§ 3.7 p.m.
§ Order of the Day for the Second Reading read.
§ LORD MANCROFT
My Lords, in rising to move the Second Reading of this Bill, I realise that I have a difficult task ahead of me. There are many obstacles in the way of any novice who 694 attempts to reform the laws of our country; and more particularly so if those laws happen to involve the laws of marriage. Whilst I can say in all honesty tht this Bill of mine has no political or Party implications, I cannot in equal honesty pretend that it is entirely free from controversy. Let me begin straight away by explaining what I am trying to achieve. Under a series of Acts, collectively known as the Marriage (Prohibited Degrees of Relationship) Acts, 1907 to 1931, certain prohibitions which for many years had existed against marriage with relations of a deceased spouse have been greatly relaxed. I suppose the instance which is most familiar to all people is the example of the widow, who may now lawfully marry the brother of her deceased husband, and the widower, who may now marry the sister of his deceased wife. But, according to the law as it now stands, no man or woman who has divorced his or her spouse may, while that divorced spouse is still living, marry the sister or brother of that divorced spouse. The purpose of my Bill is to enable the man who has divorced his wife to marry her sister or, the other way round, for a woman who has divorced her husband to marry his brother.
In case any of your Lordships is becoming a little giddy by this description, I may perhaps be able to explain the situation by relating the facts of the case which first aroused my interest in this matter. But first, in view of a "whispering campaign" which has been going on amongst certain noble Lords whom I hitherto regarded as my friends, I wish to state that I have no wife or brother, and the only interest that I have to declare is purely altruistic. Early in 1941, a young N.C.O. in my regiment (I will call him Sergeant Smith) married an English girl in Cairo. A little while afterwards, when the Axis attack upon Cairo endangered the Delta, she, together with many other English women, was evacuated to the Cape. A little later, a child was born. Eventually she found her way back to England and went to live with her sister in Aberdeen, taking the child with her. After a little while, she began to associate with a Polish Air Force officer. Despite everything that her sister could do to stop her, she eventually went to live with the man. "Sergeant Smith" was naturally heartbroken. We did everything we could to 695 put matters right. The sister did everything she could to help, and the welfare authorities did all they could; but to no avail, and divorce proceedings were initiated.
"Sergeant Smith" came back to England—we were in Belgium at the time—for the decree to be made absolute to his divorce. After this, he went up to Scotland to see his sister-in-law, whom he had never met before his marriage, in order to collect his child. He then learned that his ex-wife had married the Pole. Somewhat naturally, he took kindly to the sister-in-law who was mothering his child and, not unnaturally, he eventually fell in love with her and decided to marry her. But, as the law now stands, he cannot marry her. They did not know that until the registrar, who knew the facts, pointed it out to them. So here we have an incongruous and ridiculous situation wherein a couple, concerning whom nothing much good can be said, are enabled to be married, while a perfectly innocent couple are unable to marry.
At first, I thought that what had occurred had revealed a gap in the law. Then I discovered that it was not a gap in the law at all; it was merely my ignorance. It has been there in Act after Act. It is not an oversight. It was directly stated in Section 184 (1) of the Supreme Court of Judicature (Consolidation) Act, 1925, as amended. I can only plead that my ignorance is shared by other people, because there have been several cases, despite warnings from His Majesty's judges, time and time again, against this sort of thing. There have been cases where marriages have taken place in those circumstances, but they are now of course void, and the children are illegitimate. Unfortunately, nothing that this Bill can do can put that right. The trouble is that the questions which the registrar or, much less frequently, the clergyman asks of a couple seeking marriage are not foolproof, and unless the couple have the same name, as they have in some cases, there is no knowing what the true facts are. In this respect, however, I think some misunderstanding may have arisen as a result of an amendment which has now been made to the Table of Affinity which, your Lordships remember, is printed at the end of the Prayer 696 Book. Hitherto, that had stated categorically that a man could not marry his sister-in-law, but, as a result of an amendment of Canon 99 passed by the Convocation, arising from the Deceased Wife's Sister Marriage Act, that prohibition has now been deleted from the Table of Affinity. Of course, it refers only to a deceased spouse, and not to a divorced spouse, because the Church does not countenance the re-marriage of divorced persons. Unfortunately, ignorant people do not realise that, and I think that is how some of the mischief has occurred.
The next step was in February, 1947, when the Committee on Procedure in Matrimonial Causes, under the chairmanship of Mr. Justice Denning, issued their Report, which stated that a man is permitted to marry his deceased brother's wife, but not his divorced brother's wife. The Report said:It has been suggested that this limitation should no longer apply.Unfortunately, the Denning Committee issued no recommendation on this point because, as they rightly said, it was outside their terms of reference. But I think the mere fact that they included it in their Report suggests at least that they were not hostile to the idea.
A few months later, in May, 1947, a Bill called the Stevenson Marriage Bill was before the Personal Bills Committee of your Lordships' House, under the Chairmanship of the Lord Chairman of Committees, the noble Earl, Lord Drogheda. Very briefly, the facts of that case were that a lady had divorced her husband for adultery and subsequently wished to marry his brother. Your Lordships' Committee were entirely sympathetic to the facts of the case but, not very surprisingly, expressed the opinion that the matter was one which should properly be put right by the general law of the land, rather than by a specific Bill before your Lordships' House. Questions were therefore asked of His Majesty's Government, through the normal channels and in another place, as to their attitude towards this matter. His Majesty's Government replied that though they were entirely sympathetic to the facts of the case, and of similar cases, they were reluctant to introduce any legislation on this point because they felt that it might be controversial.
697 My Lords, that answer coming from this Government, strikes one as a little odd. There are people in this country who, in the last three years, have seen fit for good reason or bad to draw attention to certain apparent misconduct on the part of the Government, and the Government have been accused of lack of sense and sensibility, and of possessing too much pride and prejudice; but never in our wildest moments have we accused them of seeking to avoid controversy. Therefore, I took my courage in both hands and decided to introduce this little Bill. I have found an extraordinary situation since your Lordships were good enough to give it a First Reading some two months ago. I have been made aware of no fewer than 271 couples who will be able to get married if this Bill becomes law. I expected to find half-a-dozen—but 271! I have no doubt there may be many more of whose existence I am unaware.
I am not, however, basing my argument on that fact. I am aware that hard cases make bad law; but some of these cases are tragically and pathetically hard, and what I am suggesting is that it is bad law which is making these hard cases. What I am suggesting is that if a man can now marry the sister of his deceased wife, surely it is reasonable for him to marry the sister of the wife whom he has divorced. After all, his wife after the divorce is by law dead to the marriage. Furthermore, the moment his wife actually dies he can then marry the sister-in-law. I submit to your Lordships that this law as it now stands is illogical, harsh and out of keeping with modern conditions, and is encouraging irregular unions and causing much unnecessary hardship.
What is the case against the Bill? As I apprehend it, it is neither ecclesiastical nor legal; it is social. It is not on the grounds of affinity, nor on the grounds of the re-marriage of divorced persons. The original prohibition may have been valuable in cases where adultery between a brother-in-law and a sister-in-law were grounds for the divorce. Adultery of this kind is a greater public mischief than adultery with a stranger. I accept and appreciate this, and on no account—particularly having seen the appalling figures published in the Press this morning—do I wish to do anything to facilitate or aggravate that situation. But will the 698 Bill increase that risk? Is there anything in this Bill which will endanger the safety of the family circle still further? The argument, as I apprehend it, is that the wife will feel less secure as the sister-in-law can enter the family circle; that the sister-in-law may eventually be in a position, should affairs so dictate, to marry the husband; that since she must obviously be a frequent visitor to the house her position there is a disturbing one; and that she will be reluctant to come to the house knowing that she may eventually he in a position to marry her brother-in-law.
