HL Deb 27 June 1939 vol 113 cc722-31

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

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

On Question, Motion agreed to.

House in Committee accordingly:

[THE EARL OF ONSLOW in the Chair.]

Clause 1:

Notices and certificates where one party resides in Scotland and the other in England.

1. Where it is intended that a marriage shall be solemnized in England, or that a regular marriage shall be contracted or celebrated in Scotland, between parties of whom one is residing in Scotland and the other is residing in England, the following provisions shall have effect— (a) the party residing in Scotland may, subject to and in accordance with the provisions of Section seven of the Marriage Notice (Scotland) Act, 1878, give notice of the intended marriage as if the parties were residing in different parishes or districts in Scotland and (where the marriage is to be-solemnized in England) as if it were intended to be contracted or celebrated in Scotland, and the provisions of that Act relating to notices of intended marriages and the granting of certificates of due publication thereof shall apply accordingly;

4.34 p.m.

LORD CLWYD moved, after "England," where that word first occurs, to insert "and Wales." The noble Lord said: In moving this Amendment I realise that there is considerable business before the House this evening, and I will endeavour to be as brief as I can in stating the case behind the Amendment. Its object is clear. It is to secure recognition of the separate entity of Wales in the Bill, and perhaps before I proceed to give the reasons why I move the Amendment, a short explanation may be desirable as regards the reasons which lead me to do so in this House. When this Bill was before the other House some little time ago, during the discussion upon the Second Reading, one of the representatives of Wales raised this point, and the Solicitor-General for Scotland, in reply, promised consideration for it. The Bill went upstairs to a Standing Committee, and it came back without amendment. That being so, it was impossible for any Amendment on this point to be moved in the other House during the subsequent stages of the Bill, and it is for this reason that I have put down this series of Amendments.

Before I proceed further, I would like, if I may, to make quite clear what is the precise ground upon which I am pressing the addition of the words "and Wales" in this Bill. It is not because it is necessary from the point of view of the interpretation of the Bill when it becomes law. My attention has been drawn to an old Act of Parliament, passed in the year 1746, an Act of 20 George 2, C. 42, all the sections of which have been repealed except Section 3, which declares that the term "England" shall be regarded as including Wales in future Statutes. So far as I can understand, that is the section which has governed procedure upon this technical point from that time until now. As a matter of fact that section has during the last forty or fifty years been more honoured in the breach than in the observance, and in a great many Acts of Parliament the words "and Wales" have been introduced. Therefore, in asking your Lordships to agree to this Amendment for the inclusion of the words "and Wales" in the Bill, I am doing so not because, as I have said, it is necessary from a purely legal point of view, but on the ground that I think this recognition is one which, in principle, cannot well be resisted by Parliament, both in regard to this Bill and in regard to other Bills of the same nature.

Whatever may be the result of this discussion this afternoon upon the point, I think I shall have the general agreement of the House in the view that a continua- tion of the present state of things with regard to it is not satisfactory. What is the position? Here we have a section of an Act passed nearly two hundred years ago which, as I have said, governs the procedure but really does not govern it, because it is a question of what those who are in charge of a Bill decide to do in the matter. They can put in the words "and Wales" or not. It seems to me that on all grounds it is desirable there should be some understanding which will result in a uniform procedure with regard to this question of legislative terminology, and I hope that at all events the discussion this afternoon will pave the way towards reaching such an understanding.

I do not think it is necessary for me to dwell at any length upon the grounds upon which the claim for recognition of separate entity in legislation rests. I could of course refer to a great number of points which would substantiate that claim. This afternoon I will only refer very briefly to one or two outstanding facts as indicating the extent and the reality of Welsh national characteristics. The first is the question of language. The Welsh language remains to-day a dominating factor in the life of Wales. I do not know that it is sufficiently recognised, but it is a notable fact in regard to Wales that a very large section of the people have the command of two languages. However that may be, it still remains true that a considerable section of the people ordinarily speak the Welsh language. Anybody who has any knowledge of Wales will recognise that the Welsh language has played a very notable part in the development of Welsh national life, and there are no signs of any weakening in the influence of that factor upon the minds of the people of Wales.

