§ 4.22 p.m.
§ House again in Committee.
§ Lord KIRKHILL moved Amendment No. 3:
§
Page 1, line 15, at end insert—
("if solemnised—
§ The noble Lord said: This is purely a drafting Amendment designed to make it expressly clear that a person who is domiciled in Scotland cannot contract a valid marriage, either in Scotland or elsewhere, with anyone to whom he is related within any of the forbidden degrees and brings it into line with the formula used in Clause 1. It reflects in statutory terms what is the common law rule of private international law. I beg to move.
§ On Question, Amendment agreed to.
§ Lord KIRKHILL moved Amendment No. 4:
§
Page 1, line 16, leave out subsection (2) and insert—
("(2) For the purposes of this section a degree of relationship exists—
(3) For the avoidance of doubt, where a person is related to another person in a degree not specified in Schedule 1 to this Act that degree of relationship shall not bar a valid marriage between them; but this section does not affect any rule of law that a marriage may not be contracted between persons either of whom is married to a third person.").
§ The noble Lord said: I formally move this Amendment, which we have already discussed.
364§ On Question, Amendment agreed to.
§ Clause 2, as amended, agreed to.
§ Clause 3 [Notice of intention to marry]:
§ Lord KIRKHILL moved Amendments Nos. 5 to 11 en bloc:
§
Page 2, line 10, leave out ("or").
Page 2,line 12, at end insert—
(";
(c) in any case where a certificate is required under subsection (5) below, that certificate.").
Page 2,line 20, leave out ("or subsection (5) below").
Page 2,line 30, leave out ("foregoing") and insert ("other").
Page 2,line 31, leave out ("Without prejudice to the foregoing provisions of this section,").
Page 2,line 33, leave out ("shall, if practicable, submit to the district registrar") and insert ("is required, if practicable, to submit under subsection (1)(c) above").
Page 2,line 37, leave out from ("marry") to end of line 45 and insert—
(":
Provided that such a party—
§ The noble Lord said: I think it will be for your Lordships' convenience if we discuss Amendments Nos. 5 to 11 en bloc. Ideally, these Amendments should be taken together. They include a number of drafting Amendments, to make it clear that the certificate of freedom to marry is to be produced at the same time as notice of marriage is given to the registrar. They also cater for the situation where a party intending marriage, though domiciled in one country outside the United Kingdom, may be a national of another such country; in such a case the Amendment allows production of a certificate issued by the second country. That is Amendment No. 5.
§ On the first point, it is intended that when notice of marriage is submitted by a foreign person—that is, someone domiciled outside the United Kingdom—it should, unless he has lived in Scotland for two years or more, be accompanied by the certificate of freedom to marry 365 provided for in Clause 3(5), just as notices of marriage are to be accompanied by birth certificates or other documents under Clause 3(1); production of the certificate is thus an integral part of the legal requirements of giving notice of marriage. The present wording of Clause 3(5) does not make this clear; hence the new paragraph (c) of subsection (1). The reason for seeking to link the certificate with the notice of marrige is to give the registrar the maximum amount of time to consider the certificate, or any reason advanced for its non-production.
§ On the second point, the Amendments take account of complications which arise from the different legal criteria applied in different countries to determine to what personal law a person is subject. In the United Kingdom, the rule is that a person's domicile determines what is his personal law. Other countries, however, apply nationality as the determining factor. The present subsection requires a person domiciled in a foreign country to produce a certificate from that country; but that country—for example, France—applying the test of nationality, would hold that it was not competent to provide such a certificate for an Italian national on the basis of his domicile in France. In such a case, the first paragraph of the priviso to Clause 3(5) would enable the submission of a certificate issued by the other State—in this case Italy—being the State of his personal law. I think that that explains the position in regard to these Amendments, and I do not think I can usefully add to what I have said. I beg to move.
§ The DEPUTY CHAIRMAN of COMMITTEES (Lord Derwent)Is the noble Lord asking that these Amendments should be moved en bloc?
§ Lord KIRKHILLIt appeared to me to be a very convenient way of dealing with them. But if there are those who feel otherwise, I will move them singly.
§ On Question, Amendments agreed to.
§ Clause 3, as amended, agreed to.
§ Clause 4 agreed to.
§ Clause 5 [Objections to marriage]:
§ On Question, Whether Clause 5 shall stand part of the Bill?
366§ 4.28 p.m.
Lord CAMPBELL of CROYI should like to raise some points on Clause 5 stand part. I gave some notice to the noble Lord, Lord Kirkhill, that I would raise them, but I do not necessarily expect him to be able to give a full reply today, because I shall be raising some far-reaching matters. This Bill will abolish the reading of banns in church, which give an opportunity for objections to be raised to a marriage, and it introduces a new system whereby registrars will have to consider whether or not there is an impediment to a marriage. Obviously, there are the clear objections to a marriage—that is, the discovery that one of the parties is already married, even though he may not think he is, because of some divorce proceedings not being valid; or the fact that one of the parties is under age—and these are dealt with in the Bill. But then there is one paragraph which deals with other grounds for objection to a marriage. That is short and vague and is paragraph (e) of subsection (3), near the top of page 4, which states:
a ground other than one mentioned in paragraphs (a) to (d) above, where the district registrar is of the opinion that the objection if substantiated might constitute a fundamental objection to the marriage.So that provision gives the registrar discretion, in his opinion. Then it says that it "might constitute", lot that it necessarily would constitute. So it is vague. We have no indication in the Bill of the kind of objections which the Government have in mind.Then there is an unexplained gap, because the immediately following subsection (4) begins:
If the Registrar General is satisfied…that there is a legal impediment to the marriage…".So we have jumped straight from what might be an objection to a legal impediment to the marriage. Subsection (3)(e) is the district registrar and subsection (4), from which I have just quoted, is the Registrar General. But there appears, anyway to this layman, to be an unexplained gap because there is a great difference between a ground which, in the opinion of the district registrar, might be a fundamental objection and a legal impediment. If there is no legal impediment, then the Registrar General informs the district registrar. As I say, there is 367 nothing in the Bill to guide the Registrar General or the district registrar in a situation where there is no legal impediment but where there is an objection which could be fundamental. I am seeking, therefore, some description of what happens if a district registrar finds a ground for objection under paragraph (e) of subsection (3).May I give an example which I think is the one that is most likely to arise; that is, in the medical field. The only reference in the Bill to medical matters and possible impediments or objections to marriage is to be found in subsection (4)(d); that is, in the paragraph at the top of page 4. There it is said that it is an objection to marriage if there is a doctor's certificate, but the doctor's certificate is to establish only that a person is of sound enough mind to understand the nature of the ceremony and what marriage is about. Consequently, that paragraph will cater for those unfortunate people who are so mentally retarded that they should not marry at all; it deals simply with gross idiocy. This is the only part of the Bill that refers to any medical objections. It deals with gross idiocy but not with mental illness. It is not clear whether there are any medical circumstances contemplated as falling within paragraph (e) of subsection (3)—that is to say, grounds other than those which have been enumerated in the earlier paragraphs.
If we turn to the report of the Kilbrandon Committee upon which this Bill is based, we see that the Committee recognised that medical conditions, probably unknown to the person concerned at the time, could cause unsatisfactory and unhappy marriages. The Scottish Marriage Guidance Council suggested in its evidence, which is at Appendix 4 of the report, that there should be a National Health Service medical examination on a voluntary basis before marriage to find out whether there was mental illness and what the Council described as "other barriers to marriage". In their evidence the Marriage Guidance Council appears to accept that some mental illness can be a barrier to marriage. The Kilbrandon Committee supported in paragraph 44 of their report the principle of a medical 368 examination as a sensible step, but it did not propose that it should be compulsory. I agree straight away. I do not think that there is any question of a medical examination being made compulsory but, as the Kilbrandon Committee recommended, it is advisable.
