HL Deb 14 December 1976 vol 378 cc778-92

2.58 p.m.


My Lords, I beg to move that this Bill be now read a second time. That marriage is an ancient but still popular institution may be illustrated by the fact that the Statutes which will be superseded in whole or in part by this Bill include one passed as long ago as 1567 and which enshrined in Statute form the word of God as set out in the 18th chapter of the Book of Leviticus, and one passed as recently as 1965. So the law and practice on marriage in Scotland has developed over several centuries and is now embodied in a number of Acts. In some respects this law and practice is out of date with present day circumstances and requirements and needs to be modernised. That is the purpose of this Bill—to bring up to date and simplify the requirements for marriage; to clarify the requirements and make them easy to understand and to operate; and, while building on and carrying forward those distinctive features of marriage law in Scotland which remain valuable, to create a new code of law and practice suitable to our times.

I should perhaps stress at the outset that this Bill is not concerned with what I might call the "substance" of marriage. Rather it is concerned with the legal requirements, the formalities and preliminaries that are required for the constitution of a valid marriage. The Bill is based on the report of an independent committee which sat under the chairmanship of the noble and learned Lord, Lord Kilbrandon, from May 1967 to March 1969. In passing I cannot forbear to remark on the singular coincidence that this Bill, stemming from one committee chaired by the noble and learned Lord, should be starting its passage in your Lordships' House almost simultaneously with another Bill in the other place which also derives from a study by a Commission chaired by him. If this is not a record, it ought to be; certainly it demonstrates the catholicity of the noble and learned Lord's interests and the service he has done to the State.

The Kilbrandon Committee on the marriage law of Scotland was appointed by the then Secretary of State for Scotland and reported in 1969. The report was generally welcomed, and subsequent consultations showed that there was a broad measure of agreement with its proposals. Indeed, noble Lords may recall that on 1st February 1973 the noble Lord, Lord Polwarth. said in a Written Answer in your Lordships' House that the proposals "are broadly acceptable" to the then Conservative Government. So the delay has not been due to any lack of good will from either Government, but rather to the scarcity of Parliamentary time in face of many other competing claims for legislation, a reason which will no doubt touch a sympathetic chord in your Lordships after recent weeks.

Before I turn to the Bill itself, I should perhaps explain that there is no corresponding English Bill. The English laws on marriage were consolidated in 1949. Major differences have long existed—for example, the requirement of parental consent in England and Wales, the system of registration of buildings there, and the use of the Marriage Schedule in Scotland. These are for the most part deeply rooted in custom and practice and there seems no good reason why the traditional arrangements in one country should give way to those in another.

Some of the main changes, and the reasons for them, may not be obvious on a reading of the Bill, and it may therefore be helpful to your Lordships if I outline them briefly. The Kilbrandon Committee examined the system of preliminaries to marriage and came to the firm conclusion that certain features of these were outmoded in present-day circumstances and that they no longer served any useful purpose. A main purpose of these preliminaries is to make sure, before the marriage takes place, that each of the parties is free to marry and that there is no legal objection to their marrying each other. Traditionally the means of achieving this has been by publicising the intended marriage in advance, so that anyone who knew of any impediment could bring it to notice by lodging an objection. The publicity was secured either by proclamation of banns in a church of the Church of Scotland or by publication of the marriage notice on the registrar's notice board, or by a combination of these methods.

The Kilbrandon Committee demonstrated clearly that nowadays neither of these methods was a reliable way of making intended marriages known to those who would not otherwise have been aware of them. This is as true of church banns as it is of a public notice board. It is very rare indeed, as the Committee pointed out, for an objector to come forward who has learned of the intended marriage only through hearing of it when banns were proclaimed or seeing it on a registrar's board. It is not surprising, therefore, that the Committee found a general body of opinion in favour of ceasing to accept banns as a legal preliminary to marriage. Indeed the Church of Scotland themselves have recognised the force of this and are in agreement with the recommendation to end recognition of banns. This therefore is one of the effects of the Bill: it will, of course, be entirely open to any church to continue to proclaim banns if it wishes to do so for its own purposes. But banns, like publication of notice, will no longer form part of the legal preliminaries. In addition, the 15-day residential qualification will also be abolished. This causes inconvenience to some people and no longer serves any useful purpose.

