Lords Sitting of 18 May 1939

Preamble
The House met at a quarter past four of the clock, The LORD CHANCELLOR on the Woolsack.
BRISTOL WATERWORKS BILL.
Read 2a, and committed: the Committee to be proposed by the Committee of Selection.
METROPOLITAN WATER BOARD BILL. [H.L.]
Read 3a, and passed, and sent to the Commons.
DROITWICH CANALS (ABANDON MENT) BILL. [H.L.]
Read 3a, and passed, and sent to the Commons.
LONDON MIDLAND AND SCOTTISH RAILWAY BILL.
Read 3a, with the Amendment, and passed, and returned to the Commons.
SAINT NICHOLAS MILLBROOK (SOUTHAMPTON) CHURCH (SALE) BILL.
Read 3a, and passed.
SOUTH SHIELDS CORPORATION (TROLLEY VEHICLES) PROVISIONAL ORDER BILL.
Read 2a (according to Order), and committed.
HALL-MARKING OF FOREIGN PLATE BILL.
Brought from the Commons; read 1a; and to be printed.
GOSPORT CORPORATION BILL. [H.L.]
Returned from the Commons, agreed to, with Amendments: the said Amendments considered and agreed to.

MARRIAGES VALIDITY BILL. [H.L.]
Order of the Day for the Second Reading read.
4.17 p.m.
THE EARL OF DONOUGHMORE: My Lords, I ask your Lordships to read this Bill a second time. I do not think it can be better explained shortly than by the actual language of the Preamble, which says that
"by reason of the omission of any reference to the Marriages Validity Act, 1899, in the Schedule to the Irish Free State (Consequential Adaptation of Enactments) Order, 1923, doubts have been expressed as to the validity of marriages solemnized, and to be solemnized, in England in cases where banns have been, or may be, published in a church in the Irish Free State or Eire, and it is expedient to remove such doubts."
I make this Motion being interested in the matter as a layman and a member of the Synod of the Church of Ireland, though the Bill actually affects English laymen and, as I shall show very shortly, the clergy of the Church of England.
I can explain the historical position very briefly. Of course, all through the eighteenth century, since the Act of Union, the Church of Ireland and the Church of England were one. In the middle of the last century the Church of Ireland was disestablished. No difficulty arose at first as regards these marriages, which, again I would remind your Lordships, were celebrated after banns had been called in a church in England or in Ireland. This practice went on happily until the nineties of the last century, when two ingenious lawyers discovered that there was a doubt in the matter. It was decided that the position as regards these marriages was in doubt, and as a result a Bill was introduced, which passed your Lordships and received the Royal Assent. It was introduced by my noble and learned friend the late Lord Macnaghten and was supported by Viscount Halsbury. This put the position right as regards the past and the future.
Since that time the matter went on uninterrupted, and everybody thought the position was perfectly clear and perfectly legal. It is perhaps worth while noting that the leading text-book on the law of the Church of England, which was written originally, I believe, by the noble Lord, Lord Parmoor, and of which a new edition was published in 1937, says:

