HL Deb 25 January 1966 vol 272 cc57-72

4.56 p.m.

Report of Amendments received (according to Order).

LORD INGLEWOOD moved, after Clause 4 to insert the following new clause:

Amendment of s. 2 of Marriage (Scotland) Act 1939

" . At the end of section 2(1) of the Marriage (Scotland) Act 1939 there shall be inserted the following proviso:

Provided that in an application where neither of the parties has his usual residence in Scotland or has previously been domiciled in Scotland and where it appears to the Sheriff that the aforesaid application to contract a marriage in Scotland is based primarily on the desire to circumvent the marriage laws of the country of one or other of the parties so applying, the Sheriff may decline to grant a license for such marriage."

The noble Lord said: My Lords, during the Committee stage of this Bill I moved an Amendment which was meant to put a check on unwise runaway marriages by couples who, too often, are very young and include a large number of Germans, Dutch and others, as well as English, and who misuse certain provisions in the Scottish marriage law, and use Scotland, as it were, as a "flag of convenience". I explained at some length the change in the law as it affects people other than Scotsmen, and I shall not take up time to-day repeating myself. In reply, the noble Lord, Lord Hughes, agreed with my motives saying that they would commend themselves to all. He explained how my Amendment presented difficulties, and at the conclusion of the discussion, I asked leave to withdraw it.

During the debate the noble Lord, Lord Hughes, further said that the Government were willing and anxious that the problem should be considered by the authorities concerned and that Her Majesty's Government would do what they could to expedite such considerations. I hope that the noble Lord will not say that I am over-soon in raising this question again, and that it is early to ask for a progress report. I know that it is not many weeks since the Committee stage and that Christmas has intervened, as well as additional Scottish holidays. None the less, there have been a number of working days, and in effect this is the last chance we have, because discussion on this point is out of order in another place. We cannot follow the convention of raising a question in one House and receiving the Government's considered views at a later stage in another.

So, my Lords, I have virtually no alternative except to raise this point again to-day. I am greatly encouraged to do this by the notice taken of this point by the Press, both national and local. In particular, your Lordships will be interested by the strength of the leading article in the Dumfries and Galloway Standard, which, after our last debate, referred to what goes on in a number of Scottish villages as "making a mockery of marriage" and added, Let no one be fooled by the veneer of romance. So it is not just the English who are directing attention at this time to this point.

The Amendment I have put down today seems to me to meet all the objections raised against the proposal which I asked your Lordships to consider at the last occasion. It might well be, in the end, the best way to approach a solution to this difficulty. So I am offering it to your Lordships, not just as an excuse for giving the Minister an opportunity of telling us more about how his mind and the mind of the Government are working, and about what progress he has been able to make in the last few weeks, but also on the strength of its own merits. I beg to move.

Amendment moved— After Clause 4, insert the said new clause.— (Lord Inglewood.)

5.2 p.m.

THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR SCOTLAND (LORD HUGHES)

My Lords, I would not for one moment quarrel with the noble Lord, Lord Inglewood, in returning to the attack on this problem to-day. At the last stage of the Bill I undertook to look further into this question, and I hope that the noble Lord will forgive me if I acquaint your Lordships with some of the difficulties we encountered when we gave further consideration to the noble Lord's previous proposal to extend (I am not referring to any particular number of days) the residential qualifications.

The first of these was the necessity to get the General Assembly of the Church of Scotland to bring the Church's rules into line with this new law—because without that we should not just have brushed the problem under the carpet; we should have shoved it on to the Church's carpet instead. Secondly, all persons coming from outside Scotland would have been affected, and not merely those persons intending marriage who are under age and come from countries where parental consent was required. Thirdly, a party in England with a parent, of whatever nationality, residing in Scotland would still be able, under the terms of Section 1 of the Marriage (Scotland) Act 1956, to proceed by publication of notice without coming to Scotland at all except for the ceremony.

