MARRIAGE (ENABLING) BILL [H.L.]

HL Deb 13 February 1979 vol 398 cc1134-74

4.27 p.m.

Second Reading debate resumed.

The Lord Bishop of LONDON

My Lords, we now return to the Marriage (Enabling) Bill. I want first to express my own gratitude, as I am sure I express the gratitude of the House, to the noble Baroness for bringing before it a Bill of considerable social importance, and also for the moderation and care with which she has introduced it. For myself, I am grateful to the noble Baroness for having spoken to me about the problem some months ago, and for requiring me therefore to do some research into a matter which I confess I had not had occasion to consider before. My researches have revealed that the question of who a man or woman is free to marry is one of deep and far-reaching significance. All societies impose some regulations, and, though these may not be universally the same, it is nevertheless clear that the question touches very profound emotions which, though it may be difficult to articulate them, are real and strongly held. The social taboos which control the intermarriage of certain categories of people are widespread, and they go deep into the structure of society itself.

In this country, the Table of Kindred and Affinity has provided the basis on which our society exercises its control. It is constructed, for the most part, on the code laid down in the 18th chapter of the Book of Leviticus. It has had a long and controversial history. In his book, Family Law, E. L. Johnson sums up the situation with these words: The prohibited degrees of the Church of England were, until 1946, based on Canon 99 of 1603, commonly called Parker's Table, and were accepted by the State until 1907". Since then, statute law has been amended by the Deceased Brother's Widow's Marriage Act 1921, the Marriage (Enabling) Act 1960 and the Marriage (Prohibited Degrees of Relationship) Act 1931.

The first point which I suggest it is important for us to accept is the difference between kindred and affinity. Those related by kindred are blood relations. Those related by affinity are related by reason of marriage of or to others, which we term relatives in law or step relatives. As matters stand at the moment marriages within both groups are illicit.

The noble Baroness has made it clear that the Bill does not disturb the prohibition upon marriages between those closely related by blood. This I am sure, is right. I am an ignoramus in medical matters, but I am told on good authority that we all possess dominant and recessive genes and that the possibility of a combination of recessive genes, with unfortunate consequences, is far greater in marriage between blood relatives than it is between those not so related. But the issue is of far deeper significance than that of genetics. There is a profound replusion in most societies and most people against the possibility of sexual relationships and or marriage between very close blood relations. In her book, Family Law, Olive Stone writes: The incest taboo is not based wholly or even primarily on biological reasons, since primitive societies in which the biological relationship between father and child is imperfectly understood usually have prohibitions on sexual relations at least between those in the first degree of relationship. A far stronger reason seems to be that of social discipline". This is reflected in the Sexual Offences Act 1956, which makes it a criminal offence for a man to have sexual relations with a woman he knows to be his granddaughter daughter, sister or mother; and, for a woman, mutatis mutandis. But it is a matter beyond the civil law. Most people believe such relationships to be contrary to the nature of man or, as some would say, contrary to the law of God.

But what of marriage between those not related by kindred but by affinity? As the noble Baroness has reminded us, the issue has been complicated in the past by the doctrine that by marriage the two parties become one flesh. I do not think we can possibly pursue that line today with any profit, and we should be wiser to declare that while marriages between those closely related by blood are contrary to the law of nature and must be forbidden, marriages between those related as we say "in law," or as step relatives, can properly be determined by legislators as they deem wise and proper. And that is what the noble Baroness is asking us to do in this Bill.

However, we do have to ask ourselves what are the principles upon which we ought to make our decisions. What guide lines should we follow in deciding whether it is right to legitimise some or all marriages outside the relationship of kindred? I suggest to your Lordships that the one criterion which, above all, we ought to apply is whether or not such marriages will generally contribute to the stability and happiness of family life. If they would have little or no effect on family life, then let us extend the range. If they would imperil further the stability of the home, then let us be very cautious before we open the door wider.

I am sure that your Lordships will need no persuasion from me in the conviction that the family is the basic unit in society and that upon its prosperity rests to a great extent the stability of society in general. Nor do you need me to remind the House of the dangers which already exist. The mounting toll of divorce, the broken homes, the un-happiness which underlies the breakdown of a marriage, the thousands of children growing up without the love and discipline and background of stable home life—all bear witness to a danger which is already a reality. These facts, therefore, compel us to examine with great care what might be the consequences of modifying the prohibitions which at present exist, and to be very cautious before we lift some or all the bans which at present apply. I would not assert that there is no case for lifting some of the prohibitions. There may well be such situations. I am, however, very doubtful about legislating in the wholesale manner presented by this Bill, without carefully weighing all the implications which, I suggest, is impossible in a debate of a few hours in your Lordships' House.

My Lords, let us look into the issue a little more closely. In Family Law, on page 3, Olive Stone writes: Sexual relations between members of a family other than the nuclear pair or pairs around whom the household is grouped would be disruptive, and the informality or ' familiarity ' normally existing between members of a family would quickly disappear if sexual or conjugal relations between its members were possible". This view had been upheld earlier by the distinguished anthropologist, Professor Malinowsky, Professor of Social Anthropology at the University of London, who wrote: A group leading a joint life with the intimacy of daily concerns, with the need of an organized authority and unselfish devotion, cannot tolerate within its framework the possibility of sexual approaches, for these act as a competitive and disruptive force incompatible with the even tenor and stability of the family". In other words, he held that marriage should be forbidden when a nuptial relationship is considered to be incompatible with a family relationship already in existence. Thus, in most cases, a step- parent is in loco parentis towards stepchildren, and has a special and particular relationship towards them. That relationship would be quite different if the stepparent regarded himself or herself not only as a parent but as a possible husband or wife. The same is true of those who adopt a child. It is true also of parents-in-law.

The issue is not so serious regarding marriage between collaterals of the same generation. The marriage with a deceased wife's sister or deceased husband's brother has not, I think, disrupted family life. But it is quite a different matter to consider marriage between those related by affinity in the ascending or descending line, and the commixture of different generations.

It needs little imagination to picture the disruption to family relationships if stepchildren, who have been brought up to know the step-parent as father or mother, and to accept the natural display of affection as that of a parent, discover that those symbols of affection are those of a suitor and not a parent. Consider the difficulties which could arise when stepchildren find that their step-father has become a brother-in-law because he has married their sister. Consider the confusion when, as so often happens, stepbrothers and sisters are brought up together and regard themselves virtually as blood relations, when the full child of one of the parents finds himself or herself a step-brother-in-law or step-sister-in-law to his or her own parent.

My Lords, there is a significant omission in the Bill. It says nothing about the possible marriage of an adopting parent and an adopted child.

Baroness WOOTTON of ABINGER

My Lords, if the right reverend Prelate would be good enough to give way, I think I am right to say that marriage is not permitted between an adopting parent and an adopted child. The adopted child is in the position of a natural child.

The Lord Bishop of LONDON

My Lords, that is exactly the point to which I am coming. The reason, I presume, why the noble Baroness has made this omission is, as she has pointed out, because, under the Adoption Act 1950, to quote Halsbury: An adopter and the person he has been authorized to adopt under an adoption order are deemed to be within the prohibited degrees of consanguinity and this is so notwithstanding that some other person is authorized by a subsequent order to adopt the same infant". Thus, although an adopter and an adopted child are not blood relatives, they are deemed by the law to be related by kindred and not by affinity. The reason presumably is that this relationship is so close that it would be entirely disruptive for the possibility of marriage to be entertained.

However, is not the relationship between a step-parent and step-children often as close if not closer than that between an adopting parent and an adopted child? Are not both in loco parentis? Would it not be as harmful to family relationships for step-parents to be able to marry their step-children as it would be for adopting parents to marry their adopted children? I think therefore that the noble Baroness has not been entirely logical. If she wants to remove all prohibition on marriages between those related otherwise than by blood, then why does she not seek to remove the prohibition between adopter and adopted child? I interpret her reluctance as a recognition of the danger to family life which her proposals involve.

The complications and the dangers are magnified by the ease of divorce. If it were possible for a son to marry his father's wife they might each obtain a divorce to do so. The husband who tires of his ageing wife might well see in his step-daughter the youthful graces which he had once seen in his wife, and divorce her in order to marry his youthful stepdaughter.

Perhaps I can sum this up by quoting a letter I have received from a lady who told me that she might be involved in this kind of complication. She and her husband have both been married before. I gather from her letter that she has divorced her husband. She points out that if her husband were free to marry her daughter, and have children, he would become step-grandfather and father to his child and he would become son-in-law to his own ex-wife. His new wife would become step-mother to his children and she would also be their step-sister.