Physical conditions which may wreck a marriage are easier to deal with than mental conditions. Usually they are known to the person concerned. But what does the district registrar do if he receives an objection, probably from a parent of one of the parties proposing marriage, that is based upon serious mental illness which is then fully substantiated by the appropriate specialist doctors? This is a subject which needs investigation now in a way which was not necessary when change and reform of the marriage laws was considered in the past. The reason is that in the last 20 years there have been great advances by the medical profession in the diagnosis and treatment of mental illness. With much more authority doctors can now certify that there is hereditary mental illness, although it may not necessarily afflict each and every descendent in every case. The danger can, however, clearly be seen nowadays and a warning can be given.
Further, we come to treatment. Many sufferers who, in the past, would have had to be in institutions are now able to lead a fairly normal life in the community in protected environments. This is possible with tablets, treatment and medical supervision. The young people whom I have come across in this situation deserve encouragement as well as sympathy, but who is to say whether they should marry? Can they marry if they agree not to have children? These are extremely difficult sociological problems which affect the community and individual freedom; and they are comparatively new, as I have said, because of the very welcome advances which have been made in the medical field. The Bill gives us no guidance. It is a complete blank on any medical grounds other than gross idiocy.
May I ask the noble Lord whether the Government have any views upon this problem: whether it is their proposal that it should be left to the discretion of registrars to cope with the situations which arise in their areas in the light of 369 the individual circumstances of each case, or whether the Government have simply overlooked these problems in reforming the legislation because they were less evident, less frequent, and less pressing in the past when reform was being carried out and, therefore, were not previously catered for in the marriage laws of Scotland.
To sum up, I have drawn the attention of the Committee to what I believe is a gap between paragraph (e) of subsection (3) and the following subsection (4) and I have given an example of difficult problems which will arise that will need Parliamentary discussion. If the noble Lord cannot say very much at this stage I will understand completely and I shall hope that he will be able to give us some answers at the Report stage.
§ Baroness ELLIOT of HARWOODMay I ask the noble Lord one question. I think that the noble Lord, Lord Campbell of Croy, said that this clause would abolish, if I am not using too strong a word, banns being read in church when people wish to get married. I realise that this does not happen if people wish to get married in a registry office. May I ask the noble Lord what this clause intends with regard to people who wish their banns to be read in church, as they have been read for centuries'? Would the clause alter the situation? If it would, that would be regrettable.
§ 4.40 p.m.
§ Lord KIRKHILLThe noble Lord, Lord Campbell of Croy, very kindly gave me advance notice that he would touch and, indeed, more than touch, that is, discuss in some detail matters of considerable and wide-ranging import. I think it would be for the interests of the Committee if I were to outline in general terms the thinking of the Government in regard to Clause 5. It should be understood that, apart altogether from what is said in Clause 5, the registrar has the duty in every case of satisfying himself that there is no legal impediment to a marriage before he grants facilities to marry by completing the Marriage Schedule. Clause 5 deals only with cases where a member of the public lodges an objection on any of the grounds specified in that clause. Registrars will be instructed that they are not permitted 370 to refuse facilities to marry to any person except with the authority of the Registrar General and this will apply particularly where an objection is submitted by a member of the public under Clause 5. Subsection (2)(a) makes it clear that where the registrar receives an objection on any of the grounds specified in subsection (3) he shall immediately notify the Registrar General. In accordance with subsection (4), it is the latter who will decide whether the objection does or does not constitute a legal impediment to the marriage. So far, therefore, there is no real area of discretion open to the registrar.
Two questions then arise about subsection (3)(e)—a subsection to which particular attention has been paid by the noble Lord, Lord Campbell of Croy, in his recent remarks. First, why is the wording so generalised, and, secondly, why should it be the registrar's opinion as to the possibly fundamental nature of an objection that determines whether or not he refers the objection under subsection (3)(e) to the Registrar General? This is another question posed by the noble Lord, Lord Campbell of Croy.
On the first point, subsection (3)(e) is included primarily to cover the situation where, although a proposed marriage conforms with the formal and substantive requirements of Scots law, it would be void under the laws of another country to which at least one of the parties was subject. There is no point in allowing foreigners to proceed with a marriage ceremony if the marriage would be void ab initio under the laws of their own country. District registrars, however, can hardly be expected to have sufficient knowledge of the laws of other countries to be able to determine such matters with confidence; the subsection enables them, if an objection on such grounds is lodged and if they think it may be justified, to notify the Registrar General for advice and to suspend proceedings. The general wording of the subsection also acts as a "catch-all" provision. For example, it would cover the (unlikely but not impossible) situation of an objection lodged on the ground that both parties to an intended marriage were males (or females).
On the second point, the district registrar will not in practice have any real area of discretion. If an. Objection 371 is lodged with him on a ground other than those at subsection (3) paragraphs (a) to (d), and if he is not of the opinion that it might, if substantiated, constitute a fundamental objection to the marriage (as at subsection (3)(e)), it will fall to be dealt with by him in accordance with paragraph (5). In other words, he will have to notify the parties, make appropriate inquiries and, if the result means that any change or correction to any marriage document is necessary, for example, because of wrong names or ages given, he will notify the Registrar General to obtain his approval. If, of course, the outcome of the registrar's inquiries gave him any cause to believe that there was, or might be, a fundamental objection, he would then deal with it under subsection (3)(e) and would refer it to the Registrar General.
It is not the case, therefore, that the district registrar will be invested with wide discretion to accept or reject objections or otherwise to grant or refuse facilities to marry. I am advised that objections are very rare and so is refusal of facilities to marry. I think it would be fair to say that registrars do not act arbitrarily: they work under the direction and instruction of the Registrar General, and noble Lords may be assured that no registrar would refuse facilities to marry as a result of an objection without first consulting the Registrar General and being guided by him.
The various legal impediments to marriage in Scotland are set out clearly in paragraphs (a), (b), (c) and (d) of subsection (3). Perhaps at this point I might mention the question posed to me in the latter stages of the remarks made to the Committee by the noble Lord, Lord Campbell of Croy. It is certainly not the intention of the Government, within the confines of this Bill, to extend the present known and clearly enunciated legal impediments to marriage. I must emphasise that point. The last of the legal impediments, under subsection (3)(b) is that one or both of the parties is or are incapable of understanding the nature of a marriage ceremony or of consenting to marriage. It is important to note the very limited nature of this impediment—and hence the limited nature of the objection that may be taken into account. Such matters as mental illness, mental 372 disturbance, mental backwardness or other genetic defects are not in themselves under Scots law legal impediments, and the clause does not provide for objections on those grounds. The text is the comparatively narrow one of whether the person or persons concerned can understand what is meant by marriage and can knowingly consent to enter into marriage.
It is indeed true, as the noble Lord, Lord Campbell of Croy, said, that striking advances in psychiatric knowledge and in the treatment of mental illness have taken place in recent years; and these advances may well enable mentally afflicted persons to enter into marriage. The Bill will not prevent this: in this respect it will apply only the limited test which I have already mentioned. It would be a new and, in the view of the Government, a very serious departure if we were to seek to forbid marriages on genetic grounds, however ill advised an individual marriage might appear to be in this respect. This is not a feature of the Bill which, therefore, does more than adopt the recommendation of the Kilbrandon Committee.
