§ 4.32 p.m.
§ Debate on Second Reading resumed.
§ The Earl of LAUDERDALE
My Lords, we now return to the Marriage (Enabling) Bill. Any Bill that has the patronage and advocacy of the noble Baroness, Lady Wootton of Abinger, immediately commands the affectionate and sympathetic attention of the House, because she is a figure whom we all love and regard as a friend. The fact that this Bill has already had a Second Reading in the last Parliament of course gives it a certain piquancy on this occasion. However, the noble Baroness will be well aware that no Parliament can bind its successor. In any case, the composition of this House is continually changing.
Having disliked the Bill to start with, on looking at it more closely I find that I dislike it even more. If we are all grateful to the noble Baroness for the moderate way in which she has presented the Bill again, we should also express our appreciation of the quiet, sympathetic and instructive advocacy of the right reverend Prelate the Bishop of Guildford. The first fault that I find in the Bill was touched on by the right reverend Prelate when he said, in effect, that the Bill treats marriage as if it related to two persons alone. It refers to two persons and their families. The consequence of marriage is, of course, an ever growing family circle. However, the aim of the Bill is to reverse—without consulting the religious authorities concerned—a consistent marriage tradition common in these respects to the Jewish, the Christian and, indeed, the Moslem religions. That tradition is to preserve the wider family of in-laws as a tranquil, protected area of living, uncompromised by competitive sexual attraction, and to keep that area safe for the younger and the youngest generation.
We have heard three main arguments advanced for the Bill. The first is hard cases. I have no need to remind your 745 Lordships that, as we are often told in this House, hard cases make bad law. The second argument is that people who wish to will cohabit anyway. One might as logically legalise burglary on the ground that burglars often get away with the swag. The third argument advanced is that there is popular support for this, and there is popular ignorance of the substance and significance of affinity. But of course although the noble Baroness has correspondence of her own attesting all that, as the right reverend Prelate said, we have no scientific assembly of evidence on the matter.
I believe that there are three main arguments against this Bill. The first relates to the wider family. The prohibited degrees, the so-called incest taboo—and I think we should not be ashamed or afraid of using the word incest in connection with this Bill—in regard to the prohibited degrees is not meant only to apply to blood relations because biological inbreeding can produce madness, which is the commonly accepted view, but it also relates to in-laws in order to protect juniors and protect the wider family as a whole, and in particular, it is worth mentioning, to confirm the father's or the father-in-law's position in it as a father or father-in-law and not as a male competitor for the sexual interest of one of the family of the opposite sex. As I read it, this Bill would have the effect of destroying the trusting, sexless relation of the de facto guardian—he may be a stepfather—and his attractive young stepdaughter, or possibly even his attractive young grand-daughter.
Secondly, this Bill would approve sex blessed by marriage between a man in the position of father and his attractive young daughter-in-law, or even his grandson's attractive young wife. The noble Baroness says that where lustful eyes and looks exist that is not a very stable relationship. But the noble Baroness is wise enough to know that there is no man or woman on this earth, in or out of the family, who is proof against the temptation of lust. It is the very fact that this is how we are made that makes the restraints that society has created necessary and vital. This Bill would, by its logic at any rate, incite a man to divorce his ageing wife in favour of some attractive junior member of his own wider family.
746 My second argument is different. It is perhaps not a popular one these days, but it refers to fear and law. We have been told before that legal barriers are no discouragement to illicit unions. Indeed, that is so. We know it. But we also know that fear has always been the major sanction behind morality, whatever enlightened religion or religious leaders may have added as well. More important, there is the consensus judgment of human society at large which reflects the collective anthropological wisdom of the ages. That is what law reflects. This little Bill invites society at large to reject a weighty, indeed a gigantic consensus.
My third argument is of a different kind. There is deep in the human make-up an instinct of shame. It is practically impossible to define, but we all know what it means. I submit that we would tamper with that at our peril. A major misfortune of our day that has been written is that in getting rid of many false shames we have also killed off so much real shame as well. We all know that the man who blushes is not quite a brute. The incest taboo defends our sense of shame, an instinct respected by even the most primitive societies. An age where the generation gap is narrowing, to bring step-fathers and step-daughters closer together in years, surely requires the shield of shame so much the more, and yet shame, the very garment of human decency and hence human dignity, is I say affronted and assaulted by this Bill. It would, in short, legitimise what we know as incest: the very ultimate in the abuse of shame. The worst shame is surely to have none at all. Like Jonathan Swift,I never wonder to see men wicked, But I often wonder to see them unashamed.I invoke decency and shame alike in inviting your Lordships to follow the right reverend Prelate into the Lobby to deny this Bill a Second Reading.
§ 4.36 p.m.
§ Lord MISHCON
My Lords, when the noble Baroness moved the Second Reading of this self-same Bill in the previous Session and with adroit skill led it through its Committee stage, tributes were then paid to her for her dauntless crusading spirit and the lucidity with which she spoke to this House. Tributes have 747 already been paid to her on this occasion, too, and I should merely like to associate myself with them.
Whatever this House may do, there are, as we have been reminded, religious denominations in our country who will not sanction the marriages to be permitted by this Bill if it is passed, whatever your Lordships may decide. Having said that, however, may I just say—and it is an argument that I ventured to advance when this Bill came before the House previously, which I put forward again—that I can understand, if I may respectfully say so (and I speak with even greater respect in the presence of the most reverend Primate as well as the right reverend Prelate who spoke in this debate) anyone saying that, on grounds of conscience or for social reasons which commend themselves to him, he opposes this Bill root and branch. What I cannot understand is somebody who says—and I must take your Lordships, if you will permit me, through some of the arguments that were advanced last time—that this shall be permitted in exceptional cases, where they exist, which, as I understood it, was what the right reverend Prelate was saying to us this afternoon. Similarly, the right reverend Prelate the Bishop of London said to us on the previous occasion when he moved an Amendment at Committee stage, "I can understand it", and, as I understood him, he said he would approve of this Bill, provided that young people were safeguarded. What was then said by the right reverend Prelate—I regret to have to say this in his absence because he cannot reply and correct me if I am wrong—was that he wanted the safeguard for people under 21, and that safeguard only; and the safeguard he suggested was that people under 21, if they wished to enter into a marriage to be permitted by the Bill, should go to our courts and obtain the sanction of the court.
§ The Earl of LAUDERDALE
My Lords, is it not the case that the right reverend Prelate the Lord Bishop of London opposed the Bill's Second Reading and only since it got a Second Reading did he offer that compromise? But he was against it in principle, and said so.