There are also more subtle dangers, and I remind noble Lords that I am quoting from a letter. She says: Women will now worry when their daughter becomes 16 if the step-father makes too much fuss of her. At the moment it is wrong for step-fathers to interfere with step-daughters. If this deterrent is taken away it will happen more and more. All young girls practise womanly wiles with fathers, and what red-blooded man is going to ignore this if he knows the girl is legally available sexually? That is a point of view that has been put to me. I leave it to your Lordships to work out the complications of relationships which could be created by a wholesale removal of the prohibitions on marriage between those related by affinity as is suggested in this Bill. I merely say now that it needs little imagination to picture the confusion which could be created in family relations, the distrust between parents and their children and step-children if there was to be the unfettered freedom that is suggested by this Bill.

It is true that in certain countries legislation has been introduced to remove the prohibition on marriage between those related by affinity. I understand this has been done in Australia, but I have no information as to details. In New Zealand, the Marriage Act 1955 provides that the Supreme Court, which is the equivalent of our High Court, may give consent to any marriage which would be void for affinity only, but not for consanguinity, provided that the court is satisfied that neither party has "caused or contributed to" the termination of any previous marriage by the other party. In the case Re. Hoskin 1958 New Zealand Reports 604, the Court allowed a stepfather to marry his step-daughter but laid it down that it retained a discretion which would be exercised, for instance, to prevent anyone taking advantage of a guardian-ward situation, or making a marriage with ulterior motives as to money or property.

The example of New Zealand suggests that there are considerable risks and dangers attached to relaxing the restrictions on marriage between those related by affinity, and, if it is thought desirable, there should first of all be careful examination on our part of what is involved and of the possible consequences.

May I sum up, my Lords? We are all, I take it, agreed that there are weighty reasons for prohibiting marriage between those closely related by consanguinity. My plea is that there are also important reasons for prohibiting or at least controlling marriage between those related by contiguity. The cases arising under this latter category are less obvious than those in the former. But I think it possible that marriage, say, between step-parents and their step-children could be as socially disruptive as would be marriage between blood relations. So we ought to proceed with great caution.

I hope that after this discussion the noble Baroness will withdraw her Bill, for I cannot accept that the issues which could have such far-reaching impact on the stability of family life should be dealt with in a private Bill and after a few hours of debate in this House. I am not satisfied that there is any widespread demand for the reforms that she is seeking, though she has given us some very touching cases, and no doubt we shall hear of other hard cases. If at a later date such a demand should become apparent, then there would be a need first of all to seek the views of the Law Commission. One would hope also that an inter-departmental committee would examine all the issues that are involved and that it would investigate the practice and the experience of countries where the law has been relaxed. I would think it essential to consult with lawyers, social scientists and theologians drawn from the different religious traditions of this country. In this way, we could inform ourselves of the possible consequences of such action as the noble Baroness proposes, and we could avoid possible dangers to the stability and happiness of family life.

If it is considered desirable to take action, I hope that it can be taken un-controversially. Therefore I plead with the noble Baroness that she should, after this full debate, withdraw her Bill, for there are many of us who would not wish to have to vote against it.

4.48 p.m.

Lord MANCROFT

My Lords, it is nearly 30 years ago since I first started to draft a Bill with exactly the same title as the Bill of the noble Baroness, the Marriage (Enabling) Bill. It took me 11 years to get it on the Statute Book. That Bill was intended to make it possible for a man to marry his divorced wife's sister and vice versa—not the deceased wife's sister, as the noble Baroness has begged us to bear in mind, though that took even longer to get through your Lordships' House.

I am fully aware of the difficulties of this problem, and I should like to warn the noble Baroness of one or two of them and remind the House of the views held by your Lordships in those days. The first difficulty of course is that hard cases make bad law. I shall give your Lordships the example which helped me to get my Bill on to the Statute Book, hard though it was. As most of the people concerned are well known in their own localities, I have taken the precaution of obtaining their permission to mention the case in the House today.

This was a case of a young sergeant in my regiment. He was stationed in Cairo during the war and fell in love with and married a girl who worked in the GHQ. A baby was eventually on the way and she, at the time that Rommel was threatening Cairo, was evacuated via the Cape back home to Scotland, where she went to live with her sister. In due course, having, alas! a roving eye, she took up with a Polish Air Force officer and ran away with him, leaving her young daughter to be cared for by her sister. The sergeant obtained compassionate leave, came home and tried to patch up his affairs—alas! to no avail—and the inevitable divorce ensued. His wife went off and married her Polish officer. My sergeant, however, of course went to make friends with the sister-in-law whom he had never seen before and of whose existence he hardly knew, who was mothering his child. Your Lordships can visualise the inevitable result: they wished to get married. But whereas his former wife was able to marry the Polish officer, he suddenly discovered—he did not know it beforehand—that he was not entitled and was not enabled by law to marry his sister-in-law. He did not know that was the law; nor, frankly did I, and nor did quite a few people—including one or two registrars who had accidentally married people to their sisters-in-law without realising they were doing wrong. There was one interesting aftermath concerning a lady from Manchester who had been married, wrongly, to her brother-in-law for some years. It was a marriage which was not going well, and the brother-in-law read of my Bill in the Manchester Guardian, folded his newspaper, heaved a sigh of relief and went off to live with a barmaid in Bridlington!

Strengthened by my sergeant's case, I launched my Bill and the objections principally raised were exactly those so cogently put before your Lordships by the right reverend Prelate the Bishop of London—the primary one, of course, being the unacceptable hazard in family circles, particularly in modest and rather crowded family circles. It was this matter that I debated long and with great difficulty with the then Archbishop of Canterbury, that most remarkable and distinguished Archbishop, Lord Fisher, who was sympathetic but took exactly the same view as the right reverend Prelate the Bishop of London now takes, which at the time I found very difficult to refute. He asked me whether I could find any evidence one way or the other as to whether such circumstances were likely to upset a home. My Lords, it is very difficult to prove a matter like this one way or the other. I know of only about a hundred cases affected by my Bill—and I suppose by the time I had finished my 10-year negotiations I knew practically all of them—and I was unable to produce any evidence one way or the other, to the Archbishop's satisfaction or dissatisfaction,

However, it did have one interesting and not entirely unpleasant postscript. I rang up the Archbishop of Canterbury's office one morning to give him some information he had asked me to seek. I realised at once that I had got a wrong number because instead of the cheerful voice of his secretary, with which I had become familiar, the telephone was answered by a very dulcet and sweet feminine voice. I was certain I had got a wrong number and I said: "I am very sorry: I think I have a wrong number. Is that the Archbishop of Canterbury's office?" And the sweet feminine voice said: "The Archbishop of Canterbury's office?—anything but!" I am happy to say that the Archbishop was delighted.

Nevertheless, in due course he relented and my Bill duly passed into law. But now appeared something which makes me strongly support the views put forward by my noble friend Lord Long and the right reverend Prelate the Bishop of London in favour of a further and wider inquiry into the whole matter. My couple—my sergeant and his sister-in-law—were eventually married. They were both staunch church people and would have liked to have been married in church. That, of course, was not possible. I believe it is now possible frequently for a blessing ceremony to occur after the marriage, but there is no possibility of a marriage taking place in church. I understand that is under consideration in certain circles though, not being myself a member of the Church of England, it would be impertinent for me to comment on that. They were married in a registry office and had the kindness to ask me to be their best man.

My Lords, there is nothing more arid or unhappy than a marriage in some registry offices: nothing more likely to discourage people's belief in the sanctity and importance of the promises being made. I wonder whether, when these inquiries are being made, somebody could look into some means of dignifying the ceremony which now plays so much greater a part in our marriages and our matrimonial life than it used to. I myself have made this statement once in public before—and I wished I had not, because I was immediately challenged by the Registrar-General to try to produce a better ceremony. I had not realised how complex and difficult that would prove. I would commend it to the right reverend Prelate's committee when it is finally set up.