I listened carefully to what was said by the noble Lord, Lord Campbell of Croy, in his submission when he spoke about subsection (3)(e) and I acknowledge that the subsection is widely drawn. Therefore I give the noble Lord an undertaking to give this matter some further thought. Whether it will be possible for me to come back to your Lordships' House with subsection (3)(e) redrafted in a rather different manner, or whether the point will have to stand over for consideration in another place, is something to which I shall have to give further thought. At least the noble Lord has my assurance that we will take into account very seriously the comments that he has made this afternoon.
With regard to the remarks made by the noble Baroness, Lady Elliot of Harwood, this particular clause does not in any way prevent the proclamation of banns being read.
§ 4.49 p.m.
Lord CAMPBELL of CROYI am grateful to the noble Lord, Lord Kirkhill, for having told us how the Government see the operation of this clause. First I should like to comment on what he has just said to my noble friend Lady Elliot 373 of Harwood, because the point I was making was that the effect of this Bill is that the system of reading out banns disappears if they can be read out but it is not necessary for them to be read out.
§ Lord KIRKHILLPerhaps I may intervene for a moment. I thought the noble Baroness, Lady Elliot of Harwood, asked me whether banns could no longer be read out. The fact is that they can be read out if it is so wished.
Lord CAMPBELL of CROYSimply in order to avoid misunderstandings, I wanted to be clear. The problem arises because a new system is being substituted for the old system of reading banns in church. But that does not mean that if people want notices to be read in church they should not be read. The actual system is now being changed so far as the official recognition of objections to marriages is concerned.
What the noble Lord, Lord Kirkhill, has told us is that the operation of the clause will be to give the district registrar no discretion. I was glad to be told that. It is the way the Government see it working. He is simply a repository for objections and he denies facilities until the matter has been cleared up, but he is in fact only a post office for the Registrar General. So far as dealing with the objections is concerned, they go to the Registrar General; he is the person who has to decide whether there is a legal impediment to marriage.
There is still one point to which I must revert. The noble Lord, Lord Kirkhill, said that paragraphs (a) to (d)—and in this he was confirming what I had earlier interpreted—include all the present legal impediments to marriage in Scotland. He then went on to say that it is not the Government's intention that any legal impediment should be added in this Bill. But we then have paragraph (e), which is the sweeping up paragraph, which then says that any other objections are none the less acceptable, even though all the main impediments are dealt with in paragraphs (a) to (d). Therefore, paragraph (e) I recognise as a sweeping up paragraph, but at present it looks as though there really is no matter which could be raised under paragraph (e) if it is not permissible to raise it under paragraphs (a) to (d).
374 It is, if I may describe it in cricketing terms, a long-stop paragraph. But it is a very long long-stop; the fielder is almost on the boundary. So that we still have this query—at least, I do in my mind—as to what other grounds there could be under paragraph (e) which could be translated by the Registrar General under subsection (4) as legal impediments if all legal impediments have been dealt with under paragraphs (a) to (d). I do not expect an immediate reply from the noble Lord, because he did kindly say that he would have another look at paragraph (e), and we shall at Report stage know more about it. I think the noble Lord was indicating that he wished to say something.
§ Lord KIRKHILLI had conceded that paragraph (e) was rather widely drawn. I was going to make the observation that a fundamental objection is not necessarily a legal impediment, but, of course, it would be for the Registrar General's consideration.
Lord CAMPBELL of CROYI think the answer is that probably paragraph (e) has been put in for safety reasons, to cover the unknown that might arise, and I am not against that in drafting if it is going to make the Bill 100 per cent. But naturally we have a curiosity, when we see such a provision in a Bill, to know what kind of thing it is intended to catch.
As I say, I am exceedingly grateful to the noble Lord for having given us a statement at this stage. It is quite clear that medical grounds, other than those which might happen to be caught in paragraphs (a), (b), (c) and (d), are not in themselves regarded as a legal impediment, or in fact an objection or a barrier to a marriage where legislation is concerned. In my earlier remarks I pointed out that certainly in its evidence the Marriage Guidance Council in Scotland suggested that certain illnesses, including certain mental illnesses, were a barrier to marriage. So that remains, but it is clear that the Government are not intending to cater for that in this Bill.
§ Lord FERRIERIf the intention of the noble Lord, Lord Kirkhill, is that paragraph (e) should be very vague, I am reminded of an Indian lawyer's remark to me on one occasion that "if you want to be vague you must be very vague".
§ Clause 5 agreed to.
§ Clause 6 [The Marriage Schedule]:
§ On Question, Whether Clause 6 shall stand part of the Bill?
Lord CAMPBELL of CROYThere is one point which has been raised by the Law Society of Scotland on the procedure which is proposed in the Bill. I think this is the moment when I ought to inform your Lordships' Committee about it. It may be that the noble Lord will wish to look into this and give your Lordships' House the answer at Report stage. Subsection (5) of Clause 6 states that a Marriage Schedule issued under the clause shall be valid only in respect of a marriage to be solemnised on the date and at the place specified in the Schedule. But the clause is silent on the question of the validity or otherwise of a marriage solemnised on another date at another place. That is the first point.
In other clauses; namely, Clause 4(1), Clause 7(2), Clause 19(1) and subsection (4) of this clause, Clause 6, the Bill deals with the question of the dates of receipt by the district registrar of a marriage notice or approved certificate and the issue by him of a Marriage Schedule. In the case of an approved certificate, the date of receipt to be entered in the marriage notice book by the registrar, "shall be the date fourteen days before the actual date of such receipt". This could produce the curious result under subsection (4) of this clause of the registrar issuing in certain circumstances a Marriage Schedule (in the case of an approved certificate) before he had actually received the certificate. Similarly, under Clause 19(1) it would appear that a registrar could in certain circumstances solemnise a marriage before actual receipt of an approved certificate.
I received these points only in the last few hours from The Law Society, who have been working under some pressure, like the noble Lord, with the many comments that have been made on this Bill. I thought this was the moment when I should point out this difficulty about procedure which they see, and enable the Government to look into it.
§ Lord KIRKHILLThese are points of detail to which I shall certainly give my 376 consideration. I am unable, of course, to respond at this stage.
§ Clause 6 agreed to.
§ Clause 7 [Marriage outside Scotland where a party resides in Scotland.]:
§ Lord KIRKHILL moved Amendment No. 12:
Page 6, line 10, after ("3(1)") insert ("(a) and (b)").
§ The noble Lord said: This Amendment is consequential on the Amendments made to Clause 3. I beg to move.
§ On Question, Amendment agreed to.
§ Clause 7, as amended, agreed to.
§ Clause 8 [Persons who may solemnise marriage.]:
§ The DEPUTY CHAIRMAN of COMMITTEES (Lord Derwent)The noble Lord, Lord MacLeod of Fuinary, is not moving the Amendment on the Marshalled List, but is moving a Manuscript Amendment in lieu.
§ 4.57 p.m.
§ Lord MACLEOD of FUINARY moved the following Manuscript Amendment in substitution for Amendment No. 13:
§
Page 6, line 38, at end insert—
("( ) a minister of the established Church of Scotland; or").
§
The noble Lord said: I regret that I have had to suggest this addition. I was under the impression that it appeared in the original, but that may have been my fault; I appreciate the action of Her Majesty's Government in putting out a cyclostyle so that people may understand the Amendment, which is of some importance. It in fact reads:
a minister of the established Church of Scotland or a minister, clergyman, pastor…
and so on to the end of the paragraph. However, right at the end of this very short speech I shall be repeating it in the light of what I am explaining. I thought the Amendment was in the original document I produced, and I apologise that it does not seem to be so.