Fourthly, there are special procedures for the preliminaries to a marriage between a British subject resident in Scotland and a British subject resident in any Dominion or other country of the British Commonwealth to which the Marriage of British Subjects (Facilities) Acts, 1915 and 1916, have been applied by Order in Council. In such cases a document showing that the preliminaries in the countries concerned have been observed is acceptable in Scotland. Fifthly, under the Naval Marriages Act 1908, where one of the parties is an officer, seaman or marine on the books of one of Her Majesty's ships at sea the proclamation of banns or publication of notice of marriage may be made on board the ship. Therefore the suggestion for an increase in the residential period would not in all cases have had the effect desired. I have deliberately confined myself to the words suggested by the civil servants, which do not by any means overstate the position.

May I now come to the noble Lord's second attempt? At first glance, it looked as if this might be a better runner than the first one, but in fact, on examination, it is much less so. I will take Gretna as an example, because I think that Gretna was very much in the mind of the noble Lord when he spoke of these runaway marriages. And, for the sake of making it clear that we are all talking about the same thing, I would define a runaway marriage, as I think would the noble Lord, Lord Inglewood, as a marriage where one or both of the parties is under the age of 21 and comes from a country where parental consent is necessary before the marriage can take place. In 1962 (and I have chosen this year not from any evil motive, but because it is the most recent year for which complete statistics are available), there were 500 marriages performed at Gretna, and of that number some 400 would probably come into the category of runaway marriages. But, in order to get the problem in perspective, I would point out that, of the total of 40,000 marriages which took place in Scotland, including the 400 runaway marriages at Gretna, the total number of runaway marriages was only 600. This is an infinitesimal part of the total number of marriages performed. I wish to clear up any misconception that Scotland is running a profitable marriage racket. We are not. The number of runaway marriages is a small part of the total. It is only in regard to the figures of marriages at Gretna, where some 400 out of 500 come into the runaway category, that this category becomes significant.

To what extent would the proposed new clause reduce this figure? Of the 500 marriages at Gretna, only 13 followed the issue of a sheriff's license; and of that 13 only 8 were part of the 400 runaway marriages. So that we arrive at the remarkable result that the noble Lord's proposed new clause would have stopped only eight of the 400 runaway marriages which took place at Gretna. So, as a means of dealing with the problem, it would really be useless. It would not serve the purpose for which the noble Lord hoped in bringing it forward. I know full well that the noble Lord had no opportunity of finding out how many runaway marriages took place following the issue of a sheriff's licence. I presume that he expected it to be a much higher proportion. I must confess that if the noble Lord had asked me at the last stage how many marriages took place under a sheriff's licence, I should probably have been as widely out in my guess as the noble Lord might have been. But the result is that the noble Lord's proposal is no help in diminishing the number of these marriages.

Even if there had been a higher proportion of marriages following the issue of a sheriff's license, I should still not have been able to accept the noble Lord's proposal because of the difficulties inherent in the proposal itself. The proposed Amendment would exclude cases where either of the parties has previously been domiciled in Scotland. Where the country of origin was Scotland, this would present no difficulty, but where a patty claimed that he had acquired Scottish domicile by choice, the sheriff's task would have been made more difficult, as he would be largely dependent on the statements made by the parties themselves.

Then I would draw the attention of your Lordships to the fact that the clause says where it appears to the sheriff that an application to contract a marriage in Scotland is based primarily on the desire to circumvent the marriage laws of the country of one or other of the parties so applying… It would be difficult for the sheriff to determine whether an application was based primarily on the desire to circumvent the marriage laws of the country of one or other of the parties. This would presuppose that the sheriff had full knowledge of the marriage laws of all countries. This is a pretty compliment to Scottish sheriffs, but I do not know one of them who would dare make the claim on his own behalf that he had an extensive knowledge of the marriage laws of other countries, Therefore, if we were to adopt the clause we should be placing the sheriffs in a completely impossible position. It might have been worth taking the risk if the numbers affected by the clause had been large, and it perhaps would rest on the ingenuity of the sheriffs to extract themselves from these difficulties. But when it is going to have an effect only on 8 out of 400, then. I must say that in my view we should not be improving the position by accepting the proposed new clause.

I would also remind your Lordships that the Scottish Law Commission is now in existence. The Secretary of State and the Lord Advocate are at present discussing with the Scottish Law Commission the form that a review of the marriage law could most usefully take. I think that the steps which have already been taken by the Scottish Law Commission, in its short existence, are the best guarantee that the Commissioners will look fully, and I hope speedily, at this particular problem.

