MARRIAGE (SCOTLAND) BILL [H.L.] (Hansard, 8 February 1977)

HL Deb 08 February 1977 vol 379 cc1039-82 1039

§ 3.2 p.m.

§ Report of Amendments received.

§ Clause 3 [Notice of intention to marry]:

§ Lord CAMPBELL of CROY moved manuscript Amendment No. 1A:

§ Page 2, line 41, leave out subsection (5).

§ The noble Lord said: My Lords, I must make it clear that this manuscript Amendment was tabled by me last week, and I had no intention of its being considered as a manuscript Amendment. By some mishap—I understand at the printers—it does not appear on the Marshalled List. I noticed this at 11 o'clock this morning. The first action I could take was to get made available for your Lordships duplicated copies of the Amendment. The Amendment seeks to leave out subsection (5) of Clause 3. Its purpose is to question the effect of the subsection and ask the Government to explain it. When I tabled the Amendment last week I was able to inform the Scottish Office that I had done so, and therefore the Minister had reasonable notice of the Amendment.

§ Since the Committee stage doubts have been raised among legal minds in Scotland about the effects of this subsection, and that is why clarification is required. When this Bill was being drafted one of the matters very much in the minds of those concerned was the question of runaway marriages, the romances at Gretna Green and elsewhere in Scotland. These caused some embarrassment in Scotland because the law was really for domestic application within Scotland. The law also enabled young people, after a very short period of residence, against their parents' wishes, to marry in Scotland. In almost every case they could not have married in their own countries, including England, because they did not have their parents' consent and they were under the age of 21.

1040

§ There was concern expressed also South of the Border, especially in the area now known as Cumbria—a concern expressed by my noble friend Lord Inglewood, among others, because of some instances where young people had crossed the Border and married at very short notice. This was one of the matters into which the Committee chaired with distinction by the noble and learned Lord, Lord Kilbrandon (who I am glad to see here this afternoon), were asked to look. When they reported in 1969 on any reforms needed to the Scottish marriage laws they knew that their recommendations were being sought on this subject.

§ But in the meantime the situation has completely changed. The romance of an elopement to Gretna Green has now virtually disappeared. The blacksmith's impromptu "kirk" and his anvil are there for visitors and tourists to see; but it is most unlikely that any couple wishing to marry would now avail themselves of his services. This has not been killed by any decree or legislation; it has happened because of the reduction in the age of majority in the United Kingdom as well as in other countries. One must add, realistically, that probably there are couples nowadays who feel that they can run away without the benefit of the blacksmith.

§ This Bill seeks the complete reform of the marriage laws in Scotland, and the question of domicile is dealt with somewhat perfunctorily in this subsection. Where a party to a prospective marriage is not domiciled in the United Kingdom, a certificate is required indicating that he or she is free to marry. Such a person is exempted if for two years or more he has been ordinarily resident, as it is described in the clause. That is an ambiguous term, and I understand that it has led to anomalies. The term "ordinarily resident" is not defined in this Bill. For example, there have been cases of students who have been living in the United Kingdom and in Scotland without interruption for as long as five years, yet they have not met the interpretation of having been ordinarily resident because of their particular circumstances.

§ It has been suggested that instead of domicile, this subsection should be based on nationality, and that that would lead 1041 to less in the way of difficulties. For example, passports would be brought in. There are differences in personal law in other countries and these are catered for in paragraph (i) in the subsection. There, another kind of certificate can be produced in the circumstances described, so there is a category of person who will be dealt with in another way.

§ Will the Government tell us what is the intention in subsection (5)? Secondly, will they look again at the subsection in the light of what I have said and the material that I have sent to the noble Lord, which was compiled by legal minds? I accept that this is a complicated subject. If the noble Lord cannot give us more than a short answer today, I will understand that; but I hope that the matter will be pursued when the Bill goes to another place. I beg to move.

§ 3.10 p.m.

§ The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill)
My Lords, the noble Lord has referred to runaway marriages involving people from foreign countries. We both referred to this at Second Reading. As the noble Lord rightly said, the main reason for the changed situation, the substantial reduction in these occurrences, is that the age of majority in several European countries has been reduced from 21 to 18 years of age. For example, in 1967 there were 104 marriages in Scotland where both parties came from foreign countries and both were under 21 years of age. In 1975 there were only six corresponding marriages, and in only one of those were both parties under the age of 18. Other runaway marriages may occur where only one of the parties is under the age at which parental consent ceases to be necessary. In 1975 there were 25 such marriages, in which one or other of the two persons from abroad was under the age of 18. Although there has been this welcome reduction, these cases still occur, and I think I should draw to your Lordships' attention that it is the youngest people—those aged 16 and 17—who are now likely to be involved.
Clause 3 (5) is included in the Bill to meet that situation and to do something to reduce still further the incidence of such marriages. I must say to your 1042 Lordships quite frankly that that subsection is introduced largely as a deterrent. It is, as it were, an additional hurdle that we are erecting in the way of runaway youngsters from abroad seeking to get married in Scotland. In addition to the normal Scottish preliminaries of giving notice in Scotland, they will be expected to produce the kind of certificate that is commonly in use in their own countries. Our expectation is that when they learn of this requirement and realise that the absence of parental consent to their marriage means that they will not be able to fulfil it, they will be deterred from pursuing their application for facilities to marry in Scotland.
The noble Lord, Lord Campbell of Croy, also raised the condition of ordinary residence in the United Kingdom for a period of two or more years. The requirement is independent of the question of domicile in the United Kingdom. The dispensation that has been referred to applies only to persons domiciled in an overseas country but who have been resident in the United Kingdom for two or more years immediately before application is made for facilities to marry. That is in accord with the recommendations set out in paragraph 69 of the Kilbrandon Committee's Report that: A person should be deemed to have his usual residence in Scotland if he has resided in Scotland for two years or more immediately before the date on which he makes his application to marry. I am further advised that this matter is complicated, as indeed was the other proposition posed by the noble Lord, Lord Campbell, in that in some cases there will be a difference between the personal laws of Scotland and of the other State regarding a person's domicile. I am advised that only in the most exceptional case is there difficulty in determining the personal law of an individual.
It has to be kept in mind that the purpose of the requirement to produce a certificate is served if it deters people who suffer from some impediment under their own laws from applying to marry in Scotland. That is the greatest benefit which the Government see as flowing from the requirement to produce a certificate. However, I am willing to look at the difficulties involved. I do not think I will be able to be constructive in your Lordships' House at a later stage 1043 of the Bill, but I am prepared to give this matter further consideration, and perhaps it may be possible to look further at this in the other place, in the light of remarks made here this afternoon.

Lord CAMPBELL of CROY
My Lords, I am grateful to the noble Lord for having given us a general reply to the points that I have raised and also for saying, as I hoped he would, that the Government will continue to examine this matter—it certainly is complicated—and that, if they think it suitable, they may suggest changes when the Bill passes to another place. I beg leave to withdraw the manuscript Amendment.

§ Manuscript Amendment, by leave, withdrawn.

§ Clause 4 [The marriage notice hook]:

§ 3.15 p.m.

§ The Earl of SELKIRK moved Amendment No. 1:

§ Page 3, leave out lines 22 to 24.

§ The noble Lord said: My Lords, I should explain that the name of the noble Lord, Lord Kirkhill, should not be on this Amendment. I am raising this point because I could not understand exactly what the proviso in Clause 4 was meant to convey. Thanks to the noble Lord, Lord Kirkhill, I now understand its purpose, but I still wonder whether it could not be achieved in a very much more simple manner. It says here: On receipt of a marriage notice or approved certificate…the registrar shall…enter such particulars…together with the date of receipt…". Then the proviso says that in the case of an approved certificate he should date it 14 days earlier.

§ That is statutory authority for making a false statement in the marriage notice book. Is that really necessary? I understand the reason is that if the approved certificate is fully in order the Marriage Schedule can be issued forthwith; but is it not a much easier way of achieving the same result simply to say that on the receipt of a marriage approved certificate the Marriage Schedule can be issued forthwith, instead of instructing the Registrar General to put an incorrect 1044 statement in the marriage notice book? I put forward that suggestion because I think it would be easier to understand and the Bill would be marginally improved thereby. I beg to move.

§ Lord KIRKHILL
My Lords, let me say at once that I agree with the first comment made by the noble Earl. I did not intend that my name should appear jointly with his on the face of this Amendment—though, of course, I say that not in any spirit of animosity.
I should explain that the reason for this predating of the approved certificate as in the proviso to Clause 4(1) was that the certificate results from completing the necessary preliminaries to marriage elsewhere in the United Kingdom. During these preliminaries the person concerned has already had to wait for 21 days before the certificate is issuable by the superintendent registrar in England. Since the registrar in Scotland is in effect accepting the English superintendent registrar's certificate as satisfying the Scottish preliminaries, there is no need to require the party from England to wait for a further period after submitting his certificate here, and to do so could cause hardship in individual cases. The pre-dating avoided any such requirement.
In the light of the criticisms made at the Committee stage about this "deemed" date of receipt, which has given the impression of conflicting with the 14-days period referred to in Clause 6 during which the registrar could not issue the Marriage Schedule, I have looked at the matter again. I agree that this proviso to Clause 4(1) can be omitted, thus removing the pre-dating, so long as a further Amendment (which I shall be making) is made to Clause 6, making it clear that the period of 14 days applies only to marriage notices. Where a notice is submitted by each of the parties (as will be normal) the 14–day period will reckon from the date of receipt of the latter. Therefore I am able to accept the Amendment put forward by the noble Earl.