Let me, before I conclude, mention one or two other considerations. The first is that Parliament has already recognised the separate position of Wales in legislation by separate legislation for that country in the sphere of education and in other directions. Another point is that I have had an opportunity through a somewhat long Parliamentary experience of watching Parliamentary developments, and it seems to me absolutely clear that some solution will have to be provided to enable the Parliamentary machine effectively to conduct the business of the nation. When that time comes undoubtedly the claim of Wales will be con- sidered. The object I have had in moving this Amendment is to point out the very unsatisfactory and haphazard condition of the position in regard to this question of legislative nomenclature. It is on every ground desirable that we should have a uniform practice in this matter. Whatever may be the decision of the Committee to-day on this particular point, I think your Lordships will agree with me that Wales has a sufficiently strong claim to secure this verbal recognition from Parliament in this Bill and in future Statutes. The Amendment does not raise any question of substance, but it touches a point upon which the people of Wales feel strongly. I therefore hope that your Lordships will accept it.

Amendment moved— Page 1, line 7, aster ("England") insert ("and Wales").—(Lord Clwyd.)

LORD THANKERTON

While of course sympathising very strongly with the spirit which has prompted my noble friend to put down a series of Amendments to include "and Wales" in the Bill, I regret that, for reasons which I hope may satisfy your Lordships, I really cannot accept them. May I say initially that if my noble friend and those who think with him want really to have something effective done in this direction they should give up sniping at unfortunate Bills here and there, and should attack directly the Act of 1746 and get it repealed? Then you really could get a general decision. The fact is that the provisions of this section of the Act of 1746 have been almost universally respected and given effect to, although in recent years on odd occasions—perhaps both Houses not being sufficiently alive, and it not mattering very much to the construction of the particular Bill—the words "and Wales" have got in. I may say at once that my information is that no undertaking to accept this Amendment was given in another place at all, although sympathy was expressed. But at any rate I am prepared to deal with it on the merits. May I read the exact terms of the section of the Act of 1746, which seem to be quite sufficiently flattering even to my noble friend's wishes? It is there provided that in all cases where the Kingdom of England, or that part of Great Britain called England, bath been or shall be mentioned in any Act of Parliament, the same has been and shall from henceforth be deemed and taken to comprehend and include the Dominion of Wales"— and it adds: and town of Berwick-upon-Tweed. But that is no reflection upon the Dominion of Wales; that is more of a Scottish question.

May I say a word about the drafting of these Amendments, because it does have a bearing on this point? Will your Lordships look at page 2 of the Bill and read in the proposed Amendment? The paragraph would then read: the party residing in England and Wales"— Wales being a separate country—but he cannot reside in two countries at the same time— may, subject to and in accordance with the provisions of Section four of the Marriage Act, £1836, as amended by any subsequent enactment, give notice of the intended marriage as if the parties were residing in different districts in England and Wales …. The only way in which I could cure that would be by putting in this sort of cumbrous language into the paragraph: as if the parties were residing in different districts in England or in different districts in Wales, or in districts one of which is in England and the other in Wales. That is the very kind of thing which it was the purpose—and the successful purpose—of the Act of 1746 to avoid. This is very largely a business question—a matter of practical drafting of Acts of Parliament in an intelligent way.

I really think the strongest reason against accepting these Amendments—certainly the one that moves me most—is that this Act is to be read along with a whole series of Marriage and Registration Acts. If there is one topic on which there ought to be no doubt—indeed, that is the reason which is prompting me in a few minutes to move a clause to remove doubts—it is marriage. In every one of these preceding Marriage and Registration Acts the word "England" alone is used, and those Acts are at present subject to the construction of the 1746 Act. But if these words appeared in this last of the series of Marriage and Registration Acts, then what is going to be said about the construction, for instance, of the Marriage Act of 1836, which provides, in Section 45, that This Act shall extend only to England. You are at once throwing doubt on the meaning of that Act, because previous Acts have to be read together under the provisions of this Bill. Therefore I do ask my noble friend not to press this, which is a general point and should affect all legislation, in this particular instance, where it is possibly going to create confusion. It is unnecessary—he himself admits that—and the only question is whether it is desirable. I ask the noble Lord not to press this Amendment to this little Bill, which is going to form part of a whole series of Acts of Parliament drawn in other terms. If he and those with whom he is acting think so much of this matter that they consider that it should be made a general measure, then let them attack it on general grounds and not by what I ventured, without any disrespect, to call sniping against a harmless little Bill, in which it is more likely to create confusion and doubt than anything else.