§ I have two declaratory words: first of all, I want to make a personal statement, that I am a minister of the Established Church of Scotland, which is to declare an 377 interest; and, secondly, that I have in my hands a communication from the Administration Committee of the Church of Scotland, who have examined the Bill in its present form. They asked me to say that with one exception they not only accept its contents but are preparing a "Declaratory Act" for the General Assembly of the Church of Scotland in May to bring the Church's regulations into line with certain of the contents of this Bill. They have already communicated, both to the Secretary of State for Scotland and to the Registrar General, what they intend to do.
§ The one exception is what brings me to my feet. It is the total absence of any reference to the Established Church of Scotland in the present Bill. This is not simply a technicality. In what might be called the last relevant Act of parallel content to this Bill for England—namely, the Bill enacted in 1949—there are no fewer than ten pages devoted entirely to the implications of the marriage law for the Established Church of England. Only then does the 1949 Act proceed to other and non-conformist denominations comparable to the clauses that are before us. However, in this Bill the Established Church of Scotland is not mentioned at all. The Established Church of Scotland is merged with other Christian non-conformist denominations, and thus becomes subject to regulations that may be made by the Secretary of State, as is stated in Clause 8.
§ Everyone present knows that the Established Church of England is Episcopalian and that the Established Church of Scotland is Presbyterian. Everyone knows that the constitutional relationship of the Sovereign to the Church of England is well declared and that there is a constitutional relationship between the Sovereign and the Established Church of Scotland. Indeed, its General Assembly cannot convene without the authority of the Crown. In this Jubilee year Her Majesty has graciously consented to be present in person on the throne at the opening of our General Assembly in May. Everyone here knows that when the Sovereign cannot be present the Lord High Commissioner represents her and lives at Holyrood while the Assembly is in session. Again, the Sovereign is constitutionally identified with the Church of England while in England and she is constitutionally identified with 378 the Presbyterian Church in Scotland because, for instance, she attends the Presbyterian parish church at Balmoral at Craithie.
§ The only royal chaplains in Scotland are drawn from the ministry of the Church of Scotland. The numerical memberships of Churches are notoriously difficult to compare because of different interpretations of what constitutes membership. However, if Whitaker's Almanac is correct the population of England is around 44 million, while the Church of England seems to claim as members around 4 million or one in every 11 persons. In parallel, if Whitaker's Almanac is still correct, there are about 5 million people in Scotland and the recorded membership of the Church of Scotland is around 1 million. That indicates that one in every five persons is a member of the Church of Scotland. I quote these figures not for their own sake but lest anyone imagines that the Established Church of Scotland is a dwindling historic remnant when it has by far the largest membership in Scotland.
§ As the Bill stands the Church of Scotland is equated with non-conformist counterparts. Its unique establishment is as it had never been. Is it really the Government's intention, for this is how the Bill seems to read, that the Sovereign should convene the General Assembly of the Church of Scotland as the national Church, but that the Secretary of State for Scotland will then decide to make regulations as to its status as a suitable body to conduct marriages? The Established Church of Scotland is not asking that 10 pages of the Bill should be devoted to the exact relationship between Church and State in Scotland in this matter. It is simply by my Amendment asking that it be recognised as a suitable body—right now—to conduct marriages by reason of its already established status. I therefore move that Clause 8 should read—and this includes the last Amendment:
§
"A marriage may be solemnised by and only —
(a) a person who is—
(i) a minister of the established Church of Scotland or a minister, clergyman, pastor or priest of such religious body as may be prescribed by regulations made by the Secretary of State.
§ I beg to move.
379§ 5.6 p.m.
The Earl of SELKIRKI support the Amendment moved by the noble Lord, Lord MacLeod of Fuinary. I found it hard to understand quite how this clause came to be drafted at all. Apart from questions of forbidden degrees, we are dealing primarily with facilities for minor religious bodies, particularly non-indigenous bodies—Sikhs, Moslems and others—for which arrangements can be made. However, here we are delegating from the major Christian religions which exist in Scotland.
There was a time in this country when only one religion was permitted. It existed before the Reformation and after the Reformation, when the only Church was the kirk. At the end of the 17th century ideas of tolerance began to filter through. In 1711 the Episcopalians received statutory rights to conduct marriages, as subsequently did the Roman Catholics, in 1834. Churches are wholly dependent on the goodwill of the Secretary of State as to whether or not they are allowed to conduct religious marriages at all.
I do not understand the purpose of this. I do not like to suggest this, but is it really simply bureaucratic convenience, because we are taking from the well known Churches a right that many of them have had, particularly the Church of Scotland, for a very long time? It is really a little more serious. In the first place, whatever is prescribed—and I refer to Clauses 25 and 26—does not even come before Parliament. Parliament had no say in what was or what was not prescribed.
We have learned today from a Cabinet Minister that in the Labout Party there are, and have been for a long time, Marxists. A number of people think that religion is a sort of opiate to the people. I dare say that that view is sincerely held. They may and probably do genuinely believe that religion is an evil influence on the life of people. They might very well refuse to prescribe any religion to conduct a religious marriage. They might even go further than that—they might bargain with one of the religious bodies on whether or not they should be allowed to conduct religious marriages.
380 This is not a Bill to last simply for five or six years; it may be on the Statute Book for hundreds of years hence. This is a subject which indubitably will be devolved in the event of the Bill in the other place being passed. If that is the case we do not have the faintest notion who would be responsible for prescribing who is competent to conduct religious marriages. Religious marriages are very important. We complain a great deal about divorce and I believe that a sounder foundation for a lasting marriage is found in a church rather than outside it. I do not have statistics to prove that, but I believe that they would. It is of the utmost importance that recognition should be given in the Bill to the Established Church on grounds which the noble Lord, Lord MacLeod, has admirably explained. I do not understand why this clause has been drafted in the way it has. I hope that the noble Lord, Lord Kirkhill, will explain that. I very much hope he will agree that there is a case which requires answering. We expect the Government to answer it.
§ 5.10 p.m.
§ Baroness ELLIOT of HARWOODI should like to support the speeches of the noble Lord, Lord MacLeod of Fuinary and the noble Earl, Lord Selkirk. It seems quite extraordinary that any one should have drafted a marriage Bill for Scotland without specially mentioning the established Church of Scotland. There are two things which I remember very clearly. At the time of the Coronation (this applies at any Coronation, but it happened at the last Coronation) I remember that my husband, who was present, said that the first oath that the King and Queen took was loyalty to the Established Church of Scotland. Curiously enough that comes before anything else.
Of course there are other denominations, but the Established Church of Scotland is something which takes precedence over everything else in legal and other matters in connection with marriage. If we just leave "a minister" like that it might mean any minister at all. The word "minister" means many other things besides a parson or a minister of the Church of Scotland. I think it would greatly improve the Bill and respond to what I am quite sure everyone in Scotland would look for that there should be as a first authority the 381 words which the noble Lord has put into his Amendment. I hope that the Minister will accept this proposal because there does not seem to be any reason on earth why he should not. If you want to put in all the others—and I have no objection to their being put in—they can come in second, but the Church of Scotland is the most important religious organisation in Scotland today.
I had the experience of being at the General Assembly of the Church of Scotland when my husband was the Lord High Commissioner, and there is no question at all that if the Lord High Commissioner did not open the Assembly, the Assembly would not open at all. He had the authority from the Queen to open the General Assembly of the Church of Scotland. It was a direct order from the Monarch. I do not think that that happens in other Churches—although it may—but in Scotland it is absolutely essential, it is vital, it is part of the law of the land. To leave it out in a Bill like this seems to me either to show an extraordinary historical ignorance on the part of the people drafting the Bill, or to be a very unfortunate slip-up which would cause a great deal of distress in Scotland. I am quite sure that the Minister who, like me, is no doubt a member of the Church of Scotland and also lives in Scotland, would not want that. Therefore, I hope that the Government will accept this Amendment, which seems to me to be in every way correct.