The Earl of SELKIRK
My Lords, may I express my gratitude to the noble Lord for what he has said.

§ On Question, Amendment agreed to.

1045

§ 3.19 p.m.

§ Lord KIRKHILL moved Amendments Nos. 2 to 5 en bloc:

§ Page 3, line 25, leave out ("be"). Page 3, line 26, at beginning insert ("be"). Page 3, line 29, leave out ("kept and made") and insert ("remain"). Page 3, line 30, leave out ("the date of the last entry in the said book") and insert ("it has been filled").

§ The noble Lord said: My Lords, if it would be for the convenience of the House, as I believe it to be, I should like to move Amendments Nos. 2 to 5 en bloc. These are drafting Amendments which will remove two slight ambiguities in the present wording. The reference to "the last entry in the book" could be taken to mean: the entry last made in the marriage notice book". instead of: the entry in the last space in the marriage notice book", which is what is meant. Furthermore, sub-paragraphs (a) and (b), read together, may be taken to mean that the period during which the marriage notice book is available for inspection is of only six months' duration and does not start until the book is filled. The Amendments made it clear that the six months' period runs from the date of the final entry in the marriage notice book and does not come into operation, may be because in a district with few marriages there might be a gap of six months or more between them. They also make it clear that the marriage notice book will be available for inspection throughout the period of its use, and also for six months thereafter. I beg to move these Amendments en bloc.

Lord CAMPBELL of CROY
My Lords, I should just like to say, when we are considering the first Government Amendment, that speaking for myself, and I think for my noble friends, I am grateful to the noble Lord, Lord Kirkhill, for the number of Amendments which he has tabled today for our Report stage, in which he is clearly trying to meet matters which we raised at the Committee stage, particularly in clarifying the Bill. It will never be too soon, in the passage of a Bill through both Houses, for the Government to have second thoughts on matters like these and we certainly would not complain 1046 about the number of Amendments, because they are all aimed at improving this Bill even at this early stage before it has been to the other place. For my part, I agree that these Amendments improve the Bill and I hope that this House will accept them.

§ On Question, Amendments agreed to.

§ Clause 5 [Objections to marriage]:

§ 3.21 p.m.

§ Lord KIRKHILL moved Amendments Nos. 6 to 9 en bloc:

§ Page 3, line 36, at end insert— ("Provided that where the objection is on the ground mentioned in subsection (4A) (d) below, it shall be accompanied by a supporting certificate signed by a registered medical practitioner.") Page 3, line 38, leave out ("on a ground to which this subsection applies"). Page 3, line 39, at end insert— ("( ) in any case where he is satisfied that the objection relates to no more than a mis-description or inaccuracy in the marriage notice or approved certificate, notify the parties to the marriage of the nature of the objection and make such enquiries into the matter mentioned in it as he thinks fit; and thereafter he shall subject to the approval of the Registrar General, make any necessary correction to any document relating to the marriage; ( ) in any other case—").

§ Page 4, line 6, leave out subsection (3).

§ The noble Lord said: My Lords, again, if your Lordships' House finds it convenient, as I believe it may, I should like to move Amendments Nos. 6 to 9 en bloc and to speak also to Amendments Nos. 11 to 14. At the Committee stage, the noble Lord, Lord Campbell of Croy, drew my attention to a number of problems connected with this clause. The noble Lord, criticised, in particular, the undue discretion given to the district registrar by subsection (3)(e) which, in any event, seemed to the noble Lord to be too widely drawn, and he expressed his opinion that the clause imported a degree of confusion between objections and legal impediments. I acknowledged that subsection (3)(e) might be too widely drawn, and gave the noble Lord, Lord Campbell of Croy, an undertaking to give the matter some further thought. This I have done and the result is the fairly substantial changes which will be made if your Lordships' House sustains these Amendments. I hope that the substance of these Amendments will answer the misgivings which 1047 your Lordships expressed at the Committee stage.

§ The effects of the Amendments are, first, to make it clear that the district registrar will himself deal only with minor objections of form where, for example, the parties have given a wrong name or description. By this, I mean matters which would not by themselves affect the validity of the marriage and where the defect can be easily rectified by the registrar. But even in these cases he will not make a change in the documents relating to the marriage without the approval of the Registrar General. Secondly, the Amendments recognise that there is a difference between objections—which, of course, could be lodged on virtually any ground and which must, in consequence, be submitted to the Registrar General—and the more limited legal impediments, which would render any resulting marriage void ab initio. The impediments in paragraphs (a), (b) and (c) relate to matters which in most cases can be readily checked by the Registrar General, whose office contains all the births, deaths and marriage records for Scotland back to the year 1855. And, as is brought out in the Amendment to subsection (1), any objection on the ground of the impediment in paragraph (d) must be supported by a medical certificate.

§ Noble Lords will recall that at the Committee stage I said that we did not intend to extend the legal impediments to marriage. But in considering the best way to remove any conflict or confusion that there might be between, on the one hand, "fundamental objection" and, on the other, "legal impediment"—a matter to which the noble Lord, Lord Campbell of Croy, drew particular attention—I have come to the conclusion that it would be best to specify precisely what are the grounds of objection which, if substantiated, would constitute legal impediments and so would result in facilities for marriage being refused. This alteration of method has introduced paragraphs (e) and (f), which spell out more directly what was intended by the former paragraph (e).

§ In practice—and I am bound to say this—it is doubtful whether a reference to the legal impediment in paragraph (e), that both parties are of the same sex, will appear in any of the text-books, but 1048 it is, nevertheless, an impediment which needs to be mentioned because the Registrar General has told me that he has already received a request for facilities to marry from two persons of the same sex. The impediment in the new paragraph (f) applies to the case where foreigners come to Scotland to marry in order to evade restrictions under their own law. If the resultant marriage would be valid, even though it may be voidable under the laws of the person's own country, that is not a legal impediment, but if the marriage would be void ab initio then a legal impediment is constituted, and the parties should not be allowed to marry.

§ I must emphasise to your Lordships that the provisions of Clause 5 are likely to be used only on rare occasions, because very few objections to marriage are lodged by members of the public. Nevertheless, it seems useful to set out the legal impediments in the way that the Amendments have done, because, irrespective of whether or not he receives an objection to the marriage, the registrar has a duty to satisfy himself that the parties are free to marry before he prepares the necessary Marriage Schedule. I apologise for the somewhat lengthy explanation, but I thought it right to explain as fully as I could the reasoning behind these Government Amendments. My Lords, I beg to move.

§ The CHAIRMAN of COMMITTEES (Lord Aberdare)
My Lords, I should point out that if Amendment No. 9 is agreed to I cannot call Amendment No. 10.

Lord CAMPBELL of CROY
My Lords, I put down Amendment No. 10 in case the Government were not going to put down any Amendments to this clause, so that we could hear from the Government their reasons for not doing so. But I need not have worried, because, as your Lordships will see, the Government have virtually redrafted the clause at considerable length with a whole number of Amendments, and, certainly to me, the clause appears much clearer as a result of the work behind the scenes. I should like to thank the Minister for clearly having taken so much trouble with his officials in the time since the Committee stage.
The point which I raised at the earlier stage was that four paragraphs purported 1049 to set out all the legal impediments to marriage. The Government said that they had no intention of adding any further legal impediment, but there was then another paragraph which referred to any other grounds where there might be a fundamental objection. That is where the gap occurred, because we wondered what that paragraph meant, if it was not adding an impediment and if nothing could be done if anybody raised a fundamental objection; because, of course, a legal impediment is quite different from a fundamental objection, and the Minister had made it clear that the Registrar General could take action to stop a marriage only where there was a legal impediment. The noble Lord has made it clear that it is not the Government's intention that this Bill should have the effect of stopping any marriage when it is enacted, unless one of the legal impediments is determined. This means that the whole question of objections that may be raised—and I gave the example of serious hereditary mental illness—will not prevent a marriage taking place when the Bill is enacted.
I reminded your Lordships at Committee stage that in their evidence to the Kilbrandon Committee, in Appendix 4, the Scottish Marriage Guidance Council had said that they regarded that ground as a barrier to marriage. They used the word "barrier". So we are still left with a number of sociological problems, which will no doubt arise and have to be dealt with if objections are raised. We hope that rarely will they be raised, but if they are there are still all those medical problems to be dealt with because the Bill does not tackle them.
It was not clear that paragraph (e)—the fifth paragraph—did not cover this field. As redrafted and as the noble Lord has confirmed, an additional legal impediment is spelled out—that is, if both parties are of the same sex. Then what was the last long-stop paragraph has been converted into a paragraph where the marriage would be void under the law of the country from which one of the parties came. Therefore the Bill makes clear to us now the kind of case which is not covered by the earlier paragraphs.
I will not go into the controversy of whether further legal impediments should 1050 be added. I recognise that the Government are not intending to add them and that that is the purpose of the Bill. The noble and learned Lord's Committee on marriage—I am glad to see that the noble and learned Lord, Lord Kilbrandon, is with us—went into the whole question of medical grounds and heard evidence on the subject, but it is clear that the Bill is not attempting to deal with that question.
I recommend your Lordships to accept the Government Amendments, which will mean that my Amendment No. 10 falls. However, as I said, it was put down at the Report stage merely to enable the Government to state what the position was in case they themselves were not tabling Amendments.