These requirements will be replaced by a system under which the main check on the capacity of the parties to marry will be undertaken by the registrar, who will be put in a better position and given more information for this purpose. Instead of the variety of preliminaries available at present, everyone will submit his (or her) own notice of marriage to the registrar, and will be required to provide the registrar with more detailed information than at present, including his birth certificate and documentary evidence of the termination of any previous marriage. Since both parties will give notice and provide this information to the registrar for the district in which the marriage is to take place, he will have all the necessary information before him and will be able to make a more effective check on their capacity to marry than is possible at present.

A period of 14 days will be allowed for this check during which the registrar will not be able to issue the Marriage Schedule. This period will be shortened, however, in urgent cases, if the Registrar General sanctions it. In effect, therefore, the Registrar General's approval to shortening the waiting period will replace the sheriff's licence procedure. Parties will no longer have the expense of obtaining licences, and there will be more consistency of decision.

At present some 65 per cent. of all marriages in Scotland are religious and the remaining 35 per cent, are civil ceremonies. The ambit of religious marriages will be extended so that they are no longer restricted to Christian denominations, Quakers and Jews. In accordance with the Kilbrandon recommendations, which have been supported by many bodies, including in particular the Scottish Council of Churches, recognition of religious marriages will be extended to those solemnised by non-Christian religious bodies. This will enable such bodies as the Moslem and Sikh immigrant communities, subject to observing certain basic requirements, to solemnise their own marriages and have them registered without the need for the parties to have a civil marriage. Immigrant communities in Scotland have pressed for this change for some years now in order to remove a sense, as they see it, of religious discrimination and the Government are glad now to be able now to meet their wishes and introduce in Scotland a facility which is already available to them in England and Wales.

I mentioned that certain requirements would be laid down. These are designed to ensure that the religious marriage ceremonies include the basic features which go to make a valid marriage under Scots law. The Bill lays down the broad rules to be satisfied and these will apply not only to non-Christian religious marriages, but also to marriages solemnised under the auspices of the many smaller Christian sects, whose celebrants will be registered by the Registrar General. In all these respects the Bill closely follows the Kilbrandon recommendations.

My Lords, I should perhaps say a word about one feature of the Kilbrandon Report which is not reflected in the Bill. This concerns the measures recommended to deal with so-called runaway marriages of young people who come to Scotland to be married there without the consent of their parents. This was a serious problem when the Committee were meeting in 1969 and they proposed a detailed and somewhat elaborate procedure for stopping these runaway marriages. This procedure is not incorporated in the Bill, for several reasons. The other countries concerned were not all enthusiastic about the solution proposed, since this would have put the onus clearly upon them. Much more significant, however, is the fact that, since the Committee reported, the age of majority in England and Wales has been reduced from 21 to 18, with a consequent change in the age under which parental consent to marriage is required; and this has been followed by a similar reduction in the European countries from which most of the runaways to Scotland come. So there has been a substantial reduction in the numbers of these marriages in Scotland. Pressures from other countries to solve the problem have eased and so, in the circumstances, the Government have not deemed it necessary to legislate to set up an elaborate system when, in their view, the problem may well gradually disappear.

I now turn to the detailed provisions of the Bill. Clause 1 continues 16 years as the minimum age at which persons domiciled in Scotland may marry, whether in Scotland or elsewhere. Clause 2, which is linked with Schedule 1, deals with the degrees of relationship within which two persons are forbidden to marry one another. Schedule 1 sets out the list of forbidden degrees for marriage in a form which is easy to understand and to administer. The list is the same as that used at present by the Registrar General to identify illicit relationships and, in effect, is the same as the list already approved by Parliament for England and Wales. Clearly, this is a matter in which practice should be uniform.