§ Lord BALERNOLike my noble friend Lady Elliot, I too was astounded when I discovered that the Church of Scotland had been omitted in the drafting of this Bill. It would have been understandable if the Bill had been drafted here in London, but assuming that the Bill was drafted in Scotland it is quite astonishing that those who are responsible for drafting it were unaware of the specific position of the Church of Scotland as the Established Church in Scotland. I think that the second oath that the Monarch takes on accession is to preserve the rights of the Church of Scotland, and this oath is more or less repeated at the Coronation ceremony. We are the Established Church, and we have been responsible primarily for the marriage ceremony and for the whole business of marriage, one might say, in Scotland over the 382 centuries, except for that peculiar type of marriage which partially flourished at Gretna Green, which was marriage by mutual consent.
It would be wrong to fail to emphasise the ancient position of the Church of Scotland in this matter and fail to encourage the solemnisation of matrimony and, thereby, one hopes to reduce, as my noble friend Lady Elliot said, the amount of consequent divorces; and I hope that the Government will take another look at this point. If they do not accept the Amendment they are in for a mighty lot of trouble. The correspondence columns of the Scotsman and the Glasgow Herald will almost switch from devolution to this insult to the General Assembly—which may be a good thing for them to do.
I have one footnote to add. Two of my noble friends have stated that the Monarch, either directly or indirectly through the Lord High Commissioner, opens the General Assembly. The Monarch is not allowed to close the General Assembly. That was a battle that was fought long ago, so that if necessary the General Assembly could go on despite the Monarch's desire to close its mouth.
§ Lord FERRIERI would go all the way with what has been said in support of Lord MacLeod's Amendment, and I look forward to hearing what the Government have to say about it. Though a member of the Church of Scotland, my first impression when I saw the Bill was one of surprise that the two Churches which my noble friend Lord Selkirk mentioned were not included as well. There may be technical difficulties about that.
From the point of view of a communicant, I should like the Church of Rome and the Episcopal Church also to feature, but I am not in any way detracting from the importance of what has been said about the Church of Scotland. I would refer to the words of the noble Lord, Lord MacLeod, when he mentioned the wording of the clause, and I look forward to what my noble friend Lord Selkirk will say when he moves the next Amendment, to alter the word "may" to "shall".
§ 5.18 p.m.
§ Lord KIRKHILLAs I think your Lordships will know, where possible from the Government's point of view, I attempt to take on board for reconsideration matters debated in your Lordships' House, but I should say in response to the noble Lord. Lord MacLeod of Fuinary, that in this case the Government have to resist his Amendment. The Bill as it stands puts religious denominations into two groups: those in the regulations who are exempted from the requirement to nominate their celebrants for registration—and the Church of Scotland falls into this category of course—and those who would make these nominations.
But this division does not imply any judgment on the credit or the merit of particular religious bodies. It is not made because any are thought to be better or more eminent than others, and it should not be so construed. It is a strictly practical division for practical purposes involving the celebrants themselves and the registrars who complete and issue the Marriage Schedules. No difficulty arises for the registrars in being sure that individual ministers or priests are qualified and entitled to solemnise marriages where these clergymen belong to the main, long-established denominations and hold permanent charges in the locality. Registration of these clergymen, who are usually trained and ordained, is theoretically possible, but in the Government's view would serve no useful purpose.
Experience has shown, however, that problems can arise with other denominations, many of which are smaller and some of which are less firmly established, sometimes even transitory, often with lay celebrants and sometimes with itinerant preachers. It is largely to deal with this situation that there has grown up the existing practice under which, to the satisfaction I understand of all concerned, a considerable number of denominations keep the Registrar General informed of the names of their celebrants so that he in turn can keep local registrars notified of those whom they can accept in completing the marriage schedules as entitled to solemnised marriages.
The Bill gives statutory backing to this system which has grown up and which the smaller sects themselves find convenient. 384 In the Government view it would be unfortunate if it were thought that the division of religious bodies into two categories meant any more than that. The Amendment, however, goes further. Its effect would be to create three categories; the single Church mentioned in the Bill, those to be listed in regulations and those which will nominate celebrants. It is surely questionable whether such detailed categorisation as is implied by the Amendment would, in these ecumenical times, be desirable or well-advised. I might say in passing to the noble Baroness, Lady Elliot of Harwood, that the Government feel that balance should be maintained in the Bill; that one Church should not be derogated as against another. For this reason, the Government seek to resist the inclusion specifically and mention solely of the Church of Scotland in the Bill.
Certainly the Church of Scotland has made representations to the Government exactly in line with the comments made by the noble Lord, Lord MacLeod of Fuinary, in his earlier remarks. Unquestionably the Church of Scotland, as the national Church, feels that specific mention should be made of it. But the fact that this claim has been advanced is, in the view of the Government, one more difficulty in a territory which is most involved. Accordingly, we do not view the Amendment with any enthusiasm, nor the three-tier arrangement which, if the Amendment were carried, would be introduced and which it seems to the Government would be unnecessary and inconsistent with what is essentially the limited and practical purpose which lies behind the clause. The Government therefore resist the Amendment.
Lord CAMPBELL of CROYPerhaps I might add a comment from this Bench. The noble Lord, Lord MacLeod of Fuinary, has raised an important matter on which there will be a great deal of scrutiny in Scotland. It will not just be the heir-archies of the Church; many members of the Church of Scotland will be following this debate and perhaps any later debate on the subject. As my noble friend Lord Selkirk pointed out, the law at present clearly permits three Churches to conduct marriages in Scotland—the Church of Scotland, the Episcopal Church of Scotland and the Roman Catholic 385 Church—and, as we have just completed a week designated Christian Unity Week, it would have been appropriate if all three could have been mentioned in the Bill. It was a surprise to find that not even the Church of Scotland, the established Church, was mentioned in it, and that is strange for the reasons that have been advanced by noble Lords on both sides of the Committee.
I suggest to the noble Lord, Lord MacLeod of Fuinary, that this matter needs further thought. In principle, I support his objective, but he has produced a manuscript Amendment at short notice and, in view of what the noble Lord, Lord Kirkhill, has said, I think that further consideration by everybody is needed. I hope that between now and Report we will be able to find a form of words which will meet the Amendment and be satisfactory to the Government, and I will try to do this in the days ahead. I hope that the matter will not be pressed and closed today because we did not have notice of the matter and time in which to look at the actual words of the Amendment. This subject deserves further thought following this initial debate.
The Earl of SELKIRKI hope the noble Lord, Lord MacLeod of Fuinary, will accept the invitation of my noble friend Lord Campbell of Croy. The noble Lord, Lord Kirkhill, gave what I thought was an extraordinary and astonishing answer. He started by saying that it would not create difficulty for the Registrar General, and that is the point; that is the first rule to emerge from the argument. He went on to say that he was not degrading any church, but three churches which have the right to marry by Statute and which are named by Statute are taken out. What the noble Lord said will in no way enhance the standard of religion and I urge him to look at this matter again and to do so rather better. He pinned his argument on how this proposal would look in comparison with the next provision in the Bill which deals with other religious bodies; that it would be rather easier to deal with that subject if this Amendment were not made. I hope the noble Lord will look at the matter again.
§ Lord KIRKHILLThe spirit of ecumenism seems to be more apparent in 386 Government Departments than perhaps among the Churches themselves.