I hope this body of inquiry will be set up and I hope it will cover a much wider sphere of interest in this most difficult and complex subject. We have learned in the past 25 or 30 years since I first introduced my Bill: the sanctity of marriage is being rapidly weakened, illegitimacy no longer carried any stigma; people, in order to satisfy their tax gatherer, live openly and cheerfully in sin and do not even call it sin. There are very much wider problems than those which are raised by the noble Baroness's Bill and although I sympathise with her naturally, having been myself successful—so I say this rather smugly—in doing the very thing she is trying to do, I think she is up against real difficulties. I hope, therefore, that she will agree to the proposals put forward by the right reverend Prelate the Bishop of London and my noble friend on the Front Bench to let the matter be taken further. If she does not agree, then I only hope it does not take as long as it did in my case for her to get her measure on the Statute Book. I hope that she, and indeed the House of Lords, are still here to see it successfully carried through.

4.56 p.m.

Lord SOPER

My Lords, I find myself in a certain difficulty which springs from the fact that there are undoubted and complicated issues involved, of which we can take notice and for which we ought to be prepared; but as I compare them with a number of facts which are already available, I find myself able, and enthusiastically able, to support the Bill which has been introduced by my noble friend this afternoon. I propose to adduce the various reasons why, despite the probabilities and possibilities of danger and difficulty, I feel on the whole it would be wise and proper that we should give this Bill a Second Reading. There may be Amendments and changes in Committee and I, for one, would not seek to resist them if they can be properly argued. I take note of the kind of warnings that have been uttered already so cogently in this debate.

I begin with the certainty that there can be no theological objection to this Bill once the Levitical tribal system of consanguinity allied to affinity has been breached and broken. I have nothing to add to what has already been said about consanguinity—which, by the way, has nothing to do with this Bill—but I am satisfied that there can be no theological proposition sufficient to warrant a refusal in law to allow people who are already in a state of affinity to be prevented from marriage in circumstances which are peculiar to them and therefore cannot be regarded in general terms.

That leads me to the second point. I listened with considerable interest to the problems which may arise. I have been a practising parson for more than 50 years and I must confess that I have not come across these problems. If I have come across them, they have been problems which do not relate to the particular issue in hand. For instance, if it be argued that a step-father and a step-daughter may engage in relationships which are dubious and sexually dangerous because the possibility later on may be that they may get married, I would ask the House to remember that my noble friend made it as clear as indeed was made in the report of 1956, that it is just as likely that theimpossibility of marriage may provoke identical relationships of a sexual and disadvantageous nature. I find it difficult—in fact impossible—to accept the proposition that the sexual practices will move in a particular direction if this Bill goes forward.

In my time, I suppose I have officiated at the marriage of hundreds of people and I reflect upon those introductory remarks which are at any rate made in the book of offices to which I am accustomed. We ask for what marriage was ordained, and the first answer is that it was ordained for the mutual society, help and comfort that the one ought to have of the other. The second is that children may be brought up in the care and nurture of the faith.

Gorer, in his anthropological efforts up to 1950, made much of the fact that marriage was largely complementary—the breadwinner on the one hand, and the housekeeper on the other. But when he returned to the theme, he introduced the idea of symmetrical marriage as being much more likely and much more common than the traditional complementary form of marriage. I do not know to what extent he is exact, but I do know out of my own experience that the idea that marriage is a very satisfactory way in which two people who are alike in many of their desires and attitudes can find happiness in the role of matrimony tends in many respects, particularly among those who are older, to be a much more potent reason for the preservation of marriage than merely the endeavour to marry rather than burn, as your Lordships will remember St. Paul said, though he was considering not faggots in Smith-field but the burning of sexual desire.

I believe that those cases which have already been advanced are much more likely to fall within the category of symmetrical marriage, and have relatively little to do with the sexual urges which are so much more dominant in earlier years. It is for that reason, among others, that I do not horrify myself by the prospect of an inordinate amount of moral disorder flowing from the abolition of these affinity laws. Out of my experience, which I can only offer for what it is worth, I should have thought that it would strengthen the basic concept of marriage which is, in my judgment, a theological proposition, or, if you like, a sacramental proposition based on natural reason or natural theology. But, in fact, the married state, in terms of the mutual society, help and comfort of the one for the other, is one of the basic laws of the universe in which we live, particularly in relation to the species to which we belong.

It would be pretentious of me to proclaim any expertise in this field. I can only offer my experience as a working parson over many years. But, far from the abolition of the affinity laws creating a much greater degree of disorder, and sexual disorder, in marriage, I should have thought that it might well persuade many people who today regard marriage as a very trivial occupation that it has a real context, and that this symmetrical idea of people coming together can well be the basis of the kind of society in which we perhaps hope we may be able to live, or at least see our children living in.

What we are discussing today is not some great surge of many peoples. It is very few indeed who will avail themselves of this possibility. I am reminded that it was Abraham Lincoln who, in the middle of the Civil War, is reported to have said, when he remitted the death sentence on a young deserter, "To save one life eases me". I find myself attracted to that easement of spirit, in which this relief from the prohibition and legal impossibility of affinity may well persuade a great many people not to follow the course of action which has been so luridly described—and I have no objection to the prospects being alluded to; in fact, being emphasised—but I would take a contrary view. There is the adventure in completing the dissociation between consanguinity and affinity, in which consanguinity is obviously wrong but affinity can be right. After all, this is an enabling Bill. It does not commit anybody to do anything. It is for that reason that, in principle, I would invite your Lordships to support it.

I have one last comment and I revert to what I said earlier on. I am not blind to the kind of problems that may, in particular cases, arise. I should be prepared to see in Committee, if this Bill should receive a Second Reading, the prolonged and careful investigation of some of those problems which have been clearly set forth in your Lordships' House this afternoon. But what I do suggest to your Lordships as I sit down is that, on the whole, I think this will do a lot of good to a few unhappy people, that it will not produce the kind of calamitous results which have been advertised, and that it will preserve rather than tend to erode the true principles that lie behind Christian marriage.

5.56 p.m.

Viscount BARRINGTON

My Lords, I understand that this is a non-Party issue. I hope that I am right, because I find myself the only speaker on this subject from the Liberal Benches, and I want to make it absolutely clear, before anything I say is heard or not heard, that I am not speaking for the Liberal Party. I know that they would prefer I said that. I am also slightly conscious that we on these Benches are one Party with three Benches, and I am speaking between two bishops and one honorary bishop, or near-bishop, if I may call the noble Lord, Lord Soper, that, all of whom have some—if I may risk an understatement—knowledge of the theological, sacramental and even symmetrical aspects of marriage. I have no knowledge of these, because I am possibly the only unmarried speaker.

Having made those remarks, I should like as quickly as possible to say how grateful I am to the noble Baroness, Lady Wootton, for having put so clearly and shortly a very interesting case. She has been warned by the noble Lord, Lord Mancroft, that things will not become easier, and I wish I could say that I will make it easier for her. My Lords, I cannot, because I have to say—I do not know whether it is once in a way, once in a right way or once in a wrong way—that I am inclined to follow the much more clear arguments put forward by the noble and right reverend Prelate of the Church of which I am a professing member.

I should like to illustrate, by an example which is half fact and half fancy, a point which I think he made, which is that we are not only considering the contracting parties who may, as in hard cases, be very anxious to marry, when it would be perfectly harmless in other ways if they did. I am trying to consider two other points: one is the effect on the family, and the other is the effect on the institution of marriage as a whole. To take the family first, the example that I should like to give, if I may call it that, is a fantastic one.

To come to the factual part first, my paternal grandfather went to his public school, which was Eton, at the age of eight and remained there until, I think, the age of 18. During his last years, his uncle, who was some six years younger, arrived there and became his fag. I remember my grandfather telling me with, I think, malicious glee of what he considered a triumph when he had been summoned before the headmaster for corporal punishment, which went on in those days at Eton. He was successful in fagging his uncle, who, luckily for him, had the same name, to act or suffer as a substitute. He thought that it was a great joke. I do not know what the uncle thought.

That is irrelevant to the debate, in a way, but it raises in my mind a dream or an imagination in which I am a younger man than I am now, whose nephew comes to him and says: "My dear chap, all my life I have had the greatest regard for you as an uncle. As from tomorrow's date, when I am proposing to marry your mother, I hope that I may regard you as a son and that you will regard me as a father.' It would mean a very drastic review of married relationships. That is an unlikely position, and one might say that a man of that age could look after himself.