However, there is yet another aspect to be borne in mind. After all, this problem arises not from the operation of a law which the Scots have found perfectly satisfactory, but from the operation of laws which certainly the English, the Germans, the Dutch and the Belgians have found unsatisfactory. I would remind your Lordships that, while there is no immediate proposal to alter the law in England so as to alter the age under which parental consent is required, nevertheless, the Lord Chancellor has appointed a Committee, at present sitting under the Chairmanship of Mr. Justice Latey, to consider whether any changes are desirable in the law of England relating to contracts made by persons under 21, and in the law relating to marriage by such persons.

I would suggest to your Lordships that one of three things might come from that Committee. They might suggest that the law should remain exactly as it is, in which case the problem vis-à-vis the runaway marriages of the English will remain as it is. They might suggest that the need for parental consent should be abolished, in which case those who would otherwise come to Scotland could have the marriage performed South of the Border. Or they might suggest that the age at which consent is necessary should be reduced below the age of 21. But if any such change is suggested, that will undoubtedly have the effect of bringing the law of England nearer to the present law of Scotland.

LORD DRUMALBYN

My Lords, is there not a fourth alternative: that they might suggest that marriages contracted under 21 without consent outside England should be voidable, as I believe they are in certain other countries?

LORD HUGHES

Yes; I think that is a fourth alternative. But if we were to rely on the extent to which voidable marriages in other countries are rendered void, it would be rather a broken reed, because I understand that in a recent year only two such actions to render a marriage void in Germany, where such a course is possible, have occurred. One can think of a number of reasons why parents, after the marriage has taken place, might be reluctant to embark on such a course.

At all events, the position is that there is some consideration going on at the Present time of the English position, and the Secretary of State and the Lord Advocate have had, and are having, discussions to consider a review of the Scottish marriage law. I have no doubt whatever that when that review takes place—and I personally hope that it will be soon—the aspect of runaway marriages will be one of the matters to which the Commission will direct its attention. In that, I hope, not unhelpful, although not, so far as the Amendment is concerned, welcome attitude, I trust that the noble Lord will agree not to press this Amendment, and that the House will agree with me.

5.16 p.m.

BARONESS ELLIOT OF HARWOOD

My Lords, I am sorry that I was not here when we had the debate before Christmas on the Committee stage, because I wanted to support my noble friend Lord Inglewood in his views. I have listened with interest to what the noble Lord, Lord Hughes, has said, and I am glad to hear that these matters are under consideration, both in England and in Scotland: that the Commission in Scotland is reviewing marriage laws in regard to runaway marriages, and that this problem is also being considered in England. I do not take quite such a complacent view as the noble Lord, Lord Hughes. He feels that 400 runaway marriages represents a small number. I think it is a large number. I think the noble Lord said 500, of which 400 were runaway marriages.

LORD HUGHES

If the noble Baroness will permit me, I said that for the whole of Scotland 600 runaway marriages, out of a total of 40,000 marriages, was a very small proportion. I agreed that 400 at Gretna out of 500 was a large proportion.

BARONESS ELLIOT OF HARWOOD

I was thinking in terms of runaway marriages at Gretna, which, as we know, make the headlines in the newspapers, and which we all dislike. I think that 400 is a lot and it is too many. I do not think we should take a complacent view about that, and say merely that, because there were 40,000 marriages in the Kirk, in the register office or in any other reputable manner, that puts the balance on the right side. Of course it puts the balance on the right side; nevertheless, I still think that 400 runaway marriages at Gretna Green is far too many. I believe that it makes a good case for taking stronger line on this matter, and I hope that the noble Lord, Lord Hughes, when he is discussing this matter with the Law Commission, as no doubt he will do, will feel that this is something which should not happen. In the year 1966 it just is not "on" that these things should happen, and that there should be this foolish loophole (if one can have a foolish loophole) concerning marriage ceremonies which is provided in Gretna.

It may be that the Amendment which my noble friend Lord Inglewood has put down does not achieve what he wants, and that what the noble Lord said about the sheriff, and about the small number of marriages in which the sheriff is concerned, puts this out of court. This is a substantial point which I do not dispute. But I feel that the noble Lord should take into account that a great many people in Scotland—I am not by any means the only one—think that this old-fashioned and somewhat "phoney" way of getting married at Gretna should be ended. I hope that he will urge on the Law Commission to take some fairly stringent action as soon as possible, because I think the present situation is altogether unsuitable for our country.