§ Lord MISHCON
The noble Earl is absolutely right to intervene, my Lords, 748 and I shall shortly quote the Bishop of London from the Official Report as to what I understood, and I believe others understood, to be his change of mind if that amendment of his were proposed; I shall quote him because it is only fair that I should do so. The amendment that then came before the House, which we should obviously be discussing on Second Reading, because, as I understand it, it affects the whole principle of the Bill, proposed that the leave of the court should be obtained, and that, in determining whether consent should be given, the court should have regard to all the circumstances of the case including the following matters, which I shall summarise: first, the degree of relationship between the parties; secondly, the extent, if any, to which the dissolution of any previous marriage of either of the parties was caused by the conduct of the other; thirdly, the value to either of the parties of any financial benefit; and fourthly, the interests of any children.
In the course of the discussion that took place, I ventured humbly to put to the House, first, that, as I say, I can understand the Bill being opposed in principle; what I cannot understand is supporting the Bill but first making it obviously a tainted marriage by virtue of the fact that the court's ruling must be applied to it. One can imagine the effect on somebody under 21 of going through that gruesome procedure. Secondly, I pointed out, it brings into play the most anti-social of all conditions one would have thought—namely, trying to bring back before the court and the parties the reasons for a previous marriage having gone on the rocks, quite apart from the obvious difficulty and distastefulness of the fact that the court would presumably have to go behind even a divorce which took place by the consent of the parties in an endeavour to finish that unhappy union in a civilised way and without dragging up all the unpleasant facts which led to its unfortunate conclusion.
I therefore proposed on that occasion, in Committee, that if young people were to be safeguarded—and that was the very proper consideration that was before the House—the proper way of dealing with the matter was to say quite flatly that no marriage coming within the degrees as set out in the Bill would be 749 effectual in law if either of the parties was under 21, and that it should be left at that.
I was delighted that the noble Earl intervened just now, because it gives me an opportunity of, I hope, being fair to the right reverend Prelate the Lord Bishop of London, who is not with us this afternoon. This is what the right reverend Prelate said after I had made that suggestion to the House:I imagined that my Amendment was ameliorating the situation in that it would provide some way for those under 21 to marry within these at present prohibited degrees if they wanted to do so. If however I have the support of the noble Lord"—and he was kindly referring to me—and generally of the sense of the Committee that they will support an Amendment on Report stage which simply says "21", then there is nothing that would give me greater pleasure because that suits exactly the point that I am trying to make. I only put these conditions and the appeal to the court because I thought that the Committee would want to have some relaxation on that rule".—[Official Report, 15/3/79; col. 828]I think I am being fair to the right reverend Prelate when I say that it was inferred, as indeed I inferred from the correspondence which he was kind enough to have with me thereafter, that, subject to that safeguard, he was not unhappy with the principle of the Bill, although it is perfectly true that on Second Reading he said he thought that the utmost consideration should he given to various aspects of the Bill before the House acceded to it.
I conclude with the plea I made on the previous occasion: to me, this is a Bill which one either accepts or rejects, subject only to the point about safeguarding young people under 21, if the House accepts. What I feel would be quite wrong would, as I say, be if the House went down the middle of the road—an unfortunate and long middle of the road —and tried to make this relationship a permitted one under the law but a tainted one to start off a marriage because, with some uncleanliness implied, one had to go to a court of law to get the marriage sanctioned.
§ 4.47 p.m.
§ Lord SUDELEY
My Lords, the family is a highly charged unit, and during the last Second Reading much was said about how, if the Bill became law, matters would become worse rather than better. There were sound practical reasons for the old 750 prohibitions, and indeed, if there were no sound practical reasons for those old prohibitions, it is hard to imagine how Shakespeare could have envisaged the plot of Hamlet.
I shall be brief—I want to intervene rather than make a speech—because there is only one point I want to make. During the last Second Reading, the right reverend Prelate the Lord Bishop of Southwark voted for the Bill, and in Committee the right reverend Prelate the Lord Bishop of London said about the last Second Reading that the debate had… revealed that there is no great ethical, moral or religious objection as such to the marriage of those who are related by affinity. On the other hand, as I, and other noble Lords, endeavoured to express to your Lordships, there are some of us who believe that there would be very grave social dangers if it was permitted for those related by affinity to marry one another without any restrictions whatsoever".—[Official Report, 15/3/79; col. 798.]I therefore feel impelled rather to endorse the line which was taken just now by the right reverend Prelate the Lord Bishop of Guildford and to say what is the position of the Anglican Church from the point of view of a lay communicant who has not advanced quite so far as some Members of the Episcopal Bench. Apart from social considerations, there are religious objections to what is contained in the Bill and Members of the Episcopal Bench who vote for the Bill or suppose there are no religious objections are transgressing the Scripture, epecially what is said in Chapter 18 of Leviticus and in the Prayer Book, which is a good summary of the position as defined in the Scripture.
In both Scripture and Prayer Book the prohibited degrees are extended to include kindred acquired by affinity through marriage just as much as kindred inherited through sharing the same blood. It is true that that familiar pages in the Prayer Book, Parker's Table, gives a more extended list of prohibited degrees than does Leviticus, and it is sometimes said that that extension has been arrived at on a different basis. But Scripture and the Prayer Book deal with the same problem. The list in Leviticus is a trifle incomplete, and so in drawing up his table the Archbishop inferred from Scripture more prohibited degrees than are actually given in it, quite fairly by a process that is sometimes called parity of reasoning.
751 Some parts of Archbishop Parker's table have now been eaten away by radical legislation, earlier in this century in particular. Anglicans, like Jews, can now marry their deceased wife's sister. But what remains of the table is still printed in the Prayer Book and the Prayer Book is still the essential statement of Anglican doctrine.
During the debate that I presented to your Lordships' House just over a year ago on the Prayer Book (Ballot of Laity) Bill the Government spokesman, the noble Lord, Lord Wells-Pestell, understood the right reverend Prelate the Bishop of London to say that the Synod can determine the doctrine of the Church of England, when in point of fact the Synod does not have this authority—
§ Lord ROBBINS
My Lords, may I interrupt the noble Lord? Did I understand him to say that in his judgment marriage with a deceased wife's sister was sinful?
§ Lord SUDELEY
No, my Lords, I did not say that it was sinful. I said that it was now permitted to Anglicans, as it has hitherto been permitted to the Jews.
Reverting to what I was saying before the intervention, I wrote an account of the debate to which I referred in the Prayer Book Society's journal, Faith and Heritage, in which I said that the right reverend Prelate the Bishop of London had implied quite wrongly that the Synod has the power to determine the doctrine of the Church of England, and I am very happy to say that the right reverend Prelate the Bishop of London wrote to the Prayer Book Society asking that this statement should be corrected; and so it was. I wrote a further article for the Prayer Book Society's journal, Faith and Heritage, quoting from the Worship and Doctrine Measure of 1974 to say that all services of the Anglican Church must conform to the doctrine of the Prayer Book. The Prayer Book really is the essential determinant of the doctrine in the Anglican Church.