§ Baroness ELLIOT of HARWOODIt is not so much the ecumenical spirit which we appreciate but the history of the matter with which we are dealing. This has been going on for centuries and for somebody in 1977 to produce a Bill which ignores all the historical association of the Monarch, the people and the Church of Scotland seems incredible. I hope very much that while the noble Lord, Lord MacLeod of Fuinary, may not press this matter today, it will be raised again on Report, when noble Lords will vote on it, and I hope they will vote strongly.
§ Lord BALERNOWith respect to the noble Lord, Lord Kirkhill, I cannot understand his ecumenical argument, which I thought very superficial. I have served for many years on the Interchurch Relations Committee of the Church of Scotland, where we have had much communication and fellowship with the other churches. I have served for many years on the British Council of Churches and I have been vice-president of that Council. Never throughout those years in any discussions have I heard any of the other Churches with which we are in conversation and discussion object to the Established Church of Scotland and, in Scotland, to the Church of Scotland taking a lead, just as when we meet in England it has almost always been under the chairmanship of the Archbishop of Canterbury. The other Churches recognise that those are the two Churches in the United Kingdom which are by law established and to derogate from that in this Bill is, I assure Lord Kirkhill, just putting his neck in a noose.
§ Lord MACLEOD of FUINARYIn the light of what has been said, with most of which I entirely agree, I will confine my remarks to the minimum. I, too, regret the reply which the noble Lord, Lord Kirkhill, gave. He referred to the difficulty there might be for the Government by reason of having three categories, one the Established Church in Scotland, the second the recognised denominations and the other, the third category. I invite him to look at the 1949 Act and the last time in England the marriage law was reviewed, when precisely those three categories were accepted, presumably without difficulty, by the Government, the Government now or 387 then; that is to say, as I said earlier, with ten pages of references entirely to the relationship between the Established Church of England and the Government in this matter. Then there come, as there come in this Bill, the other denominations that are recognised as denominations but not established, and thirdly the groups which must make special reference and inquiry. If the Government have any difficulty about that, they need only see what was done then, when there was no difficulty about the Established Church taking its place, and nobody referred to ecumenical disasters arising from it. It is simply a matter of sequence and of recognising a National Church.
However, in the light of what has been said and as we have already been informed that this Amendment cannot be accepted, provided it is understood that I shall bring it up at Report stage and shall raise not just the possibility of an ecumenical expression which might cause the largest possible difficulties, but simply on the grounds of the established nature of the Church of Scotland, possibly followed by something regarding the ecumenical situation, I shall withdraw the Amendment. I shall do so if it is understood by the Government that we shall bring the matter up at Report stage unless the Government do not wish it brought up at Report stage, in which case I shall have regretfully to press my Amendment as it stands. However, unless there is a categorical denial, I shall take it that it can be brought up at Report stage and I shall repeat, possibly in other words, the essential point that I have made.
§ Lord KIRKHILLThe Government cannot prevent any Member of your Lordships' House from bringing forward an Amendment at Report stage. The Government are of course making no statement as to their attitude to that prospective Amendment. I have stated the Government's attitude this afternoon.
§ Lord KIRKHILLThe Government's position is as I have stated it this afternoon.
§ The LORD BISHOP of NORWICHI wonder whether the noble Lord feels 388 that this is a matter that is even wider than the very great and important relationship between the established church in Scotland and the nation in Scotland. I know that it is a dangerous thing for a Bishop of the Church of England ever to enter into an argument over anything happening in Scotland. There is a long history of our heads being cut off at times. None the less, on a more serious note, it seems to me that at a time when the nation needs all the help, encouragement and strength that it can get from the witness to the Christian Church in every stratum and every area of the nation, it would be a disservice to the national interest and the national cause if anything were done to weaken organised religion, because organised religion is but the expression of the mood of the spirit and the breath of God breathing through the nation. Clearly, those who can speak with very much greater knowledge than I can from across the Border see the importance of this and I hope that it may not be inappropriate for a Bishop of the Church of England to support those who have spoken so strongly yet so clearly.
§ The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger)Does the noble Lord wish to withdraw the Amendment?
§ Lord MACLEOD of FUINARYI beg leave to do so while giving notice that it will be brought up at Report stage.
§ Amendment, by leave, withdrawn.
§ 5.33 p.m.
§ The Earl of SELKIRK moved Amendment No. 14:
Page 6, line 40, leave out ("may") and insert ("shall").
§ The noble Earl said: In moving this Amendment I should like to say that I shall not press it at this stage. In the event of the Church of Scotland not being mentioned, however, I regard it as essential that, whatever office is specified—whether it be the Secretary of State or the Chief Executive in Scotland—the holder shall be compelled by law to draw up such a list. It is in those terms that I move the Amendment but, unless anyone wishes to say anything about it, I shall withdraw it immediately. I beg to move.
389§ Lord KIRKHILLI had been going to say a great deal on this Amendment, running into several pages. It is really a question of whether the noble Earl would be satisfied if I gave an undertaking that I might be able to consider his point. We might perhaps find a more acceptable way and he could perhaps put down the Amendment again at Report stage. As the Government see the matter, these are difficult and troubled waters. The Government do not consider this to be straightforward or simplistic and they would certainly have to give very serious consideration to the form of words. However, the noble Earl has said that he will withdraw the Amendment and I certainly accept that withdrawal.
The Earl of SELKIRKI am grateful for what the noble Lord has said, but I do not think that he has quite grasped the point that I am making. It is this: it lies within the power of the Secretary of State to prevent religious marriages taking place at all. This is really the point that I am getting at. I have quoted the example of a Marxist Secretary of State who does not believe in marriage. If no Church is mentioned, an absolutely clear obligation must be put on the Secretary of State to draw up a list. That is what I am trying to achieve. Different words could be used; it could read, "It shall be the duty of the Secretary of State". I have put in the simplest Amendment. But the point is that the Bill is taking away the statutory right of certain religious denominations to conduct marriages. One can see it in the Schedule. That is what worries me.
§ Lord KIRKHILLIn the light of the very forceful intervention of the noble Earl, I feel that I must make the Government's position clear. I am sorry to take up yet more of your Lordships' time but I think it necessary because the noble Earl has returned to this point to me informally on several occasions and before your Lordships' House.
In my view, the noble Earl is investing the regulations to be made by the Secretary of State with much greater significance than they are intended to carry. He has explained his belief that there is at present a specific statutory right to certain churches to solemnise religious marriages and that the Bill is 390 reducing, if not removing, this right by making it dependent on agreement by the Secretary of State to make these regulations. This is not so. First, the solemnisation of religious marriages does not depend on specific statutory authority of the kind he envisages, naming individual Churches; and, secondly, the regulations do not have the effect he imagines.
Very briefly, regular marriage was originally confined by law to marriages solemnised by ministers of the Established Church of Scotland. This was achieved rather by imposing penalties on ministers of other Churches than by authorising the Established Church itself (this being taken for granted); and, in any event, all the old Acts of the Scottish Parliament so providing have been repealed. Later, by an Act of 1711, the prohibition was relaxed for ministers of the Episcopal Church and in 1834 it was further relaxed for priests or ministers not of the Established Church. The current position is that religious marriages may be solemnised by a minister, clergyman, pastor or priest of any Christian denomination or according to the usages of the Society of Friends or of persons professing the Jewish faith. This general position is continued by the Bill but the right to solemnise religious marriages will be widened still further by the extension to non-Christian denominations. So the noble Earl is mistaken in believing that there exists at present a prescriptive statutory authorisation for individual denominations to solemnise marriages or that the Bill removes or weakens such an authorisation.