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"In the case of parties one of whom is resident in Scotland or Ireland, the banns of parties so resident may be published or proclaimed according to the law or custom prevailing in that country, and such publication is valid for the purposes of a marriage taking place in England."
That edition was edited by Mr. Macmorran, K.C., a well-known lawyer, who is Chancellor of the Dioceses of Chichester, Ely, Guildford and St. Albans. Everyone thought that that was the position until last year, when the Chancellor of the Diocese of London advised the London clergymen in an opposite sense—that he could not accept banns published in Southern Ireland. Since then the matter has been gone into by a large number of lawyers, and they are of opinion that the view he took was the right one. As a layman I cannot help saying, smiling to myself, that I do not think the lawyers are all agreed on the reasons for the decision, but they are agreed that the decision is correct.
The cause of difficulty arose, as we now know, from certain proceedings which took place when the Irish Free State was set up in 1922. Your Lordships will remember that you passed the Irish Free State (Consequential Provisions) Act of 1922, and in that Act it was provided that His Majesty might by Order in Council make adaptations of any enactments, so far as they related to any of His Majesty's Dominions other than the Irish Free State, which might appear to him necessary or proper as a consequence of the establishment of the Irish Free State. By an Order in Council under that Act, dated March 27, 1923, it was ordered that references to "Ireland" in any enactment passed before the establishment of the Irish Free State should be construed as exclusive of the Irish Free State. The effect of this Order in that form, when applied to the Marriages Validity Act, 1899, appears to be that banns published in a church in Northern Ireland must be accepted in England, while those published in what is now Eire are worthless, and this in spite of the fact that both the Constitutions of the Irish Free State and the Act of 1920 which set up the Government of Northern Ireland, have expressly continued the Marriages Validity Act, 1899, in full force in Ireland.
Your Lordships will of course remember that there is a Northern Ireland and a Southern Ireland, to use a familiar
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phrase, but that the Church of Ireland knows no boundary. It is one and indivisible in Ireland and is governed by one Synod, meeting in Dublin, as it always has been. Stating the result more generally, it is this. All marriages since 1923 celebrated in the English churches by English clergy, when the banns of one of the parties have been called in Southern Ireland, are open to doubt. This result follows, that the English clergyman who has celebrated such a marriage is, I understand, liable to actions for damages and possibly to criminal proceedings. I should be sorry to see any one of the occupants of the Episcopal Bench or any clergyman of the Church of England sent to gaol for such a cause. Perhaps I may quote a few words which were used by Lord Macnaghten when he introduced the Bill in this House in 1899. He said:
"When two parties marry, one of whom resides in Ireland and the other in England, and they are married by banns and the banns are published in the two countries to which they respectively belong, it has been suggested that the marriage is, or may be, invalid. I am sure that your Lordships will agree with me that on such a point doubts ought not to be permitted to exist. When parties marry in good faith, believing that they are complying with the law in every particular, it is intolerable that there should be any unnecessary doubt as to the validity of the marriage."
Every word of these observations applies to the host of marriages solemnised in England since 1922 on banns published in Ireland between parties who believed the law to be as it is stated in the leading text-book on the law of the Church of England and as it certainly is in Ireland to-day, and has always been.
That is the case for this Bill. I need not tell your Lordships that I am making this Motion this afternoon with the approval of all parties concerned, including the Standing Committee of the Church of Ireland, and the Government in Dublin have informed my friends in Dublin that they approve of this matter being dealt with by an Act passed in this Parliament. I have also here a letter from His Grace the Archbishop of Canterbury, regretting that he cannot be here this afternoon but stating that I may assure the House that this Bill has his "complete support." It only remains to me to apologise to the Lord Chancellor for the fact that for months past I have been bombarding him with correspondence. I should like to thank him also for the discussions and

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correspondence that he has had with other Government Departments, several of which are concerned with this matter. I hope I may have his support and that of the Government this afternoon.
There is only one other matter as to which I would appeal earnestly to the Government for help. I am not speaking from memory, because it was two years before I joined this House, but I think that the Act of 1899, which was introduced by a private member, was taken up by the then Government and helped through the House of Commons. Obviously it is impossible that this Bill should get through the House of Commons without the assent of His Majesty's Government. I had hoped that it would have been submitted some time ago, but there have been unfortunate delays, and I quite appreciate that the pressure on all Government Departments recently has been, and remains, heavy. The original mistake was, however, made not by the parties who are now injured, but by the Government in office in 1923. I do not expect His Majesty's Government to reverse all the unfortunate things with regard to Ireland which were done by the Government of 1923, but this is a case calling loudly for their help and I hope for a favourable reply while this Bill proceeds through your Lordships' House. I beg to move.
Moved, That the Bill be now read 2a.—(The Earl of Donoughmore.)
4,27 p.m.
THE LORD CHANCELLOR (LORD MALTGHAM): My Lords, I would like to be allowed on behalf of the Government to express their thanks to the noble Earl for having taken up this matter and for having proposed this Bill. I may also perhaps be allowed to thank him for having so clearly described the circumstances in which such a measure as this seems to be necessary. As he has pointed out, in 1923 there were a large number of matters which the Irish Free State Government of the time desired to take out of the existing Acts which dealt with "the United Kingdom." Accordingly, under the Irish Free State (Consequential Provisions) Act, 1922, an Order was made called the Irish Free State (Consequential Adaptation of Enactments) Order, 1923. It refers to a large number of previous Acts relating to the United
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Kingdom and provides that subject to the provisions of the Order references in existing enactments to any part of Great Britain and Ireland other than the Irish Free State should be construed as exclusive of the Irish Free State, except that in the Acts mentioned in the Schedule any such expressions should to the extent specified in that Schedule be construed as including the Irish Free State.
It is a long Schedule of thirty or forty Acts as regards which to the extent therein mentioned the Irish Free State was to be deemed to be still included in the phrase, "the United Kingdom." But by some slip, which can readily be understood in an Order of this sort, that Schedule did not contain a reference to Section 1 of the Marriages Validity Act, 1899, to which the noble Earl has referred. The consequence of that is that, unless there is some other way out of the difficulty or unless this Bill becomes law, there is a doubt whether, having regard to the fact that at the present moment the Act of 1899 no longer applies to Eire, these marriages can be deemed valid. It is only to put that right, to put right a slip which occurred in the framing of the Order of 1923 in pursuance of the Act of 1922, that this measure has been introduced. I think there ought to be no doubt on matters of marriage, and if the noble Earl's Bill becomes law it will relieve doubts that may arise, at any rate doubts of this particular kind.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