This brings me to the much more important question of step-children. This question was raised by the right reverend Prelate the Bishop of London. Stepmothers always have a very bad press in fairy stories, but I know of many cases where step-fathers and step-mothers have behaved admirably in delicate and difficult situations and have been regarded, as they should be, as parents. We must remember, however, that fairy stories were written before the successful introduction of the Bill of the noble Earl, Lord Mansfield, which became an Act in 1960. In those days, there was only one stepmother, however wicked. According to that Act, it was possible for a man to marry the former wife of his brother, his uncle, or his nephew, whether or not he was living; the same applied to a man marrying the sister, aunt or niece of his former wife, whether or not she was living. In other words, it was not a question of pricking the blister about marrying a deceased wife's sister, which the noble Baroness has logically extended to pricking the current bother about marriage with a deceased wife's mother, or grandmother, or daughter-in-law. We have to add the word "divorced". Although one step-mother may be good or bad, I can imagine cases in which one would have at least two or three stepmothers. If they all intermarried, this would, as the noble Viscount, Lord Long, said, take a bit of alcohol to work out. The old-fashioned game of happy families, which I can understand, would have to be drastically revised.

I suggest that this Bill, whose intentions are admirable, could cause immense confusion, not just because it would add to the number of step-mothers or step-fathers but also because it would further complicate the relationships which children encounter. I know of cases where children are absolutely fogged about the relationships that they hold to different people, some of whom they like and some of whom they do not like. For that reason, I should very much like to support the suggestion that this matter ought to be looked into at greater length and, although perhaps it is impertinent to say so, with more expert authority than at least one of the speakers in your Lordships' House has exhibited today.

The other reason is that I believe that, in the past, the whole state of marriage has suffered some bad knocks, although often for good reasons. I do not believe that this is the moment to give it another one. When I say "a knock", it would mean excising eight of the prohibited degrees, leaving, so far as I can work out, only seven cases which are prohibited. That is, a man may not marry his mother, his sister, his daughter, his paternal grandmother, his maternal grandmother, his son's daughter, or his daughter's daughter. I do not regard these as very important, because first cousins have always been allowed to marry, although they are nearly related by blood. If one took blood samples, presumably one would find that each had one-quarter of the blood of his grandfather and grandmother.

In terms of pure medical logic, if I had any, I suppose that one could argue—indeed, I am quite sure that somebody will argue—that we ought to strike out the whole thing and allow anybody to marry anybody. I feel that the noble Baroness is the last person to countenance that kind of result. I say that with some conviction, because a very long time ago I had the great privilege of being a member of a delegation of four—two Members of this House and two Members of the other place—who protested against certain excesses, as we then thought, that were contained in the Abortion Bill. Our delegation was unsuccessful. I say that only to show how much I respect and sympathise with the views held by the noble Baroness. My Lords, I have spoken for 10 minutes, which is too long. I know that your Lordships want to hear other speakers, so I will sit down.

5.17 p.m.

The Lord Bishop of SOUTHWARK

My Lords, I must declare an interest—not that I want to marry my step-daughter; first, I have to find the wife before I can marry the step-daughter. Nevertheless, I have an interest, in that, as a bishop, I was confronted with this very problem. I had to give advice, which meant consulting many people, including the late Bishop of Exeter, Dr. Mortimer, who was a very wise counsellor to many in this House, and also the present Bishop of Birmingham, Dr. Hugh Montefiore, with his knowledge of Jewish law as well as Christian law. I am not going to indulge in fancy stories and half truths. I do not think that anything is furthered by supposition. Let us deal with facts, but do not let us ridicule supposed situations.

The facts are as follows. I change the names, for obvious reasons. The people concerned live in my diocese and it would be wrong to disclose their identity. Mr. and Mrs. Jones have a child. The marriage is dissolved. Mr. Jones disappears to another part of the world. The child goes into care. Mrs. Jones marries Mr. Smith. Then Mrs. Smith—who was originally Mrs. Jones—dies from cancer soon after the marriage. Mr. Smith has had hardly any dealings whatsoever with Miss Jones—that is to say, the daughter by the first marriage, for the girl is in the care of guardians.

Then, for educational reasons, Miss Jones, who is now 20, comes to live in the house of Mr. Smith, who is 36. She is living there with another girl who is also educationally involved. During the course of time, the step-daughter—Miss Jones—becomes attached to Mr. Smith, and vice versa. They fall in love. They go to the incumbent, who is an incumbent in my parish, who assumes that there is no reason at all why they should not be married. They go also to a lawyer who gives them the same advice. The marriage is announced. The matter is then referred to me. I consult my lawyers. I consult the Bishop of Exeter, the present Bishop of Birmingham and other lawyers, including the lawyers at Lambeth. From practically everyone I received nothing but sympathy—or, rather, Mr. Smith received nothing but sympathy. But I was told that there was only one thing I could do and that was to say that such a marriage could not take place, not because it is criminal but because it is against the civil law, although I was told that it was not against the civil law for them to cohabit and to have children.

The young man, who is a practising member of the Church of England, and to whom religion means a great deal, is faced by a serious problem. Should he go to another country where he is entitled to marry his step-daughter or should he cohabit? For reasons I need not go into—chiefly financial, though—it was impossible for Mr. Smith to go to another country and to marry Miss Jones. For that reason he remains in England, he cohabits and he has two children. These children are illegitimate and cannot be legitimised except possibly by adoption and if he should die first—and he is still a comparatively young man—the woman with whom he cohabits will get no widow's pension, either from the State or from his previous occupation.

That is the brief outline of a story in which I have been involved since 1970. It is a very human story and I know we shall be told that exceptional cases make bad law. What I would say is that if there are people who are determined to live with their step-daughters, though perhaps not for the honourable reasons of Mr. Smith, they will do so in any case; they will just cohabit, as people do. I therefore do not think for one moment that by throwing this out we shall safeguard the family. We are much more likely to safeguard the family if we pass something like the Bill of the noble Baroness, Lady Wootton, because it will make it possible for a family such as I have mentioned to live openly and legitimately as a family instead of having to cohabit in the way that they do today, with all that that means for the father, the mother and those two children.

Obviously I have much sympathy with much that my brother, the right reverend Prelate the Bishop of London, has said but I hope that perhaps he and others who think like him will realise that there is another side. Also, if I may say so, it always seems a little sad to me that, when matters of personal relationships, family and sex come up, the Church often seems so negative and backward looking. How much unhappiness have we brought to thousands of people by views which have recently been changed with regard to those who are homosexually orientated? We have not had a proud record—at least not a record of which I am proud—in the Church.

Again, when it comes to divorce, I should like to say to the noble Lord, Lord Mancroft, that it is not correct to say that it is against the law of the Church of England for a clergyman to marry a divorced person. He is fully entitled by the law of the land to marry a divorced person, even without consulting his bishop, if his conscience says so. He has the legal right to marry or not. It is true that the Convocations of the Church of England have asked clergy not to avail themselves of that right, but they can do no more than ask; they cannot make any law in the Convocations which is in conflict with the laws of this country, because we are the established Church. I myself have married divorced people on a number of occasions, and so have many of my clergy friends. I have done so four times in the past 40 years, which is an average of once every 10 years, and when people tell me that if we have lax laws people will all be going over London Bridge to the south side of the river in order to get married in Southwark I say it is quite untrue; they are much more likely to go over London Bridge to get married in a more fashionable church on the other side of the river.

But today what we are concerned with is what makes for happiness and for family contentment and, just as I believe that there are times when divorce is permissible and should be encouraged, though only on certain occasions, so I believe that, in cases like this, when it comes to the marriage of a man to a step-daughter there may be cases when it is right. I, for one, would be glad to have been able to have done something for that young man who came to me in distress. It is very sad for me to realise that he and his children have to live in an irregular situation which I think does nothing whatsoever for the honour and dignity of the married state.

5.26 p.m.

Lord HUNT of FAWLEY

My Lords, as a doctor I can tell that this Bill is more complicated and can arouse more emotion than appears at first sight. It is of great importance to some people. It has been put before us today by the noble Baroness, Lady Wootton, because she feels, as do many others, that it is rather unfair when some couples who happen by chance to be step-relatives by affinity and not by blood, fall in love and cannot marry at any time because of the provisions of our present Marriage Acts, and their children have to remain illegitimate for life, with all that that may mean to them socially or in other ways; although this may not seem so important today as it did a few years ago.

We know what some probation officers think; we have had correspondence with the National Marriage Guidance Council and I have talked with two officers of their London Branch. A number of interesting points have arisen. Families differ in the span of time that their generations cover. Before the war I delivered an English girl of 16 of a baby daughter. Her mother had been 16 when this girl was born, so the mother was a grandmother at the age of 32; if family traditions were followed she might easily have been a great-grandmother at the age of 48. It is mostly with this kind of family that we are concerned today. Under modern conditions our generation span is shortening, with changes in our way of life and with the introduction into our society of different ethnic groups, in some of which the children mature very early and marry early, too.