5.20 p.m.

LORD HUGHES

My Lords, I must correct a statement which the noble Baroness has made. There is nothing "phoney" about the ceremonies which take place at Gretna; it is exactly the same type of marriage ceremony as is performed by a registrar anywhere else in Scotland. As the noble Lord, Lord Inglewood, said, unfortunately many people go up to Scotland thinking that they can be married instantly; they think there is instant marriage in Scotland. There is not; they have to wait the fifteen days. The noble Lord's objections were to the difficulties which this caused. In many cases people come up quite unprepared for the wait, which in fact proves to be 22 days when all is taken into account. But I am quite sure I should be rescuing the noble Baroness from some local difficulty if she had to go back and suggest that some sort of illegal marriage was taking place in Gretna.

BARONESS ELLIOT OF HARWOOD

My Lords, if I have used the wrong word, I withdraw it. I am glad to be corrected by the noble Lord.

LORD DRUMALBYN

My Lords, I think what the noble Baroness, Lady Elliot of Harwood, had in mind, was that 400 is an awful lot of marriages in one small place—400 out of 500 being runaway marriages. That is something which I, as an ex-Member for Dumfries-shire, have reason to know a great deal about. Ii is something which is very much deplored, and which one would willingly do something about. But it is, as the noble Lord has just said, something which is essentially based upon a false belief, and it is difficult to alter the law of Scotland because of a false belief elsewhere. I hope it may be possible to do something to deal with this problem, but I think it is unreasonable to ask that the law of Scotland should be altered in a way which would be detrimental to the Scots, in order to deal with what is essentially an extremely small problem.

I am grateful to my noble friend Lord Inglewood for having tried, in his Amendment to-day, to avoid doing any harm to the Scots. I am conscious that that was the purpose of his Amendment. I am sorry that he has not been able to achieve his purpose, but the noble Lord, Lord Hughes, has said that this is a problem which is being examined both in Scotland and in England, and I hope your Lordships will leave the matter there.

LORD INGLEWOOD

My Lords, this; discussion has gone much as I thought it would, because even if my words had, surprisingly, satisfied the noble Lord's advisers as being something which could be accepted as part of a Statute, he would have had to argue against them on this occasion because the inclusion of them in the Statute would have opened this Bill to all sorts of comments in another place, which clearly the Government would not wish. None the less, with the noble Baroness, I think the noble Lord was a little too smug. This problem is not one which can really be assessed solely by numbers; it is a much bigger problem than a few hundreds. Furthermore, it is something which brings discredit—I will not say on Scotland, but on Britain, and that is something about which we are all concerned.

I am glad the noble Lord has appreciated that my amateur drafting (which I admit I thought was rather ingenious, and I accept the compliment) made it abundantly clear that this was in no way an Englishman trying to alter Scots law so far as it affected Scotsmen. In the light of what the noble Lord has said, I am again left with no alternative but to ask leave to withdraw the Amendment. But I assure him that I will find other ways to ask for progress reports from time to time; and unless the progress he is able to report is satisfactory, not just to me but to a great many people who are interested—and I commend to him a double-page article in a recent edition of the Sunday Mirror, which talked of the base side of this business as "the love trade"; he seemed to think there was little commercial in it—I will not be satisfied, because there is something here which is a big problem. It is something which we ought not to leave just where the noble Lord suggests we should. We do not want to press him, but we do not want to abandon it altogether. I beg leave to withdraw the Amendment.

LORD ROWALLAN

My Lords, it is over thirty years since I sat on a Committee on this subject. We made little progress at that time because at that moment one of the members of the Committee brought her son along to the Smithy; he was duly married and given a beautiful marriage certificate drawn up by the blacksmith. I hope that, during the next year or two, we may set this matter right. It is a disgraceful racket on the part of certain individuals, and a very profitable racket.

Amendment, by leave, withdrawn.

Clause 8:

Variation and recall by the sheriff of certain orders made by the Court of Session in respect of maintenance, custody, etc., and amendment of s. 2 of the Divorce (Scotland) Act 1938

8.—

(2) Where any person who has been a party to a consistorial action has a right to make application for the variation or recall of any order made in that action to which the provisions of this section apply, he may make an application in that behalf to the sheriff, and, subject to the provisions of the next following subsection, the sheriff shall have the like powers in relation to the application as the Court of Session.