§ Lord KILBRANDON
My Lords, may I say one or two words about what is, I hope, not too technical a matter. I am a little uneasy at the suggestion that a proposed contract between persons of the same sex should be an objection to marriage. I do not think that I could agree with that suggestion. I hope that as a lawyer I am not being too technical, but one might compare it with a proposed contract between brother and sister. That would be an unlawful marriage. However, a proposed contract between a man and his brother is not a marriage at all. Throughout the Bill the word "marriage" is used. I should have thought that the common law of Scotland was strong enough to demonstrate that wherever the word "marriage" is used it refers to a contract between persons of the opposite sex. It can mean nothing else. From the legal point of view I am a little uneasy about this question, and perhaps it might be looked at again. I should not have thought that it was necessary to put this in. Indeed, I should have thought that it was undesirable.

§ Lord KIRKHILL
My Lords, I am not competent to make a valid comment on the remarks which the noble and learned Lord has just made, but certainly I can say to your Lordships' House that this is the kind of Bill that the Government must continue to assess and evaluate as it proceeds through its various stages not only in your Lordships' House but in the other place. I will draw specifically to the attention of my legal advisers the remarks which the noble and learned Lord has made.

1051

§ Lord HARMAR-NICHOLLS
My Lords, speaking purely as a layman my reaction is rather similar to that of the noble and learned Lord. How can you make illegal something that cannot happen? There cannot be a marriage under any meaning of the word "marriage" if people are of the same sex. To try to write into a Bill that something is illegal, with all the power of the Statute behind it, if it is something which could not happen in any case, seems to be stretching the words that we use in Parliament to a point which may make them look rather ridiculous when they are examined at a later stage.

§ Lord KIRKHILL
My Lords, by leave of the House all that I can say is that whereas I am sure that the definition of marriage stands time-honoured, the areas of physical involvement seem these days constantly to be changing in ever different ways.

§ Lord DRUMALBYN
My Lords, has it not happened in the past that there has been some doubt as to which sex a person was? If that is so, is it right that this question should be decided by the Registrar General?

§ On Question, Amendments agreed to.

§ Lord KIRKHILL moved Amendment No. 11:

§ Page 4, line 33, leave out subsection (5) and insert— ("(4A) For the purposes of subsection (4) above and section 6 of this Act, there is a legal impediment to a marriage where—

(a) that marriage would be void by virtue of section 2(1) of this Act;
(b) one of the parties is, or both are, already married;
(c) one or both of the parties will be under the age of 16 on the date of solemnisation of the intended marriage;
(d) one or both of the parties is or are incapable of understanding the nature of a marriage ceremony or of consenting to marriage;
(e) both parties are of the same sex; or
(f) one or both of the parties is, or are, not domiciled in Scotland and, on a ground other than one mentioned in paragraphs (a) to (e) above, a marriage in Scotland between the parties would be void ab initio according to the law of the domicile of the party or parties as the case may be.")

§ The noble Lord said: My Lords, I move formally Amendment No. 11. We 1052 discussed this Amendment while I spoke to the previous block of Amendments.

§ On Question, Amendment agreed to.

§ Lord KIRKHILL moved Amendment No. 12:

§ Page 4, line 41, leave out ("to the district registrar").

§ On Question, Amendment agreed to.

§ Lord KIRKHILL moved Amendment No. 13:

§ Page 4, line 42, leave out ("on a ground to which subsection (2) above applies") and insert ("in accordance with subsection (1) above").

§ On Question, Amendment agreed to.

§ Lord KIRKHILL moved Amendment No. 14:

§ Page 4, line 45, leave out from ("withdrawal") to end of line 46.

§ On Question, Amendment agreed to.

§ Clause 6 [The Marriage Schedule]:

§ 3.36 p.m.

§ Lord KIRKHILL moved Amendment No. 15:

§ Page 5, line 1, leave out from ("Where") to ("is") in line 4 and insert ("the district registrar has received a marriage notice or approved certificate in respect of each of the parties to a marriage intended to be solemnised in Scotland and is satisfied that there is no legal impediment to the marriage or, as the case may be,")

§ The noble Lord said: My Lords, in moving Amendment No. 15 I should also like to make reference, because I think it is for the convenience of your Lordships' House, to Amendments Nos. 17, 18 and 19. They are largely a matter of drafting consequent upon the removal of the provision for the entering of a fictional date of receipt of approved certificates in the marriage notice book. This is the result of our discussion of Amendment No. 1, standing in the name of the noble Earl, Lord Selkirk. The Amendment to Clause 6(1) will make it clear that the registrar cannot issue a Marriage Schedule until he has received a marriage notice or an approved certificate in respect of each of the parties to a marriage; and the Amendments to Clause 6(4) provide that before such issue he must normally allow a minimum of 14 days to elapse from the date of receipt of a marriage notice. 1053 No such restriction is imposed in the case of an approved certificate, which will mean that, so far as that certificate is concerned, the registrar will not require to allow for any lapse of time between receipt of that certificate and the issue of the Schedule. This was the intention of the Bill as presently drafted. A person who produces an approved certificate will already have given notice of marriage elsewhere in the United Kingdom and, as I said earlier when we discussed Amendment No. 1, it would seem unreasonable to subject that person to a further waiting period in Scotland. I beg to move.

The Earl of SELKIRK
My Lords, I should like to thank the noble Lord. This is a very much more sensible arrangement, and I am grateful to the noble Lord for the consideration he has given to the matter.

§ On Question, Amendment agreed to.

§ The CHAIRMAN of COMMITTEES
My Lords, I should point out that if Amendment No. 16 is agreed to, I cannot call Amendments Nos. 17, 18 or 19.

§ Lord CAMPBELL of CROY moved Amendment No. 16:

§ Page 5, line 20, leave out subsection (4).

§ The noble Lord said: My Lords, I beg to move Amendment No. 16, which is to leave out subsection (4) of Clause 6. May I say straight away that I have no intention of pressing the Amendment, but again I put it down in order to give the Minister, if he was not going to amend the Bill, the opportunity to reply to the points we made at Committee stage. In the case of my Amendments which are on the Marshalled List and the Amendments which we have already discussed, the Minister has gone some way towards making alterations to meet queries and suggestions which I raised at the Committee stage on behalf of the Law Society of Scotland. I raised queries then about the relationship of certain clauses with each other and also their operation as intended by the Government, and I drew attention in particular to this subsection.

§ I am grateful to the noble Lord, Lord Kirkhill, for writing to me in the meantime and informing me of the Government's views on some of the points. The noble Lord has tabled Amendments on some of these matters, but I should be grateful if he 1054 could make any further comment at this stage.

§ Lord KIRKHILL
My Lords, I am attempting to surround the noble Lord's Amendment No. 16 with a warm cocoon of suitable Government Amendments, both before and after. But no doubt your Lordships will recall the criticisms made by the noble Lord, Lord Campbell of Croy, at the Committee stage when he suggested that there might be confusion between the deemed earlier date for the receipt of approved certificates under Clause 4 and the period of 14 days during which a Marriage Schedule should not be issued. Any possible confusion that might have arisen should however now be avoided as a result of the Government Amendments to Clauses 4 and 6. Taken together, these drop the provision for an earlier deemed date for receipt of an approved certificate—this is done by removing the proviso to Clause 4(1)—while the Amendment to Clause 6(4) makes it clear that the 14 days before a Marriage Schedule can be issued applies to receipt of marriage notices and not to approved certificates. So I hope the noble Lord, Lord Campbell of Croy, will not press this Amendment. I think he will get almost all that he wishes if he allows the Government Amendments to flow.

Lord CAMPBELL of CROY
My Lords, I am grateful to the noble Lord, Lord Kirkhill, for making that additional explanation. I realise that the Amendments, and particularly those we are about to come to, meet at least some of the points I made at Committee stage. I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 3.42 p.m.

§ Lord KIRKHILL moved Amendments Nos. 17 to 19 en bloc:

§ Page 5, line 20, leave out second ("the") and insert ("a") Page 5,line 21, leave out ("on a date earlier than 14 days after") and insert ("within 14 days of") Page 5,line 23, leave out from ("of") to ("unless") in line 24 and insert ("a marriage notice in respect of the marriage to which the Marriage Schedule relates,")

§ The noble Lord said: My Lords, I beg to move Amendments Nos. 17 to 19 en bloc. I have already discussed these Amendments.

§ On Question, Amendments agreed to.

1055

§ Lord KIRKHILL moved Amendment No. 20:

§ Page 5, line 31, leave out subsection (5) and insert— ("(5) Subject to subsections (6) and (7) below and section 13(3) of this Act, a religious marriage may be solemnised only on the date and at the place specified in the Marriage Schedule.")

§ The noble Lord said: My Lords, I think it would be for the convenience of your Lordships to discuss Amendment No. 20 and, at the same time, Amendments Nos. 27, 28, 40, 41 and 42. It has been suggested—indeed, the noble Lord, Lord Campbell of Croy, mentioned the point at Committee stage—that as the Bill stands at present, a marriage would be void not only because it was solemnized in the absence of a Marriage Schedule but that it would be void—even although a Marriage Schedule for the marriage had been issued by the district registrar—if the marriage did not take place on the date or at the place specified in the Schedule. This was not the Government's intention, and the Amendments, taken all together, are designed to make it clear that only in a case where no Marriage Schedule has been issued for a marriage shall that marriage be void.