CAMPS BILL.
Order of the day for the Third Reading read.
4.32 p.m.
THE PRESIDENT OF THE BOARD OF EDUCATION (EARL DE LA WARR): My Lords, I beg to move that this Bill he read a third time.
Moved, That the Bill be now read 3a.—(Earl De La Warr.)
VISCOUNT BERTIE OF THAME: My Lords, I should be very much obliged to my noble friend if he would give a definite answer to a question which I raised with him in private conversation before the Committee stage. I drew his attention to Clause 7 (Application of Act to Scotland). The noble Earl now says

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he gave me an answer on the Committee stage. If that is so, I am sorry to have troubled your Lordships, but I was not in the House during the whole of the Committee stage, and I am afraid I have not had time to read the OFFICIAL REPORT.
On Question, Bill read 3a.
Clause 3:
Exemption from building restrictions.
(2) No provision contained in a scheme made under the Town. Planning Act, 1925, or the Town and Country Planning Act, 1932, or any enactment repealed by either of those Acts, shall apply to any land acquired, or appropriated, with the approval of the Minister by a recognised company for the purposes of their functions in connection with the construction, maintenance and management of camps, except in so far as the Minister may at any time direct:
Provided that this subsection shall cease to have effect when such land ceases to be used for such purposes.
(3) A recognised company who submit any plans and specifications to the Minister for his approval under subsection (1) of this section shall transmit copies thereof to the council of the county and of the borough or urban or rural district, and to the planning authority, if any, for the area, in which the site of the proposed buildings, elections or excavations is situate, and the Minister, before giving his approval, shall take into consideration any representations which may be made to him by that council or authority within fourteen days after the receipt by them of the copies of the plans and specifications.
In this subsection the expression "planning authority" in relation to any land subject to such a scheme as is mentioned in the last preceding subsection, or to a resolution to prepare or adopt such a scheme, means the authority having power to control the development or interim development of that land.
EARL DE LA WARR EARL DE LA WARR moved, in subsection (2), after "Provided that," to insert:

"(a) before giving his approval under this subsection, the Minister shall notify the planning authority, if any, for the area in which the land is situate, of the application for his approval and take into consideration any representations which may be made to him by that authority within fourteen days after the receipt by them o:: such notification; and

(b)"

The noble Earl said: My Lords, I beg to move the Amendment which stands in my name, and at the same time to thank the noble Lord, Lord Balfour of Burleigh, for the help that he has given us in coming to an agreement on this point.
Amendment moved—
Page 4, line so, after ("that") insert the said paragraph.—(Earl De La Warr.)
LORD BALFOUR OF BURLEIGH: My Lords, I should like to congratulate the noble Earl on his conversion to a point of view which he differed from with such vigour on two previous stages of the Bill, and to thank him for the assistance which he has given in arriving at this arrangement. I should only like to add that the formula which has been found will provide machinery which will be suitable not only for this experiment but for future wider experiments. I do not want to be held down to that view in future, but I think, subject to further consideration, that it will be found that it is an admirable piece of machinery, and I am much obliged to the noble Earl for having moved the Amendment.
VISCOUNT ULLSWATER: My Lords, while this Amendment seems to satisfy, and no doubt does satisfy, the question which was raised by the noble Lord, Lord Balfour, the other day, it provides no answer whatever to the question which I raised, which is, What about the National Trust? As I pointed out then, and do not hesitate to point out again, the National Trust owns many thousands of acres throughout the Kingdom, which have been purchased by the Trust, or have been given to the Trust, to be held by the Trust for all time for the benefit of all the inhabitants of the United Kingdom. Under this Bill the National Trust is liable at any moment to lose some portion of this property and see it converted into camps. It must be remembered that this property was obtained by the National Trust, or given to the National Trust, only because it was of special natural beauty or historic interest, and it would be a great pity if some of these camps were established at places of natural beauty or historic interest. I think the rights of the general public should be safeguarded.
There is no opportunity even for the Executive Council of the National Trust to make any protest, as I understand it. The least the noble Earl could have done would have been to say that the words "planning authority" should include the Executive Council of the National Trust. I do not know that that would be very good drafting, but possibly another subsection might have been added to say that before any property which is national property in the hands of the National Trust is required for camps, an opportunity

