see the law of Scotland as relating, not to the beginning but the end of marriage, in a different state from that of England—some would say a better
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and some would say a worse, but at any rate a more advanced state from the point of view of allowing a different reason for the end of marriage. Then two years ago, after very full discussion, a Bill was passed through both Houses of Parliament relating to England which instituted new causes for the dissolution of marriage, changing the law from what it had been since 1857. At the same time the noble and learned Lord, Lord Alness, introduced into your Lordships' House a Bill dealing with that same subject, going yet further in the direction of that Matrimonial Causes Act. That Bill was not successful in passing into law and, had it been, it would have been—
LORD ALNESS: May I interrupt the noble Lord? That Bill is now on the Statute Book. It failed on the first occasion, but it was re-introduced, modified in another place, and is now an Act of Parliament.
LORD GORELL: I am glad the noble and learned Lord corrected me. That is a further example of what oppresses me—namely, that on this all-important matter where, from the psychological point of view, there seems very little reason for treating two adjacent nations differently, there has been this game of leapfrog going on. Though I know that this Bill has nothing to do with that, and I shall be told that it is quite outside its scope, that is my point of criticism of it—that it would seem that an opportunity might have been taken to assimilate the law in the two countries on this all-important subject. I hope that, even yet, it may be possible for His Majesty's Government to consider withdrawing this Bill and dealing in a broad way, not only with the criticism that has been made from the point of view of the noble and learned Lord, Lord Alness, but with the point I am endeavouring to make.
LORD STRATHCONA AND MOUNT ROYAL: My Lords, I must confess to your Lordships that I am disappointed that to a certain extent your Lordships have not been able to give in the speeches which have been made unanimous approval to this Bill, because as far as our information goes I think the noble Earl, Lord Mansfield, was quite correct when he said that the proposals embodied in

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this Bill have received unanimous support from all sections of opinion in Scotland. I was particularly disappointed therefore that the noble and learned Lord, Lord Alness, raised certain objections to this Bill, but I hope he will not mind my saying that I think they are matters which, if I cannot answer them now, at any rate can be adjusted between us at a later stage.
His first objection referred to the Committee's recommendation, which was left out of this Bill, as to the publication of banns. I understand that if the recommendation of the Committee in this respect was followed strictly it would raise endless difficulty, in the first place as to the various religious bodies who ought to be entitled to publish banns, and in the second place as to where the proclamation should be made, because many of those other religious bodies are not organised, as the Church of Scotland is, on a territorial basis. The Church of Scotland is chosen for this purpose I understand because of its being organised on this territorial basis, and I am informed that some Acts require that notices should be fixed on the church door by way of publication of the details of those Acts. I think that was the main reason why that recommendation of the Committee was not followed.
Coming to the second recommendation of the Committee which Lord Alness complained had not been followed, that was the question of marriage between a Scottish minor and a foreigner. I understand in this case that the proposal is not a practicable one. I understand also that what was in the mind of the Committee particularly was the possibility of marriage between a Scottish person and an Indian, and in that case I understand that the law is adequate, because of course an Indian is a British subject.
Then the noble and learned Lord, Lord Alness, and the noble Earl, Lord Mansfield, I think both dealt with the other main recommendation which has not been followed, the question of penalties, and here I think the noble Lords have probably rather mistaken the point at issue. It is difficult to see how or why the recommendation of the Committee in this respect could or should have been followed, because the Committee proposed that no marriage should be legal in future unless it was either a regular
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marriage performed by a minister or a marriage before a registrar, and that is more or less what is incorporated in the Bill. If that is the case, it is difficult to see how any unauthorised person is going to profess to conduct a marriage or a marriage ceremony in those circumstances. If he did so he would have to pretend to be either a minister or a registrar, and I understand that for dealing with cases where such a pretence might be put forward the present law is already adequate. Your Lordships will appreciate that these are all legal points, and I cannot pretend to have any profound knowledge of them, but I understand that that is the case, and it is the opinion of those responsible for the production of this Bill that, that being the case, there is really no need for what we might call a penalty clause.
With regard to the other point raised by the noble and learned Lord, Lord Alness, about the retention of marriage by cohabitation and by habit and repute, I understand that is necessary in order to cure any informality in the actual form that might occur in an otherwise properly contracted marriage, and also I am informed that this doctrine forms a part of other legal systems. I do not know whether the noble and learned Lord will take that as an adequate answer, but I understand it is a fact, and is an explanation of the reason why the recommendations of the Committee were not strictly adhered to when the Bill was drafted.
The noble Lord, Lord Gorell, raised quite a different point and, although I confess he took me in some degree by surprise, I understand that he thinks that here we have missed a great opportunity of assimilating the law of England and the law of Scotland. Of course I shall represent his views to the Department, but I understand that as long ago as 1868 a Royal Commission sat on this subject, and, although I cannot pretend to know what that Royal Commission recommended, the fact that no action has been taken leads one to suppose that that Royal Commission thought such a course was then impracticable and impossible. I have not attempted to deal in detail with all the criticisms that have been made on the Second Reading of this Bill because, quite obviously, some of the points will recur when the Bill is passing through its next stage in this House; but I have endeavoured to answer the major

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points mentioned particularly by the noble Lord, Lord Alness, and I hope my noble friend will feel a sufficient measure of satisfaction with the possibly inadequate answer I have given to allow us now to give the Bill its Second Reading in this House.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

BUSINESS OF THE HOUSE.
THE EARL OF LUCAN: My Lords, before we adjourn I should like to inform your Lordships that it has been thought better that on Wednesday next, for which day Lord Ponsonby has a Motion on the Paper about international relations and the Covenant of the League of Nations, the House should meet at three o'clock as probably a good many of your Lordships will wish to speak. It is therefore proposed that on Wednesday the House should meet at three o'clock.