But, my Lords, she comes in now, and she is in a position, putting it crudely, to commit adultery with the husband. That adultery, apparently, does not matter; it is the possibility of the marriage that is worrying the opponents of this Bill. I cannot see that argument, and I cannot see that that argument is carried any further than it would be if applied to any other visitor. What about a neighbour, a lodger, the cook or nurse or friend who also visits the house often? Will that "disturbing influence" really be increased by the Bill? I should have thought that if a man were blackguard enough to seduce his sister-in-law he would do it whether marriage was ultimately possible or not. I appreciate these fears, however, and desiring to meet them, if possible, I have inserted a proviso forbidding the marriage of an adulterous brother and sister-in-law. That proviso reads:Provided that nothing in this Act shall operate to validate or authorise a marriage between a person whose marriage has been judicially dissolved and a person adultery with whom was the ground or one of the grounds for the dissolution of the marriage.I suppose I shall be told that it is possible to arrange this matter by some collusive means. Heaven knows that collusion appears to occur frequently enough in these days! But must we everlastingly legislate to try to thwart the guilty person rather than to try to help the innocent? I agree that security of family life is all important to-day. Increasing threats to it are coming from other directions, and it must be protected. The idea that the sentiments behind this Bill will increase immorality or menace that security is unreal. I do not think the Bill will increase divorce—nor, indeed, can it, because it grants no new grounds for 699 divorce. Of course I respect these points of view to which I have referred, just as I should have respected them had I heard them put forward, as they were put forward at interminable length at the time when the Deceased Wife's Sister Act was under consideration by Parliament. That measure was before your Lordships no fewer than thirteen times before it became an Act. It was in another place nineteen times—probably there is a political moral to be drawn from that somewhere. Between the hearing of the two Acts—that relating to a deceased wife's sister and that relating to a deceased brother's widow—a period of fourteen years elapsed. So I have a depressing precedent in front of me in that respect!
All these arguments to which I have referred were then advanced, though I should add that all the gloomiest arguments did not come from the lay Benches in your Lordships' House. One argument which was advanced quite seriously was that murder would be encouraged if a man could marry his sister-in-law. He would be encouraged to murder his wife, it was argued, in order to marry his sister-in-law. I can hardly believe that such an argument could have been seriously put forward, but nevertheless it was. I have carried out exhaustive inquiries and I can find no example in this country of such a murder. Admittedly, I have found one case which occurred in America fifteen years ago. A man's wife died in circumstances which later proved to be murder. The man then married his sister-in-law, killed her too, and burned down the house for the insurance money. I hardly think that your Lordships would like to take that as a normal case, even by the possibly more elastic standards which prevail across the Atlantic.
The reforms envisaged in this Bill have for years existed in other countries, with no undesirable results that I can find. Those countries include Norway, Sweden, Denmark and Switzerland. More than that, it has been the law in New Zealand for over thirty years. I think your Lordships will agree that no people in the world approximate more closely to us in manners and morals than the New Zealanders. New Zealand is predominantly a Protestant country, and (this is 700 a point which I think will appeal to noble Lords opposite) it is a country which possesses a good Socialist Government—if that is not a contradiction in terms.
I would have liked this country to adopt the actual wording of Section 27 of the New Zealand Divorce and Matrimonial Causes Act, 1920, which reads as follows:When a decree for divorce has been made absolute, but no sooner, it shall be lawful for the respective parties thereto to marry again as if the prior marriage had been dissolved by death.Your Lordships will note that there is no proviso there at all. I should have liked, as I say, to adopt the wording of that Section. We find that so far as New Zealand is concerned there has been no increase in immorality there as the result of that measure, and no undesirable social consequences. Surely what is good enough for His Majesty's subjects in New Zealand ought not to be bad for His Majesty's subjects over here.
Turning now to the Bill, it contains only one operative clause and proviso, both of which I have attempted to explain. I could, I believe, have achieved my objects by repealing the provisions of the 1931 Act, but I have been advised that in a measure of this kind it is better to set out openly the actual purpose of the Bill. I mention that only in order to let your Lordships see that this is not piecemeal legislation, which I think would be undesirable. It is merely an attempt to amend an anachronism in the existing law. Clause 2 merely extends the provisions of the Bill to relations of the half-blood and remoter relations, nieces, nephews and so on, as in the original Acts. Protections for clergymen who see objection to marrying divorced persons are already contained in Section 184 of the Act of 1925. I hope that the drafting of the Bill fulfils my intentions. I vow, here and now, that I will never again criticise anyone else's drafting. In conclusion may I say this? This is a Marriage (Enabling) Bill, not a Divorce (Enabling) Bill. The last thing I would wish to do would be to facilitate divorce in any way. There is no proof whatever, I submit, that anything in this Bill will increase the risk of divorce or instability in the family circle.
Against that remote and theoretical possibility of evil, I submit that we must 701 set the large number of irregular unions and unnecessary hardships which now exist. The State now allows thousands of so-called guilty people to remarry, but still denies remarriage to those people who are perfectly innocent. I cannot pretend that there is any vast public clamour for this Bill. I do not suppose that there are more than a thousand people, at most, who will be affected by it. Nevertheless, I have been encouraged to waste your Lordships' time to-day by two other instances which have recently been before your Lordships' House when the people for whom justice was claimed have been few in numbers. I refer to the fight of the noble Earl, Lord Cork, on behalf of the Irish Volunteers and to that of the noble Earl, Lord Wavell, for the Indian pensioners. I suppose I am handicapped by the fact that to-day I am pleading the cause only of human beings. If I were advancing claims on behalf of foxes, stags, badgers, docked horses, snoek or goldfish I should be on stronger ground. But I am pleading only for human beings. It is not, however, for sentimental reasons, but in the belief that the law as it now stands is anomalous, cruel, illogical and unnecessary that I ask your Lordships to give this Bill a Second Reading.
§ Moved, That the Bill he now read 2a.—(Lord Mancroft.)
§ 3.29 p.m.
THE MARQUESS OF READING
My Lords, like, I imagine, those others of your Lordships who propose to take part in the debate this afternoon, I express merely an individual point of view in regard to this matter. The noble Lord, Lord Mancroft, has, I think, taken a perfectly correct and, indeed, well-advised line in submitting this Bill to your Lordships' House. It may be, as he says, that it is not a Bill which affects, or is ever likely to affect, a large number of people. But that is beside the point. If the existing state of affairs does an injustice to a small number of people, and if that injustice can be rectified without undesirable social consequences, then I imagine that your Lordships would agree that the necessary action ought to be taken, and taken without delay.
That the time of your Lordships' House is not being wasted in discussing this matter is evidenced, if evidence were 702 necessary, by the number of your Lordships who are prepared to take part. Like the noble Lord who has just spoken. I am quite unable to see a distinction for this purpose between decease and divorce. It seems to me a wholly illogical state of affairs if the decease of a husband or wife can open a prospect of marriage, whereas the termination of a marriage by its dissolution by the courts has exactly a contrary effect. I am assuming, as the noble Lord, Lord Mancroft, assumes, that the objection to this Bill is neither religious nor legal, but social; and, like him, I think that the argument advanced against it is one which can easily be flogged a great deal harder than is justified.
It is suggested that because of the relationship between a wife and her sister, the possibility of the sister-in-law frequenting the house and the additional opportunities for the husband to associate with the sister-in-law over and above what might be his relations with friends of his wife, give him opportunities of forming an attachment for his sister-in-law and, in due course, of abandoning his wife and attaching himself permanently to the sister-in-law. Is that really a convincing argument? Perhaps in some families sisters come more frequently to their married sister's house than in other families; but in some families they come very seldom. Intimate friends may come far more often than sisters. It is said that because of these relations between wife and sister, the husband ought to be spared the temptation of being led away from faithfulness to his wife by the attractions of his sister-in-law.