Clauses 3 to 6 deal with the preliminaries to marriage in Scotland. The new procedure is intended to provide a more effective means of ensuring that the parties fulfil the basic requirements of a valid marriage. Each party to an intended marriage will be required to give notice of intention to marry to the registrar for the district in which the marriage is to take place, together with documentary evidence to prove that the person is free to marry and that the parties may marry one another. Persons residing elsewhere in the United Kingdom who may wish to marry in Scotland will be able, as an alternative, to present a certificate obtained in their own country after giving notice there. In addition to giving notice in Scotland, foreigners will be expected, if practicable, to produce a certificate from their own country of their freedom to marry under the laws of that country. It is expected that this requirement will deter those foreigners who request facilities to marry in Scotland because they are anxious to evade restrictions under their own laws.

Clauses 4 to 7 deal with procedural matters and make little significant change. The categories of persons who may solemnise marriages are set out in Clause 8. Broadly, these are ministers, clergymen, priests and the like of religious bodies, and registrars who are authorised to solemnise civil marriages. The ministers will comprise three groups: those belonging to certain prescribed religious bodies, those registered under Clause 9 and those who are only temporarily authorised. The Kilbrandon Committee recommended that statutory backing should be given to a practice which has grown up between the Registrar General and the smaller Christian sects. To put this on a statutory footing, a register of nominated and approved celebrants will be maintained by the Registrar General. There is no need, however, to apply this procedure to clergymen of the 12 or so main religious bodies, which among them solemnise about 98 per cent. of the religious marriages in Scotland. These therefore will be prescribed in regulations, and their incumbents will automatically be accepted as authorised to solemnise marriages. The proposed system will make possible the recognition and registration of marriages solemnised in Scotland by celebrants belonging to the immigrant communities.

Clauses 9 to 16 deal with religious marriages. Where they introduce new features, they reflect closely the recommendations made by the Kilbrandon Committee. Clause 17 directs the Registrar General to appoint, as authorised registrars, as many district registrars as he thinks necessary to provide reasonable facilities for the solemnisation of civil marriages throughout Scotland, and Clauses 18 and 19 deal with civil marriage procedures. Clause 20 will enable the Registrar General to permit the civil marriage in Scotland of couples who have already married each other outside the United Kingdom but who are either not validly married in Scots law or are unable to prove that they are so married. The practice of permitting second marriage ceremonies in certain situations was introduced in England and Wales in 1968. The remaining clauses deal with minor or formal matters.

My Lords, I have explained as comprehensibly as seems necessary the main features of the Bill. For the present, I re-emphasise that the Bill is intended to bring our distinctive Scottish marriage procedures into line with modern circumstances, to simplify procedures where possible and yet to preserve that which has worked well. For the most part it is closely modelled on the Kilbrandon Report, the proposals in which were generally welcomed at the time. More recent consultations on the proposals for incorporation in the Bill have again shown that these are widely acceptable. My Lords, I commend the Bill to your Lordships' House.

Moved, That the Bill be now read 2a.—(Lord Kirkhill.)

3.15 p.m.


My Lords, I am sure your Lordships will wish to thank the noble Lord, Lord Kirkhill, for the careful and, indeed, comprehensive manner in which he has introduced this thoroughly uncontroversial Bill. I suppose persons who are neither Scottish nor have any knowledge of Scotland probably imagine that the Scottish marriage laws are about as wild as its countryside; that the place consists, fairly near to England, of Gretna, where the runaway marriages take place; and that, apart from that, there is a series of irregular marriages, marriages by cohabitation with habit and repute, where people do not even bother to go through a ceremony of marriage at all. In fact, those of us who are Scots know that the situation is very different. The noble Lord (if I may interpose it at this moment of time) claimed credit, and no doubt rightly, for sweeping away a lot of the old Acts which have obtained for so long. He did not, so I am informed, claim—and certainly there is no mention of it—any repeal of the Act of 1600, which' makes it an offence for anybody to marry their paramour; but I suppose the Government gave good reasons for not including that Act in the list of repeals.