It may be tempting in the case of this Bill to split a hair and to say that Archbishop Parker's Table, like the 39 Articles, is not, strictly speaking, an integral part of the Prayer Book, but is merely bound 752 up with it, but surely, my Lords, what is bound up with the Prayer Book has the reflected authority of the Book itself. Therefore, I should like to urge all genuine Anglicans not to support the Bill on the grounds not only of what is said in Scripture, but also on the grounds of what is said in Archbishop Parker's Table.
§ 4.53 p.m.
§ Lord HOUGHTON of SOWERBY
My Lords, there is of course a secular point of view about this subject, as well as a religious one. Until the noble Lord spoke just now I thought that we were going to get through the debate without quotations from Scripture or without the voice of the so-called "Leviticus School". Of course they were freely relied upon in the discussions years ago on the question of the marriage to a deceased wife's sister. But I come back to those considerations which I think are important in relation to the general issue before the House at present.
It seems there are now two questions before the House. The first is whether all or some of the prohibited degrees mentioned in the Bill should be removed altogether. The second question—which was raised by my noble friend Lady Wootton of Abinger and the noble Lord, Lord Mishcon—is whether, in removing all or some of the prohibitions, conditions should be laid down as to age qualification for marriages contracted in such cases. Those now appear to be the two questions before the House, because we are told that, if the Bill is given a Second Reading, then in some quarters it will be on the understanding that an amendment relating to age qualification will be made to it. I believe that this was done last time and we subsequently began debates in the Committee stage on the matters of important detail.
For my part I support the Bill without any qualifications whatsoever. I consider that the speeches of the right reverend Prelate and the noble Earl, Lord Lauderdale, were reminiscent of the debates that took place on the Measure which eventually was passed by Parliament in 1907. Since this in my judgment is an extension of the long debate on permitting marriage to a deceased wife's sister, and is in fact related to the beginning of the erosion of the area of restraint in the field of 753 marriage, similar considerations apply. The forebodings, the predictions, and the prophets of gloom were as vocal then as they are now. I believe that, with the doubts and fears in the minds of noble Lords, in looking at the present proposal it is justifiable that we look at what actually happened when the first prohibition was removed.
In a speech which I made on the Committee stage I drew upon a most fascinating book entitled, Roads to Ruin by E. S. Turner, who has an ample chapter on the history of marriage to a deceased wife's sister, under the heading, Two wives; one mother-in-law. But in the same book there are the stories of the boy chimney sweeps, of the plimsoll line, of the mantraps, and of other dreadful features of life at that time, which were warmly defended—hotly defended, one might say—as being necessary for the preservation of good order and discipline in society.
The question of marriage to a deceased wife's sister was a raging controversy as far back as the reign of Henry VIII We have had numerous references to this. It is interesting to recall that from 1841, when the first Bill designed to bring about the required change was introduced into Parliament, up to 1907, when a Bill was finally passed, the proposal had been approved by the House of Commons on 19 occasions, with large majorities, and approved by the House of Lords 13 times, with decreasing majorities; and when it was finally passed into law it was opposed by the Archbishop of Canterbury of the day and by 16 Bishops. In fact, Queen Victoria was so annoyed about what happened in your Lordships' House that she angrily said,There are too many Bishops in the House of Lords.I think that she was probably right. There are two extremely conservative institutions in Britain today: the Bench of Bishops and the General Council of the TUC; and I do not know whether there is really much to choose between them.
I recall, for your Lordships' entertainment, that a hundred years ago this year, and again in 1883, the Royal Family took an interest in the Bill regarding marriage to a deceased wife's sister. The then Prince of Wales (who later became 754 Edward VII) produced a petition bearing the names of over 3,000 Norfolk farmers who were in favour of the Bill. He commended the Bill to the House in a brief, formal speech. But the Archbishop of Canterbury of the day spoke of thequiet widowed homes which would be broken up throughout England on the morrow of the change.It never happened. There is not the slightest bit of evidence thatthe quiet widowed homes [were] broken throughout England on the morrow of the change".But, although the royal Dukes took the unusual step of voting for the Bill, it was defeated time and again.
It was only when we had a Liberal Government in 1906 that they decided that the scandal of the deceased wife's sister had gone on long enough, and the Government decided to take up the Bill. With what we owe to the Liberal Governments of the past, you wonder why we do not have more of them! In 1907 the Bill was finally passed in your Lordships' House by 111 votes to 79; and, as my noble friend Lady Wootton has already mentioned, the Bill to legalise the marriage to a deceased husband's brother was not passed until 1921. But I believe it is still the case that no clergyman is compelled to solemnise any of these marriages. Mr. Turner, in his book, says:If all the evil consequences expected and predicted by opponents of those measures had come about, one might hesitate about further liberalisation of the law";but probably the most evil consequence of the delayed change in the law was the bastardisation by law of successive generations of young children.
When the right reverend Prelate the Bishop of Guildford referred in his speech to "areas of freedom and areas of restraint", I thought, "Ah!—areas of restraint and areas of repression". I have lived longer than the right reverend Prelate, and in my childhood there were not only areas of restraint: there were cruel areas of repression. We know how, in the past, sexual relationships outside marriage have been regarded and treated. We recall the attitude towards illegitimate children; the branding of children for life with the sin of illegitimacy, and how difficult it was, and how long it took, to remove that brand from innocent children. These were the areas of repression—a 755 punishment for non-conformity. I, of course, come from what might be described as a bigoted, non-conformist family.
I think there are no grounds for the belief that the gloomy forebodings which we have listened to will actually come about as a result of this Bill, but I know that in some cases—and I now come to the second point—noble Lords will feel that this Bill will be tolerable if there is some special safeguard of an age condition. I opposed this approach at the Committee stage of the previous Bill, and I do so again now. Every adult may have some difficult situations to deal with; and, having conferred adult citizenship on young persons over the age of 18, are we now to begin to subtract from that status by special exclusions? This is the second issue. At 18 years a young person may marry, may make contracts, may vote, may be called up for military service. I remind your Lordships that the Speaker's Conference on the question of the franchise recommended that, notwithstanding the recommendations of the Latey Committee in regard to the civil rights of persons over 18, the vote should not be conferred upon people at 18 but at the age of 20—a compromise reached at the Speaker's Conference. But the House of Commons would not have it, and they decided that the vote should be given at the age of 18 to coincide with the conferring of other civil rights upon young persons of 18 years of age.
In love and marriage, a young person of 18 may have to meet almost every conceivable situation except that of contracting a marriage within the prohibited relationships mentioned in this Bill. On what grounds do we justify the exclusion in this respect of persons between the ages of 18 and 21? Do we say that, in general, persons between 18 and 21 are unsuitable, are insufficiently experienced to know what they are doing? Is that, in general, our verdict upon young persons between 18 and 21? Or do we say that in some cases it may be? But then, of course, in some cases it may be that young persons do not know what they are doing when they marry other persons, upon which there is no prohibition under the law at the present time. It may be suggested that such a young person might be under undue influence. Again, if one is going to concede full civic responsibility 756 in all other sections of human activity, of social activity, why do we restrict it in this particular case?