THE SECRETARY OF STATE FOR INDIA (THE MARQUESS OF ZETLAND)

While I can understand the burning local patriotism which has led the noble Lord to put down his Amendments, I feel bound on behalf of His Majesty's Government to support the noble and learned Lord, Lord Thankerton, in resisting them, for the reasons which the noble and learned Lord has given, which, to my mind, are quite conclusive, and which it is quite unnecessary for me to repeat to your Lordships.

LORD CLWYD

I thank the noble and learned Lord for his explanation. I am, of course, a little disappointed with the attitude he has taken. On the question of drafting, I had already noted the difficulty he mentioned. It might be largely met by the substitution of the word "or" instead of "and." However that may be, in view of what the noble and learned Lord has said, and in view of what the noble Marquess representing the Government has said, I shall not put the Committee to the trouble of a Division. The Bill will have to go back to the other House, and there will be an opportunity for those interested in the matter to take whatever action they deem appropriate.

Amendment, by leave, withdrawn.

4.51 p.m.

LORD THANKERTON moved to insert: (2) This section shall come into operation on the first day of October nineteen hundred and thirty-nine. The noble and learned Lord said: As this Amendment is really anticipating the new clause which I shall move later, perhaps your Lordships will agree to my discussing the merits of the new clause on this Amendment, which cannot be postponed. The object of the new clause is to remove doubts which might be cast by the terms of the Bill on three Acts of Parliament which have been subject to a certain construction in practice in the past. There is doubt as to whether that has been a correct construction, and the object of the new clause is to validate or confirm all these past actions and to make the matter clear for the future. The enactments in question are Section 8 of the Marriage and Registration Act, 1856, Section 3 of the Naval Marriages Act, 1908, and Section 1 (1) (a) of the Marriage of British Subjects (Facilities) Act, 1915. The primary Scottish enactment relating to notices of marriage is Section 7 of the Marriage Notice (Scotland) Act, 1878. The opening words of this section state, in terms, that the section only applies in the case of persons residing in Scotland. It plainly does not allow notice to be given unless both parties reside in Scotland. The corresponding English enactment is Section 4 of the Marriage Act, 1836. This does not state so plainly as the Scottish Act that it only applies where both parties are residing in England, but I do not think there is much doubt about it.

When this Bill was drafted, it was thought necessary to say expressly that the party residing in Scotland might give notice "as if the parties were residing in different parishes in Scotland," and that the party residing in England might give notice "as if the parties were residing in different districts in England," in order to make it plain that the registrar could accept notice from one party although the other party was resident outside the country. It has, however, been assumed that one party to the marriage can give notice where the other party resides out- side although the only relevant enactments do not provide for this. Under Section 8 of the Marriage and Registration Act, 1856, it was provided that a certificate of proclamation of banns in Scotland should be as valid for the purpose of a marriage in England as a certificate for marriage of a registrar in England. That section plainly would have no effect unless the English registrar had got power to accept a notice of marriage from the party residing in England although the other party is residing in Scotland. This is all very technical, I admit, but it has to be made clear. There is no provision in the Act expressly giving the registrar this power to accept notice although it has always been assumed he had the power.

The same thing really applies to Section 3 of the Naval Marriages Act, 1908, which, read in conjunction with the Scottish provision I have already quoted, provides that a certificate issued by a naval officer to a sailor serving on a ship is as valid for the purpose of a marriage either in England or Scotland as the certificate of a registrar. There again it has been assumed that the registrar in England or Scotland can accept a notice of marriage from the female party on shore although no statutory enactment empowers him to do so. Section 1 (1) (a) of the Marriage of British Subjects (Facilities) Act, 1915, provides that a certificate issued in accordance with the law of a Dominion or Colony shall have the same effect for the purpose of a marriage either in England or Scotland as a certificate issued by a registrar here. Here again the same assumption is made with equally little justification. Accordingly, the difficulty is this, that these three enactments are based on an assumption which this Bill not only refuses to make, but declares to be doubtful by the insertion of the words to which I have referred. This new clause seeks to remove these doubts.