§ Under the Bill, the Marriage Schedule is the only document which will prove that the preliminaries to marriage have been fulfilled. It is a common provision in the laws of other countries that non-fulfilment of the preliminaries to marriage will render the marriage invalid. In England, for example, Sections 25 and 49 of the Marriage Act 1949 set out a whole series of situations which will lead to a void marriage, and these include marrying in any place other than the church or other building specified in the notice of marriage and certificate. At the present time in Scotland a civil marriage becomes valid only after it has been registered and, of course, it cannot be registered until all the preliminaries have been fulfilled and the Marriage Schedule signed.

§ A religious marriage is rather different because of the way in which religious marriages have developed over the centuries. It has not been clear whether a religious marriage which is solemnised without the statutory preliminaries is valid or not: what is clear is that no such marriage should be registered by the registrar, and in consequence no marriage certificate can be given to the parties. 1056 Since the preliminaries to marriage are being considerably modified by the provisions in the Bill and religious marriages will embrace religions whose marriage ceremonies are different from ours, it is essential to make it clear that no valid marriage can be solemnised without a Marriage Schedule being available. At the same time, however, the Government agree that it would be wrong to render a marriage void simply because a last minute change of plans made it impossible for the marriage to be solemnised at the place specified in the Schedule and there was no time to get the registrar's agreement to make the necessary alteration in the Schedule.

§ This Amendment and the other Amendments to which I referred are designed to ensure that marriages solemnised without a Schedule issued by the registrar will be void. I beg to move.

Lord CAMPBELL of CROY
My Lords, with these Amendments the noble Lord has certainly removed the ambiguity which was drawn to his attention at the Committee stage, and although I have not had time to hear from the Law Society about this, which they were particularly concerned about, I think the Minister's explanation will mean that they prefer what the Government are now proposing in these Amendments to the existing text of the Bill.

§ On Question, Amendment agreed to.

§ Clause 8 [Persons who may solemnise marriage]:

§ 3.47 p.m.

§ Lord MACLEOD of FUINARY moved Amendment No. 21:

§ Page 7, line 7, at end insert— ("( ) a minister of the Established Church of Scotland; or")

§ The noble Lord said: My Lords, in accordance with the Marshalled List of Amendments I wish to amend Clause 8. As when I was speaking at the time of the Committee stage of this Bill, I have to declare an interest, which is that I happen to be a minister in the Church of Scotland. The essential purpose of this Amendment is to bring level the Established Church of Scotland with the Established Church of England in the matter of the State's relationship to the two Established 1057 Churches. The last comparable English legislation, which was the Act of 1949 in connection with the Church of England and marriage or the State and marriage, there are three categories of relationship. The first category is the relationship of the Established Church of England with the State represented by the registrar in the ultimate.

§ Secondly, there is the recognised second category referring to the nonconformist churches, as they might be the Roman Catholic or the Presbyterian or the Methodist, and so on. Then there is the third category: those societies such as may be recognised by the registrar as suitable for the conduct of worship. In the 1949 English Marriage Act under the first category of the relationship to the Church of England, ten pages are devoted to the special relationship, but in the present parallel Bill for Scotland, far from not getting ten pages it gets not one page, nor indeed any kind of reference to distinguish it from the second category; namely, the nonconformist churches.

§ Before shortly stating my case, that the Established Church of Scotland should be recognised equally with the Established Church of England as a separate category, I would put your Lordships' minds at ease lest there be misunderstanding as to my main reason. At the Committee stage last week, when I sought to present this Amendment, I was somewhat taken aback by the feeling of the Government spokesman, the noble Lord, Lord Kirkhill, in his reply when he seemed to assume that my underlying reason for the Motion was to put in secondary places the other denominations, as if my Amendment before your Lordships was hardly ecumenical to fit the spirit of our times. Indeed, he went to far as to say: The spirit of ecumenism seems to be more apparent in Government Departments than perhaps among the churches themselves."—[Official Report, 25/1/77, col. 385.]

§ This is indeed to confuse the issue. If that idea lingers in the minds of those who may have to vote on this Amendment this afternoon, we have ill chance of carrying the Amendment, and I would understand so. But it is not so, and I feel that I must do a little more than merely deny it. To be more explicit, I fear that I must for a moment be personal. For nearly 40 years I have been associated with the 1058 religious order of clergy and laity known as the Iona Community, with personal firm commitments, economic and political and indeed ecumenical. Its main task in early years was to rebuild the Abbey of Iona, but the main purpose of that rebuilding was as an ecumenical gesture on the site, on that West Coast Island where at differing times the Celtic Church, that is, if you like, the Eastern Orthodox, then the Roman Church, then the Presbyterian Church, then the Episcopalian and finally, again the Presbyterian Church has constituted the Established Church of Scotland. Right from the start we had in the membership members of other denominations as full members of this Community, which springs from the Church of Scotland and indeed has to report for discipline every year to the Church of Scotland.

§ At varying times it has had in its full membership, both clerical and lay, Anglicans, Baptists, Congregationalists, Methodists, Presbyterians and members of the Roman Church itself. At the present time all these denominations are represented in the full and active membership of the Iona Community. Not only so; we have youth camps, living adjacent and daily worshipping with us. In the last recognised year, no fewer than 1,200 teenagers have come for at least a week each—again from all denominations. If I may for a moment specify, there is an associate minister, for we also have associates and not just full members, from a parish in Glasgow, in an area we need not name, save to say that it is a spillover from Belfast and carries in its streets many of the tensions of that Irish city; the parish minister happens to be an associate of the Iona Community, and rather than bemoan the tension he became a close friend of the Roman Catholic priest in the same Glasgow area. Together they conceived the idea of bringing a mixed group of teenagers from that parish to Iona for a week; upwards of 40 came, Roman Catholics and Presbyterians, to bathe together, to play football, to attend the village dance and the weekly concert, to discuss the issues of our time, and, of course, worship together daily, led by the Glasgow parish minister and by the Roman Catholic priest, who was also there throughout the week.

§ It is the custom each Sunday to have the sacrament according to the rites of the 1059 Church of Scotland, because the Abbey is the parish church, but on this particular occasion the Presbyterian warden decided to forgo his sacrament and to invite instead the Roman Catholic priest from the Glasgow parish to celebrate high mass in the parish church of the national Established Church. Not only did the Roman Catholic priest gladly accept the invitation, but he invited to partake of the sacrament all members of any branch of Christ's Church who were present at his high mass. Was I wrong last week to be somewhat taken aback when a representative of the Government said that the spirit of ecumenism seemed to be more apparent in Government Departments than perhaps among Churches themselves? I hope it is more apparent among Government Departments, but I should like to have some specific instances before we go on.

§ This Amendment is not to make the national Church superior, but simply by its size to make it of greater service to the whole of Scotland. It is for further ecumenicity that we ask, that the national Church of Scotland should receive the same separate category as the Church of England. We do not ask for 10 pages of recognition. We simply ask that the only denomination in Scotland that has a parish church in every corner of the land, with every street in every city demarcated into parishes, every little island off the coast set in its carefully arranged parish area, should have the right of registration without surveillance from the Secretary of State or by permission of any registrar.

§ The Church of Scotland is not a lingering relic of history. Last week I gave figures from Whitaker's regarding the sizes of various denominations; I shall not repeat them now; they are in Hansard. But I will repeat this one figure, the apparent proportion of full members of the Church of England and the apparent proportion of full members of the Church of Scotland compared with the total populations in England and in; Scotland. It would appear that one in 12 of the English population are registered members of the Church of England, while one in five of the population of Scotland are registered members of the Established Church there.

§ Finally, while the number of failed marriages in Scotland shows ominous 1060 increase it behoves us to do everything possible to deepen the solemnity of the occasion as widely as we can. Surely the pre-eminent possibility lies with the only denomination whose duty it is to have contiguous parishes across the length and breadth of Scotland and its islands, the Church which, moreover, provides full-time ministers in every one of those parishes, in order to be of service and not to be superior. The national Church also has the greater responsibility to further ecumenicity and so to give a lead in the whole area of mixed marriages. I confidently ask your Lordships to give the national Church of Scotland its proper place, and I so move.

§ 3.56 p.m.