I ought to be fair, of course, and add that there appear to be two respects in which persons under 21 are not given full civil rights. One is in connection with homosexual activities, and the other is in regard to membership of certain public bodies. But in neither case was the exclusion made after the general conferment of full civil rights to persons of 18 and over. These prohibitions remain because the law imposing them has not been amended. These were not specific exclusions made in the light of the general adulthood of young persons at the age of 18.
§ Lord MISHCON
My Lords, I hesitate to interrupt my noble friend but, as somebody who had the privilege of sitting on the Wolfenden Committee—and that is not really past history—may I say that we fully considered the question of age there and made it the age of under 21 after consideration of the law as it then was, and our recommendation was subsequently accepted.
§ Lord HOUGHTON of SOWERBY
Then, my Lords, I say that the exclusions have not been specifically made since the general change took place.
§ Baroness WOOTTON of ABINGDON
My Lords, may I interrupt my noble friend again? There is nothing whatever in the Bill, the Second Reading of which we are debating today, about an age limit. My noble friend has put with great eloquence arguments which would make me agree with him that I would rather not have an age limit. All I said was that I realised that some noble Lords would wish to move an Amendment on this later, and that I should not resist it to the end, so to speak. I should resist it if any conditions were attached; but I feel we ought not now to he discussing the pros and cons of the age limit. It is not in the Bill. We are discussing the Bill as it stands.
§ The Earl of LAUDERDALE
My Lords, will the noble Lord also accept that there is nothing in the Bill about a 757 deceased wife's sister or about homosexuality? Perhaps it would be more interesting if he directed his remarks back to the Bill.
§ Lord HOUGHTON of SOWERBY
My Lords, it seems to me that when, in introducing a Bill and asking the House to give that Bill a Second Reading, an offer of a substantual change in the Bill is made by the mover, that virtually becomes part of the Bill's Second Reading. That is my judgment of the situation. At all events, the noble Lord, Lord Mishcon, has said that he supported the Second Reading of the Bill, as he did on a previous occasion, on the understanding that this question of age restraint would be part of it.
I know that I am anticipating what may be a debate at the Committee stage of the Bill. Nevertheless, it seems to me so important a feature of the debate on the Bill that with great respect to my noble friend Lady Wootton, it is very difficult to discuss the Second Reading of the Bill without taking notice of the fact that she has indicated her willingness to accept an important change in the Bill and that other noble Lords have indicated their support for the Second Reading on that understanding. That is how I see the matter.
I so not want to pursue this particular question unduly since it is not specifically before the House. I shall not detain your Lordships for more than a moment more because what we are dealing with in general—and any proposal for restraint by reference to age is also related to it—is the question of responsibility, of the age of full understanding, of the capacity to reach a decision having regard to all the circumstances. I would ask in that regard: Why 21? Why not the age of 30?—which was the age made applicable to women when they were first given the vote in 1918. Why not say that if it comes to a sense of responsibility, then all the precedents are in favour of giving it only to people over the age of 30—at least if they are women? One might go to the other end of the scale and consider whether there ought to be an upper age limit. Could it be that some persons are so old and senile that we ought not to permit them to contract a marriage because we fear that they do not know what they are doing? If it is going to be an issue of the full sense of responsibility in 758 all cases, then age is not the determining factor. However, I shall support the Bill as my noble friend has moved it and oppose her and anybody else who proposes to apply a restraint on age.
§ 5.13 p.m.
§ Lord ROBERTSON of OAKRIDGE
My Lords, I, too, should like to join with those who paid tribute to the way in which the noble Baroness has reintroduced this Bill. It must be a daunting task to do it again but it gives us the chance of looking again at the principle of the Bill having already considered in Committee what can be done to improve its details. Before getting on to my main points, I should like to touch on the argument that has been advocated in favour of the Bill: that because there will always be some people related by affinity who will in any case live together, the law should be changed to allow them to be legally married. And here there is the very important point of children. I believe that this argument, although superficially attractive, is a dangerous one, as the noble Earl, Lord Lauderdale, has said. I felt that if one took it a stage further, one might as well say that, because some people will, in any case, commit adultery, the law should be changed to legalise bigamy. I should not like to be misunderstood: I am not equating the two things morally, but there is a connection in principle.
I should like to state my conviction that the changes proposed in the Bill run counter to the very basis of Christian marriage. I am not suggesting that there would be perhaps a very large moral and social upheaval as a result of it in its direct effect, but I believe that the principle of the Bill is counter to the very basis of Christian marriage. Coming from a layman, this may seem a bold statement and I shall do my best to justify it and if, in doing so, I quote the Scriptures then I do so without any kind of hesitancy or shame.
Right through the Bible, from Genesis onwards, the dominant thought about marriage—and I was going to say "the one absolutely consistent theme about marriage" —is that when two people marry "the two shall become one flesh" so that they are no longer two but one flesh. Whatever else this means, it surely 759 is the general experience in marriage that when two people marry, the relationships and relations of one partner become in a very real sense the relationships and relations of the other. I am sure that it is this thought that lies behind the prohibition in Leviticus and that this thought, perhaps much more important that the actual details of the prohibitions themselves, is the reason why they are relevant to us today. Again, this thought, I believe, is what caused St. Paul to be outraged at the action of the man of Corinth who had been living with his step-mother. And I believe that this thought is behind the thinking of the Church of England and our practice and law as listed in the Prayer Book.
Within the family, a relation by affinity is entitled to a similar degree of love, trust and obedience as is a relation by kindred; and what is received must not be abused. I draw three conclusions from this. First, the Bill downgrades marriage by going against the "one flesh" principle and detracts from the commitment of marriage. Secondly. it would lead to a conflict of interest in family relationships. How could a person act as father and lover to the same person? Here I feel that one must emphasise that in the Bill we are not dealing with the deceased wife's sister but something more drastic: that, among other provisions, a man should be allowed to marry someone who has grown up as a child in his own household. The third conclusion is that if there were a world where we all knew God's will and obeyed it, marriage between the degrees of affinity listed in the Bill would not come into question. To me this is the Christian starting point. As the noble Lord, Lord Houghton, has said, there is also the secular viewpoint and secular considerations. The question is how to apply the Christian starting point to a society in which we all fall into one of two categories: first, those who do not recognise God's will and, secondly, those who continually fail to obey God's will. In considering changes in the law, we have to take into account the human frailty and wilfulness that have put, for example, family life, and especially marriage, under such strain in our present society and have resulted in so much unhappiness.