Nor it is correct to believe that any such authority is dependent on the whim of a Secretary of State who may decide not to make regulations prescribing religious bodies. The regulations do not themselves provide this authority. They are no more than a means of exempting some denominations from nominating their celebrants for registration by the Registrar General. As I have emphasised earlier this afternoon, this is a strictly practical question, introduced for practical purposes, involving the celebrants themselves and the registrars who complete and issue the Marriage Schedules. No difficulty arises for the registrars in being sure that individual ministers or priests are qualified and entitled to solemnise marriages where these clergymen 391 belong to the main, long-established denominations and hold permanent charges in the locality. I mentioned that earlier. Registration of these clergymen, who are usually trained and ordained, is theoretically possible but would serve no useful purpose. Experience has shown, however, that problems can arise with other denominations, many of which are smaller and some of which are less firmly established, and, as I was saying earlier, when we were discussing the previous Amendment, sometimes in fact transitory. It is largely to deal with this situation that the existing practice has grown up under which, to the satisfaction, so far as I know, of all concerned, a considerable number of denominations keep the Registrar General informed of the names of their celebrants so that he in turn can keep local registrars notified of those whom they can accept, in completing the Marriage Schedules, as entitled to solemnise marriages. This then is the practical reason for dividing religious bodies into two categories.
I now wish to turn briefly to the noble Earl's Amendment, although I appreciate that he has said that he will withdraw it. The significance of "shall" as compared with "may" has been argued on many occasions, and it is generally accepted that, where a continuing regulation-making duty is being placed on a Minister, it is "may" that should be used. I put it to the noble Earl, that to employ the Amendment "shall", while it is attractive at first sight, would raise such questions as: when must the power be exercised and within what time-limit? What happens if the power is not exercised, at all, or after a given time? What is to prevent the argument being advanced that, if the regulations are once made they can later be revoked with impunity, the terms of the Act having been complied with? This last doubt, in particular, suggests that the Amendment falls seriously short of achieving the noble Earl's intention. That is why I said earlier that the Government would be prepared, because of the noble Earl's intimation to withdraw the Amendment, to look at the form of words to see whether together we could reach an acceptable compromise.
The Earl of SELKIRKI am grateful for the noble Lord's explanation, but if I 392 tell him that it is not entirely clear I hope that he will not be offended. Of course he is repealing the 1711 Act and he is repealing the Act of 1834, and I do not know on what statutory ground. There is, for instance, the question of what would be the position if there was no such list. The noble Lord almost said that the whole of this could really come out and it would make no difference. I do not know whether or not the noble Lord means that, but it is very nearly what he is implying. He said that the right of carrying out marriages would still subsist. I will not continue this argument, but I am bound to say that I still think that two things are left in doubt. One is that the position of the Established Church is not mentioned and it should be, and secondly there is left in doubt what on earth the Secretary of State is going to do. On that subject nobody, except the Secretary of State, has any say. This matter does not come before Parliament; it comes before nobody. I beg leave to withdraw the Amendment.
§ Lord FERRIERBefore the Amendment is withdrawn I should like to say that although I am not a lawyer—the noble Earl is—it occurs to me that the whole thing is so vague, as the noble Earl suggested; so are we overlooking the question of legal marriage being marriage in law if we have the word "may" instead of "shall"? I hope that the noble Lord, Lord Kirkhill, will address himself to the whole matter as I suggested in my speech on the Amendment of the noble Lord, Lord MacLeod of Fuinary. The two references to this clause need to be taken together and a new approach made to them.
§ Amendment, by leave, withdrawn.
§ 5.44 p.m.
§
Lord KIRKHILL moved Amendment No. 15:
Page 6, line 41, at end insert (", or who is recognised by a religious body so prescribed as entitled to solemnise marriages on their behalf;").
§ The noble Lord said: This Amendment is designed to take account of the fact that there are persons entitled to solemnise marriages who cannot properly be described as ministers, clergymen, pastors or priests. These include, for example, deacons of the Roman Catholic Church who are not priests but whose duties may include the solemnisation of marriages; 393 and the religious beliefs of the Society of Friends are such that they do not have ministers, clergymen, pastors or priests who are set apart from the generality of their members as in other denominations. Existing legislation, however, enables marriages to be solemnised in Scotland according to the usages of the Society of Friends, the practice at the moment being for the Society to appoint "registering officers" who sign the Marriage Schedule in place of the celebrant. It is not proposed to disturb this rather unusual system, and the Amendment, therefore, broadens the description of those persons who may solemnise marriages in order to admit the Roman Catholic deacons and to admit the arrangements made by the Society.
§ On Question, Amendment agreed to.
§ Clause 8, as amended, agreed to.
§ Clause 9 [Registration of nominated persons as celebrants]:
§
Lord CAMPBELL of CROY moved Amendment No. 16:
Page 8, line 41, leave out ("Secretary of State") and insert ("Court of Session").
§ The noble Lord said: It might be convenient if with this Amendment we also discuss Amendment No. 18, which is a consequential one of mine and Amendment No. 20, which is another consequential one of mine and Amendment No. 19, which is a Government Amendment and which appears to come some way to meet the point that I am making. If that is convenient to the noble Lord, we can have the debate now and take the decision on Amendment No. 19 when we reach it.
§ Lord KIRKHILLI was not proposing to take Amendment No. 19, but if the noble Lord feels that this is suitable then I am not objecting.
Lord CAMPBELL of CROYIt might shorten our debates. Amendment No. 16, which I now move, proposes to make a change in Clause 9 where at present it is suggested that where a nominee for registration is entitled to solemnise marriages is rejected by the Registrar General, the body may within 28 days afterwards appeal to the Secretary of State. In my opinion it would be more appropriate for that appeal to be made to the Court of 394 Session, so that it is a decision by a court rather than by the Executive and a Minister. I see in the Amendment which the noble Lord, Lord Kirkhill, has tabled, Amendment No. 19, that the Government have come a good way to meet this point. In that Amendment, to which no doubt the noble Lord, Lord Kirkhill, will speak shortly, the Government have said that in certain circumstances the decision should be referred to the Court of Session, as I have suggested, but it retains the decision in other circumstances for the Secretary of State. As I say, that comes a good way to meeting the point, and if the Government produce valid objections to my Amendment I should be happy to accept the Government's Amendment because it recognises the point that I am making.
I note that my noble friend Lord Selkirk has put down an Amendment, No. 17, to which no doubt he will speak in due course, in which there would be a reference to the sheriff for the sheriff court district of the area, and that is another possible course. But for my own part, if the Government cannot accept my Amendment then I am perfectly ready to consider the Government's alternative, No. 19.
§ Lord KIRKHILLI agree with the noble Lord, Lord Campbell of Croy, that his Amendments Nos. 18 and 20 are linked to Amendment No. 16 and so I shall speak to all three at this stage. I have to resist these Amendments because in the Government's view the effect of them would be to allow a right of appeal direct to the Court of Session as the noble Lord has been explaining, against a decision by the Registrar General. In the Government's view, an appeal to the Court of Session would be costly and it would be neither appropriate nor desirable to provide for an appeal against rejection on the grounds specified in heads (b), (c) and (d) of the subsection as these are matters which it should be fairly easy to decide on readily ascertainable facts. It is accepted however, that a right of appeal to the Court of Session might be appropriate where the ground of the rejection is that the nominating body is not considered to be a religious body within the meaning of the Act. This raises wider issues and the Government agree that this is appropriate for judicial determination; hence my Amendment No. 19. I do not want to add more at this stage.
Lord CAMPBELL of CROYThe noble Lord has pointed to the expense which would be involved in my Amendment No. 16. I am prepared not to press that Amendment and to accept Amendment No. 19 which the Government have tabled.