At the other end of the scale, I know one family in which three generations have already covered a span of 205 years. Before Christmas, I brought an old friend of mine, nearly 90 years old, to lunch in your Lordships' House. Her grandfather was born in 1774, 41 years before the Battle of Waterloo—almost unbelievable but possible, if one works it out, if a father and son both marry late and have children at about the age of 65, and one of their grandchildren lives to the age of 90. My old friend would never have had the wish nor the opportunity to marry her step-grandfather, had she had one! But in this Bill no fewer than 16 of the 24 provisions which the noble Baroness seeks to repeal are concerned with step-grandparents and step-grandchildren, and with other members of those generations. Even in the precocious family I have mentioned, more than 40 years separated the grandmother from her eldest grandchild by the time that child started growing up. There can be few people who want to marry someone who is 40 years older or younger than themselves.

These particular provisions of this Bill may seem at first to be somewhat ridiculous and not worth including, as my noble friend Lord Long mentioned. But I think they should be kept in, because we know that there are "sugar daddies" about, and that a few young girls and boys sometimes like to experiment and try out their sexuality on somebody they know well who is much older than they are, with no thought of marriage. In doing this they may become more emotionally involved than they had expected at first. Quite young people are sometimes tempted by the idea of marrying someone much older than themselves who has plenty of money. With most large and more or less normal families (I come from quite a big family myself; my mother and father had 27 grandchildren: and no one respects the unity and stability of a family more than I do) nature seems to endow siblings with a certain inborn resistance to making love or wanting to marry other each. I knew a girl who had 12 elder brothers. She used to say that she was the only person in England who had played cricket for 14 years and had never batted once; she was always longstop. And she never fell in love with any of her brothers!

But with step-relations things may be very different, when generations grow up closely together, perhaps with one or two broken marriages among them, with children of former marriages being absorbed into new homes, and with step-relations of much the same age connected by affinity and not by blood living in close proximity to one another. Under these conditions they may easily fall in love. Our present Marriage Act makes some of them who are not allowed to marry, and their children, very unhappy. The circumstances of every couple are different, and even with the same couple the situation may change over the years.

For instance, a man may make a second marriage with a woman who has a daughter only a little younger than himself. If he should fall in love with that daughter and wanted to marry her, while his wife is still alive and with him, that would mean a divorce, with his wife having to cite her own daughter perhaps as co-respondent—a most unhappy situation. If, however, his wife were dead or divorced (perhaps some years before they fell in love) and he is by then in his 50s and she in her 40s, things would be very different. At that time he and the daughter would be two people of mature age related by affinity and not by blood, and with no one else involved, and she might be invaluable to him looking after his other children. To allow them to marry then most people would agree would be sensible, and I am given to understand that the Marriage Guidance Council would probably accept that.

We must consider very seriously the arguments put forward by the right reverend Prelate the Bishop of London, based partly, I think, on experience of probation officers, that a childish maternal or paternal love for an older step relative, especially for one who is in loco parentis to the child, may grow into sexual love without the child's proper understanding of this and before it is ready for it. We must all agree, surely, that such a situation may do considerable harm in a close-knit community. I am in complete agreement, too, with the right reverend Prelate that adolescents and other young people must be protected as far as possible from this sort of thing, especially since we have lowered the age of consent to 16. But I do not believe that the argument which has been put forward for their protection is quite as powerful as has been suggested. Our present Marriage Act may discourage but it does not prevent a couple, of whatever age, from falling in love just because the present law prevents them marrying later. One may be forgiven for thinking that in our present permissive society step-relations who live close enough and long enough together to fall in love, will make love, whatever the law says about their not being allowed to marry in future.

Later, with the passage of time, when the younger of them has reached a mature and responsible age, when they have become really fond of one another over the years, with the right kind of affection, if they are not related by blood, if no one else in the family would be hurt, and they still want to marry, it might well be asked why should they not; why should the law stop them then? We know that there are an appreciable number of couples in this position in Britain today; step-relations who may not even have met for the first time until they were both over the age of 21, whom the law as it stands prevents from marrying, and whose children must remain illegitimate. That may itself give rise to complications when entailed interests or a title are involved. Another important point, which the noble Baroness made, is that if the man dies there will be no widow's pension and perhaps not even a pension from his employer. To forbid them marrying under these conditions seems to many people to be unfair, intolerant and unreasonable. Some of these couples have gone abroad to get married, but many cannot afford to do that.

As a possible way out of our difficulties, my Lords, and as a kindly, generous and Christian compromise, I would like to propose two Amendments to the noble Baroness's Bill: (1) the introduction of an age limit—perhaps 21 or 25 or any other age which may be agreed—for both partners before such a marriage is allowed by law to take place; and (2) no such marriage may occur without the previous dispensation of a judge in chambers who will, in his wisdom, consider all the circumstances, protect the interests of the whole family, and make quite sure that no one is likely to be hurt or to be sufficiently involved to make the marriage undesirable.

I know that others agree with me over this. Although the noble Baroness's Bill does clear up some anomalies, it goes too far in repealing outright all the provisions mentioned in it; and I believe many people think that Amendments are necessary, as we have already heard. The Chairman of the Executive of the National Marriage Guidance Council, Professor E. J. Griew, wrote to the noble Baroness on 18th January this year, saying: I think that we should ask you to consider introducing some qualifications into your Bill". And he added: in Australia and New Zealand there is legislation which permits marriage between persons related by affinity provided that the consent of the court is obtained".—(Cretney, S.M., Principles of Family Law, 2nd ed., Sweet amp; Maxwell, 1976, p. 39.) For us to turn down this Bill altogether today would, I think, be a retrograde step. I would support the noble Baroness, but only if the Bill can be amended by introducing the two safeguards I have suggested. I am advised that the exact wording of these Amendments should be left until they can be suitably drafted by parliamentary counsel for the Committee stage. I hope that they will be quite short—a few words inserted after (a), meaning, "providing both parties to the proposed marriage are over the age of—" (whatever we choose) and after (b), "provided that every couple related by affinity and covered by this Bill, who wish to marry, first obtain legal dispensation from a judge in chambers".

In conclusion, may I say that the Bill is well named a "Marriage Enabling Bill" and not a "Marriage Encouraging Bill". It will go a long way towards protecting children—which is what the right reverend Prelate wants—discouraging all those step-relations who are too young to marry or who will upset others by doing so; while at the same time being generous, and enabling those of mature age and who are really fond of each other to marry and thus legitimise their children. It will give us the best of both worlds.

If no one else wishes to do so, I should be happy to propose these Amendments myself at the Committee stage when other, perhaps more adequate, Amendments might be added to the Bill and discussed fully. With that proviso, I should like to support the proposal that the Bill be read a second time.

5.41 p.m.

Lord ROBERTSON of OAKRIDGE

My Lords, during the relatively short time that I have had the honour to be in your Lordships' House I have come to recognise in the noble Baroness, Lady Wootton of Abinger, someone who not only takes great personal interest and concern in other people, but is prepared to take action on their behalf, and I respect her all the more for it. One could not fail to be moved by the examples which she and the right reverend Prelate the Bishop of Southwark gave us. However, I am bound to say that I am inclined to follow the line of the right reverend Prelate the Bishop of London, because I feel that in meeting some hard cases we might be opening the way to greater unhappiness elsewhere. Therefore, at the very least the subject needs further study.

The particular aspect of the Bill that concerns me most is the effects of the changes on step-children. The changes would allow someone to marry a child who had grown up in his or her household, and would be likely to produce conflicts of interest which I believe would damage family life. As has been indicated, this is not just another "deceased wife's sister", or, indeed, "divorced wife's sister"; the Bill would permit marriage between those who had previously enjoyed what was virtually a parent/child relationship.

When I began to think about the Bill I turned to the Bible to see what that said. I found that the guidance there was clear. I was left in no doubt that what is proposed by the Bill is, in fact, contrary to what is written in scripture. I remain to be convinced that, just because Leviticus was written many thousands of years ago, we can brush it aside. After all, the Ten Commandments stem from the same age. What is more, these laws have been enshrined in our Church traditions and our Prayer Books, and presumably not without good reason. Incidentally, if the Bill were to become law there would have to be provision so that clergy were not faced with a conflict of conscience. I freely acknowledge that what may be considered by some to be morally binding for Christians need not be enshrined in the law. However, I think that we must look at what is behind those prohibitions in scripture and their relevance in modern society.