The Earl of SELKIRK
My Lords, I do not want to discourage the noble Lord, Lord Kirkhill, from speaking now if he wishes to do so, but I am a little disturbed that he should not immediately get up and say that he accepts the Amendment, because though a small matter in itself this is really running contrary to the whole evolution of Scottish ecclesiastical history and I think is contrary to existing law. Before going into that, may I give your Lordships a quotation (which someone was kind enough to give me) from no less a person than Mr. Gladstone. He is writing on the relations of Church and State: It is not option or discretion but plighted faith which entails upon us the support of the Scottish Church". At that time Mr. Gladstone did not have the Act of 1921; he was basing this on the terms on the Act of Union. The Act of Union makes it quite clear that the security of the Church of Scotland was an essential and fundamental condition for all time, that it should be sustained in security.
I am not very surprised that the Church of Scotland should have insisted, because your Lordships may remember that when the Reformation took place in Scotland, unlike England, it was a popular thing. There was no question of a referendum; the result was far too obvious. And, subsequent to that, on three successive occasions the establishment of the Church was undermined. So when it came to the time of the Union the Church said "Look here, we are not going to have any chance about this; we are going to 1061 have it affirmed and indeed reaffirmed". It was reaffirmed in a manner which almost shows that they did not have a great deal of confidence in Parliament, unless they said it all over again.
The exact force of the Union terms has been discussed, I think, only once in the courts, and that was in the well-known case of McCormack v The Advocate. There the Lord Advocate (afterwards Lord President Clyde) said that the Parliament of Great Britain could not repeal or alter such "fundamental and essential" conditions. If I may go further, this was quoted by Lord Cooper, who was then presiding. Quoting from Dicey's Thoughts on the Union, he said in regard to the Presbyterian Church government that it:
represents a conviction of Parliament which passed the Act of Union that the Act for Securing the Church of Scotland ought to be morally and constitutionally unchangeable, even by the British Parliament". Lord Cooper said this was a unique case, and he did not, however, think it was competent for the Court of Session to pronounce upon it. That was the position to which Mr. Gladstone was referring.
Far more specific than that is the Act of 1921. The purpose of that Act was to permit unions between Christian Churches in Scotland. One thing that had to be achieved was the eradication of any form of Erastianism, that is to say interference by State control. It took the form of a declarator by the Church which was formally recognised by the State. The authority of the Church did not come from the State and, indeed, it did not come from this world at all. It said: No civil authority may legislate on matters of doctrine, worship or government. In this field"— that is, the spiritual field— the Church is free from interference by civil authority". None the less, the Church and State owe mutual duties to each other.
My Lords, I think that that conflicts with this Act. The Act says that the Church has imposed on itself a duty to carry the ordinances of the Church to every parish in Scotland. In effect, that means that if a man's Marriage Schedule is completed and full the Church imposes an obligation on itself to marry those persons. That is the position as it stands today, and that is what the Church will do subject 1062 only to questions of previous divorce. This Bill takes away that duty. It may be a small matter but it is fundamental to the position which the Church takes at present.
I believe that the House must insist on this Amendment and I ask it to do so. I ask the Government to recognise that the Church has fallen in with their requirements. This Bill takes away the legal basis of banns and the Church has agreed that it will make a declarator at the next General Assembly falling in with the exact requirements of this Bill so that the Bill will work as best it can.
If the Government believe that they can tread loosely on the Church of Scotland, what will they do to other religions which do not have the standing of this religion? It is equally ill-omened for other religious bodies in Scotland if the Government think that they can march straight through the obligations which have solemnly been undertaken by Parliament here. The noble Lord, Lord MacLeod of Fuinary, represents a history of ecumenical activity, probably unequalled by anyone in this House and possibly in Scotland. I hope that the Government will not force the House to divide on this Amendment. The noble Lord, Lord Kirkhill, may make all the remonstrances he wishes according to the instructions which, no doubt, are before him, but I ask him not to divide the House on this matter. It is far better that we should reach a simple agreement on a fundamental issue of this character.

§ 4.4 p.m.

§ Lord KIRKHILL
My Lords, may I, at the very outset of my remarks, assure the noble Lord, Lord MacLeod of Fuinary, that my comment at the Committee stage about ecumenicism was no more—nor was it intended to be more—than a passing aside, a jocular comment under pressure. If the remark was misunderstood, then of course I belatedly but in retrospection withdraw it absolutely.
The primary reason for this Amendment, as the noble Lord indicated this afternoon, and as indeed he indicated in Committee, is to give appropriate recognition to the Church of Scotland as the national, or Established, Church. Linked to this is the claim that as the Church of England figures prominently in the Marriage Act 1063 1949 applying to England and Wales, there ought to be some reference in the Scottish legislation to the Church of Scotland. It is argued that specific mention of the Church of Scotland is necessary to put beyond doubt its right to solemnise marriages and to ensure that that right does not depend on whether or not in the future a Secretary of State includes it in regulations.
There seem to be misunderstandings as to the position. I believe that they are broadly of two kinds. The first, which was advanced by the noble Earl, Lord Selkirk, this afternoon is that several Churches, including particularly the Church of Scotland, are at present specifically named in Statute as authorised by law to solemnise religious marriages in Scotland, and that this specific authority is being removed. This is not so. As I explained in Committee (Hansard, col. 390), there is no such specific statutory authority naming the Church of Scotland, probably because its right as the national Church to solemnise marriages was taken for granted. Indeed, the curiosity is that it might be held that existing legislation is more specific about ministers of the Episcopal Church and about priests and ministers not of the Established Church of Scotland than it is about ministers of the Church of Scotland itself. So the Bill as drafted is not derogating from any existing statutory position or removing from the Church of Scotland any existing statutory authority to solemnise marriages.
The second main area of misunderstanding concerned the possible effects of the regulations to be made by the Secretary of State. It is claimed that a Church's right to solemnise marriages would depend on its inclusion in the regulations and that it would be open to a Secretary of State in the future to take away that right from any Church—or all Churches—by not including the Church in the regulations, or not making regulations at all. I gave a full explanation during the Committee stage as to the much more limited purpose and effect of the regulations.
I touched upon a comparison which is being made between the position in England and that which might obtain in Scotland. I think it is fair to say that a specific reference is made about the 1064 Church of England and it would be unwise not to admit that before your Lordships this afternoon. However, the Church of England is an Established Church in a sense in which, despite the terms of the Amendment, the Church of Scotland is not. Furthermore, there are many differences between the marriage systems North and South of the Border. For example, there is in England the system of registered buildings, the system under which licences of marriage may be granted by the Archbishop of Canterbury or other ecclesiastical authority, and the system under which marriages solemnised according to the rites of the Church of England are registered, not by a registrar but by the clergyman himself. All of these, and other features, require specific reference to the Church of England but they do not form, nor have they formed, part of our Scottish system. Therefore, in the Government's view, there is no corresponding requirement.
It is unnecessary to repeat in detail why the Government do not find the Amendment acceptable. Very briefly, however, they see no practical need for the more detailed categorisation of religious bodies which it implies and no practical advantage resulting from it. Most certainly there is no intention whatever on the part of the Government to alter or in any way denigrate the status of the Church of Scotland now or in the future, and I give a clear assurance to this effect this afternoon. The Government do not see the Bill as making any alteration in the status of the Church either generally or in regard to its authority in marriage matters. The system of regulations has the strictly limited and practical purpose of exempting the Churches concerned from nominating their celebrants for registration. Clearly, such nomination is inappropriate in the circumstances of the Church of Scotland. I submit that the dire consequences which noble Lords have suggested would flow from the introduction of regulations will not in fact occur. The Amendment seems unnecessary, indeed undesirable, to the extent that it further categorises Churches in this day and age. The Government will therefore be resisting the Amendment.

§ Lord STRATHCLYDE
My Lords, I wonder whether the noble Lord would explain to me why, in my earlier days 1065 and in his earlier days, we had a lot of Presbyterian Churches in Scotland and the principal one was the Established Church of Scotland. There was the Free Church, the United Free Church, the Presbyterian Church, and the Church of Scotland, the established Church of Scotland; that was the Church which I think was known as the "Old Church". Why does the noble Lord say that the Church was never established in that way? I would say that the noble Lord is giving the biggest boost to the Scottish nationalists that they have ever had by the speech he has made this afternoon.

§ 4.11 p.m.

§ Lord BALERNO
My Lords, I am astonished at the noble Lord, Lord Kirkhill, putting up these two arguments. His argument about a misunderstanding is certainly correct. The misunderstanding lies in the Bill. The Bill is foggy in certain areas and there is naturally misunderstanding. The Amendment of the noble Lord, Lord MacLeod of Fuinary, is an endeavour to clear up one of those misunderstandings. For that reason it should be most strongly supported.
The second point that the noble Lord made that astonished me more than even his first point has been referred to by my noble friend Lord Strathclyde. The noble Lord, Lord Kirkhill, said that the Church of Scotland was not established. I challenge the noble Lord, Lord Kirkhill, to tell me when the Church of Scotland was disestablished and by what Act. I do not think he will be able to answer that question.
I am the son of a minister of the Free Church of Scotland. I can remember quite vividly as a young man the arguments which led to the Church of Scotland Act 1921 with its Declaratory Articles. To take you a little further back in history before I was born, there was a famous case called the Auchterarder case, which happened when a congregation of the Church of Scotland assumed that it had absolute spiritual freedom. The case went to the Court of Session, and the Court of Session went against the freedom of the congregation and maintained that the State was supreme in matters ecclesiastic.
The result of that was what was called the "Disruption", when more than half 1066 the ministers of the existing Church of Scotland came out. They came out: they left their manses. They had to find other shelter. It was more than half the church that came out then. The feelings were very deep at that time, and they were still deep at the end of that century when we were beginning to look for reunion with the other Churches, especially the reunion with the Free Churches. Those reunions were gradual and were to culminate with the reunion of the United Free Church with the Established Church.
That was accomplished in the Act of 1921. In leading up to that Act, there were the most delicate negotiations to avoid treading on the other Churches' toes the whole way through; but they were completed in complete harmony. Although there was a certain section—a minority of the United Free Church—who would not agree, the Declaratory Articles of the Act of 1921 met the case.
The Declaratory Articles state that the right and power of the Church, subject to no civil authority, is to legislate and to adjudicate finally in all matters of doctrine, worship, government, and discipline in the Church. Since marriages are, from the point of view of the Church, acts of worship the form of a marriage ceremony is a matter for the Church alone to determine. Any attempt to impose the points made by the Kilbrandon Committee, and which have led up to this Bill, on the Church of Scotland is therefore contrary to the constitution of the Church as set forth in these Declaratory Articles and recognised by the 1921 Act.
I will not give more than a little of all that I could say, but I should like in conclusion to emphasise my point by quoting from two archbishops. Archbishop Garbett said: The Church of Scotland is the outstanding example of a Church which is established and yet is free. More recently Archbishop Ramsey, in an essay on Church and State in England, wrote: The history of the Church of Scotland shows that there has been no inherent impossibility in an established Church possessing autonomy in the ordering of its worship and in much else besides. It may therefore be said that the Church of Scotland has a unique establishment; and it may be pointed out that, so far as the United Kingdom is concerned, there 1067 is not one established Church but there are two established Churches recognised by the State. If the State, in marriage law, mentions the Church of England specifically it should be prepared also to mention the Church of Scotland specifically.