My Lords, one cannot fail to have compassion and understanding for those 760 within the degrees of affinity who honestly believe that it is right for them to be married, particularly if there is no question of either having broken up a previous marriage. But compassion and understanding do not end here. They also extend to the ageingwife whose marriage is threatened by the attractions of her daughter by a previous marriage to the step-father who is tempted to abuse his step-daughter's filial trust and obedience—to the step-father who is tempted and to the step-daughter whose trust and obedience is so abused. It is young people that we have particularly in mind in considering the possible dangers of the Bill. In my judgment, any legislation to help the hard cases must also have adequate safeguards for the others who might be affected by it. This Bill simply does not have those safeguards; in fact, it has no safeguards at all.
When your Lordships' House considered this matter on Second Reading in the last Parliament, there may have been some of your Lordships who, while worried about certain aspects of the Bill, yet felt that it should go to Committee in the hope that safeguards could be built into it. Now we have a different situation. May I remind your Lordships that the Committee stage produced no acceptable safeguards—indeed, quite the reverse. The only suggestion which seemed to be feasible, but was not considered formerly, was that there should be a lower age limit. It is therefore partly on principle and partly on the apparent impossibility of building in adequate safeguards that I oppose this Bill.
§ 5.21 p.m.
§ Lord McGREGOR of DURRIS
My Lords, the Bill introduced by my noble friend Lady Wootton makes no sudden change in the law; it brings, as she says, a long history to a logical conclusion. Although we have been chipping away for more than half a century at the foundations of the impediments of affinity, we are always—and rightly—slow to change the law affecting family life. This is in part because most of us find changes in this basic social institution very disturbing. May I remind your Lordships of some of the changes that have occurred in this social institution in the past half century? We often talk as though marriage is on the point of collapse 761 as an institution and family life has crumbled. The truth of the matter is that marriage and the family have been one of the great success stories of the 20th century. We have far more marriage than we ever had before—
§ The Earl of LAUDERDALE
My Lords, if I may interrupt the noble Lord for one moment: far more marriages, yes; but divorces and re-marriages. If that is an improvement in society we should like to know why.
§ Lord McGREGOR of DURRIS
My Lords, if the noble Earl will allow me, I shall come to divorce in a moment. Some 95 per cent. of the population marries nowadays. It marries at much younger ages than in the past. It remains married for very much longer, and 80 out of every 100 couples that marry do not divorce. If it be said that divorce is an indication of the weakness of the institution, it must be remembered that the huge quantity of divorce that we now have is partly a reflection of the establishment of near equality before the matrimonial law. It is a reflection of the much greater quantity of marriage and it is also a reflection of the much higher quality of married life. I think that a good deal of divorce results from the fact that some marriages fail to live up to the high expectations of the spouses. Lastly, of course, a huge quantity of divorce does not in any way reflect a situation in which the population are refugees from marriage; quite to the contrary, the highest marriage rates in the country are among divorced persons.
If your Lordships would care to look at the report of a committee of the Church of England called The Family in Contemporary Society, you will see there the statement that marriage and the family—and I am quoting it exactly—have never been so healthy as they are today. This is an essential background for the discussion that we are having. It is nearly common ground, I think, that we have to judge this particular issue in terms of the moral and social effects of changing the law. It is clear that the content of Christian marriage varies so much, not only between Christians and agnostics but among members of different Christian communities, that there is no common concept of Christian marriage save at a 762 level of generality which provides very little guidance for behaviour for married couples in the real world.
So we are forced to the moral and social consequences. The right reverend Prelate the Bishop of Guildford put one side of the case in which these issues have been argued for the best part of a century, very clearly, very fairly and, I thought, very persuasively. I should like for a moment to attempt to put the other side of the case. He is an institutionalist and I think the heart of what he was saying was that however sorry we may be for the miseries or unhappiness suffered by individuals, these must not be relieved if the consequence will be to undermine the institution of marriage. This was the argument that was used always against the introduction of divorce in a law court accessible to more people than those who could get parliamentary divorces. It has been the argument used against almost every change in family law since the middle of the 19th century.
Perhaps I may follow my noble friend Lord Houghton and give one example, more recent, I think, than his. This is a comment that I extracted from a memorandum written by the Home Office and found lying in one of the files in the Public Record Office, relating to discussions about the introduction of legitimation into our law in 1926. The Home Office wrote:to allow children born in adultery to have the benefit"—of legitimationmay remove a deterrent against adulterous intercourse, and may therefore be prejudicial to family life"—whichin the interest of children generally is more important than the interest of a comparatively few illegitimate children".So for that reason the facility of legitimation was given in 1926 only to illegitimate children born of parents who were free to marry at the time of their birth. We did not treat adulterine bastards in the same way until 1959.
I also extracted from the same file a comment which has perhaps some relevance in these hard economic times. The head of the Treasury wrote to the Permanent Under-Secretary of the Home Office complaining about this Bill and 763 said that there would be a loss to the Crown revenue in escheat cases of:at least £5,000 per annum by legislation of the nature contemplated … Having regard to the imperative instructions for economy which have been issued, ought we to throw away at least £5,000 a year in order to avoid visiting the sins of the fathers upon the children? I suggest that you should postpone the revision of the Decalogue till such time as there is plenty of money in the Exchequer?".I do not imagine that that particular argument will be used against this Bill. There in essence is the institutionalists' case: if you attend to the misery of individuals, you may risk the integrity of institutions.
I think the only way to answer this is in terms of what has happened to the institution of marriage over this century. It is the view of the Church of England, or of a committee of the Church of England, as it is my view, that marriage and the family have never been as healthy as they are today. There is a great deal of evidence, statistical and social, for this proposition. Bringing it down to detail, I might refer to the argument of the right reverend Prelate the Lord Bishop of Guildford concerning these degrees of affinity, which was exactly the same argument as that presented by the Church of England to the Morton Commission, when they opposed the possibility of marrying a divorced partner's brother or sister. What they then said was: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.The advice of the Church of England was not taken in that particular instance and I know of no evidence that a terrible shadow has been cast backwards upon the family. I do not think that extending the ability to marry those categories of divorced persons has damaged the family in any way. One must always remember in these arguments that the fears of social damage are speculative. The miseries which my noble friend Lady Wootton is trying to relieve are actual and are suffered by people here and now. So it is for those reasons that I think this Bill will result in no social damage. It will not harm the family and it will benefit a number—I 764 imagine a very small number—of our fellow citizens. I very much hope that the House will give it a Second Reading.
§ Lord ROBERTSON of OAKRIDGE
My Lords, before the noble Lord sits down, may I put a question to him? Is he implying that those who are on the other side from him are interested only in protecting institutions or principles for the sake of the principles or institutions themselves, and not the individual people who are protected by those institutions or principles?
§ Lord McGREGOR of DURRIS
No, my Lords, I was not suggesting that at all. I think that what institutionalists argue is that the greater good for the largest proportion of members of society will result from maintaining the integrity of the institution. Those who think differently argue the case simply on the basis of experience which suggests that caring for the happiness of individuals strengthens, not weakens, institutions. It is an argument, as I see it, which must be conducted entirely in terms of the social consequences of the changes in the law that are made. The trouble is that we know far too little about these social consequences, and sometimes we know far too little because they are extremely difficult to measure.