I confess that I find it very difficult to believe that a man says to himself, consciously or unconsciously, "I am attracted to this other woman who is not my wife, but I must stop at this point because, although I am greatly attracted, after all she is my wife's sister, and if I divorced my wife I should not be able to marry her." That may be the mental process of some people, but it seems to me to be a highly improbable one, and frankly I do not believe it takes place. There may be other social arguments which have not yet been indicated, but I confess that nothing in that argument displaces my intrinsic feeling that logically this is an alteration which should be made, and that the noble Lord who introduced the Bill has done a service not 703 only to the House but to the number of people, far larger than I thought, who would be benefited if this provision were passed into law.
§ 3.34 p.m.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, a week ago I had the honour of following the noble Marquess and then, although by different routes, we arrived at the same conclusion. I am sorry that on this occasion I cannot arrive at the same conclusion as he does. May I first make it plain that if I oppose this Bill, as I do, I do so not on any specific ecclesiastical grounds but on what I conceive to be the general interests of society? So far as the Church is concerned, I think I may say that the Church would be neutral. And for this reason. The Church Canon Law now admits marriage with the deceased's wife's sister and the deceased husband's brother. It holds that there is no inherent bar or impediment to a marriage within these degrees of affinity. The Church, however, draws a very great distinction between a deceased spouse and a divorced spouse.
As regards this Bill, the Church's obstacle is not the degree of affinity but the divorce; and the divorce, while no less an obstacle, is no more an obstacle in this case than in any other. The Church has its own procedure and discipline for dealing with cases where this obstacle of divorce exists, and this Bill leaves entirely untouched the civil freedom of a clergyman to refuse to conduct any marriage of a divorced person while the former partner is living. The Church, indeed, may find it regrettable that, when the need is to strengthen by every means possible the stability and permanence of the marriage bond, there should be any extension, however slight, of the possibility of marriage after divorce. The Church would hold quite firmly that the facilities should be diminished and not extended. But if it could be shown, within the context of the present marriage and divorce laws, that this Bill is required in the interests of fairness and justice and social order, then, as I say, I think the Church would be neutral, since the measure would not create any new impediment to or any new infringement of, the Church's principles or mean any fresh departure from its standards.
704 I would refer here to the point made by the noble Lord, Lord Mancroft. It is said that confusion has been caused by the Church's new Table of Kindred and Affinity. That Table no longer bars marriage with a wife's sister or a husband's brother, and some people suppose that this allows marriage after divorce just as much as after decease. As the Table stands, it might even be shown that it allows bigamy! All that the Table of Kindred and Affinity says is that a man may marry his wife's sister. I hardly think that anybody has been seriously misled by the Table, since they know perfectly clearly the attitude of the Church to divorce. More than that, everyone married by the Church is strictly asked whether he or she is a bachelor or spinster, a widower or widow, or a divorced person; and if the last-named is the fact, then the impediment of marriage with a divorced person at once comes to light and is dealt with. I cannot think that any of these cases has slipped through undetected on the side of the Church.
I now come to the Bill itself. May I try to put a case against it, based, as I say, not on any ecclesiastical ground, but on the ground which can be shared, or at least understood, by any person interested in the well-being of society? The Bill is designed to bring relief to persons who have been involved, or may become involved, in what is regarded as a hard and difficult situation. I agree that some people have already married in ignorance of the facts, and have begun to realise their position only by the introduction of this Bill. Our sympathy with such people must be acute when they find suddenly that the marriage they thought entirely legitimate is, in fact, not so, and is null and void. But though such cases would be a good reason for re-examining the law, they are not in themselves a good reason for altering the law, if the law is good and if the fault is ignorance. If it is found that the law should remain as it is, then the right course must be to see that no other persons in future ever fall into the same trap through sheer ignorance, and that adequate steps are taken to prevent it happening, presumably by the registrars. The Church already prevents it happening.
But there is more than that, as your Lordships have heard. There are very 705 hard cases in which, on every reasonable argument, it seems that the in-laws should be allowed to marry. A husband and wife have become estranged and separated by the evil conduct or the infidelity of one party, and divorce follows. Then, as in the case quoted by the noble Lord, the husband, who is the innocent party, left with a child or children to bring up, may for the first time meet his wife's sister and desire to marry her. Why should he not? These are exactly the kind of reasons which were adduced for marriage with a deceased wife's sister. Those arguments carried conviction then, and they convinced me. Why do they not obtain, it is asked, in the case of a divorced wife, as they do in the case of a deceased wife?
With all respect to noble Lords who have spoken, I believe that there is here a social principle of very real importance, which deserves your Lordships' careful consideration. I should have thought we would all agree that it is an essential and vital part of the security, stability and happiness of the family and domestic circle that emotional relations of sexual attraction between in-laws should be altogether excluded. They are by universal consent excluded as between father and daughter, as between mother and son, and as between brother and sister and because they are excluded, they do not arise. But in that family and domestic circle, within which there is this absolute mutual security, and where the distractions and torments of sexual attraction are not admitted, the in-laws are certain to be included; the sister-in-law and brother-in-law are intimate members of that inner, secure, happy association. As between husband and sister-in-law (or, in fact, niece, because the Bill would cover a niece, too), and as between wife and brother-in-law, there is a free, open and affectionate relationship, utterly unembarrassed, and utterly secure by reason of the fact that no kind of sexual attraction is tolerated or is possible. I would maintain that if the possibility of an emotional and sexual relationship is not ruled out by that implicit assurance the security has gone—the basic security which is assumed, subconsciously and instinctively, in all our relations with our in-laws. Unlike the noble Lord, I can claim to have four brothers, and, I think it is, five 706 sisters-in-law, so that I am interested rather personally in this matter.
This Bill opens a door which once opened can never be shut again. It may be said that in the ordinary family the old security will, of course, remain; that the family circle, the relations with the in-laws will remain untouched; and that only the hard cases where relief is justifiable will ever avail themselves of this Bill. The noble Lord spoke of adultery, but he did not speak of all that goes before, which may never end up in adultery. Human nature is a queer and unreliable thing. It is dangerous to say that it will not be affected when what is now ruled out as impossible becomes possible. It is not safe to say that the old security will remain everywhere except in those places where it has already gone; it will be "nibbled away" in many other places. It is not unknown for a man to suspect that he has chosen to marry the wrong sister, but his loyalty remains to the sister that he chose as his wife; disloyal thoughts are not entertained. But human nature being what it is, they are not so easily or willingly dismissed if there is a door open; a passing thought may grow and introduce embarrassments into the family relationship, and possibly cause a final disruption of the marriage.
What about the wife in this situation? At present she is entirely free of any suspicions and fears of her sister; she has a firmly based security. But once that has gone, the door is open, and there is room for suspicions and jealousies unknown before. The sister may become a supposed or a real rival to her sister. This could not occur so long as it was a question of marriage only with a deceased wife's sister, for I think we all agree that nobody—at least, nobody worth talking about—would set out to secure the removal of the wife by death. But divorce can be engineered in the modern world much more easily, more feasibly, and even with approbation, than a death. And the difference between the two is the measure of the difference in the social implications of this Bill. I do not think what I am saying is in the least fanciful. In fact, the Bill itself recognises the reality behind all this, and reveals its own uneasy conscience in this matter. It provides that where there has been adultery between the two in-laws, and where that adultery was the ground, or one of the 707 grounds, for the dissolution of the marriage, the in-laws shall not be allowed to marry. The promoters of the Bill wish to stop this invasion of domestic security when it has got to the point of adultery as a ground for divorce. That shows that a danger is envisaged, even by the promoters of this Bill. But they stop it too late, when adultery has taken place; they then say that there shall be no marriage. But how much has gone before the adultery, thanks to this Bill? How much has been invited and encouraged, which never gets as far as adultery?
The proviso, I am sure, is completely valueless; there are too many ways round it. What a position it would create! Suppose that a wife knows her husband has committed adultery with her sister, and she is asked by her husband and by her sister to set the husband free so that they may marry. She may say to the husband: "Very well; I will divorce you for adultery." But this Bill is the very means of preventing the husband and sister-in-law achieving what they want—namely, their marriage. So intolerable pressure is put upon the wife to do something else—possibly to conceal the adultery and to allow a divorce to take place for cruelty or desertion, in order that her own husband may marry her own sister. If she refuses a divorce altogether, she makes her relations with her husband and sister intolerable for the rest of their lives. This safeguard in the Bill, I believe, is an aggravation of the evil, and not a remedy for it.
