MARRIAGES VALIDITY BILL. [H.L.] (Hansard, 18 May 1939)

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: 1121 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 1122 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 1123 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 2^a.—(The Earl of Donoughmore.)