My second point is also taken from the Bible and has been mentioned before; namely, that when two people marry they become "one flesh". We have been warned against taking that point too far and I accept that. But, whatever else the phrase involves, it surely means that, to a very considerable degree, the two persons' families become one family and the relationships and the relatives of the one partner become the relationships and relatives of the other partner. That is something I certainly have found to my joy in my own marriage. In the case of step-children, the parents of the home in which they are brought up become, in a very real sense, their father and mother even though one is, in fact, their stepparent.

When I have spoken to people about the Bill almost invariably their first reaction has been that, because no blood relationship was involved, no great issue was at stake. However, I understand that it is generally recognised in most societies that, in addition to the question of blood relationships, there are social and psychological reasons why people should not be allowed to marry within the family, and that is exemplified by our laws on adoption which forbid a man or woman to marry his or her adopted child. I have no pretension to be a psychologist, but I understand that it is considered that a child needs to attain a psychological independence of its parents as it grows up, and that parents have a duty to assist that development. In my view there would be a danger that the Bill could work against that process and indeed, in extreme cases, might lead to instances where a parent abused the child's filial obedience and trust to bring about a marriage.

As regards the relevance of the prohibitions, we live in times where there are increasing numbers of children and adolescents being brought up by stepparents. With those step-parents they need to strike up a loving, trusting, nonsexual relationship and one which will still enable them to develop their own independence and fulfilment. In my view the Bill would remove an important protection both for those children and for those who need it most; namely, those who are building a second marriage, absorbing children happily and safely into it. For those reasons, although we must certainly study further the problems which have been brought to our attention today, it would be a mistake—without that further study—to give the Bill a Second Reading. Therefore, I join with those who have expressed the hope that the noble Baroness will withdraw her Motion.

5.48 p.m.

Lord McGREGOR of DURRIS

My Lords, I hope that I may be forgiven if I begin by traversing some ground already covered by noble Lords. It is necessary for my argument and I shall be very brief. The degrees of affinity with which the Bill of my noble friend Lady Wootton deals, entered modern history in the later Middle Ages when their purpose was, in part, to give the practical reality of divorce a vinculo—that is, a licence to marry again—to the rich or powerful in a society which maintained that marriage was indissoluble. To the rule that certain degrees of blood relationship were barriers to marriage, the canonists added the impediments of affinity. Sexual union, they held, made man and woman one flesh and hence the blood kinswomen of a man's wife and mistresses were connected to him by way of affinity. Spiritual kinships through godparents was also held to set up similar barriers. The greatest historians of English law wrote of this system as intricate rules behind which there is no deep policy … no strong religious feeling and they stressed the incalculable harm done by a marriage law which was a maze of flighty fancies and misapplied logic". Many of the wilder extravagances disappeared at the time of the Reformation, but certainty about the marriage and status of children, of persons within the prohibited degrees of affinity, was not achieved in England until 1835. Since then—but only in this century—the pro-hibitions began, as my noble friend Lady, Wootton pointed out, to be narrowed and marriage between a man and his deceased wife's sister and his deceased brother's widow and between persons and their deceased spouse's nephew, niece, uncle or aunt, and between their deceased nephews, nieces, widows or widowers, have been permitted. Restrictions on divorced persons were removed in 1960.

Thus, as she said, my noble friend's Bill would bring this history to its conclusion and remove the prohibitions upon marriage which stem from the medieval view that relationship by marriage is equivalent to relationship by blood. Assuredly, her Bill cannot be described as a sudden leap in the dark.

What then might be the objections to this final step? If it be argued that there are theological or religious difficulties, it is hard to assess their weight, because, as in all previous discussions of these issues, persons equally learned, equally pious, equally competent to interpret the will of God and equally concerned to promote the public good, have reached diametrically opposed conclusions. Indeed, during this debate we have listened to just such a conflict. Accordingly, we have no choice but to judge the Bill in terms of its likely moral and social results.

In principle the chief objection on these grounds which might be brought against the Bill is the same as that which was directed against the proposal to permit marriage with a divorced wife's sister or a divorced husband's brother. In this case the Church of England and other Churches argued—and I now quote from their evidence to the Morton Commission—that: the family is and ought to be a secure, stable unit from which is excluded by universal custom any sex interest between its members … The possibility of marrying a divorced partner's brother or sister casts a terrible shadow backwards. The triangle of emotions is taken into the circle of the family. Affections … are no longer suppressed as improper and incapable of fulfilment". On those grounds the present Bill could be held to open the way to the development, for example, of such affections between a man and his step-daughter, as was envisaged in the speech of the right reverend Prelate the Bishop of London. It is to be noted that the Marriage (Enabling) Act 1960, which enabled such divorced persons to marry, has not resulted in any of the consequences feared by some of the Churches. I do not fear the aftermath of my noble friend's Bill. My confidence is based on my belief that the removal of these prohibitions will not affect people's behaviour, the growth of illicit desires or the willingness and ability to satisfy them. The record of the simpler and of advanced societies suggests that the establishment of relationships within the family, which would undermine its stability, are not so much prevented as avoided in accordance with any particular society's cultural development.

To reject the Bill would be to deny marriage in those instances to which there can be no moral or social objection and which at present suffer the hardships described by my noble friend, in the hope of avoiding behaviour which cannot be prevented and which in any case no longer attracts legal sanctions, as the right reverend Prelate the Bishop of Southwark explained.

This is not the place to embark upon an anthropological lecture, but, as someone who has to lecture students on these and related subjects, I should like to say that it is not safe for the right reverend Prelate the Bishop of London to rely in these matters upon the 50 year old book, the Sexual Life of Savages, written by the late Professor Malinowsky. Modern scholarship is set out cheaply and elegantly in the book of Professor Robin Fox, available in Pelicans on Marriage and Kinship.

Finally, if it be argued that the present law deters the development of improper relationships by serving as a means of maintaining appropriate sexual distances between members of the same household, then at the same time it must be demonstrated that those whose behaviour is alleged to be shaped in this way actually know what the law is. Like my noble friend Lady Wootton, I have been astonished to discover how many generally knowledgeable people—including, as we have been told, members of the clergy—are ignorant and muddled about the law which this Bill seeks to repeal. I conclude that legal prohibitions and restrictions play very little part in controlling the motivations of citizens in this area of life. We must not overrate the powers of law or underrate the power of cultural and moral disapproval.

I am opposed to a further inquiry by way of departmental committee or the like, for I do not believe that further study could unearth or discover evidence not already easily accessible. Sometimes, at least, life ought not to wait upon blue books. I do not agree with the noble Lord, Lord Mancroft, that this Bill can affect the sanctity of marriage for the reasons stated by my noble friend Lord Soper. I hope that noble Lords will give this necessary Bill a Second Reading.

5.59 p.m.

The Earl of LAUDERDALE

My Lords, I hope that it will not be argued further that the antiquity of a book measures its value or otherwise. There are great books of great antiquity from all the cultures of the world whose wisdom has not yet been transcended by the latest Penguin specials. I hesitate, and hesitated, to join in this debate because I have no specialist knowledge whether of anthropology or of social science. I merely happen to have been very happily married for 43 years and have a number of grandchildren and hope for more. It is because I feel deeply about this rather than knowing much about it that I speak. I hope that the noble Baroness, Lady Wootton—who is very dear indeed to all our hearts (I hope she knows that, I think she does)—will realise that, although this Bill is well meant, enough has been said to show that it is shallow in consideration and socially dangerous. Far better, in an area of this sort, to think again, to study again, to follow up the suggestions made so moderately and, I should like to say, so Christianly by the right reverend Prelate the Bishop of London.

This is not simply a matter of law. It is a matter that touches on something deep in human nature which we call shame. While shame keeps its watch virtue is not wholly extinguished in the heart". It was written in the 17th century that: All irregularity is catching. It has a contagion in it, especially in an age so much more inclined to follow ill patterns than good ones". The case deployed this afternoon has been that affinity does not matter, although blood relationship does. I should like to suggest to your Lordships that Britain as a neurotic, violent society—increasingly neurotic, increasingly violent, increasingly lacking in respect for authority of any kind from any source—has derived those qualities in part, at any rate, from the dissipation of family life.