It creates also a new anomaly in the law, because in every other case the guilty party may in this country marry the co-respondent. Suddenly, in this Bill, which is supposed to get rid of all anomalies, is inserted the anomaly that in this case there shall be no such marriage. I regard the insertion of that proviso in this Bill as clear evidence that even the promoters of the Bill know that behind these proposals lies all this immensely delicate situation of the relations between man and wife, brothers-in-law and sisters-in-law. The possible disasters, I believe, are real. The few cases are really hard cases—I do not deny that, and I have all sympathy for them.
I would submit, however, that the remedy proposes to introduce into every 708 home—and not only into the thousand homes which we were told might be concerned—insecurity, or the possibility of insecurity. It disturbs, or may disturb, the carefree relationship which now hold husband, wife, brother-in-law and sister-in-law together. I cannot think that it is right to do that, and I do not think that, when the marriage bond is threatened in so many directions, this oasis of secure, settled and unembarrassed relations should be invaded in the way which this Bill envisages. I have said that I do not oppose this Bill directly or mainly as a Churchman, but in the general interest of the people as a whole to secure a solid security in the home circle. And for that reason I trust that your Lordships will not give it a Second Reading. However well-intentioned this Bill may be, and however much it may relieve a few hard cases, it introduces into every home possibilities which now and for ever ought to be excluded.
§ 3.53 p.m.
§ LORD SCHUSTER
My Lords, many noble Lords wish to address your Lordships' House on the Second Reading of this Bill. The subject has already been fully dealt with by my noble friends Lord Mancroft and Lord Reading, and I cannot hope to emulate the eloquence or the wit of either. I shall, therefore, take the liberty of being brief, as I am taking the liberty of speaking at all. I address your Lordships with considerable fear when I see the serried ranks of ecclesiastical authority which are prepared to overwhelm me. However, as the most reverend Primate has now disclaimed the idea that his opposition to this Bill proceeds on any ecclesiastical ground, or at least on any specific ecclesiastical ground—he used both expressions—I think I am entitled to treat his arguments as those of a very wise man holding a great position and, by reason of that and by reason of his own personality, holding also the respect of everyone, and particularly every member of this House. Therefore I may be pardoned if I feel a little timorous when I venture to take up some of his arguments and try to deal with them.
In the first place, it was obvious from the opening remarks of the most reverend Primate that he is at least influenced in his view of this subject by a general 709 dislike (to put the matter broadly) of divorce. I suppose there is nobody in this House who does not share with him, and with all thinking people the world over, a great dislike of the circumstances in which the grounds for divorce arise and a great fear that, in present circumstances, the foundation of the marriage tie has been shaken. That we all accept. But what we do not accept—or at least, if I may humbly say so, I do not accept—is that it therefore follows that there should be no divorce, or that divorce should not be easy. Everyone who has practised at the Bar, and most people who have had to deal with these troubles in a family, always direct their attention first to preserving the marriage if they can. I think that is universal. I am quite sure that there is no solicitor practising in the Divorce Court who does not, in the first place, seek some means of preserving the marriage. But when it becomes clear that those means have failed, then, in my view, the facilities should be as open and as free as possible. I say that for this reason: that it is in that way that family life and moral life can be preserved.
Perhaps that seems a little irrelevant to the theme which we are discussing this afternoon, but really it is not. What I understand the noble Lord, Lord Mancroft, to say, and what I am saying now, is this. There comes a time when one thing or the other is going to happen: either an irregular union is going to begin, with all its consequences—consequences to both parties, consequences to the children who may be born from it and consequences to society at large—or there is going to be some regularisation of a union which, irregular or regular, will certainly take place. Now consider, quite briefly, what may well happen. I will take the wife's case because it is an easier case to argue. The wife goes off and is divorced in the ordinary way, and the man is left, say, with two children. Someone has to look after those children. It may well be that he has always been on good terms with his "in-laws," and the natural person and, indeed, possibly the only person, who can look after them is the sister-in-law. She comes to look after them. The circumstances are such that it will impose an emotional strain on them both. If we all had our emotions completely under control, and if we were not subject to being men or women with 710 the ordinary temptations which beset us, such a relationship continued over the years (touched necessarily by a certain affection apart from emotional conduct) might possibly endure. But men and women are not like that. They are touched by emotion and in recent years they have learned, wrongly perhaps, and partly through false teaching, that it is essential to their expression that they should give effect to those emotions. That is exactly the kind of situation which this Bill seeks to face. I will not labour it as I have made my point.
There are only two other remarks I wish to make. The most reverend Primate talked about opening a door. The door is open already. The question is, who is to walk through it? Ought you to try to push it backwards, put a bar against it and try to restrain emotions which will not, in fact, be restrained but will explode? The other point is this. The proviso, as I understand, was inserted in all good faith, in the belief that there were people who feel—as we must all feel when we talk about these things—a certain hesitation, a certain desire to go slow, a certain wish to be quite certain before we take the next step. It was inserted to try and conciliate that kind of opinion, but if it does not do so we are in no way attached to it, and if it is open to the censures which the most reverend Primate has placed upon it, then we will abandon it in Committee. I have no authority from the noble Lord, Lord Mancroft, to say that, but if it comes to that point I will move its deletion in Committee myself. Really, if I may say so, the most reverend Primate must make up his mind. He must, if this Bill receives a Second Reading in this House, determine whether, when we reach the Committee stage, he would prefer the Bill with the proviso or without it. I should prefer it without, and many of those with whom I have talked are with me in that opinion. I should not have dealt with that point had not the most reverend Primate chosen to raise it himself.
§ LORD SCHUSTER
I am assuming that. I am saying that if the Bill receives a Second Reading, then, when we come to the Committee stage, if the 711 Archbishop thinks that this is an unfortunate proviso, let it go. With that I have said enough, and perhaps too much. I have tried to keep off grass on which lay feet should not tread, and not to incur major excommunication. I do not know whether I have succeeded, but at least I hope I shall be forgiven.
§ 4.2 p.m.
§ LORD WEBB-JOHNSON
My Lords, I regret that I should intervene to take an opposite view to that of the most reverend Primate, who acts as Prelate of an Order to which I am proud to belong. But I intervene in the cause of the children. There are two groups of professional men and women who are constantly brought in touch with the situations which arise in cases of divorce where there are children. The first group are schoolmasters and schoolmistresses in charge of children at boarding schools, and it is they who arrange the visits by the parents; they are constantly in touch with the difficulties. Then there are the members of my profession, who are brought into the most intimate touch with these tragic conditions and difficulties. In cases of surgical emergency and great danger we may be brought into a house where there is a little child that has to be submitted to a capital operation; there is no mother in the home: the man is alone. Sometimes, in such cases, there is great difficulty in finding a woman to take care of the child. The obvious person to do that is either one of the man's own sisters, or his mother, or the sister of the absent wife. Do not deprive such a man of this aid, which is a natural aid; do not debar him from providing for his child or children a foster-mother's or stepmother's care in a natural direction, which is, very often, by marriage to the sister of the divorced wife.
I think the most reverend Primate should bear in mind the extraordinary difficulties of the present day, when many have to live in a house or flat with cramped accommodation, where there is practically no possibility of any woman coming to "mother" a man's children unless she lives with him as his wife. There is no accommodation for anything other than that. It would be most unfortunate if the man or woman placed in such a situation were forced to think of his absent wife, "I wish she were 712 dead"—for that is the only possibility of getting relief. Other noble Lords have put forward the plea of justice. If the plea of justice does not prevail, then I submit that the plea of mercy should. I hope it will be borne in mind that this situation is extremely cruel, and that nothing should be done to prevent its being solved by natural means. I think the proposals in this Bill provide one of those natural means.