§ Baroness ELLIOT of HARWOOD
My Lords, I should like to add only a few words to this, because I listened with great interest to what the noble Lord opposite had to say and I think it was one of the feeblest and least convincing speeches I have heard him make, and he has made a great many convincing ones. I can add very little to what the noble Earl, Lord Selkirk, and the noble Lord, Lord Balerno, said. However, what the noble Lord, Lord Kirkhill, is saying is that the recognition of the Established Church of Scotland is not a fact of history, and it is. However much you may leave it out of an Act of Parliament, you are doing something which is already in history. If you want to have an Act you have to have one which respects what is historically true. This Bill does not respect something which is historically true.
My second point has not been mentioned, but is known to everybody. When the Monarch takes on the Crown and becomes the Head of the United Kingdom of Great Britain and Northern Ireland, and all the rest of it, the second oath that the Monarch takes is to preserve the Church of Scotland during his or her reign. This is the fact. It has been done by every Monarch ever since the union of the Churches. To say that this does not exist is to deny something that every person knows. I find it extraordinary that we should be listening to a Bill put through in the year 1977 which pretends—because that is all it can do—that what exists does not exist. Well, it does exist, and it is most important that it should continue to be written into whatever Act of Parliament is passed by the present Government.

§ Lord BROWN
My Lords, may I ask my noble friend when replying, if not for the interest of the House then for mine, to describe the disadvantages that would accrue from accepting the Amendment?

§ Lord FERRIER
My Lords, I had not intended to speak because, like my noble 1068 friend Lord Selkirk, I never imagined that the noble Lord, Lord Kirkhill, would reject the Amendment. Not only for that reason am I on my feet; I was much moved by what the noble Lord, Lord MacLeod of Fuinary, said about the ecumenical movement in the Church of Scotland and I was only sorry that my noble friend Lord Lauderdale was not in his place when he was speaking, because he would have spoken in support much better than I about the ecumenical movement on my side of Scotland where, as an Elder of the Parish of Whitekirk and Tyninghame, I am only too well acquainted with the annual pilgrimage which, for a number of years, has taken place when representatives of all the Churches come to worship together in our church under the leadership of the noble Earl.
I was an Elder of the Church in Bombay and I well remember in 1926 when the Church was eventually unified; the United Free Church came together and the two Churches of Scotland in Bombay united and our old church there is now known as the Scots Kirk. I remember Dr. White who, in 1926, was Moderator of the great Assembly of that year and I was a close school friend of the son of the Law Lord, Lord Sands, who was the great architect of the whole thing being brought together into what is truly a national Church. I feel very much for the Amendment and, if Lord MacLeod presses it, I shall go into the Lobby with him.

§ 4.23 p.m.

§ The Earl of LAUDERDALE
My Lords, I apologise to the House for not being here when the Amendment was moved. I was in fact meeting the ecumenical gathering of clergy in Glasgow this morning—Congregationalist, Church of Scotland, Roman Catholic and Episcopalian—to discuss the very matter of the pilgrimage to which my noble friend has just referred. The noble Lord, Lord Kirkhill, says the Church of Scotland is not established. If not, why does the Monarch preside over its Annual General Assembly? In addition, why is her Lord High Commissioner, who presides in her absence, appointed on the recommendation of the Secretary of State for Scotland? I am sure that Lord Kirkhill has an answer, because he always has an answer to everything, but I hope it is the right answer this time.

1069

§ Lord KIRKHILL
My Lords, perhaps I might with your Lordships' permission intervene at this point to give hint of a personal note of background. I was brought up on the fundamentalist wing of the Church and so I am not really in a personal way familiar with the fine point of detail of Church constitution. That being so, my use of the word "established" was obviously inappropriate in the context in which I used it. I was attempting to make a distinction between the marriage practice which obtains within the Church of England and the quite different practice which obtains within the Church of Scotland. On reflection, to have used the word "established" was of course unnecessarily to have stirred up a religious hornets' nest in the corporate breast of your Lordships, and for that I apologise and withdraw the use of the word "established". On the other hand, I think I would rest on the distinctions which I was attempting to draw.

Lord CAMPBELL of CROY
My Lords, the noble Lord, Lord MacLeod of Fuinary, has rightly raised this matter again; we discussed it in Committee, but on a manuscript Amendment when we did not have time to give it full consideration. However, we have had the opportunity since then, and in this brief debate today, to consider it. Lord MacLeod set out the reasons for his Amendment and several of my noble friends have supported him, pointing out that it would do no ill to the Bill to include it. The Government say the Amendment is unnecessary, but on the other hand it would not damage the Bill to add it.
The Church of Scotland is regarded as the Established Church of Scotland and it certainly has the responsibilities and duties of an Established Church in Scotland. It has a unique position, a primary position, in Scotland, and that does not derogate in any way from the situations of the other Churches in Scotland. The Church of Scotland also, as at least one noble Lord has reminded us, is in a special position because the State has no say in the Church's writ where spiritual matters are concerned. For its part, the Church of Scotland accepts the responsibility of serving in religious affairs anyone in any part of Scotland, 1070 whether or not a member of the Church. As Lord MacLeod pointed out, it is the only Church which does this and which has the facilities and resources for doing it all over Scotland. In particular, as we are dealing with the Bill in relation to marriage, the Kirk accepts and carries out duties in connection with marriage.
The Government's argument has been, to put it briefly, that to name the Church of Scotland in the Bill would produce a three-tier structure of Churches instead of a two-tier structure, which they accept. My contention is that there would be a three-tier structure in any case because the position of the Church of Scotland is unique. No other Church is in that position, so in practice there is to be a three-tier structure. I was sorry to hear the noble Lord, Lord Kirkhill, indicate that the Government would resist the Amendment because it sounded as though he might even ask the House to divide against it, and, as my noble friend Lord Selkirk pointed out, this seems unnecessary.
This is not a matter in which the official Opposition would seek to influence Peers if there is to be a Division; that is, if the Government will not accept the Amendment without voting. But I should like to make my personal position clear and I must declare an interest as I am a member of the Church of Scotland. I certainly will support the Amendment and, as for noble Lords in whatever part of the House they may be who are not familiar with the Churches in Scotland and the position of the Church of Scotland, and are wondering whether to support the Amendment, I think I can tell them that they can safely support the Amendment without damaging the Bill in any way, and in the opinion of many of us we should be improving the Bill. Furthermore, in supporting the Amendment they would not be casting any reflection on the other Churches in Scotland. Therefore, I would hope that, although this is a matter for individuals to decide, your Lordships would accept the Amendment and I would also hope that the Government would not continue their resistance to it.

§ Viscount SIMON
My Lords, would it be possible for the noble Lord, Lord Kirkhill, with the leave of the House, to answer the question put to him by the 1071 noble Lord, Lord Brown, which would be helpful to those of us who do not know very much about this matter?

§ Lord KIRKHILL
My Lords, it was because the debate developed as it did that I was unable to answer my noble friend Lord Brown, and indeed the noble Lord, Lord Campbell of Croy, almost answered for me. The Government consider that to make this distinction would divide religious bodies into three categories—the Church of Scotland, those specified in regulations and those not specified in regulations—whereas what the Government wish to do is to divide religious bodies into two categories; first, those exempt from registration and consequently exempt from rules about the Fcontent of marriage ceremonies, and, secondly, those not so exempt. That is the distinction.

§ Lord DRUMALBYN
My Lords, can the noble Lord then tell us which are the religious denominations that the Secretary of State is intending to describe under the Bill? Can we have a list?—because this has now become very relevant in view of what he said.

§ Lord KIRKHILL
My Lords, I do not have the list in front of me, but the Secretary of State will, by regulation, give assent to the past and continuing practice which meantime obtains. The Church of Scotland, the Roman Catholic Church, the Methodist Church—the main religious bodies about whose stature there can be no question and in relation to which there can be no failure to identify a celebrant are examples. It would be very difficult to identify each celebrant in the larger religious bodies, so that the continuing practice of the day is to obtain. However, I shall certainly write to the noble Lord and give him a full list.
At the very last moment, and almost saved by the bell, I have received the list. It is: the Church of Scotland, the Roman Catholic Church, the Episcopal Church in Scotland and other Churches of the Anglican Communion, the Congregational Union of Scotland, the Baptist Union of Scotland, the United Free Church of Scotland, the Free Church of Scotland, the Methodist Church in Scotland, the Salvation Army, the Hebrew Congregation, the Free Presbyterian Church of Scotland, 1072 the Scottish Unitarian Association and the Religious Society of Friends.

§ Lord BALERNO
Did the noble Lord read out the Free Church of Scotland?