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should be given to those who are responsible for managing the affairs of that Trust to place any such objections as they think desirable before the proper authority. As it is now, they stand in danger of seeing land which has been given to them to hold in trust for ever being taken away, and having camps, however desirable the camps may be, placed upon it, thereby nullifying altogether the objects for which this land was acquired. The noble Earl in charge of the Bill did not, unfortunately, make any reply to the objections which I raised two days ago. It is not too late for him now to make a reply, and I should be glad if, in order to salve my conscience, he would give me some reasons, bad or good—I would prefer that they were good, but I would like to have some reasons—why the National Trust should be excluded from this Amendment.
EARL DE LA WARR: My Lords, I do not know whether it is in order to discuss this subject on the Amendment, but I did try to deal with a portion of that question on the Committee stage, when I referred your Lordships to page 7 of the Bill, Clause 7, paragraph (c). There is there a provision dealing specifically with land, which I take to be of this character, in Scotland. It is a point that another noble Lord raised with me, asking why that paragraph did not apply to England and Wales also, and I pointed out that in Clause 2 (2) is included the same provision as is laid down for Scotland. I think that deals with the point raised by the noble Viscount.
LORD BALFOUR OF BURLEIGH: My Lords, I can only speak again by leave of the House. But I would like to suggest that the land owned by the National Trust must contain many tracts which are eminently suitable for camps under proper safeguards, and that the provision of camps in those places, under proper safeguards, would enable many thousands of people to have access to National Trust property who otherwise would not be able to have access to it.
EARL DE LA WARR: I think the noble Viscount's point is that the land should not be used for that purpose, but should only be used with the consent of the National Trust, and I hope on that point
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I have been able to satisfy the noble Viscount.
On Question, Amendment agreed to.
EARL DE LA WARR: My Lords, the next Amendment, in subsection(3), is consequential, and I beg to move.
Amendment moved—
Page 4, line 23, leave out ("subsection") and insert ("section").—(Earl De La Warr.)
On Question, Amendment agreed to.
Bill passed, and returned to the Commons.

STANDING ORDERS COMMITTEE.
Report from, That the Standing Orders not complied with in respect of the Petition for the following Bill:—
London County Council (Improvements)
ought to be dispensed with, and leave given to introduce the Bill.
Read, and agreed to.

LONDON COUNTY COUNCIL (IMPROVEMENTS) BILL. [H.L.]
Presented (pursuant to leave given this day), and read 1a.
WEST GLOUCESTER WATER BILL. [H.L.]
Reported from the Select Committee, with Amendments.
SAINT PETER'S CHAPEL, STOCKPORT BILL. [H.L.]
Reported, without amendment.
MILFORD HAVEN AND TENBY WATER BILL. [H.L.]
  FOLKESTONE WATER BILL. [H.L.]
  Reported, with Amendments.
COLNE VALLEY WATER BILL. SOUTH STAFFORDSHIRE WATER BILL.
Brought from the Commons; read 1a, and referred to the Examiners.
MINISTRY OF HEALTH PROVISIONAL ORDER CONFIRMATION (CONGLETON) BILL. [H.L.] MINISTRY OF HEALTH PROVISIONAL ORDER CONFIRMATION (MARGATE) BILL. [H.L.] MINISTRY OF HEALTH PROVISIONAL ORDER CONFIRMATION (MATLOCK) BILL [H.L.]
Reported, without amendment, and recommitted to a Committee of the Whole House on Tuesday next.

HOUSE OF LORDS OFFICES.
Second Report by the Select Committee made, to be printed, and to be considered on Tuesday next.
House adjourned at nineteen minutes before five o'clock.