§ 4.5 p.m.
§ VISCOUNT BUCKMASTER
My Lords, there is a long list of speakers, and for that reason, and because I have a strong hope that the logic and the justice of this short and simple measure will of themselves commend it to your Lordships, I do not propose to say much in regard to it. This Bill seeks to relieve hardship in a few cases. I would not argue in support of any Bill that attempted to relieve individual hardship by altering the fundamental basis of our law. That is a principle I would not accept. If, for example, the law dealing with the closing of shops could be shown in some isolated cases to inflict suffering and hardship on certain individuals, I would not argue that for that reason the shops of this country should be kept open to a later hour. But this Bill does not seek to alter the basis on which the law rests. It does not attempt anything of that kind. It merely seeks, as I under- stand it, to remedy a defect within the framework of the existing law. That is quite another thing. It is seeking merely to do that which is logical and just. I would say also that if this Bill proposed an extension of the grounds for divorce, then that should receive the most sober and serious consideration of your Lordships. But it does not do anything of the kind. The Bill in no way seeks to increase the reasons for divorce; it is not a Bill for enlarging the grounds for divorce, but a Bill for expanding the opportunities for marriage.
I am in the unhappy position of having to try, with such little skill as I possess, to deal with the arguments put forward by the most reverend Primate—for whom, if I may say so with great respect, I have a regard second to that of no one in your Lordships' House. My task is the more difficult in that his arguments (quite rightly, from the nature of the Bill) are related to matters which are in a sense intangible. It is impossible 713 to weigh human passions, or to put human feelings in the scale. If we were dealing with a Statute, and the clauses and subsections with which we are all familiar, I might still encounter defeat, but I should meet the most reverend Primate, perhaps, in a happier frame of mind. I suggest, however, that we cannot weigh up the great passions which sway the human race, or say that any man will be in this or that relationship to any woman, or that he will or will not feel passionate impulses towards her. No such thing can be said. One cannot calculate these things. It was my sorry experience as a young roan when on circuit, to see there that it is impossible to prevent wrong relationships by prohibition or by punishment, even by drastic punishment. It is impossible indeed to prevent even incest. It cannot be said for certain that any man or woman will or will not be moved by proper or by improper and unworthy impulses because of the ultimate situation that may result. I do not feel, on this matter of emotion, that more can usefully be said.
I cannot see how the wife's sister can stand in any more dangerous relationship to the husband than an old and trusted friend, of whom possibly he may see even more than of his sister-in-law. I might even argue that the man who is miserable in his marriage with his wife may feel cogently deterred from seeking a parallel experiment with the sister. One can argue this matter both ways. With great respect to the most reverend Primate, I do not think that he has fully established a case. I think that here there is hardship and injustice which can be rectified without breaking the essential principle I have in mind—that is to say, without damaging the basis on which the fabric of the marriage and divorce laws rest. I suggest to your Lordships that there are no grounds, in social expediency or in justice, for continuing an anomaly with consequences so hard and harsh as these.
§ 4.11 p.m.
§ LORD AMULREE
My Lords, I do not want to take up a great deal of your Lordships' time, for there is a large number of speakers to follow me; but there are one or two points I should like to make. One is a purely general, medical point which has not been mentioned. I think it should be put separately from 714 any other argument that people may make about this Bill. I know of no reason why a man should not marry his divorced wife's sister. There is no biological or genealogical reason. I am sure that the noble Viscount will agree with me on that point. We have no trouble like that with which to contend. Next I should like to say a word on the social side. One of the things that I certainly would not attempt to encourage is any form of break-up of that family relationship upon which this country has for so long survived. One of the most encouraging things in this regard is that recently there has been a great deal of proof that the family relationship does continue even now, in circumstances of very great difficulty. There have been one or two surveys and inquiries made in the Midlands, where it has been found that, although families may be widely separated physically because of difficulties of one kind and another, there is a strong emotional relationship which continues between them, and there is a great deal of mutual help between various members of the family, as if they were living under the same roof. Therefore, because I feel so strongly about the importance of that aspect, I would not support this Bill if I thought there was any real danger of that relationship being broken down.
But if your Lordships do give this Bill a Second Reading, I cannot see why any change in that family relationship should occur. This Bill seems to me to be merely a logical development of the Act passed in 1907, the Deceased Wife's Sister Act. One argument that has been put forward is that if this Bill does become law, it will lead to an increase in adultery. That is a point which is indeed difficult to prove. It is almost impossible to show it in figures at all. However, before I came here to speak to your Lordships I took the opportunity of inquiring from the Home Office whether there was any sign at all that the passage in 1907 of the Deceased Wife's Sister Act led to any increase in the number of wives who were murdered. They found for me the figures from 1900. The Bill was passed in 1907. If one takes it in the form of a graph, as I have it here in my hand, one sees that it shows a very gradual decrease in the number of wives murdered since the passage of that Act. In fact, during the year when the Act became law, there was 715 only one wife murdered. Therefore, if one can deduce anything from those figures, I think one can assume that there will not be a great increase in adultery, because I think I am right in saying that the people who murder their wives generally do so in order to marry somebody else. It is usually done by a lengthy and well thought out process. Criminals of that sort think they are infallible. Therefore, if there was any increase, it would have been reflected in the figures. That is not important, but I thought it would comfort the most reverend Primate.
§ LORD AMULREE
It does comfort me. I do not want to say anything more about this Bill except that I trust it will be given a Second Reading. It is a valuable and useful little Bill. The fact that there are at least 271 cases who will be affected seems to me to be no reason for doing something now to make their lot less comfortable.
My Lords, I am grateful to the most reverend Primate whom, under His Majesty, I regard as the Head of the Church to which I have been devoted all my life. I am grateful to him for saying that the Church was neutral in this matter. I think that is a great point. I hate divorce as much as he does and, in view of the position reached in matters of divorce to-day, I think that if the Church were to approach this Bill on the ground that it would slightly widen the doors for divorce, that attitude would be unfortunate. I am glad that the most reverend Primate expressly disclaimed that point of view. I hate divorce because it is so cruel to the children, and this Bill that we have before us to-day is one to permit a marriage of the kind that will probably result in making the best possible home for children after a divorce has once taken place. That is a natural and likely view to take. For that reason alone, I think there is something to be said for this Bill.
In a case where I do not suffer, I am always careful about slighting the sufferings of other people who are pinched. The most reverend Primate, most of your Lordships and myself are very happy and fortunate in our domestic affairs. For 716 that reason I think we have to be particularly sensitive to the hardships of people who are not so fortunate. From all the experience I have had of various families, I do not think that domestic relations are regulated so much by consciousness as the most reverend Primate thinks. He talked about no kind of sexual attraction being tolerated on account of relationship. I doubt if that kind of attitude ever arises until the damage has gone very far. I do not think it ever really arises at all.
THE LORD ARCHBISHOP OF CANTERBURY
I did not say it was so much the conscious as the unconscious, assumed security which governed people. They assume, without thinking about it, that that kind of situation does not arise in the family, and that affects them. If that security is removed, it is not the same.
I appreciate that, but I still differ from the most reverend Primate. However, there is the other side to it. If you marry your deceased wife's sister and not your divorced wife's sister, you bring into the relationship a greater acuteness of hatred in cases where such a marriage is desired, and it seems to me it would embitter and poison social relations very much more. How many people disappear in the course of a year? Is it 9,000? It is something like that. Perhaps the noble and learned Viscount on the Woolsack may have some information on that point, but it is a large number. I suggest to the most reverend Primate that a large number of those people are murdered. They are not murders that are recorded as murders, but they are murders that go on every year. A great many people who actually are murdered have to be numbered amongst those persons who disappear and are never heard of again. I merely mention that. I do not think murder arises in every case, but I do think that that side of the question has just as much importance.