§ Lord KIRKHILL
Yes, my Lords, I did.

§ Lord MACLEOD of FUINARY
My Lords, if this is the right moment, I believe that I have the right to a word. That word will be short because of the contributions that have been made. In the first place, I must willingly accept the kind and generous opening words of the noble Lord, Lord Kirkhill, in regard to the intervention that he made upon which I based my remarks. I accept absolutely all that he has said. In my public life I have spent so much time in making too audible side comments which I have regretted for the rest of my life that I totally understand what happened. None the less, I did not base my speech on a passing remark, for what the noble Lord said in passing and has so generously withdrawn has been said by quite a number of people. Inevitably, when one asks for one denomination to be specified as against another, there are those who will say that this is a sign of superiority especially by reason of numbers quite apart from a sign of responsibility. Therefore, I am grateful to the noble Lord for his aside, because it was an aside which represented a very serious statement which is being made. A great many people in Scotland are discussing this at the present time and there was a leading article in the Scotsman yesterday on precisely this subject.
My only other remark is that I am still mystified in view of the fact that the noble Lord, Lord Kirkhill, referred to the fact that we were still an Established Church, apart from a certain interpretation, and that is the whole issue that was brought up by the noble Lord, Lord Balerno, in regard to the contributions of the two Archbishops, who said that the Church of Scotland was both Established and Free. This could lead to a discussion that could go on for any length of time. But it is the Established Church, and, as such, has this great responsibility and this great opportunity in terms that I shall not repeat by reason of its extension over the whole country and by reason of the fact that there is a parish minister in each parish. 1073 This makes it quite different and places it at the service of the Church and not in superiority over the other Churches.
It is in these terms that I regret and am still a little mystified, in view of the fact that nothing is to change in whatever the understanding of the Established Church is according to the noble Lord, Lord Kirkhill, himself, that the Government cannot see their way to giving the Established Church the kind of interpretation that two archbishops have given

§ Resolved in the affirmative, and Amendment agreed to accordingly.

1074

§ to it. In view of the fact that, for some reason or another, the Government cannot accept it, I have no other course but to press my Amendment.

§ 4.35 p.m.

§ On Question, Whether the said Amendment (No. 21) shall be agreed to?

§ Their Lordships divided: Contents 121; Not-Contents, 43.

1073

CONTENTS
Airedale, L.	Elliot of Harwood, B.	Maybray-King, L.
Alexander of Tunis, E.	Elton, L.	Monckton of Brenchley, V.
Allerton, L.	Emmet of Amberley, B.	Northchurch, B.
Amulree, L.	Evans of Hungershall, L.	Norwich, V.
Balerno, L.	Exeter, M.	Nugent of Guildford, L.
Balfour of Inchrye, L.	Ferrier, L.	O'Hagan, L.
Ballantrae, L.	Fraser of Kilmorack, L.	O'Neill of the Maine, L.
Banks, L.	George-Brown, L.	Piercy, L.
Belstead, L.	Gladwyn, L.	Platt, L.
Berkeley, B.	Glenkinglas, L.	Porritt, L.
Birdwood, L.	Gordon-Walker, L.	Rankeillour, L.
Birmingham, Bp.	Granville of Eye, L.	Redcliffe-Maud, L.
Bledisloe, V.	Greenway, L.	Redesdale, L.
Brookeborough, V.	Grey of Naunton, L.	Rochester, L.
Brown, L.	Hale, L.	Romney, E.
Byers, L.	Halsbury, E.	Sackville, L.
Campbell of Croy, L.	Hamilton and Brandon, D.	St. Davids, V.
Carr of Hadley, L.	Hankey, L.	Sandys, L.
Cathcart, E.	Harmar-Nicholls, L.	Seear, B.
Cawley, L.	Harvington, L.	Sempill, Ly.
Champion, L.	Hatherton, L.	Sheffield, Bp.
Chelwood, L.	Hayter, L.	Shepherd, L.
Clancarty, E.	Ilchester, E.	Simon, V.
Clifford of Chudleigh, L.	Inglewood, L.	Slater, L.
Clitheroe, L.	Kilbrandon, L.	Sligo, M.
Clwyd, L.	Kings Norton, L.	Slim, V.
Coleraine, L.	Kinloss, Ly.	Spens, L.
Cottesloe, L.	Lauderdale, E.	Stamp, L.
Crawford and Balcarres, E.	Lloyd of Kilgerran, L.	Strathclyde, L.
Cullen of Ashbourne, L.	Long, V.	Sudeley, L.
Daventry, V.	Luke, L.	Swaythling, L.
de Clifford, L.	Lyell, L.	Taylor of Gryfe, L.
Denham, L.	Mackie of Benshie, L.	Tenby, V.
Derwent, L.	MacLeod of Fuinary, L. [Teller.]	Teviot, L.
Dormer, L.		Vernon, L.
Douglas of Barloch, L.	Maelor, L.	Vivian, L.
Drumalbyn, L. [Teller.]	Malmesbury, E.	Ward of North Tyneside, B.
Dundonald, E.	Mancroft, L.	Wedgwood, L.
Dunleath, L.	Marley, L.	Wigoder, L.
Eccles, V.	Masham of Ilton, B.	Young, B.
Elles, B.	Massereene and Ferrard, V.
NOT-CONTENTS
Aylestone, L.	Jacques, L.	Peart, L. (L. Privy Seal)
Boston of Faversham, L.	Janner, L.	Phillips, B.
Brimelow, L.	Kilbracken, L.	Ponsonby of Shulbrede, L.
Brockway, L.	Kirkhill, L.	Raglan, L.
Burton of Coventry, B.	Leatherland, L.	Shinwell, L.
Cooper of Stockton Heath, L.	Lee of Newton, L.	Snow, L.
Craigavon, V.	Llewelyn-Davies of Hastoe, B.	Stewart of Alvechurch, B.
Crowther-Hunt, L.	Lloyd of Hampstead, L.	Stone, L.
Davies of Leek, L.	Lovell-Davis, L.	Strabolgi, L. [Teller.]
Davies of Penrhys, L.	Melchett, L.	Taylor of Mansfield, L.
Donaldson of Kingsbridge, L.	Northfield, L.	Vaizey, L.
Elwyn-Jones, L. (L. Chancellor.)	Paget of Northampton, L.	Wells-Pestell, L. [Teller.]
Fisher of Camden, L.	Pannell, L.	Winterbottom, L.
Gaitskell, B.	Parry, L.	Wootton of Abinger, B.
Henderson, L.

1075

§ 4.48 p.m.

§ Lord KIRKHILL moved Amendment No. 22:

§ Page 7, line 9, leave out ("such religious body as may be") and insert ("a religious body").

§ The noble Lord said: My Lords, in moving Amendment No. 22 I should, with your Lordships' permission—and I think that it would be for your convenience—link with it Amendments Nos. 24 and 25. These Amendments remove the word "may", which has caused such offence to the noble Earl, Lord Selkirk, in relation to the regulations to be made by the Secretary of State. The use of the word "shall" is unacceptable because, I am advised, it would be a departure from normal drafting practice, and in the Government's view the intended effect should be achieved more acceptably by the purport of our Amendment. I beg to move.

The Earl of SELKIRK
My Lords, I am grateful to the noble Lord for moving the Amendment; it goes some way towards what I have in mind. Secretaries of State always have the great principle of freedom for themselves and duty for others. I realise that that is why they object to the word "shall". None the less, I wish to thank the noble Lord for what he said.

§ Lord DRUMALBYN
My Lords, I do not wish to raise again the kind of controversy we have just had, but before we depart from this Amendment I should like to suggest to the noble Lord that, since it is apparent that he knows the bodies that are going to be referred to in Clause 8(1)(i), it would be very much better if he put them into the Bill as a Schedule. I do not know what my colleagues on this side of the House think, but I rather think that I shall have with me at any rate my noble friend Lord Balerno who has very much the same kind of background as I have. But it being granted that the United Free Church split, and the majority joined the Church in Scotland and a minority continued, I cannot for the life of me see why the Secretary of State should have any power to prescribe in regulation what they should or should not do. I would feel strongly opposed to that. Certainly let them be put in the Bill (in a Schedule, if the noble Lord does not want to spell this out in the clause itself) but do not put them in regulations. There is a sensitivity here, and 1076 I rather suspect that the noble Lord will have some personal sympathy with this matter. I think that this is being handled with the most remarkable absence of tact that I have seen for a long time in dealing with a matter of this kind. I think the Government should have regard to this and should reconsider it before we come to the next stage of the Bill.

§ The DEPUTY CHAIRMAN of COMMITTEES (Lord Maybray-King)
My Lords, Amendment No. 23 is an alternative to No. 22. so we might take them both together.

The Earl of SELKIRK
My Lords, I do not propose to move Amendment No. 23. I have thanked the noble Lord for his Amendment, and will not move my Amendment.

§ The DEPUTY CHAIRMAN of COMMITTEES
But we can discuss them together.

§ Lord KIRKHILL
My Lords, I intervene with the leave of the House simply to say this. If we could avoid any spillover thought from our previous discussion, it is exactly because the Government are sensitive to these issues that they have decided that it would not be wise to identify and enumerate each denomination in a Schedule to the Bill. It is a question of judgment, but that is certainly the Government's feeling in an attempt to be as sensitive as is possible in these areas at this time.

§ On Question, Amendment agreed to.