§ 5.36 p.m.
The Earl of HALSBURY
My Lords, I am one of those who are speaking this afternoon but who did not speak on the previous occasions when this Bill was before your Lordships. House. I voted against it, but I did not speak because, at the time the Motion was put down, my feelings on the matter were rather cool and I wanted to hear what the noble Baroness had to say on the one side, having listened to representations from my friends on the other. After listening to the debate I voted against the Bill because I thought an insufficient argument had been made out in its favour. In the interim I have been studying the matter in more detail and in the last few days I have been doing some homework, immersed with Leviticus in one hand and the Koran in the other, trying to get back to origins and to find out how it all started.
If your Lordships look at the marital and familial laws and customs of mankind, you will find that they are the most 765 astonishing collection of variegated elements whose rationale appears to defy any description whatsoever. What we would count as incestuous in this country is regarded as a ritual blessing upon a future marriage in Eskimoland, and so on. One asks oneself: What purpose can these customs serve? The clue to it is that they are variegated means to a common end, and that common end is the pacification, beginning with the smaller units, of a society over-disposed to aggressive behaviour.
The means are two-fold: first, generally, and secondly, sexually. The family contributes to both of those, and I should like to refer to the concept of fostering as practised by our Scandinavian ancestors, the Danes, who came over here: our Anglo-Saxon ancestors may have practised it too, but I have not studied that. By "foster child" we mean what we should now call an adopted child, and the noble Baroness has told us what the ritual of adoption is now in this country and also that there is the usual sexual embargo on marriage with an adopted daughter; but in Scandinavian times one put children out for fostering with another family in order to establish a bond between the two families. Just as marriage establishes a bond between two families, so fostering did then.
One may turn to the great masterpiece of Icelandic literature in the 13th century, Njal's Saga, where a sacrilege upon the foster-bond took place. Skarpheddin killed his foster-brother, the White-Ness Priest, and eventually landed the Icelandic society, which was trying to find its way out of the blood feud by means of were-gild, outlawry and exile, into a tragedy which could not be escaped but which gave us a great masterpiece of literature.
If your Lordships wonder whether I am following the example of the noble Lord, Lord Houghton of Sowerby, and others on the side of the noble Baroness by going back too far into the past, I want to bring this into its aspect of relevance by passing straight from 13th century Icelandic law through modern English law on adopted children to the injunction of the Koran:You are forbidden to marry your foster sisters".That is one of the very few items in Chapter 4 of the Koran which is at some variance from the Mosaic Code. We must remember that both the Mosaic 766 Code and the Koran were codified at a time when among the Jews polygyny—that is, the maintenance of a harem with a multiplicity of women, the wives of the lord of the harem—was practised and tolerated, though on its way out. Of course, in Islam polygamy was accepted as normal and continues to be practised to this day, though only very wealthy Moslems nowadays are able to afford more than one wife.
That establishes a connection between three things. I am trying to argue the case that its latent function is the avoidance of disputes and, of course, sexual contexts are very likely to engender disputes. This is where I am entirely with my right reverend friend the Bishop of Guildford in what he said about the need to establish the cohesion of the family in the interests of its weaker members who need it; that is to say, the young. So we draw this sexual cordon sanitaire around the nucleus of the family, no matter in what form you do it. The form does not matter, provided that it affords a refuge to the young, in some part of the family environment, from molestation. Within the perimeter of that cordon sanitaire, you find an oasis of unifying parental love—if you like, agapé. Outside the perimeter there is a desert of divisive Eros and that is what we seek, at all costs, to protect the young from in our multiple incest taboos: an asexual area dominated by the mother and the father as archetypes of parental love, not thought of by their children as sexual partners.
It is one of the established facts of psychology that children find very great difficulty, however much they know about the birds and the bees and the facts of life, in visualising their parents as erotic partners. This is where I would certainly join issue with the noble Lord, Lord McGregor, when he argued, by some strange process of ratiocination which I was quite unable to follow, that an increase in the divorce rate argues for an improvement in the quality of married life. Those of us who are on sufficiently good terms with our children to discuss these matters with them objectively know very well that children loathe their parents getting divorced. Inter alia, it is an unacceptable reminder of their parents' status as sexual partners, either with one another or with others.
§ Lord WEDDERBURN of CHARLTON
My Lords, will the noble Earl allow me to interrupt? Has he not also come upon the many occasions in which children in their adolescence—and today their mature adolescence—in an age not only of Icelandic sagas but of Freudian studies, are appalled by their parents still being married and causing them a great deal of distress by not being divorced?
The Earl of HALSBURY
My Lords, I have never come across such a case, but that may be because my samples are selected, like the noble Baroness's, by the people who talk to me. One of the fathers of Marxism—it may have been Marx himself—was responsible for the dictum that our problem is not to understand society but to change it. I cannot imagine anything more irresponsible by way of attitude. It reminds me of an amateur surgeon trying to do an appendectomy with no knowledge of anatomy, with no knowledge of asepsis and no knowledge of anaesthesia. The result, I imagine, could only be the death of the patient. To try to alter something as complex as society without taking the trouble to understand what holds it all together, is, to my mind, very irresponsible.
At this point, I can imagine a hostile critic intervening and asking: "What! Are you daring to suggest irresponsibility by the noble Baroness? So far from being an amateur, she is a professional sociologist." Far from knowing nothing about society, she is a magistrate. She is given to many good works for which we all admire her. I am sorry that she is not here to listen to me paying her these compliments. In days gone by she has been a governor of the BBC for twice as long as I have. She has chaired more commissions of inquiry and departmental committees of inquiry than I have. She is, in many ways, a much more experienced person than I am. I have no business at all criticising her. Because of her quality she is the last person with whom I should want to embark upon a controversy.
But even among the highest quality it is always possible that one is not the only pebble on the beach, and there is more than one school of sociology. Forty years ago, in the days when he was alive, Malinowsky was an international name to conjure with, and the views that I am 768 putting forward about sexual taboos being part of the pacification of groups against aggressive sexual behaviour were, of course, his. I learnt them from a study of his writings. I spent much of my youth reading great works of his, such as The Argonauts of the Western Pacific. There was a time when the Church of England asked Malinowsky his views on the conclusions that he had come to regarding sociology as a normative as well as an observational science, and he said that there was nothing in the teaching of the Church which was at variance with the findings of sociology.