This is not at all a trivial matter. If my noble friend, Lord Mancroft, has had 271 cases brought to his notice since the Bill was introduced, I suggest to your Lordships that a great many more cases exist. A large number of people, a large proportion of the population, never hear or worry or bother about what goes on in Parliament, and I therefore suggest 717 that the evil may be even greater than any of us is likely to have expected. I remember that I once ventured to address a letter to a journal whose past history is very famous, on a subject of another injustice. The paper did not publish my letter. They wrote to me and said that this injustice affected so few persons that they did not think it was worth publishing the letter. I have recounted this experience to a great many people since then, and I have not met anybody who did not express indignation at that attitude.
Here is a wrong, and it is a wrong that can quite easily be remedied if we take thought and can agree together. It is not therefore a case of wasting the time of the House on a triviality. As my noble friend, Lord Mancroft, said, in the life of this Parliament a great many measures have been passed which have been full of controversy. Here is one measure dealing with something which everybody who has spoken this afternoon agrees to be an evil. Would it not be a good thing if, in the life of this Parliament, we could get together and do one good thing which would remove one admitted injustice? I think it is well worth while trying to agree on this Bill, for that reason if for no other.
§ 4.23 p.m.
My Lords, let me in a very few words say that I hope it will be possible to give a Second Reading to this Bill. I am not very enamoured of the proviso to Clause 1, but if necessary that is a matter which can be rectified on the next stage of the Bill. The path of the reformer is always difficult, and nowhere is it more difficult than in the field of matrimonial reform. The history of the past century is one of continuous and, if I may respectfully say so, prejudiced opposition. If the nationalisation Bills had been opposed with the same zeal as the Bills for matrimonial reform we should still be living under unrestricted private enterprise in every field.
Let us look at the realities of the situation. No one—at least, no decent person—likes the idea of divorce. But divorce exists and is recognised in this country. After a decree of dissolution of marriage, the marriage bond is dissolved for all purposes, except possibly certain contractual relationships concerning the 718 maintenance of the spouse or the children, or both. Otherwise the marriage bond is dissolved for all purposes. We have to face up to that position; there is no half way. I ask the question: Does a decree of dissolution of marriage dissolve the marriage bond or does it not? If it does dissolve the marriage bond, it appears to me that not only is there no longer any relationship between the spouses, but the particular phrase "in-laws" disappears altogether from the former relationship of the two parties.
If I may say so, whenever a Bill of this description comes before Parliament there is always a tendency to regard it as a Bill which is creating a fresh ground for divorce, and that often gives rise to a good deal of prejudice and misapprehension. This is not a Bill to create in any way whatsoever a fresh ground for divorce. It is not a Bill to make divorce easier. In fact it is simply a Bill to allow marriage between persons in regard to whom there is absolutely no relationship at all. In my respectful submission there is absolutely no logical reply to that view.
§ 4.26 p.m.
THE LORD BISHOP OF LONDON
My Lords, I think we must all tremendously admire the courage of the noble Lord, Lord Mancroft in introducing this Bill. I am not sure whether I admired most his courage in introducing the Bill, the assaults that he made upon the members of the Government, or the sly "digs" that he gave to the occupants of this particular Bench. In any case, he made an admirable speech. But as the debate has gone on this afternoon I have wondered whether, after all, his courage was quite so great as at first I thought it was, because he has been backed by a gallant phalanx of speakers who have all taken the same view and, so far, the only opposed view that we have had is that which has been uttered by the most reverend Primate, my own revered leader. Your Lordships have spoken of the concerted ring on this particular Bench. I can count only three of us; I have not counted up the number of people who have spoken on the other side, but it comes to a considerable number.
I myself wish to take a line opposed to Lord Mancroft and those who have been 719 supporting this Bill, and I do so for quite simple and clear reasons. I endorse the very careful and what seemed to me cogent arguments put forward by the most reverend Primate. I take a straight and definite opposition. I wish to oppose the Bill because I am quite definitely opposed to divorce in any shape or form; in other words, I take precisely the opposite view from that which was clearly stated by the noble Lord, Lord Schuster. He said he did not like divorce but thought the door to it ought to be opened as widely as possible. I also say that I do not like divorce, but I say that the door ought to be kept closed against it. On the whole I think my attitude is the more logical.
I recognise that both Lord Mancroft and, in this particular respect, my own leader, think it possible to discuss the logic of this Bill by separating it altogether from the subject of divorce—in other words, that this is a logical step to take; that as we have already opened the door to divorce, so it is logical to open it so much further for divorce in this particular instance. That is surely the argument: that one step has been taken, and therefore it is logical to take the next. But that is an argument pursued without reference to the whole of the surrounding circumstances. There used to be an old Latin tag in my schooldays, facilis descensus averni—if you take one step on the slope it is logical to take the other. But surely, if you have regard to the matter as a whole, it is entirely illogical to go down a slippery slope at all.
THE LORD BISHOP OF LONDON
I quite agree, but it seems to me that if we pursue this policy, we are, very definitely, on the way to undermining the whole institution of marriage; and that is what we have already effectively done. We were told last year that there were no fewer than 50,000 divorce cases pending in the courts. To-day, I believe, the papers tell us that 30,000 decrees absolute have been given. That seems to me an extremely serious situation. Whether we shall go further it is difficult yet to say, But I am told that in the United States, at the present time, one marriage out of every three breaks down, and in some 720 urban districts one out of every two breaks down. We are happily not in that position at the present time, but we are heading towards it. I think that the best thing we can do is to try to retrace our steps, and instead of opening wider the door to divorce begin to close it as well as we can. I suggest that our legislation under this particular head hitherto has been a complete mistake. I believe that a vast body of opinion which strongly upholds that view is growing up in the country.
If I correctly understood the noble Lord, Lord Mancroft, he based his contentions largely on hard cases; and he gave us an example of a typical hard case. I would suggest that we who are opposing the Bill are also thinking about hard cases, and about a much larger number of hard cases than could be produced under this particular head. The noble Lord, Lord Mancroft, says that he has been informed of 271 hard cases of the kind in question. Other noble Lords have said that there are many more. I wonder how many cases there are—really hard cases—of children whose whole lives have been ruined because divorce has been allowed. The noble Lord, Lord Webb-Johnson, spoke a moment or two ago about cases of children, and he said that doctors and schoolmasters who have close dealings with children know a great deal about this kind of thing. I would venture to add that the clergy too see something of children, and have some dealings with marital questions. I can assure noble Lords that there is no doubt at all about the disaster which the country has suffered by reason of the new modern facilities for divorce.
THE MARQUESS OF READING
My Lords, may I respectfully intervene to ask a question? Is the right reverend Prelate saying that anything in this Bill increases the ground upon which divorce can be obtained?
THE LORD BISHOP OF LONDON
No, I am not saying that at all. What the noble Lord, Lord Mancroft, said in one passage of his speech was that this Bill did not increase divorce. I take it that that was a slip, and that he meant to say the Bill did not increase the grounds for divorce. I have explained that I personally am opposed to this because it will tend to increase the number of divorces.
§ SEVERAL NOBLE LORDS: No, no.
THE LORD BISHOP OF LONDON
I am sorry. This is, of course, a matter of some difficulty. The noble Lord, Lord Mancroft, has told us that he has knowledge of 271 additional cases. If this Bill is passed that will mean that 271 more people wilt apply for divorce.
§ SEVERAL NOBLE LORDS: Yes.
THE LORD BISHOP OF LONDON
That, I think, will create many more hard cases, because it means that the family is completely broken. It means a struggle on the part of the children as to whether they should be with one party or the other.
§ LORD MANCROFT
Do I understand the right reverend Prelate to say that he would prefer that these 271 people should go on living in adultery, rather than that they should get married? Surely he does not mean that.
THE LORD BISHOP OF LONDON
I would very much rather that marriages were not broken—the alternative I do not face. It is really the breaking of marriages which is doing such great harm to children in this country. It is for that reason that I am opposed to the Bill. I hope very much that, having given the arguments fair consideration, we shall reject the Bill. It should be realised that if the Bill went through, and the position of the Church were made more difficult by the greater facilities granted for marriage after divorce in these particular cases, it would become more difficult for us to recognise that the State has essentially the same idea of marriage as the Church.