Perhaps more seriously, the Report of the noble and learned Lord, Lord Kilbrandon, is one which I think anybody who studies this subject, or even anybody who is new to it, will readily accept. The preliminaries to a regular marriage are now modernised and made comprehensive. Speaking personally, I suppose one may perhaps be a little sad that, in future, no one will be "roared", as I think the phrase goes; but apart from that, as I have said, these new provisions are certainly more suitable to the last quarter of the 20th century. The marriage notice and the Marriage Schedule seem to be perfectly logical and in order, and I do not suppose any of your Lordships will quibble with them. A welcome reform is the provision for religious marriages, in effect, for those who are non-Christians, or of other denominations mentioned by the noble Lord, Lord Kirkhill. These may be celebrated in future by nominated celebrants, as I think they are going to be called.

I shall not take up any more of your Lordships' time over this matter except to say this. It may well be that this Bill will not need to have a Committee stage in your Lordships' House. Therefore, perhaps I may be forgiven if I mention now three short points which I have to raise about this Bill, on which the noble Lord may then, at his leisure, satisfy me or not, and we can see how we go from there. The first point is this. In Clause 2 of the Bill there are set out what are called the "Forbidden degrees" which, in effect, forbid marriage between related persons, either on the grounds of consanguinity or affinity; that is, whether the relationship is by blood or marriage. I am curious to know why it is still apparently possible for an adoptive parent to contract for marriage with the child of an adopted child; in other words, a grandchild. Your Lordships may well think that this is scarcely a likely state of affairs, and indeed it is not; but if we are, as it were, to have such a far-reaching Bill as this, which sets out in the greatest of detail in Schedule 1 precisely what the prohibited degrees are, we may as well get it right. I commend this small point to the noble Lord for study.

My second point is under Clause 9. Clause 9 deals with the "Registration of nominated persons as celebrants" in the case of religious marriages by bodies not being bodies prescribed by virtue of Clause 8(1)(a)(i) of the Bill. In brief, if a nominee for registration is rejected by the Registrar General he or his parent body may, within 28 days, appeal, as the Bill says, to the Secretary of State. It has been argued to me, and it seems to have at least some merit, that it would be better for such an appeal to lie in the Court of Session or possibly the sheriff court rather than to a Minister to make this, in effect, judicial decision by way of administrative action. Accordingly, I again commend that to the noble Lord, Lord Kirkhill.

The last matter which I would raise is in connection with Clause 25. This clause empowers the Secretary of State to make regulations exercisable by Statutory Instrument; and in subsection (2) prescribes that the Statutory Instrument shall be subject to annulment in pursuance of a Resolution of either House of Parliament. It has been represented to me that it would be better if the Resolution were to be an Affirmative Resolution in favour of the regulations rather than a Negative Resolution against them. No Government like this sort of suggestion, and I quite understand if this particular Government do not like this particular suggestion; but there it is. I make it partly because there are persons and bodies in Scotland who are worried by this small point. I would merely emphasise that the Statutory Instrument and the regulations to be made upon it could have far-reaching effects. With these reservations, I would join with the noble Lord in recommending this Bill to the House.

3.22 p.m.

The Earl of SELKIRK

My Lords, I welcome this Bill. I think it is a very sensible Bill. I must say that it is the most obvious Bill for a Scottish Assembly that I have seen in this House for some time. Whether the Government have been instructed to disregard the possibility of an Assembly in the near future, I do not know; but it seems to me that the Scottish marriage system could have lasted another year without any serious defects taking place in that time. I must say that until I read the Kilbrandon Report I had no idea what complications marriage could fall into. It raises the most extraordinary possibilities which, I am glad to say, I have evaded during my life. But apparently they can happen to other people.

