HL Deb 25 January 1977 vol 379 cc337-44

3.10 p.m.


My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee.—(Lord Kirkhill.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 1 agreed to.

Clause 2 [Marriage of related persons]:

Lord KIRKHILL moved Amendment No. 1:

Page 1, line 12, leave out ("of paragraph 1").

The noble Lord said: I think it would be for the convenience of the Committee to discuss at the same time Amendments Nos. 2, 4, 25 and 26. As these Amendments are framed at present, Clause 2 and Schedule 1 would be unlikely to cause any practical difficulty because marriages involving the forbidden degrees are rare and those involving the remoter degrees are well-nigh non-existent. The Bill has been criticised, however, by a university lecturer writing in the Scots Law Times who has suggested that the proposals as set out would give rise to as much confusion as exists at present. While it is arguable whether all of the criticisms made are well founded, it may be accepted that some of them seem to have force. Certainly in the view of the Government if there is any area of doubt, that doubt should be removed.

The Amendments, by setting out comprehensively the position with regard to related persons, will ensure that the forbidden degrees in Schedule I represent the complete list of forbidden degrees and that any marriages between persons related outwith the specified forbidden degrees will not be invalid because of the relationship. The separation of the relationships by consanguinity, affinity and adoption as is done in the Amendment to the Schedule will render the list more easily understandable. There is no change in the composition of the list as presently set out in Schedule 1. It accords with the recommendations of the Kilbrandon Committee, apart from the question of adoption, and is in effect the same as the list which is currently applied in Scotland and in England and Wales. While arguments may be advanced for the inclusion or exclusion of particular relationships, there does not seem to be any good reason for amending the existing law, which has worked acceptably in the past; and very strong reasons would need to be advanced to justify establishing different forbidden degrees for marriage in Scotland as compared with those in the rest of Great Britain.

The Schedule to which Amendment No. 26 relates, which is Schedule 1, amends the list of forbidden degrees foreshadowed by the Amendments to Clause 2. The list is precisely the same as it is in the print of the Bill except that it has been broken into its component parts of relationships, as I have been saying, by consanguinity, affinity and adoption. This change clarifies the groups and makes the list more easily understood.


One of the Amendments which the noble Lord, Lord Kirkhill, suggested should be discussed with No. 1 is No. 25, in my name, and I agree that it is best to have a general discussion on the subject of the forbidden degrees of relationship where marriage is concerned. The intention is excellent—that the Bill should set out afresh and clearly the forbidden degrees and so attempt to clarify the law as it exists at present—and the list must be considered under the three heads which the Government have now put in by their Amendment No. 26: consanguinity, which is common ancestry; affinity, which is relationships through marriage; and adoption. Schedule 1 as amended also appears to carry out the recommendations of the Committee chaired by the noble and learned Lord, Lord Kilbrandon, but the Law Society of Scotland considers that there is an additional relationship which should be prohibited, and that is dealt with in my Amendment No. 25, to which I shall come shortly.

As Lord Kirkhill said, there may still be some confusion because of the existence of common law and because of the Incest Act 1567. It was the university lecturer, Mr. David Sellar of Edinburgh University, who wrote about this in the Scots Law Times. He has averred that by repealing all the Scottish marriage laws, but not the Incest Act, doubts and anomalies will remain and, to quote from his article: The proposals in the Bill are ill-thought out and poorly drafted and would, if translated into law, give rise to as much confusion as exists at present. I recognise straight away that the Amendments which the Governent have put down at least meet some of that criticism. At the time that the Incest Act was passed in Scotland in 1557 a Marriage Act was passed, in the same year, and the two measures were then complementary; but since then there have been alterations to the latter, the Marriage Act, without corresponding adjustments to the former, and this has created what Mr. Sellar describes as a labyrinth of confusion law. This could of course be happening again because the Kilbrandon Committee was asked to consider the law in relation to marriage and not the incest legislation.