At the present time the Church accepts the marriage of the State as a valid marriage, because it believes that the State takes the same view of the marriage as the Church—namely, that it is a permanent contract. But the more we open the door to divorce and re-marriage, every additional exception we make to the rule, the more difficult it is to stand for the recognition of the permanency of State marriage. This inevitably would 722 make the position as between the State and the Church more and more difficult. I feel very strongly that what we need to do at the present moment is not to loosen further the stability of marriage but to do everything we can to strengthen it. We depend to a large extent upon our environment, and it is only by doing what we can to ensure that that environment helps to preserve the stability of marriage that we shall be fulfilling the ends of true legislators. On those grounds, I hope that we shall reject the Bill.
§ 4.36 p.m.
§ VISCOUNT SIMON
My Lords, I came to the House this afternoon with no intention at all of taking part in this discussion. Indeed, I came here with a very considerable doubt in my own mind whether this Bill should be supported or not, because I see some considerations which—to me, at least—make the question not easy. I have a feeling, I admit, that when there are two sisters and a man is married to one of them, there is something to be said for the view that this Bill will not in all cases improve relations between the three. The point has been put most persuasively, if I may be allowed to say so, by the most reverend Primate. But there are two considerations which, as I listened to the debate—and, as I have said, I had not originally the remotest intention of taking part in it—seemed to me of importance, and which, before the debate comes to an end, I think perhaps it is my duty briefly to mention.
I am, I believe, the only member of this House who was a member of the House of Commons in 1907 and who took part there in what was then a very acute controversy—the controversy that arose on the Bill which would authorise marriage with a deceased wife's sister. I was not a Law Officer then, I was a private Member of the House. I was, in my personal experience, the last man in the world who might have been expected to have the smallest personal attraction to that proposal. But I thought the proposal was justified. At that time the feeling against the Bill was extremely strong. The main argument used against it is an argument which I seem to have heard this afternoon. It is that which makes me think that I ought—though I do it rather unwillingly—to stand here and tell your Lordships what I know happened in that discussion.
723 If I understood the most reverend Primate rightly, he told us that, so far as he was concerned, he had been and was still in favour of the Bill authorising marriage to a deceased's wife's sister. I am sure that we all, who have so great respect for him, respect him all the more because he says so boldly and clearly. But what was the argument that was used in the House of Commons in 1907 and that I remember so well—anyone may turn it up in Hansard—by those who, in the most sincere manner and from the highest of motives, resisted that Bill? It was the argument that if marriage with a deceased wife's sister was recognised as a legitimate form of marriage, the "door would be opened" to new emotions between the husband who had a wife living and a sister-in-law. It was the argument that once this was recognised as a valid form of marriage, a sister-in-law would feel herself embarrassed in her brother-in-law's house, and might even be exposed to suspicion because she lived there so constantly. It was the argument that while at present there was a security in her position because she could not marry her brother-in-law even though her sister died, once we passed a law which would authorise the marriage of a man with a deceased wife's sister, we should "undermine that security."
I do not intend in the least to misrepresent or exaggerate the argument put before us so persuasively by the most reverend Primate, but I feel that the argument he has now used against this Bill is the argument which prevailed with so many people in 1907 against the other Bill. I appreciate the distinction between the position where a former wife is dead and the position where the former wife is living. That is why I began by saying that I myself felt an anxiety about the possible reactions of the present Bill on existing relationships. But I think it my duty to say, because these are facts which I know and which anyone can see who reads those debates, that exactly the same argument was put forward then, that we must not carry the Bill because it will open the door to the growth of new emotions which, indeed, may not reach sin, but none the less are much to be deplored, whereas, as things are, the situation is so secure that no such danger arises.
THE LORD ARCHBISHOP OF CANTERBURY
My Lords, may I intervene for a moment? The fact that the argument was wrong in one set of circumstances does not at all prove that it is wrong in relation to another set of circumstances. The noble and learned Viscount laid great stress on this argument in relation to a dead wife. I maintain that the circumstances where you have a living wife are completely different. In the one case the psychological relations of the wife are removed into another world; they are gone. In this case, the wife is alive, her mother may be alive and her sisters may be alive, all in the middle of the family circle. To say that the argument does not apply here is much more difficult.
§ VISCOUNT SIMON
I agree that it is more difficult, and on that ground I do not wish to carry it any further than I have done. This is not a case of bitter controversy, but, having in my mind so clearly the recollection of those days, I think it is a legitimate and relevant observation that the prophecies then made as to the social results which would follow from carrying the Bill authorising marriage to the deceased wife's sister were completely falsified. Nobody with any knowledge of the circumstances would dare to say today that that Act, whatever the objections to it from the point of view which the most reverend Primate has most plainly stated, has resulted in encouraging divorce, or abolishing security, or in putting the third person in a position of difficulty and suspicion.
I believe this matter has to be looked at from the point of view of what is good for society. I cannot believe for a moment the Church is aiming at anything but that good, and I greatly respect, though I do not entirely share, the views which some great Churchmen may hold on this matter. But, for my part, I believe it to be much more a practical matter than a matter of high principle. I cannot see how it can be said to open the door to divorce. I cannot see how even the most extreme opinion could justify saying that it "undermines the whole institution of marriage," or makes any contribution to that effect. I would have thought that it was a matter of considering fairly whether or not the social consequences were upon the whole so doubtful that the proposal should not be proceeded with. Whether 725 the number of those now suffering is small or great, there is no doubt that the argument used by the noble Lord, Lord Webb-Johnson, about the situation of the children is one which in my opinion is rather in favour of the Bill than against it. I do not wish to represent myself as more enthusiastically in favour of the Bill than I am, because I feel the difficulties of the argument either way. I hope I may be excused for intervening to say what I believe to be accurate—that some of the anxieties expressed here to-day, which are entertained from the highest possible motives, are anxieties exactly like those expressed long ago about marriage with a deceased wife's sister and which, in that instance at any rate, have been proved by experience to be quite unjustified.
§ 4.47 p.m.
THE LORD BISHOP OF WINCHESTER
My Lords, like the noble and learned Viscount, Lord Simon, I had not intended to take any part in this debate to-day, but in conscience I feel that before the debate closes I should make it clear that the views expressed from these Benches by the most reverend Primate and the right reverend Prelate the Bishop of London must not necessarily be taken as expressing the views of others who either sit or might have sat here this afternoon. I can best express briefly what is in my mind if I say that, like the noble and learned Viscount, I feel there is a good deal more to be said in favour of this Bill being given a Second Reading than either of my two friends who sit with me on this Bench have indicated. I realise that the right reverend Prelate the Bishop of London feels that the result of this Bill will be to enable many who have been divorced to be re-married. Of course, in common with him, I as a Churchman am opposed to re-marriage after divorce, certainly in any case except where the person has obtained a divorce on the ground of the adultery of the other partner. But it seems to me that the Bill really raises a question of equity. It is not a question of enlarging the facilities for divorce, but of saying whether or not some citizens shall be debarred from those facilities which, rightly or wrongly, have been granted. It is when we see that point clearly that one is led into that division of mind for the time being which has been explained by the noble and learned Viscount.
726 I speak with the greatest respect for the point put forward by the most reverend Primate but, like the noble and learned Viscount, I have the clearest recollection of the same arguments in regard to the Deceased Wife's Sister Act, which were supported by the most reverend Primate, the late Lord Davidson. He attached great weight to those arguments, but I am bound to say that it did not seem to me to be proved, in the years that followed, that those fears had been realised in cases where the wife was dead. I think the most reverend Primate is perfectly justified in emphasising the difference between the case where the wife is dead, and the case where she has been divorced. But giving the fullest possible weight to his argument, the most reverend Primate is dealing with possibilities, whereas the noble Lord who introduced the Bill has brought some very hard facts to our notice. I am reduced to the rather divided state of mind of the noble and learned Viscount. Lord Simon, when I consider the weight in the scales of possible results, as indicated by the most reverend Primate, and of the actual facts about which, in common with the noble Lord, Lord Mancroft, I know at the present time. When I am asked whether I prefer that these people should go on living in their present condition, rather than have the status of being "married," I can say only that, though I do not support this Bill, I do not feel justified in opposing it.
