COMMONS AMENDMENT (Hansard, 26 April 1977)

§ Lord KIRKHILL
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 46. This Amendment, made after strong pressure on the part of certain Members in another place, extends the list of forbidden degrees by one further generation to include the great-grandparent/greatgrandchild relationship. Although such a marriage seems highly unlikely, it has been accepted that it should be barred in specific terms, as in the Amendment, particularly in the light of the provision in Clause 2(3) that relationships other than those set out in Schedule 1 are not a bar to a valid marriage.

Lord CAMPBELL of CROY
My Lords, as the noble Lord has explained, the only effect of this Amendment, 408 although it is a list, is to add another generation to the degrees which are forbidden in relationship for marriage in Scotland. This raises the question on consanguinity and means that marriage between a person and his great-grandchild is illegal. So far as I know, this produces a difference one side of the Border from the other. Does the noble Lord wish to intervene?

§ Lord KIRKHILL
My Lords, the noble Lord, Lord Campbell of Croy, was good enough to tell me earlier today that he would mention this point when we came to discuss this Amendment. That caused me to have some inquiry made and I have been discussing since then with some of my advisers the very point which he raised with me and I am able at least to supplement some of the earlier comments we made one to another outwith the forum of this House.
I am advised that Clause 40(1) of the Criminal Law Bill provides that in England and Wales it shall be: …an offence for a man to incite to have sexual intercourse with him a girl under the age of sixteen whom he knows to be his grand-daughter, daughter or sister". This amends the Sexual Offences Act 1956 which substantially applies only to England and Wales and which, according to a recent judgment, applied only where the girl was over 16. The latter Act does not, however, extend the incestuous relationships beyond grand-parent and grand-child. The list of forbidden degrees for marriage in England and Wales is much longer therefore than the list of incestuous relationships there.
The position in Scotland is rather different. The list of forbidden degrees for marriage and the list of incestuous relationships appear to be substantially the same at the present time. It is probable that a sexual relationship between a great grand-parent and a great grand-child, inconceivable as it may be, would be incestuous and thus it is right that this degree of relationship should be included in the list of forbidden degrees for marriage. Although the Government felt that a reference to persons within this remote relationship was unnecessary in regard to marriage, they acceded to the wishes of the Opposition in the other place which were supported by representations made by the Law Society of 409 Scotland and other legal experts. The Scottish Law Commission has been asked to review the criminal law of incest and it may be that it will recommend that, as in England and Wales, the list of incestuous relationships should be shorter than the list of forbidden degrees for marriage and therefore would be markedly different from that list, so there may be alteration pending in the near future.

The Earl of SELKIRK
My Lords, may I—

Lord CAMPBELL of CROY
My Lords, I gave way to the Minister at the beginning of my remarks and I mean no discourtesy to my noble friend Lord Selkirk when I point out that I was in the middle of my speech. I gave way to the Minister because I understood that he wished to add to his earlier remarks. I did not realise that the noble Lord was about to make another speech, but I am grateful to him for what he said. I was making a much simpler point; I was simply saying that by adding another generation, as this Amendment would, it looked as though in Scotland the forbidden degrees of relationship for marriage would come out of line with those in the rest of the United Kingdom, and that was the point I was about to raise when I gave way to the noble Lord.
One of the problems in Scotland throughout this Bill has been that the law of incest is still different and is not consistent with the law of marriage, and the Bill seeks only to reform the law of marriage and does not seek to deal with the criminal law concerning incest, and as a result there are inconsistencies. I drew the attention of the Minister to what was Amendment No. 12 to the Criminal Law Bill dealing with England and Wales and which we in this House were dealing with exactly a week ago. That went only as far as the generation short of great-grandchildren and there was immediately an apparent inconsistency.
Am I right in thinking that by extending for Scotland the forbidden degrees to great-grandchildren, this is now causing a difference between Scotland and England and Wales, where the forbidden degrees for England and Wales go, as I think, as far as grandchildren and not further? I think I see the noble Lord nodding in assent, so I think I am right to draw the 410 attention of the House to this matter. I am not objecting to the Amendment, which was discussed at length in another place, where my honourable and right honourable friends were in favour of it, and the Government have put it down.
Why it should be that in Scotland one should need to go to yet another generation I know not; whether it is that marriage has been at a very much younger age and whether, with the permissive society, we shall find schoolgirl mothers and the generations much closer to each other I do not know. What concerns me is that at a time when we are trying to get the forbidden degrees of relationship for marriage uniform for the United Kingdom, this Amendment makes a difference where Scotland is concerned and this could cause difficulties in marriages or proposed marriages affecting both sides of the Border. That was the point I wanted to register; in passing this Amendment, which I do not seek in any way to oppose, we must recognise that a change in now being made for Scotland which at present does not apply in England and Wales.

§ Lord KIRKHILL
My Lords, perhaps I might confirm my nod with verbal confirmation and at the same time explain that I normally tend to try to deal in detail with any point that the noble Lord, Lord Campbell of Croy, puts to me. I thought that my explanation, although perhaps somewhat wordy, indicated what the present position was and what the future possibility was likely to be.

The Earl of SELKIRK
My Lords, I am aware that the Amendment was welcome to the other place. An ingenious thought was worked out that in four generations, taking every conceivable opportunity, it was possible for a lady of 65 to marry her great-grandson aged 16. The real trouble is that this opens as many difficulties as it closes. For instance, you may now not marry your uncle, but you may marry your great-uncle and you may marry your great-great-uncle. I had never thought of that as a possibility, but the Amendment clearly postulates that. I must say that I am glad that the Royal Commission is looking at this matter but it does leave rather an open question. No one can possibly object to the Amendment; it would be almost inconceivable. I must say that the Scottish Office, with 411 all its resources, never gave in the whole history one example of this kind of thing ever having happened. So I think that the Amendment is substantially unnecessary, but as my noble friend said, it raises a number of questions, and I think that the matter having gone this far the Law Commission must be asked to look at it.