I was much struck by a point made by the noble Lord, Lord Hunt of Fawley, who pointd out as to the current marital situation that the generation gap is narrowing all the time. That is in practical terms one of the features which should cause us to pause. Certainly there is an increasing proportion of what I will call family set-ups where one parent is the step-parent to a step-child. Hitherto any sex relationship between the generations, whether of blood or affinity, and indeed whether the relationship be step-or not, has been taboo in order to protect the young dependants.

I was much interested in the learned summary which we had just now from the noble Lord, Lord McGregor of Durris. Whether he is a great medievalist I do not know, but if I heard him right he did use words to the effect that the medieval canonists added the impediments of affinity. Not so far as I am aware in the ancient Church. I have been instructed in these matters, it so happens, by a wife who is a member of the Orthodox Church and who comes from a part of Europe which has been torn by war since life on this planet was known. In that part of the world marriage between godparents and godchildren, or between the families of godparents and the families of their corresponding godparents' children is forbidden. The reason was simply that, if in war a father is killed, it is the godfather's job to take the children into his house and look after them, and that cannot be socially safe under circumstances where there can end up an ordinary, if I may put it that way, external sexual relationship.

It may be said that the situation in Britain today is very different. I am not so certain that it is, because the number of families in which a step-relationship exists or shall I say the number of households in which a step-relationship exists is far greater now than at any time. Surely the whole concept of taking a young person into your household, be it stepson, niece, nephew, godson, step-daughter, is to help the child to grow to emotional maturity in a situation where there is no competitive affection; where affection is de-sexualised, and where indeed the children can be assured at least by the fireside of being undistracted by overt sexuality with an elder with which a child could not emotionally cope. To permit a sex relationship here must lead to a child's greater dependence on the step parent when the child should in fact be growing up to independence.

All sorts of special cases can and have been adduced. Of course we were moved by the right reverend Prelate the Bishop of Southwark and equally by him whom I will call a pro-prelate, our great friend Lord Soper. Of course we are moved by such cases; but as we were vividly and effectively reminded by the noble Lord, Lord Mancroft, hard cases make bad law.

It can be said that there will be cohabitation anyway between or within the prohibited degrees if people want it. Nobody is saying that that is not so. What we are asking is whether society should endorse it. Embedded, as I say, in the whole issue is the deep issue of shame. This is what the ancient social taboos are about; this is what we tamper with at our peril. My Lords, man is a beast when shame stands off from him, and modesty once banished never returns.

6.8 p.m.

Lord ROBBINS

My Lords, I do not intend to take more than two minutes of your Lordships' time. It seems to me relevant to remind those of your Lordships who have, with sincere passion, defended the prohibition of affinity—in general, deriving from ancient works, as the noble Earl reminded us—that much the same case was argued with greater violence, but no doubt deep sincerity, on the prohibition of marriage with a deceased wife's sister, which was only repealed in the early years of this century. As one who happily grew up in a family in which such a marriage took place, after the deceased wife's sister had nursed my mother through a most painful kind of cancer, I remind myself that this was one of the happiest and incidentally, may I say it, one of the most pious marriages that it has been my happiness to observe.

6.10 p.m.

The MINISTER of STATE, HOME OFFICE (Lord Boston of Faversham)

My Lords, I am sure that whatever decision your Lordships come to today, we are very grateful indeed to my noble friend Lady Wootton of Abinger for giving us the chance to debate this matter. She is held in high regard inside and outside your Lordships' House and she is widely respected for her views and great humanity, especially on social matters, and for the care and understanding and, I would add, compassion which she brings to bear on the individual cases that come her way.

Although the subject-matter of the Bill is one which the Government customarily leave to the initiative of Private Members, we have given some thought to the content and purpose of the Bill, and it may be helpful if I intervene now to put before your Lordships some considerations which it may be helpful to take into account in deciding whether the Bill should receive a Second Reading.

Baroness Wootton has given us a clear account of the purpose of the Bill and has drawn attention to the very real hardship that can arise in particular cases under the present law. Cases do from time to time come to the attention of the Home Office where men and women related by marriage wish to marry, often in circumstances where little or no harm would seem to result from their doing so, but are prevented from marrying by the present law. I certainly sympathise, and join other noble Lords in doing so, with the hardship that can be caused in such circumstances, especially where there are children involved who would be legitimised by marriage. As my noble friend has said, marriage in those cases would serve to strengthen rather than diminish the existing de facto family relationship. As the Long Title of the Bill states, this change in the law would enable a person to marry any kin of a former spouse, or a former spouse of any kin". So there would no longer remain any prohibitions on marriage by reason of a relationship of affinity only. When the Law Commission, in their report on nullity of marriage published in 1970, reviewed the existing prohibitions, they found, they aid, no evidence that public opinion in England and Wales favoured, an alteration in the law. The question of the Law Commission is one of those which has been raised in the debate and reference to it was made by, among others, the right reverend Prelate the Bishop of London, and perhaps I should interpose a few additional observations on this point.

It has been suggested by some noble Lords that the Law Commission might be asked to consider the proposals contained in the Bill. As I said, the Law Commission looked at this in 1970 in the context of nullity of marriage and the evidence available to them at that time suggested that public opinion did not desire a revision of the existing prohibited degrees. I am bound to add that the Government have not seen any sign of any significant shift in opinion since then. However, one is bound to add that the presence or absence of evidence is itself open to more than one interpretation when considering these matters, and that is something we must bear very firmly in mind. Moreover, the Law Commission is a body of lawyers and the question posed by this Bill seems to me to be one of principle which raises not merely legal issues but religious, moral and social issues too. I am very doubtful therefore whether it is a matter which we should invite the Law Commission to consider or to consider again.

There is of course the alternative—this has been mentioned by some noble Lords including the right reverend Prelate the Bishop of London—of setting up a more broadly based ad hoc committee, but I am bound to say that I wonder (this was mentioned by my noble friend Lord McGregor of Durris) whether such a committee would be any better equipped to express a view on the principles involved here than is this very House in the light of the arguments adduced in this debate. I do not think it unreasonable that noble Lords here should decide today whether or not they endorse the principles of the Bill.

I am bound to say that, in spite of the few cases that come to notice, to which I have referred, the Government have at present no real evidence of any general demand for a change in the law in this respect, but one bears in mind the dangers involved in considering and weighing that point about evidence, so we must approach this whole question with some caution involving, as it does, a proposal to alter the law in this way. In particular, we must consider whether there are other cases of a different kind from those cited by my noble friend but perhaps involving a much greater number of people in which a change in the law might do harm.

As I understand it, the historical basis for the present prohibition lies in the view that husband and wife are to be regarded as one flesh, so that relationship by marriage is equivalent to relationship by blood. Although there may be fewer people today who accept that principle in its most literal sense, I think many would still support the idea that a marriage does at the least create a special relationship—indeed, a new kind of family relationship—between members of the two spouses' families.

My noble friend has particularly in mind the possibility of marriage between step-parent and step-child, and we have heard the example of a case where a wife dies leaving her husband with small children of their marriage and a grown-up step-daughter. In the course of time, the step-daughter takes on the roles of both mother and wife, but the couple are prevented, under the present law, from legalising their relationship. This may indeed be a case which attracts considerable sympathy; but some people may also ask whether the relationship would be quite so acceptable if the step-daughter had been much younger when her mother remarried and her stepfather had therefore been standing in loco parentis to her. This is a very real problem which we, with respect, are bound to consider. It would, I am sure, be generally agreed that where any man or woman becomes the step-parent of a young child, and in effect takes on the role of a parent towards that child, the very possibility of a future marriage would be entirely at variance with the character of the relationship that ought to be established between them. There does not seem to be any way of excluding such cases from the provisions of the Bill without also excluding the sort of case of real hardship to which my noble friend referred.

If noble Lords decide that the Bill should be given a Second Reading, I think it only right to point out that the Government would wish to see one or two technical Amendments made. We feel that the Bill does not, for example, deal adequately with the often complicated situations that arise where one partner to a marriage is domiciled in a country whose marriage laws would not permit a marriage in those cases, so it would need amending there. It might also need amendment in relation to couples who are domiciled in this country but celebrate their marriage abroad. I should also mention that, on matters of consanguinity and affinity, it has hitherto been thought desirable that the marriage law of England and Wales and of Scotland should in substance be the same, so, if the House thinks the principle of the Bill should be accepted in relation to England and Wales, we ought at a subsequent stage to consider whether it should be extended to Scotland as well.