Like most, if not all, clauses removing doubts it is made retrospective, because you want to relieve doubts as regards any marriages already contracted. It equally follows that the new clause is not covered by the Title of the Bill, and there will be a consequential Amendment to the Title if your Lordships accept this new clause. I do not chink I can explain the matter further. It is purely technical, and it is just to put the question completely at rest and meet all possible cavil in a matter relating to the certainty of marriage between parties in this country. I beg to move.

Amendment moved— Page 2, line 37, at end insert the said new subsection.—(Lord Thankerton.)

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

LORD THANKERTON moved, after Clause 1, to insert the following new clause:

Power to accept notices and issue certificates where one party is residing in England or Scotland.

".—(1) Where—

  1. (a) a marriage is intended to be solemnized in England between parties of whom one is residing in England; and
  2. (b) by virtue of any enactment to which this subsection applies, a certificate issued to the other party otherwise than by a superintendent registrar in England may be treated for the purpose of the marriage as if it had been issued by such a registrar;
the superintendent registrar of the district in which the first-mentioned party is residing shall have power, and shall be deemed always to have had power, to accept notice of the marriage given by that party, subject to and in accordance with the provisions of Section four of the Marriage Act, 1836, as amended by any subsequent enactment, as if both parties were residing in different districts in England, and the provisions of the Marriage Acts, 1811 to 1934, relating to notices of marriage and the issue of certificates for marriage shall apply, and shall be deemed always to have applied, accordingly.

(2) Where—

  1. (a) it is intended that a marriage shall be contracted or celebrated in Scotland between parties of whom one is residing in Scotland; and
  2. (b) by virtue of any enactment to which this subsection applies, a certificate issued to the other party otherwise than by a registrar in Scotland, may be treated for the purpose of the marriage as if it had been issued by such a registrar;
the registrar of the district or parish in Scotland in which the first-mentioned party is residing shall have power, and shall be deemed always to have had power, to accept notice of the marriage given by that party, subject to and in accordance with the provisions of Section seven of the Marriage Notice (Scotland) Act, 1878, as if both parties were residing in different parishes or districts in Scotland, and the provisions of that Act relating to notices of intended marriages and the granting of certificates of due publication thereof shall apply, and shall be deemed always to have applied, accordingly.

(3) The enactments to which subsection (1) of this section applies are Section eight of the Marriage and Registration Act, 1856, Section three of the Naval Marriages Act, 1908, and paragraph (a) of subsection (1) of Section one of the Marriage of British Subjects (Facilities) Act, 1915, and the enactments to which subsection (2) of this section applies are the said Section three and the said paragraph (a) as those enactments apply to Scotland."

The noble Lord said: I beg to move.

Amendment moved— After Clause 1 insert the said new clause.—(Lord Thankerton.)

On Question, Amendment agreed to.

Clause 2 agreed to.

Clause 3:

Short title, citation and commencement.

3.—(1) This Act may be cited as the Marriage Act, 1939.

(2) This Act, so far as it relates to England, may be cited together with the Marriage Acts, 1811 to 1934, as the Marriage Acts, 1811 to 1939.

(3) This Act shall come into operation on the first day of October, nineteen hundred and thirty-nine.

LORD THANKERTON moved to leave out subsection (3). The noble Lord said: This Amendment is consequential. The new clause being retrospective, you have to take out the provision regarding the date which applied to the whole of the Bill. That is why the previous Amendment limiting the date to Clause 1 was put in.

Amendment moved— Page 3, line 8, leave out subsection (3).—(Lord Thankerton.)

On Question, Amendment agreed to.

Clause 3, as amended, agreed to.

Title: An Act to facilitate marriages in cases where one party resides in Scotland and the other in England.

LORD THANKERTON moved, at the end of the Title, to insert "and to make further provision as respects notices of marriage between parties one of whom resides in Scotland or England." The noble Lord said: I beg to move.

Amendment moved— Page 1, in the Title, at end insert the said words.—(Lord Thankerton.)

On Question, Amendment agreed to.