The application shall forthwith be intimated by the sheriff clerk to the Principal Clerk of Session, who shall transmit the process in the said action to the sheriff clerk.

LORD HUGHES moved, in subsection (2), to leave out "who has been a party to a consistorial action". The noble Lord said: My Lords, with the permission of your Lordships, I would speak to Amendments Nos. 2, 3, 5, 7 and 8 together; they accomplish one purpose. Clause 8, as presently drafted, places what the Government regard as an undesired and unintended limitation on the operation of the clause. The clause is drafted with particular reference to the case where there are really only two parties, the husband and wife, or former husband and wife. There can, however, be cases where a third party might have an interest in the order, for example where the custody of a child has been entrusted to a relative other than one of the spouses, and it seems clear that the provisions for sheriff court procedure should apply to such parties in the same way as to spouses.

The Amendments, therefore, have the effect of allowing an application to the sheriff court by any person who has a right to apply for variation or recall of the particular order. Similarly, any such person would be entitled to secure, if he or she so desired, that an application to the sheriff court was remitted to the Court of Session. I am quite certain that when the House agreed to the clause as it stands, it did so in the expectation that all parties to an action would be treated similarly, and this series of Amendments is necessary to bring the clause fully into line with what was originally intended. I beg to move.

Amendment moved— Page 6, line 6, leave out from ("person") to ("has") in line 7.—(Lord Hughes.)

LORD GUEST

My Lords, I think everyone will agree that this Bill is in a very much better state than when it arrived in this House and was presented by my noble friend Lord Hughes. As a result of the discussion on Second Reading, the Government proposed several Amendments to Clause 8 which were accepted by this House at Committee stage, and they now come forward with further Amendments to this clause. I Think that these Amendments, both those put forward to-day and those put forward on Committee stage, prevent the anomalies which were suggested on Second Reading. I think this has shown that even the simplest law reform is not quite so simple as it might appear, having regard to the Amendments which have had to be made. I think it shows, too, the necessity of preparing the ground for law reform by consultations with the interested parties. At the Second Reading, I indicated to your Lordships that no proper consultations had taken place with the interested parties, and it is only as a result of these representations that the clause has been so far improved. Having said that, I must express my gratitude to my noble friend Lord Hughes for accepting the suggestions which have been made in this House, and which have also been made since the Bill was here on Committee stage.

On Question, Amendment agreed to.

LORD HUGHES moved, in subsection (2), to leave out the first "that"and insert: a consistorial".

The noble Lord said: My Lords, I beg to move this Amendment. In doing so, I should like to thank the noble and learned Lord, Lord Guest, for what he has said, although I cannot go all the way with him when he said that there was no consultation. It may be that there was not sufficient consultation with certain of the parties, but certainly a fair degree of consultation took place. What I am prepared to admit quite frankly is that the Government have accepted a number of suggestions for the improvement of this clause. That, my Lords, is as it ought to be, because this is a Bill to reform the law; and if it is drawn to the attention of any Government that reform can be better accomplished in a different way, then obviously Her Majesty's Government would not be accomplishing their objective if they intended instead merely to adhere to their own first ideas on the matter. What we now have is the result of a great deal of additional consultation in which the noble and learned Lord, Lord Guest, and the noble and learned Lord, Lord Reid, have played a very large part; and on behalf of Her Majesty's Government I am grateful to them for the help they have given in improving Clause 8. I beg to move.

Amendment moved— Page 6, line 8, leave out ("that") and insert ("a consistorial").—(Lord Hughes.)

On Question, Amendment agreed to.

5.31 p.m.

LORD HUGHES moved, in subsection (2), to leave out the second paragraph. The noble Lord said: My Lords, I would ask that I may speak to Amendments Nos. 4 and 6 together. These Amendments follow a discussion between the Lord President of the Court of Session and the Lord Advocate about the provision which it is necessary to make to secure that the sheriff court shall have available the Court of Session record of the case. The clause as it stands provides simply for the sheriff clerk to intimate the application to the Principal Clerk of Session, who shall then transmit the process to the sheriff clerk. The first of the Amendments, No. 4, deletes this provision, and Amendment No. 6 substitutes a new subsection dealing with the matter more comprehensively.