I hope this brief intervention may be of some assistance to noble Lords in coming to a decision on whether or not the enactment of this Bill would in principle constitute an improvement in our law. There are real human questions on both sides of this argument. Your Lordships' House is, if I may say so, particularly well placed to consider matters of this kind.

6.20 p.m.

Baroness WOOTTON of ABINGER

My Lords, I am most grateful to all noble Lords who have taken part in the debate and shown such thoughtful perception of the issues involved, and I am particularly grateful for suggestions that have been made for the improvement or removal of difficulties. I shall give very great consideration to what has been said in the debate. First I want to comment on some of the observations of my noble friend Lord Boston of Faversham, which are of special importance in view of the position which he holds in relation to the Government. Like many other noble Lords, he referred to the distinction between cases where a step-parent has acted in loco parentis and cases where the step-child is much older and that situation does not arise. That is a very important distinction, but there is a way of getting around the difficulty, and it is a way that ought to be widely used and adopted, though it cannot be made obligatory". It is that if a young child is brought into a family, and there are subsequently children of the new marriage not far separated in age from the step-child, it is quite possible and not uncommon for the parents immediately jointly to adopt that child. Thereafter, none of the questions about later marriage can possibly arise, because it would be as incestuous to have intercourse with the adopted child as it would be with the natural child. That seems to me to solve that point. I know that not everyone would do this, but these matters could be made widely known, and I believe that most people would be glad to do it if they understood the position about it.

My noble friend Lord Soper said that he has been a parson for 50 years. For very nearly that period of time I have been a magistrate in the county of London, and I have been the chairman of a juvenile court for a very large part of the period. I have seen a great many cases involving children in one kind of trouble or another. I have seen a great many cases of incestuous relations between parents and children. As it happens, I have never seen a single case of a relationship of that kind between a father and a stepdaughter, or vice versa involving a step-son. That may be coincidental, but I reckon that I have seen about five thousand cases of one kind or another involving juveniles, though they have not all been sexual cases.

There are risks in everything, and our task tonight is to balance the risks against the evils of which we know. I have heard one set of risks discussed over and over again. I remember as a child—the noble Lord, Lord Robbins, mentioned this point—hearing the discussions about the deceased wife's sister. I was very puzzled by what was involved, but I realised that it was something of immense importance. When it came to the repetition of those arguments about risk in the later extensions of the 1931 Act, I realised what the original arguments had been about. They are now being repeated again. In all these years I have not seen disastrous consequences follow from those risks. Perhaps there have been occasional improper things, but there have not been disastrous social consequences.

My Bill has nothing whatever to do with the very unseemly position envisaged by the noble Lord, Lord Hunt of Fawley; namely, that a mother might be in the position of having to cite her daughter as a co-respondent in a divorce case. If that occurs, it is because the step-father has had improper relations—he has committed adultery with the step-daughter—and he will do that whether or not there is the possibility of marriage. The point is quite irrelevant to the question of ultimate marriage, although as I think I said in my original speech it may be more likely that he will do that if he cannot marry her than if he can marry her.

The other risks have been very greatly under-estimated. I am certainly not one who wishes to destroy close and happy family relationships; but the present law does that. It makes people live lies. People who are put in this position suffer very much from having to live lies, sometimes in practical ways with regard to such matters as passports, and sometimes simply because they have to pass themselves off as man and wife when they are not.

Very little has been said about the direct inducement to what is sometimes called "living in sin" that the present law causes. Those involved cannot marry. If they do not happen to have the exceptional relationship referred to, they are perfectly free to marry. They are not blood related, they have no other marital ties, and they wish to marry. What do they do? Obviously they say, "We will behave as though we were married". The present law is a direct attack upon family life in that way. It is not least for that reason that I wish to alter it.

It is suggested by the right reverend Prelate the Bishop of London and others, who would like to see yet another inquiry, that we proceed cautiously. I was relieved to hear my noble friend Lord Boston of Faversham suggest that the Law Commission, who looked at this matter rather cursorily in 1970, and who are experts in law rather than in public opinion, might not be the appropriate body to look at the question again now. We have looked at it again and again, and every time that there has been an inquiry the prohibited degrees have been extended a little. Now there are just these few remaining affinities which are still prohibited, and it is not necessary that we should again go through all the motions of having yet another committee or commission to look at them.

Therefore, I hope that your Lordships will give a Second Reading to the Bill tonight. A great many noble Lords have told me that they are in favour of the Bill in principle, which is what a Second Reading is intended for. Noble Lords may not be in favour of the Bill in every detail, but if they are in favour of it in principle, that is an argument why it should be supported on Second Reading now. We have been talking rather as if in this restricted Assembly we were in a position to make a law which would come into force tomorrow, whereas if we approve the Bill in principle, it has to go through further stages in this House, and it also has to be subject to the wisdom of the other House where it will go through the same stages. What we are concerned with now is starting it upon a course in which all kinds of minds and experiences will be brought to bear upon it, and perhaps issues which we have not thought of will be raised. I should like to see it floated upon its course, so that it may proceed as I hope, ultimately, though possibly in a somewhat revised form, to a final conclusion.

We all think up safeguards. The noble Lord, Lord Hunt of Fawley, spoke of the safeguard that people should not be allowed to marry in the circumstances in question until they are a little older. All these safeguards are inducements to carry on as though one were married until the time comes when one is allowed to be. It is very difficult to think up safeguards which are not open to the criticism that they are encouraging the very thing which upholders of legitimate marriage wish to stop. I hope that your Lordships will give a Second Reading to the Bill tonight.

6.28 p.m.

On Question, Whether the Bill shall be now read 2^a?

Their Lordships divided: Contents, 58; Not-Contents, 43.

CONTENTS
Allen of Abbeydale, L.	Gainford, L.	Pitt of Hampstead, L.
Amherst, E.	Greenway, L.	Redcliffe-Maud, L.
Ampthill, L.	Greenwood of Rossendale, L.	Ritchie-Calder, L.
Baker, L.	Hale, L.	Robbins, L.
Birkett, L.	Hamnett, L.	Rochdale, V.
Blease, L.	Hanworth, V.	Sefton of Garston, L.
Bledisloe, V.	Harris of Greenwich, L.	Segal, L.
Brockway, L.	Houghton of Sowerby, L.	Skelmersdale, L.
Brooke of Cumnor, L.	Jacques, L.	Soper, L.
Brooke of Ystradfellte, B.	Kilbracken, L.	Southwark, Bp.
Chitnis, L.	Kilmarnock, L.	Strathclyde, L.
Collison, L.	Kirkhill, L.	Taylor of Blackburn, L.
Craigavon, V.	Lee of Newton, L.	Taylor of Mansfield, L.
Craighton, L.	Lloyd of Hampstead, L.	Ullswater, V.
Cranbrook, E.	McGregor of Durris, L. [Teller.]	White, B.
Darling of Hillsborough, L.	McNair, L.	Willis, L.
Davies of Leek, L.	Mancroft, L.	Wootton of Abinger, B. [Teller.]
Dowding, L.	Monson, L.	Wynne-Jones, L.
Drumalbyn, L.	Noel-Baker, L.
Erroll, E.	Northesk, E.

NOT-CONTENTS
Abinger, L.	Halsbury, E.	Nunburnholme, L.
Barrington, V.	Hampton, L.	Rathcreedan, L.
Cathcart, E.	Hornsby-Smith, B.	Robertson of Oakridge, L. [Teller.]
Colville of Culross, V.	Hunt of Fawley, L.
Cullen of Ashbourne, L.	Hylton-Foster, B.	Rochester, Bp.
de Clifford, L.	Lauderdale, E. [Teller.]	St. Davids, V.
Elles, B.	Listowel, E.	Salisbury, M.
Ferrers, E.	London, Bp.	Sandys, L.
Fisher of Camden, L.	Long, V.	Shinwell, L.
Fortescue, E.	Lyell, L.	Somers, L.
Geddes, L.	Monckton of Brenchley, V.	Strathspey, L.
Glasgow, E.	Morris, L.	Sudeley, L.
Gray, L.	Newall, L.	Trefgarne, L.
Hailsham of Saint Marylebone, L.	Northchurch, B.	Ward of North Tyneside, B.
	Nugent of Guildford, L.	Young, B.
Resolved in the affirmative: Bill read 2a, and committed to a Committee of the Whole House.