Mr. Sellar contends that, for example, marriage with a deceased husband's brother could again become forbidden because the previous legislation on marriage is being repealed but not that on incest. This reminds us of the 1906 Election issue; whether the law should be changed to permit a man to marry his deceased wife's sister. This could all come up again. As a result of that Election issue the law was changed by the 1907 Act, but not before one leading politician at that General Election, when needled on the subject at a public meeting, declared that not only was he in favour of enabling marriage to a deceased wife's sister—it should be compulsory.

The Government's response to Mr. Sellar's views has been the Amendment to Clause 2, and I think the new subsection (3) attempts to clear up the general point about confusion. The Law Society of Scotland certainly welcome it, but that Society draw attention to certain ambiguities which they believe remain in the Bill, this arising from the fact that the Kilbrandon Committee, on whose recommendations the Bill is based, was dealing with marriage and not incest. They now suggest that Clause 2 and Schedule 1, which we are now discussing, should be taken out of the Bill altogether and that a new Bill should be introduced on that. I recognise that this may not be practicable in Parliamentary terms for the Government to do, but I must tell the noble Lord that that is what the Law Society are now suggesting.

Now I come to my particular Amendment, Amendment No. 25. The effect of this would be to prohibit marriage with a grandchild through adoption. There are not many cases where this is likely to present itself as a possibility because of the difference of age that is likely in such cases. None the less, the Law Society of Scotland believes that it should be included and, certainly, some marriages which have received publicity recently have involved very wide differences in age.

The Kilbrandon Committee on pages 15 and 16 of its report stated that one object of these prohibitions was to preserve the stability of the family, in particular where a person was likely to become in loco parentis. This is a case where this could well happen; in a situation where both parents of an adopted child had died and a grandparent was still alive, that grandparent would in most cases be the person who would be expected to act in loco parentis.

That is the kind of reason why the Law Society believes that this relationship should also be added to Schedule 1 as a prohibited relationship. The adopted son or daughter relationship is already covered and this just takes it a generation further. There may be good reasons why the Government have decided not to do this; we shall be interested to hear what they have to say on Amendment No. 25.


I should like initially to respond to the comments of the noble Lord, Lord Campbell of Croy, anent Amendment No. 25. I concede that a case can be made out for the extension of the list of the forbidden degrees in the adoptive relationship and I agree that this was recommended by the Kilbrandon Committee, as the noble Lord has just said. However, the whole question of the forbidden degrees in the adoptive relationship was considered by the Houghton Committee on Adoption. That Committee rejected the proposals of the Kilbrandon Committee and recommended that only the existing prohibition on the marriage of an adoptive parent with his or her adopted child should be continued. The Houghton Committee's recommendation was given effect to in the Children Act 1975. The Government do not think it desirable to make a further change so soon after Parliament has confirmed that the forbidden degrees in the adoptive relationship should remain as at present. It is the Government's view that it is desirable that the list should continue to be the same on both sides of the Border.

The noble Lord, Lord Campbell of Croy, has mentioned, as I did in earlier remarks, criticism of part of the Bill by Mr. David Sellar in an article in the Scots Law Times. It might be helpful to your Lordships if I were to set out as briefly as possible the Government's response to a number of points that have been raised. Mr. Sellar's main criticisms were as follows: first, the Bill would nullify all the amending legislation of this century in relation to forbidden degrees, or at least render its effect doubtful. The noble Lord, Lord Campbell of Croy, has made mention of this. Existing marriages within the degrees permitted by the Marriage (Enabling) Act 1960 would arguably become void. My comment on that is that, in his reference to previous amending legislation, Mr. Sellar referred specifically to the Marriage (Enabling) Act 1960 and suggested that its repeal would revive the prohibitions on marriage which that Act permitted. It is probably the case that, with the repeal of the 1567 Act, all the forbidden degrees in respect of marriage fall because the terms of the 1567 Act do not allow there to be forbidden degrees other than those specified in "the Word of God" made part of our law by that Act. However, the new subsection (3) puts the matter beyond doubt. The forbidden degrees listed in the Bill are to be exhaustive.