There is a lot of talk sometimes about the rather simple character of the Scots marriage and indeed there was no need for anything that can beat a marriage in Scotland except consent; and you only needed witnesses to prove it and it was not necessary to constitute the marriage. But there were always the legal obligations which marriage carried, particularly in regard to finance, and this is not the case in England. If you did get married, you involved yourself in very considerable legal liabilities in regard to finance which made a considerable difference to what the law has been. This Bill puts a good deal of responsibility on the Registrar General. I think that a great deal of the information which is supposed to be made available to him will prove difficult. He will have to make some very difficult decisions in certain cases. I think that countries abroad will not always be very willing or able to produce documents giving the exact status of those who are going to marry. I wonder whether 15 days is enough. The Government may think it is enough. If people come along and say they want to get married and you have to find out much about it, if you have to do that with certitude I think that 15 days is not a long time.

Perhaps the most interesting thing is the extent to which the Bill tries to extend religious marriages. I am sure that this is right. I have myself attended in this country a Hindu marriage. I am not quite certain of the legal background. I am sure that this is something which should be encouraged and I have no doubt it will be. I should like to support the point made by my noble friend Lord Mansfield about some of the decisions made there. There is another point in regard to Clause 8. This is changing certain things basically. The tradition in Scotland has for a long time been that the Church of Scotland could solemnise a marriage. Now their right to solemnise marriages will depend on the fiat of the Secretary of State.

I wonder whether it is wise to take that inherent right away from the Church of Scotland. We may get a Secretary of State who does not believe in religious marriages. This is quite possible. I should have preferred that this should be stated by Statute instead of leaving it to the Secretary of State to prescribe. I may say that this prescription does not come before Parliament at all. It is simply his decision that certain religious categories can conduct religious marriages. If the Government are sure—and the noble Lord said so—that there are 12 well-disciplined, organised religions which could conduct marriages reliably, why not put it in the Bill so that they are dependent upon an Act of Parliament and not on the pure will of the Secretary of State? I should suggest that this really would be the correct way of doing it; because if the Secretary of State did not like a particular religion he could scratch out the whole line and say that this particular religion cannot conduct religious marriages. I wonder whether that is wise. I think the Church of Scotland is showing great signs of tolerance in reducing their status to one depending entirely upon the Secretary of State.

I would ask the noble Lord to look at that point. After all, there arc things going on in another place and we are not absolutely certain what is going to happen to the Secretary of State. We do not know. It may be all right; but I think that to depend entirely on this Office, which hangs a little in the balance, is possibly a little unwise. If there are 12 known and responsible religions which the noble Lord can state—and there are a number mentioned in the Kilbrandon Report—why not put it in the Bill so that they know where they stand? Would that not be fair?

I think, too, on Clause 10 that the point raised by my noble friend Lord Mansfield about appeals to the sheriff would be right and proper. This is a matter on which people may feel strongly in some of the less well-known denominations, and they should have a proper opportunity of stating their case. This was a recommendation of the noble Lord, Lord Kilbrandon. I wonder why it has not been taken up. I noticed that the noble Lord raised the question of the Act of 1600, chapter 20. I do not know whether this is effective or not. Perhaps we might he told whether this Act which makes it impossible to marry a paramour is valid. I presume that it is not, for it has happened on a number of occasions. The other interesting point about marrying the child of your adopted child may seem utterly obscure but this is positively mentioned in the Kilbrandon Report and it does not appear in the Bill. I will not mention any further points. I hope that we shall have a Committee stage because this is a very important Bill indeed. I think it is one which will be generally recognised and there may be points which would be worth looking at.

3.29 p.m.