There are others who work in the social field just as the noble Baroness does, but they see the magistrates' court from a different point of view. They are the probation officers and the social workers, and it is they who make representations to people, such as myself and my noble friends Lord Lauderdale, Lord Robertson and others, and beseech us not to nibble away at the perimeter of this cordon sanitaire. We have already damaged ourselves enough by the permissive society in which we live. They are the people who have to pick up the debris left in the wake of the liberal humanists crawling across the statute book and removing one stabilising factor in society's warp and weft after another until they achieve their hearts' desire—the flabby, licentious society in which we live and in which they can live out the love of their own ideas, rather than dedication to their fellow men's true interests. I repeat: Why tinker with this perimeter?
The noble Lord, Lord Houghton, was fighting the battles of the past. Exactly how we ever got into confusion over the deceased wife's sister I cannot imagine. What the Book of Leviticus says is that you must not take into your harem—and I am using the Jerusalem translation—a woman and her sister at the same time, uncovering the latter's nakedness while the former is still alive. How any medieval ratiocinator could have read into that an embargo on marrying your deceased wife's sister, I do not know. We are not beholden to the mistakes of the past. We should shed the mistakes of the past—but I do not believe we can do it by emptying the baby out with the bath water. That is why I will oppose this Bill and will vote against it if it goes to a Division.
§ 5.49 p.m.
§ Lord BOSTON of FAVERSHAM
My Lords, as this is the first opportunity that I have had to do so in this Chamber, I should like to begin by offering my congratulations to the noble Lord, Lord Belstead, on his appointment as Parliamentary Under-Secretary of State at the Home Office. I have no doubt at all that he will enjoy his time there. I certainly enjoyed my time there enormously. I hope that I shall be forgiven if I venture the view that I was not there long enough to do that Department lasting damage. It is a splendid Department, and I would pay tribute to the excellent officials there and the splendid service with which they provided me. I wish the noble Lord well, and trust that he will have a happy, rewarding and productive period there.
Perhaps I may be excused if I add one further congratulatory word. As my noble friend Lady Wootton of Abinger has reminded your Lordships today, it is almost exactly four months since your Lordships gave her Marriage (Enabling) Bill a Second Reading and almost exactly three months since that Bill passed through its Commitee stage. Then, as we know, it was overtaken by the Dissolution. My noble friend is known, among other qualities, for her tenacity. She is to be congratulated most warmly on losing no time at all in introducing into this Parliament a similar Bill to that earlier Bill. Indeed, it was the very first Bill to be introduced into your Lordships' House in this Parliament—on the day after the State Opening—so my noble friend has again shown her tenacity.
I intend to be brief. In the previous Second Reading debate on 13th February of this year, I had the opportunity from the Dispatch Box opposite to refer to my noble friend's well-deserved reputation for compassion—something which, if I may say so, she demonstrated again today in moving the Second Reading of this Bill. I believe that that is a tribute, and clearly from your Lordships' reactions it seems to be one in which noble Lords in all parts of your Lordships' House will wish to join, whatever views individual Members may hold on this Bill.
In giving the then Government's view on the earlier Bill I adopted a position of neutrality, for this kind of subject is one which Governments have traditionally 770 left to individual Members to take an initiative upon, and to the House to decide, without adopting a strongly positive or negative view. Speaking from this Dispatch Box, I feel that it would be somewhat unseemly as well as wrong to abandon that neutral stance a few months later. However, I do not feel that it would be wrong to add just a few words, in a few moments or so, to the advice that I offered last time to the House.
My noble friend has again drawn to the attention of your Lordships the very real hardship that can be caused in particular cases under the law as it stands at present. Indeed, the noble Lord the Minister will no doubt be able to confirm, as I found when I was at his Department, that from time to time the Home Office has its attention drawn to cases in which men and women wish to marry, often in circumstances in which little or no harm would appear to be likely to result from their marriage but who are prevented from doing so under the existing law. It would be hard not to feel concern about that situation and not to feel sympathy with those who suffer such hardship. This is especially so if there are children who would be legitimised by the marriage of the parties involved, and I certainly sympathise with those who are affected in that way.
My noble friend has been at pains to emphasise today, as she did previously, that marriage in cases of that kind would tend to strengthen rather than diminish the existing de facto relationship. That was emphasised particularly—even more than it has been emphasised in today's debate—in the debate that we had just a few months ago. My noble friend's Bill is, I think, identical in every respect to the one which she introduced earlier this year. As we saw then, and as we see now from the Long Title of the Bill, the proposed change in the law would:enable a person to marry any kin of a former spouse, or a former spouse of any kin".So the present prohibitions, as we have seen, on marriage by reason only of a relationship of affinity would be removed.
This brings us to the other side of the argument. It stems, in part at least, from the historical basis, which has also been referred to in today's debate, of the existing prohibition: the view that husband 771 and wife should be regarded as one flesh, with the result that relationship by marriage is to be regarded as equivalent to relationship by blood. It may well be that there are not so many people today as there were in earlier days who adhere to that principle, at least in its most literal sense. However, I suspect that it is still the case that many people still consider that marriage means that a special relationship is created; namely, a new kind of family relationship involving and uniting the members of the families of the partners to the marriage as well as the spouses themselves.
So we have on the one hand the often heart-rending predicament—for that is what I believe it to be—in which those who are prevented from marrying under the present law find themselves, coupled with a wish to try to end their anguish and suffering and the hardship and embarrassment suffered by any children who are involved, and, on the other hand, the fear that the special family relationships formed between the families of the former spouses will be severed in such a way that the concept of the family itself will be undermined, if the existing prohibitions are ended.
This conflict of interests and of arguments can perhaps best be seen by way of illustration, and we have had one or two tonight. My noble friend has indicated the sort of case she has particularly in mind—not exclusively but particularly; namely, the possibility of marriage between step-parent and step-child. The situation in which reform is perhaps most strongly advocated is where a wife has died, the husband has been left with small children of their marriage and a step-daughter, who is an adult and therefore appreciably older than the children of the marriage, then begins to take care of the small children. They come to look upon her as a mother. The relationship between her and her step-father then begins to develop and she takes on the role of wife as well as of mother. But as the law stands now, the couple cannot, of course, legalise their relationship by marrying, and their plight understandably arouses considerable sympathy.
The problem, as some people not unreasonably see it, arises in cases where the 772 step-daughter was much younger when her mother and step-father were married and where the step-father stood in loco parentis to her, perhaps for quite some time. There would probably be wide agreement that when somebody, a man or a woman, becomes the step-parent of a young child and so takes on the role of a parent towards that child, the idea, indeed the very possibility of a marriage between them should be completely alien to the nature of the relationship that ought to be formed between them.
That perhaps, if only very briefly, helps to illustrate the dilemma we face. There seems to be no way in which that type of case could be excluded from the provisions of the Bill while at the same time providing a remedy and a relief for those whom my noble friend especially seeks to help.