A further criticism made by Mr. Sellar is that, as the prohibition on the grand uncle/grand niece marriage rests on common law, it will still be prohibited under common law because the Bill does not say that marriages contracted outwith the prohibited degrees are valid. I would comment upon that that there cannot be common law forbidden degrees other than those specified in the 1567 Act.

A further criticism made was; that there is doubt as to the validity of a marriage of a man with his wife's illegitimate sister, or with her niece and that between grand uncle and illegitimate grand niece. I would comment upon that that any such doubt will be removed by the new subsection (2), combined with the fact that marriages outwith the list of forbidden degrees as specified in the Schedule will not be invalid because of relationship between the parties.

Mr. Sellar argued that it should be made clear that marriage between a man and his adopted sister and marriage between direct ascendants or descendants by adoption (apart from a adopter and child.) are valid. I would comment that no charge is being made in the existing law on this matter, but in any case, the Government Amendments will make it clear that such marriages are not invalid because of the adoptive relationship.

It was further averred that the Bill does not remedy the confused state of the law regarding what constitutes incest. Specific reference has been made to this point by the noble Lord, Lord Campbell of Croy. I would comment that it is recognised that there may be a good case for amending the law on incest, but the law on incest and on forbidden degrees for marriage is based on two separate Acts. Incest is a criminal matter. In the Government's view, it would have been inappropriate to deal with it in a Bill on the civil law of marriage. It may be the case that there is some social relationship between the purposes of the two laws, but the forbidden degrees of marriage should not necessarily coincide with those for incest, nor should they necessarily be dealt with in the same Statute. Certainly, in the Government's preparations for the Bill the law of incest was not ignored. It is accepted by the Government that the law is obscure and that modifications may be required in the specifications of the relationships within which sexual intercourse constitute the crime of incest, but the law of incest has not been the subject of the kind of study that is appropriate for the modernisation of an ancient law. The Kilbrandon Committee was clearly of the opinion that incest was outwith their province and so did not make recommendations about it. So it is no part of the Bill's contention to deal with incest. To do so would be outwith the ambit of the Long Title.

However, the Government have concluded that a study of the law of incest should be made before any restatement of that law is attempted. They consider that a reference to the Scottish Law Commission is the most appropriate course. The Government are now engaged in consultations with the Law Commission about the remit and the form it might take.


It does not seem that anyone else wishes to discuss these Amendments and I shall start by saying that, in the light of the noble Lord's reply about the difference of opinion between the Kilbrandon Committee and the Houghton Committee, I am only sorry that neither noble Lord is with us. Having chaired their respective Committees with distinction, they could have argued the point out here in our debate.

However, I see that the Houghton Committee considered the whole question of adoption and that its recommendations related to the United Kingdom and were not confined to Scotland, whereas the Kilbrandon Committee was considering the marriage law in Scotland. I agree that, in the interests of uniformity, there ought to be one law covering the whole country in these matters. What the noble Lord has said will no doubt be read carefully by the Law Society of Scotland and we shall hear at later stages in the Bill whether they have any further comments to make.

The noble Lord also answered the comments which the Law Society of Scotland had made about the Incest Act by saying that this was not an appropriate Bill for making changes on that subject because there was a difference between altering the criminal law and making the changes proposed in this Bill to the Marriage Acts. I do not know whether that will satisfy the Law Society of Scotland. That is the Minister's answer, but no doubt in due course we shall hear further observations from the Law Society on the Minister's reply.

In the light of his reply I would commend to the Committee the Minister's Amendment No. 26 which is the same in substance as Schedule 1 to the Bill but puts in headings, helpfully. I would not press my Amendment No. 25, but I was glad to have the Minister's views expressed upon it, and I think that the other Amendments which the Government have tabled, including Amendment No. 1 which has been moved, are acceptable and are improvements to the Bill.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 2: Page 1, line 14, leave out ("paragraph") and insert ("Schedule").

On Question, Amendment agreed to.


My Lords, I think it would be for the convenience of the Committee if I beg to move that the House do now resume.

On Question, Motion agreed to, and House resumed accordingly.