§ Lord KIRKHILL moved Amendment No. 24:

§ Page 7, line 10, after ("who") insert (", not being one of the foregoing,").

§ The noble Lord said: My Lords, this is a purely drafting Amendment. I beg to move.

§ On Question, Amendment agreed to.

§ Lord KIRKHILL moved Amendment No. 25:

§ Page 7, line 12, leave out ("their") and insert ("its").

§ The noble Lord said: My Lords, this, again, is a purely drafting Amendment. I beg to move.

§ On Question, Amendment agreed to.

1077

§ Clause 9 [Registration of nominated persons as celebrants]:

§ 4.52 p.m.

§ The Earl of SELKIRK moved Amendment No. 26:

§ Page 7, line 28, leave out ("not being a") and insert ("other than the established Church of Scotland or a religious").

§ The noble Earl said: My Lords, this is an Amendment consequential upon the Amendment to which we have agreed and which was moved by Lord MacLeod. The Government may not like the drafting, and I say straight away that if, between now and Third Reading, they would like to improve the drafting I should be quite happy. But some Amendment of this character is necessary. In these circumstances, I beg to move.

§ Lord KIRKHILL
My Lords, I agree that, as a result of the decision in your Lordships' House relative to Amendment No. 21, this is a consequential Amendment and therefore at this stage I will accept it. I further confirm the noble Earl's remarks and I would not myself think that the drafting could be sustained. Whether or not I can do something about that before Third Reading (which is, after all, on Thursday) I am not sure, but from the Government's point of view we can look at it, if not here certainly in the other place.

The Earl of SELKIRK
My Lords, I thank the noble Lord for what he has said.

§ On Question, Amendment agreed to.

§ Clause 13 [Preliminaries to solemnisation of religious marriages]:

§ Lord KIRKHILL moved Amendment No. 27:

§ Page 11, line 16, leave out ("completed") and insert ("issued").

§ The noble Lord said: My Lords, I formally move Amendment No. 27. This was discussed earlier, with Amendment No. 20. I beg to move.

§ On Question, Amendment agreed to.

§ Lord KIRKHILL moved Amendment No. 28:

§ Page 11, line 22, at end insert— ("(3) For the avoidance of doubt, a marriage 1078 solemnised by an approved celebrant shall not be void merely because the Marriage Schedule specified a different date or place from the date on which, or the place at which, the marriage was solemnised.").

§ The noble Lord said: My Lords, I formally move this Amendment in the same way.

§ On Question, Amendment agreed to.

§ Clause 19 [Marriage ceremony and registration of marriage]:

§ Lord KIRKHILL moved Amendments Nos. 29 to 31 en bloc:

§ Page 13, line 35, leave out ("on a date earlier than 14 days after") and insert ("within 14 days of"). Page 13,line 36, leave out ("by him"). leave out from ("of") to ("unless") in line 38 and insert ("a marriage notice in respect of that marriage,").

§ The noble Lord said: My Lords, for the convenience of your Lordships' House I should like to move Amendments Nos. 29 to 31 en bloc. These are drafting Amendments. They are, indeed, substantially the same as Amendments Nos. 15, 17, 18 and 19, to which your Lordships have already agreed, in respect of Clause 6. I do not think I need say more. I formally move.

§ On Question, Amendments agreed to.

§ Clause 20 [Second marriage ceremony]:

§ The DEPUTY CHAIRMAN of COMMITTEES
My Lords, I understand that Amendment No. 32 is alternative to Amendment No. 33.

§ Lord KIRKHILL moved Amendment No. 32:

§ Page 14, line 25, leave out ("undergone") and insert ("gone through").

§ The noble Lord said: My Lords, in moving Amendment No. 32 I would wish to link my remarks with Amendments Nos. 34, 35, 36, 37 and 38. These are drafting Amendments to meet a point made by the noble Earl, Lord Selkirk, during the Committee stage. The noble Earl suggested that it was hardly appropriate to use the word "undergone" in reference to a marriage ceremony. His own Amendment suggested substituting the words "taken part in", but these might 1079 be held to apply just as much to the celebrant, the best man, the bridesmaid and the witnesses, as to the parties themselves. However, the Government accept the noble Earl's point, but propose the words in the Amendments as being more precise than "taken part in" and as being more neutral than "undergone". I beg to move.

The Earl of SELKIRK
My Lords, I should like to thank the noble Lord for this improvement. The word "undergone" almost always connotes something highly unpleasant, and it did not seem to me that it should be put into a Statute in reference to a marriage. I quite accept the Amendment that the noble Lord has proposed, and I am grateful to him.

§ On Question, Amendment agreed to.

§ Lord KIRKHILL moved Amendments Nos. 34 to 38 en bloc:

§ Page 14, line 32, leave out ("undergone") and insert ("gone through"). Page 14,line 39, leave out ("undergone") and insert ("gone through"). Page 14,line 42, leave out ("underwent") and insert ("went through").

§ Page 15, line 3, leave out ("undergone") and insert ("gone through"). Page 15,line 13, leave out ("undergone") and insert ("gone through").

§ On Question, Amendments agreed to.

§ Clause 21 [Registration of irregular marriages]:

§ The Earl of SELKIRK moved Amendment No. 39:

§ Page 15, line 25, after second ("and") insert ("where appropriate").

§ The noble Earl said: My Lords, this is something that was mentioned at Committee stage. It refers to the Scots marriage of habit and repute, which in a very limited number of cases is very valuable. In many cases this arises when a man and woman live together and there is some bar to marriage. In those cases it is not by any means difficult to give a date. The date would necessarily arise when the bar to marriage was removed. But that is not the only case. In certain cases—and, indeed, in the reported cases—it sometimes arises when the parties are dead or when one of the parties is 1080 dead. Then the question arises, "Were they or were they not married?" In fact, the majority of the reported cases are on those lines. There is no date that can be put to that, because it means that two people have lived together and after a time have come to regard themselves as husband and wife, and by the repute of their neighbours are married.

§ Now when does that situation arise? Quite clearly, no date can be put to it. I have no doubt that the Court of Session, in its infinite wisdom, could guess a date as well as anybody else. I should have thought that it gives more latitude if you say, "where appropriate" because, clearly, there are cases where no date can be placed there with any reliability. I am not pretending that this is a big point; but it seems to me that it makes this clause more accurate within the possibilities of what it intends to do. I beg to move.

§ Lord KIRKHILL
My Lords, the purpose of this Amendment is not entirely clear on the Government side, although the noble Earl has expressed himself with clarity in his recent remarks. In the Government's view, the effect of this Amendment, if implemented, will be that when the Court of Session grant a decree of declarator establishing an irregular marriage, the principal clerk in notifying the Registrar General of the details would not be required in all cases to notify the date on which the marriage was determined to be constituted but only "where appropriate". To say the least, that is a vague phrase. The purpose of mentioning the date in the clause is to confirm present practice under which a date is determined by the court in all cases and is notified in all cases to the Registrar General.
It is necessary that the court should determine the date from which the marriage is established so that a proper record of the marriage can be entered in the statutory register of marriages. In many of the cases where people present a petition to the court for a decree establishing a marriage by cohabitation with habit and repute, the parties have lived together as man and wife for a period during which one or both of them was not free to marry. The date of the marriage can, therefore, only be established from the date on which they became free to marry 1081 by, for example, the death or divorce of an existing spouse. The Court of Session have accepted that a date should be determined in all cases and notified to the Registrar General. The clause merely establishes the present procedure and makes no change in it. The Amendment would throw the procedure into doubt and, for the reasons I have been explaining, the Government hope that the noble Earl might accept the contents of my remarks.

§ Lord DRUMALBYN
My Lords, before my noble friend replies, I wonder whether the noble Lord would take account of what my noble friend has said now. He has said already that his advisers were not able to understand what was intended here. I would hope that the noble Lord would look at this again because I am quite certain that my noble friend is right in saying that it is somewhat absurd to ask a court to determine on what date a marriage by cohabitation with habit and repute started.
This may not be the appropriate place to make the Amendment. Nevertheless, I must say that I myself am a little confused by the Marshalled List. I was so busy looking for the words "and insert" in line 25 that perhaps I did not follow all that the noble Lord said. But I think that my noble friend is on a very good point here. This is a very old established part of the law in Scotland, and I should have thought that to establish the fact of cohabitation with habit and repute would be enough without attributing a date.

§ Lord KIRKHILL
My Lords, with the leave of the House, may I state simply that the Government do not believe that there should be any attempt to guide the Court of Session on this point. Stated simply, that is the Government position.

The Earl of SELKIRK
My Lords, this is purely an administrative matter for the court. I am not particularly worried about it. The court has to ascertain a date which is, quite clearly, unascertainable. If the noble Lord would like me to do so, I could suggest the words "where ascertainable". There are cases where, to my mind, the date would be a matter of pure guesswork. I leave that with the noble Lord. I shall not 1082 press the Amendment and beg leave to withdraw it.

§ Amendment, by leave, withdrawn.

§ Clause 24 [Offences]:

§ Lord KIRKHILL moved Amendments Nos. 40 to 42 en bloc:

§ Page 16, line 16, leave out ("valid"). Page 16,line 17, leave out ("completed") and insert ("issued"). leave out ("by a district registrar").

§ The noble Lord said: My Lords, with the leave of the House, I should like to move Amendments Nos. 40, 41 and 42 en bloc. I can do so formally since we have already discussed them linked to Amendment No. 20.

§ On Question, Amendments agreed to.