My Lords. I enter this discussion with some trepidation, being an Englishman, but I am fascinated to hear that there are 12 recognised religions—possibly on the basis of there being 12 Apostles. I think it is likely that there may he a number more. I should have thought that this particular matter of what is a creditable or worthy religion of which duly appointed representatives could officiate at a marriage is something which needs further thought. It would appear to me, without any particular knowledge of what goes on in Scotland, that it is highly likely that from time to time there will be variations in this particular religious theme. Therefore, whether now or upon a later stage of the Bill, I would ask the Government to look rather more carefully at this somewhat magical figure of 12. I imagine it is highly likely to be variable, and there may be some reputable representatives of other faiths which ought to be included. It would not surprise me if one or two of the 12 ought to be excluded.

The Earl of SELKIRK

My Lords, I mentioned 12 because they fall under Clause 9. There are 132 different religions mentioned in the Kilbrandon Report which might fall under Clause 10. The noble Lord's point is covered by the Bill.


My Lords, I feel happier now.

3.31 p.m.


My Lords, may I thank the noble Earl, Lord Mansfield, for his comprehensive and generous welcome of this Bill which, as he has properly said, is—at least in political terms—noncontroversial, though I detected a whiff of gunshot from the noble Earl, Lord Selkirk. I am not sure about the Act of 1600; but, if it is still relevant, it suggests that there is still a romantic spirit in the Scottish land. The noble Earl, Lord Mansfield, posed three questions, and perhaps they should more properly be dealt with in Committee. But so far as the question of the Affirmative Resolution in Clause 25 as it relates to fees is concerned. I can say what I am sure the noble Earl thought I would say, and that is that this provision merely follows present practice. The registration of marriage fees has been prescribed in this way for many years. So far as is known, there has been no objection taken. However, I note the remarks the noble Earl made.


My Lords, the question is not one of marriage fees, but of the regulations to be made when this Bill becomes an Act, including the matters which were taken up by my noble friend Lord Selkirk.


My Lords, that is a fair point; I was unreasonably brief in my comment. I doubt however that even if I extend the view, it would change the Government's position as against Negative and Affirmative Resolutions. The question of the registered celebrant and his right of appeal were he to be removed from that position by the Registrar General, and the suggestion, which was supported by the noble Earl, Lord Selkirk, that this might be appealed at the Court of Session rather than before the Secretary of State of the day, is something which I have not considered until this afternoon. I will give some thought to it without giving an unequivocal assurance from the Government Benches of a change in the Bill.

The noble Earl, Lord Mansfield, raised a fair and relevant point about forbidden degrees and adoptive relationships, and why the Bill did not prevent marriage between adoptive parent and his adopted child's son or daughter. The possibility of extending the forbidden degrees in the adoptive relationship was considered and rejected by the Houghton Committee, whose recommendation to restrict the bar to adoptive parent and child was included in the Children Act 1975. The noble Earl, Lord Selkirk, felt the Bill obviously was one which might have sat well on the new Assembly's shoulders. It has come before your Lordships' House because the Kilbrandon Committee met in 1969 and the Government were able to make legislative time available at this moment. There is no hint that because the Bill is before your Lordships' House, the Government's commitment is less than enthusiastic to the proposed devolved Assembly.

The position under Clauses 8, 9 and 10 is that at the present moment there are 12 denominations—if one may use that phrase—in Scotland, whose celebrants perform about 98 per cent. of the marriage ceremonies there. That is the present practice. These are a number of sects—as the noble Earl mentioned, they go into hundreds—who at the present time may solemnise a religious marriage. The Open Brethren—to name one denomination—are in that position. The Bill attempts to regularise what is present practice. There are waters of some religious difficulty; there is always a feeling that the dividing line may not be made in absolutely the most appropriate place. Nevertheless, the Bill attempts to give some form of regularity to what is a present practice. It does not seek to do more or less. With those remarks, I commend the Bill to your Lordships' House.

On Question, Bill read 2a, and committed to a Committee of the Whole House.