§ 4.51 p.m.
THE LORD CHANCELLOR
My Lords, I can explain to your Lordships in a very few sentences the attitude of His Majesty's Government. In this matter I speak for the Government collectively, although I dare say that many of us have our own particular points of view. Our attitude is that this, as has become apparent from the discussion to-day, is a controversial matter on which differing views are sincerely held. That being so, it is felt that it would be wrong for the Government to afford this Bill any facilities whatever. It would be doubly wrong for me to do so—for this reason. There is a Private Member's Bill which has won its place in the other place, the Law Reform (Miscellaneous Provisions) Bill, which is being sponsored by Mr. Manningham-Buller and, I think, Sir David Maxwell Fyfe—at any rate, discussions have been going on with 727 them on my behalf—and the understanding that we have arrived at is that I will facilitate the conduct of that Bill if and in so far as they will confine it to non-controversial matters. That is more or less the gentlemen's agreeement into which we have entered. Though, of course, they cannot prevent Amendments being moved which will introduce controversial matters, I have made it quite plain that if controversial matters are introduced we shall do what we can to destroy that Bill. The sponsors, for their part, are ready to resist controversial matters. Trying as I have done to keep that Bill non-controversial, it would be utterly incongruous for me to give any support whatever to a Bill which is plainly controversial.
As to the demerits or merits of the Bill I desire to say very little. If the noble Lord thinks it necessary to divide, then there is no question of Party or Whips; everybody will vote as he thinks proper. But for my own part I must say that there seems to be such a fundamental distinction between the deceased wife's sister and the divorced wife's sister as to make the arguments which were applicable to the one hardly relevant to the other. The argument that a man might be tempted to murder his wife, and that sort of argument, is really farcical, and has no relevance at all. But, as the most reverend Primate put it, the argument that by making it possible to contract a marriage with the divorced wife's sister we might do something to destroy that kind of intimate relationship which has as its subconscious background the fact that it has nothing whatever to do with sex is, I think, a real and substantial argument which applies in this case. To my mind, it has no relevance at all in the other case.
I do not agree with the right reverend Prelate the Bishop of London in his attitude. Speaking for myself, having regard to the position we have now reached, I would not be prepared to destroy the facilities for divorce, or to do away with divorce. It may have been right or wrong to introduce the original Divorce Act, but we have travelled much too far, to my mind, to contemplate going back. Neither do I agree with the right reverend Prelate that this is a Bill which tends to increase, or does increase, the grounds 728 for divorce. It does no such thing. The most that can be said on that ground is that perhaps in some instances it makes divorce more probable, because people can marry again afterwards, and, therefore, divorce may be worth while. Excepting that somewhat fanciful case, it has no relation to the question of the number of divorces.
Frankly, speaking for myself, and for myself alone, it is the argument which the most reverend Primate advanced in which I feel a difficulty. Therefore, so far as I am concerned, I am convinced that on that ground—I will put it in the negative form—your Lordships should not give a Second Reading to this Bill. Moreover, I am convinced that we should be unwise to embark now on controversial legislation in a Private Member's Bill. I have not the slightest objection to controversy—indeed, I like it. Neither has the noble Lord, as was plain from his speech which "smelt" of controversy. I liked it for that. But I am not going to encourage controversy on Private Members' Bills. The noble Lord will find that he has plenty of controversy available to him on which he can sharpen his teeth in due course, without extending it to Private Members' Bills.
I venture to hope that, having tested the opinion of the House and having heard weighty opinions expressed, the noble Lord will at this stage be content with that. I believe he would be wise to be content with that. This is my own view. I do not believe we shall be able very much longer to abstain from dealing with this problem. When I say "we," I do not necessarily mean this Government; I mean to say that this is a problem which will have to be dealt with sooner or later. The problem under discussion the other day, dealing with artificial insemination, is also obviously one which will have to be dealt with. I venture to hope (I dare say my predecessor ventured to hope the same thing in his day) that it may fall to the lot of my successor. But, whether it falls to my lot, or to that of my successor, I feel confident that it is a topic which as a whole must sooner or later be dealt with. That being so, I venture to hope that the noble Lord, having had this discussion—and a most interesting discussion it has been—will see his way at this stage not to press this Bill.
§ 4.59 p.m.
§ LORD LLEWELLIN
My Lords, I would like to say a few words, although I speak after the noble and learned Viscount the Lord Chancellor. Indeed, it is because I speak after him that I wish to say these few words. I have had the good fortune to be able to consult with my noble friend the Marquess of Salisbury. This Bill has given rise to discussion on what is a very human problem, and I feel that my noble friend Lord Mancroft is quite right in having introduced it this afternoon. On the other hand, as I have found since the time when I had the honour to become a member of your Lordships' House, we are a House of very practical-minded persons, and it is clear that if the Government, in their wisdom, have said that they will give no further facilities to this measure, then it has practically no chance—I should say no chance at all at this time of the Session—of eventually arriving on the Statute Book. Therefore, if we were to proceed to a Division on the Second Reading to-night, we should be giving ourselves the task of dealing with the matter in Committee and on the Report stage. I must say, with all respect to the most reverend Primate, that I would have liked to see in Committee whether he voted for the abolition of the proviso or not. I fancy we might have found ourselves in the same lobby on that occasion. I certainly would not be one to support its deletion.
In any case, were we to give the Bill a Second Reading, we should then go through all the trouble of taking the Committee and the Report stage. The matter has been well ventilated in this House to-day and will no doubt receive (as important debates usually do) a good deal of ventilation in the country as well. I hope, especially after the speech of the right reverend Prelate, the Bishop of Winchester, that it will receive some discussion in Church circles as well, because I think we should try to keep the law of divorce in this country, and of who may re-marry whom (which is really the point of this Bill), in line between Church and State. But that does not always mean that we cannot make an advance which will take into account the very human difficulties which this Bill, if 730 passed into law, might solve, without, I believe, doing any fundamental harm to our general social and moral relationships. If I might give advice to my noble friend behind me, I would suggest to him that, having had this discussion, it would be wise to withdraw this measure now, and I hope that later on we shall be able to revert to it with perhaps better chances of success.
§ 5.3 p.m.
§ LORD MANCROFT
My Lords, I am deeply grateful to yolk Lordships for having given this matter such careful consideration. But let us have no more controversy. I find myself in the happy position of following not only the advice of my own Front Bench but also the advice of the noble and learned Viscount—a thing which I have not been able to do for a considerable time. The noble and learned Viscount put his position, and the position of the Government, perfectly clearly and frankly. It was made known to me beforehand that the Government would accept this Bill if it was unopposed, but not if it was opposed. I suppose it is no good offering the suggestion that they should put my Bill into their agenda and remove in exchange one or two contentious Bills, such as the Steel Bill or the Parliament Bill. Although I should have liked to divide the House, because I believe there is a heavy weight of opinion in favour of this Bill, I of course will not do so, following the advice I have received. The very powerful opposition from the most reverend Primate the Archbishop of Canterbury and the right reverend Prelate the Bishop of London was not, I think, entirely acceptable to many members of the House, but it certainly puts my Bill into the "opposed" class. I will therefore ask your Lordships' permission to withdraw my Bill. Before doing so, however, may I give warning—I believe that is the correct thing to do—that I not only have a good reason for bringing this Bill up again in a little while; I have 271 very good reasons for doing so?
§ Motion, by leave, withdrawn.
§ Bill, by leave, withdrawn.