The effect is to specify the transmission of the process to and from the sheriff court as among the matters on which the Court of Session may regulate its procedure and that of the sheriff court under the Administration of Justice (Scotland) Act 1933. This would enable the Court of Session to make by Act of Sederunt such detailed provision on this matter as they think expedient. Also, it is made clear that the Public Records (Scotland) Act 1937, which provides for the transmission of court records to and from the Keeper of the Records of Scotland, does not preclude transmission of records to the sheriff court under the clause. Finally, it is provided that, for the purpose of the Act of 1937 and of this Act, the record of an application under the clause shall be deemed to be a record of the Court of Session. This is to ensure that after an application under this clause has been made, it shall be dealt with in the same way as the associated Court of Session record—for example, in the event of a further application for variation being made. The general effect of the Amendments is thus to eliminate any doubt which the present wording might leave about the competence of transmission of the records, and to provide explicitly for regulation of the machinery of transmission by the Court of Session itself.

I beg to move.

Amendment moved— Page 6, leave out lines 13 to 15.—(Lord Hughes.)

LORD GUEST

My Lords, I wonder whether I may ask the noble Lord, Lord Hughes, about the question of transmission. As I understand it, the Bill provides for the transmission of the process from the Court of Session to the sheriff court. What would be the position supposing that the two parties had agreed that the process should be transmitted to the sheriff court and then, under a change of circumstances, one of the parties wished to go back to the Court of Session to have the matter considered and was not content that the sheriff who had previously dealt with the matter should, in the new circumstances, deal with it? Is my noble friend satisfied that this clause would enable the process in the sheriff court then to be retransmitted to the Court of Session in order that the judge who previously dealt with the consistorial matter could take it up again? It seems to me a possibility that this might not be covered, but I should like to be assured that it is, otherwise it would not be possible for the party interested in raising this question to bring it before the Court of Session.

LORD HUGHES

My Lords, I was hoping that the noble and learned Lord, Lord Guest, would speak sufficiently long for the answer to reach me, and perhaps he will give me a few seconds so that I may read the advice that I now have. It is not very helpful. In the first instance, it is difficult to read and if I am reading it correctly I am asked to say that I hope it would be covered by Act of Sederunt, but I should like to examine it.

Speaking seriously, my Lords, I think the answer is that the procedure which the Court would lay down would be satisfactory. As the making of the rules is in the hands of the Court of Session itself, one would expect that they would be sufficiently far-seeing to make their rules cover all the circumstances which might arise; and if they have possibly overlooked that aspect, the very fact that the noble and learned Lord has got it Written into the debate here will make it certain that they will not overlook it in future.

On Question, Amendment agreed to.

LORD HUGHES

My Lords, I beg to move the next Amendment.

Amendment moved— Page 6, line 16, leave out ("the other party") and insert ("any other party to the action"). —(Lord Hughes.)

On Question, Amendment agreed to.

LORD HUGHES

My Lords, I beg to move.

Amendment moved—

Page 6, line 20, at end insert— ("(4) Notwithstanding anything in Part I of the Public Records (Scotland) Act 1937 (Transmission of court records to and from the Keeper of the Records of Scotland etc.), the powers of the Court of Session, conferred by sections 16 and 34 respectively of the Administration of Justice (Scotland) Act 1933 to regulate its own procedure and that of the sheriff court, shall include power to provide for the transmission to and from the sheriff court of any process in the action to which an application under this section relates; and for the purposes of the said Act of 1937 and of this section any record of such an application shall be deemed to be a record of the Court of Session.")—(Lord Hughes.)

On Question, Amendment agreed to.

LORD HUGHES

My Lords, I beg to move.

Amendment moved— Page 6, line 28, leave out ("and") and at end insert ("' party' means any person having a right to make application for the variation or recall of the order in question, and").— (Lord Hughes.)

On Question, Amendment agreed to.

LORD HUGHES

My Lords, I beg to move.

Amendment moved— Page 6, line 29, leave out second ("the") and insert ("any").—(Lord Hughes.)

On Question, Amendment agreed to.