§ Amendment, by leave, withdrawn.
§ The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger)I have to call the attention of the Committee to the fact that if Amendment No. 17 is agreed to I cannot call Amendments Nos. 18, 19 or 20.
§ 5.50 p.m.
§
The Earl of SELKIRK had given Notice of his intention to move Amendment No. 17:
Page 8, line 41, leave out from ("the") to end of line 44 and insert ("sheriff for the sheriff court district within which the registration district is situated.").
§ The noble Earl said: If the noble Lord can assure me that he is in fact going to move Amendment No. 19, I will not move this Amendment. As I understand it, what he is doing is leaving the choice of the individual to the Secretary of State, but the general principle as to whether he belongs to a religious organisation can be referred to the courts. This, if I may say so, seems a satisfactory arrangement, and I shall therefore not move this Amendment.
§ Lord KIRKHILL moved Amendment No. 19:
§
Page 8, line 42, leave out from ("may") to end of line 44 and insert—
("direct the Registrar General to accept or reject the nomination and shall inform the nominating body of his direction and the reason for it; and such direction shall be final:
Provided that if a reason given for a direction to reject a nomination is that the nominating body is not a religious body, that body may seek the determination of the Court of Session as to whether that reason is well-founded; and if—
that determination shall be given effect to by the Registrar General as if it were a direction under this subsection to accept the nomination.").
§
The noble Lord said: I have already indicated the Government thinking which lies behind Amendment No. 19, and I now formally move it; but I would direct
396
your Lordships' attention to paragraph (b), which should read:
that reason was the only reason given for the direction…",
and not as it appears before your Lordships. I beg to move.
§ On Question, Amendment agreed to.
§ On Question, Whether Clause 9, as amended, shall stand part of the Bill?
Lord CAMPBELL of CROYIt is with the ecumenical spirit of your Lordships' Committee and also of Christian Unity Week in mind that I am very glad to tell your Lordships the following. The Scottish Churches Council wrote to me as long ago as June of last year pointing out that the Kilbrandon recommendations to recognise religious marriages other than Christian and Jewish had not yet been carried out, and I then offered to help promote a Private Member's Bill and to pilot it through your Lordships' House. I am glad to inform your Lordships' Committee that I consulted the Scottish Churches Council after this Bill was published and that they have now confirmed to me that it entirely meets the points which they originally raised with me—and, of course, this clause, Clause 9, is the main clause concerned. I thought your Lordships would like to know that a matter which had been bothering the Scottish Churches Council and on which they wanted to make progress they regard as being dealt with completely in this Bill.
§ Clause 9, as amended, agreed to.
§ Clauses 10 to 19 agreed to.
§ Clause 20 [Second marriage ceremony]:
§ On Question, Whether Clause 20 shall stand part of the Bill?
The Earl of SELKIRKI wonder whether the noble Lord would read the first line of Clause 20. It says:
Where two persons have undergone a marriage ceremony…Is that really the word one wants to use? Do we not "take part" in a marriage ceremony?
§ Lord KIRKHILLCertainly this is a drafting point. It has been drawn to my attention, and I will examine it further.
§ Clause 20 agreed to.
397§ Clause 21 [Registration of irregular marriages]:
§ On Question, Whether Clause 21 shall stand part of the Bill?
§ 5.56 p.m.
Lord CAMPBELL of CROYThere is a point here to which I should like to draw the attention of the Government. Clause 21 makes provision for the registration of irregular marriages, and the court has to determine the date on which the marriage was constituted. It has been brought to my attention that no guidance is given as to how the court is to determine the date on which a marriage was constituted by "cohabitation with habit and repute", which the noble Lord will recognise as a Scottish term. This requires clarification, and if it cannot be done at this short notice it is because I have received only short notice of this point, but I hope the noble Lord will be able to clear it up before Report stage.
§ Lord KIRKHILLThese are interesting but somewhat esoteric matters. I will pursue the point which the noble Lord has raised, and I will inform him.
§ Clause 21 agreed to.
§ Clauses 22 to 24 agreed to.
§ Clause 25 [Regulations]:
§ On Question, Whether Clause 25 shall stand part of the Bill?
Lord CAMPBELL of CROYOn Second Reading the point was raised from this Bench by my noble friend Lord Mansfield that by Clause 25 the Secretary of State is empowered to make regulations subject to Negative Resolution by one House of Parliament, and he asked the Government to consider whether this should not be an Affirmative Resolution by one House, rather than adopting the negative procedure. This would ensure that there was proper consideration of the proposed regulations, rather than the possibility of regulations going through without the opportunity for Parliamentary discussion. This is an occasion on which the noble Lord can inform the Committee whether 398 the Government have given further consideration to that point, and what their views are on it.
The Earl of SELKIRKMay I ask one question on this? There is only one type of Statutory Instrument which comes here for Negative Resolution, and that concerns fees. The Statutory Instruments which follow other regulations do not come to the House at all—at least, I do not think so. Do they? They certainly do not come for discussion.
§ Lord KIRKHILLI confirm, as the noble Lord, Lord Campbell of Croy, has just said, that the noble Earl, Lord Mansfield, raised this point at an earlier stage, and I agree that it might be helpful to your Lordships' Committee if I were to explain that the Government consider that the regulations to be made under the powers in the Bill may be divided broadly into three categories. The first are regulations to be made by the Registrar General with the approval of the Secretary of State. In the main, these will be concerned with prescribing the de ailed terms of forms, notices, certificates and other documents which will be required for the purposes of the Bill. These are matters of detailed machinery, and it would be obviously inappropriate that the regulations embodying them should require Affirmative Resolution in Parliament. The procedure proposed, under which the regulations are made by the Registrar General, is not new. Since 1854 the Registrar General has had authority to make regulations, and this was confirmed, I understand, in Section 54 of the Registration Act 1965, which authorises exactly the same procedure.
The second category comprises regulations, also made by the Registrar General and approved by the Secretary of State, which prescribe fees. The fees involved will be the fee for the preliminaries to marriage, to be paid to the local registrar with the marriage notice under Clauses 3(1) or 7(1), and the fee for the solemnisation of a civil marriage under Clause 19(2). Under Clause 25(2) regulation; prescribing these fees will be subject to Negative Resolution. Again, this is exactly the same procedure as is applied in the Registration Act 1965 to fees for registration services. The third category comprises the regulations to be made directly by the Secretary 399 of State for the purpose of listing certain religious bodies under Clause 8(1)(a)(i).These regulations, like those in the first category, are not subject to Affirmative or Negative Resolutions. That is the Government position.
§ Clause 25 agreed to.
§ Clauses 26 to 28 agreed to.
§ Clause 29 [Short title, commencement and extent]:
§
Lord KIRKHILL moved Amendment No. 24:
Page 18, line 16, at end insert ("the Marriage with Foreigners Act 1906,").
§ The noble Lord said: I think it would be for the convenience of the Committee if, in moving this Amendment, I spoke also to Amendments Nos. 27 and 28. They should be considered together. They are essentially drafting Amendments and their effect is to disapply the Marriage with Foreigners Act 1906 to British subjects residing in Scotland instead of completely repealing the Act so far as Scotland is concerned. By so doing, it will be made clear that the 1906 Act is still intended to apply to any British subject, including Scots, who are residing outside Scotland. A complete repeal might be interpreted as having a wider effect than the mere territorial extent intended. I beg to move.
§ On Question, Amendment agreed to.
§ Clause 29, as amended, agreed to.
§ Schedule 1 [Degrees of relationship]:
§ Lord KIRKHILL moved Amendment No. 26:
§ Leave out Schedule 1 and insert the following new Schedule—