Perhaps I may be allowed to give a final, brief example of a rather different kind, and one which is in the nature of a confession. This kind of debate rather lends itself to confessions, and even invites them. For that reason, I am rather surprised that during the course of this debate in your Lordships' House we have not had more confessions. Your Lordships may be agog by now and wondering what awful revelations are about to be presented to your Lordships. However, this concerns my wife's family, and therefore mine. My wife happens to be an Australian. In 1926, in Melbourne, Australia, my wife's grandfather, then aged 63 and a widower for five years, married his step-mother, aged 70, who had been a widow for four years. After his previous wife's death, my wife's grandfather had gone to live with his father and step-mother, and in due course he married his step-mother. So it was lawful in Australia all that time ago. At least, we in the family assume and hope that it was. I should not dare to examine my own position if that were not so.
So, my Lords, there was enlightenment —so it might be thought by some—in Australia. Furthermore, the step-mother actually proposed herself to my wife's grandfather so perhaps there was even more of an enlightened attitude among women in Australia at that time. I am happy and indeed relieved to say (if I may make a final confession) that, so 773 far as we know, that happening has not brought any difficulties upon our united family and indeed those concerned—as is almost the whole of the family still—were practising Christians.
If I may say so with great respect, your Lordships' House has found it possible to grapple with this problem before and is no doubt well able to do so again today. One of the differences between the debate today and that on 13th February of this year is that there has been no suggestion that this decision is a problem which ought to be shuffled off on yet another committee. Just as your Lordships found it possible to come to a decision last time, so I feel sure that will be the case again today. I conclude with a final sentence or two, my Lords. As I indicated earlier, on the merits of this Bill my position is a neutral one, but I think it would not be improper to add that your Lordships have very recently given a Second Reading to an identical Bill. Your Lordships might therefore feel that it would be appropriate in those circumstances to do the same today.
§ 6.2 p.m.
§ Lord BELSTEAD
My Lords, this afternoon your Lordships have expressed different views about the merits of this Bill, but I join with the noble Lord, Lord Boston of Faversham—to whom I was most grateful for his characteristically kind remarks—in saying that I am sure the whole House can at least agree that the noble Baroness, Lady Wootton of Abinger, can be applauded for her tenacity. The noble Baroness piloted this Bill through to report stage in the last Parliament and she has been quick to seize the opportunity of the new Parliament in order to present the Bill again to your Lordships' House. On the last occasion, the divergence of opinion, as recorded both in the debate and in the Division lobbies, crossed party lines. So it is against this background that the Government have looked afresh at the contents of the Bill and have considered what advice I might try to offer to your Lordships upon it.
The issues raised by the Bill, particularly as regards its impact upon the family and, through the family, upon society as a whole, are indeed important. The speeches of the right reverend Prelate 774 the Bishop of London in the last Parliament and of the right reverend Prelate the Bishop of Guildford today, remind us how seriously the Church of England views the effects of this Bill. Indeed may I say that that applies to all the spokesmen for the Churches—and of course on the last occasion the House had the benefit of a most interesting speech from the noble Lord, Lord Soper, who is unable to be here today. But in a sense I think the issues are really too important for it to be appropriate that the Government should try to form a collective view upon the issues and then seek to obtain for that view the assent of your Lordships' House. Essentially these are matters in an important Private Member's Bill on which each of your Lordships should be free to decide in the light of the considerations and arguments advanced during the debate—and dare I say that if I did offer advice I expect your Lordships would not take it!
The noble Baroness, Lady Wootton of Abinger, has very reasonably put forward as an argument in favour of her Bill the fact that it would enable a number of people who are now prevented from doing so to marry the partner of their choice. In his closing remarks the noble Lord, Lord Boston of Faversham, referred to this and the sympathy which it can excite quite naturally, among many people. These are people who, under the law of England and Wales, are, in general, free to marry; they are not partners in any existing marriage, although in each case at least one of the parties to a marriage which the Bill would allow, will have contracted an earlier marriage which has ended either in death or divorce. There are, as I understand it, no objections on genetic grounds to the marriages which the Bill would permit. If the previous marriage which created a relationship of affinity between the two people concerned had never occurred, there would be no obstacle to marriage between them.
What then is there to be said against such marriages? First, on behalf of the Government I confirm that although, as the noble Lord opposite was saying, there may be cases brought to the attention of the Home Office, none the less so far as I know there is no evidence of widespread public demand for a change in the present law. Indeed in the previous debate the noble Baroness suggested that the public 775 at large is for the most part unaware of the prohibited degrees of affinity, as opposed to consanguinity. That may well be right.
Then there are considerations of religious principle. As I understand it, no question arises of anyone being compelled to marry contrary to his or her religious convictions in any of the cases covered by the Bill. It would be exceptional in modern society if anyone were to be prevented from marrying under civil law in accordance with his or her own personal decision, simply and solely on the ground that the marriage was contrary to the religious convictions of other people. Thus it is that those noble Lords who feel that they really cannot accept this alteration in the law have drawn attention to the inconsistency of the proposals put forward by the noble Baroness—as they see them—with traditional Christian teaching, and as I have understood the speeches which have been made today, the critics of the Bill have then gone on to support their objections on wider grounds, related, for example, to the stability of the family which, although closely linked with our Christian heritage, does not stand or fall with the acceptance of particular religious views.
This brings us then to what seems to be the central issue—the effect of the Bill on family life. Today, as in the previous debate, most of your Lordships who have dealt with this question have considered it with particular reference to the possibility of marriage between step-parent and stepchild. That seems understandable and right since, in the other cases to which the Bill would apply, such as marriage to a parent of one's former spouse, as the noble Baroness put it in a more amusing way than I can, there would remain a rather natural disinclination towards the idea of marriage which makes it unlikely that advantage would be taken of the Bill's provisions in many such cases. It is between stepfather and stepdaughter, or between stepmother and stepson that the kind of attraction which can lead to marriage is most likely to arise.
It is also, I believe, in the normal run of cases in this category that a conflict is most likely to occur between such attraction and the character of the family 776 relationship which should obtain between step-parent and step-child. I speak of a conflict here because, so long as the step-child is physically or emotionally dependent upon the parent and stepparent, let us be crystal clear about it, that child is entitled to have both of them act towards him or her in loco parentis in the full human—and not merely in the dry legal—sense of that phrase. Attraction may well supervene before dependence ceases—after all, we are all human—and the temptation felt by the step-parent to make use of that dependence in order to strengthen the mutual attraction is, I am sure, a real factor which noble Lords who have been critical of the Bill have been right to stress.
In reply, the noble Baroness, Lady Wootton of Abinger, has pointed out that in this context, all that the law is doing is to prevent marriage between step-parent and step-child. That in itself, the noble Baroness has suggested, can encourage a sexual relationship more than it can discourage it because it could relieve—let me be blunt—a seducing step-parent of the perhaps unwelcome necessity of even having to pretend that there is marriage in mind. As against that argument, however, your Lordships will wish to consider whether the law of the land does not need to provide a support for the family in which one parent is a step-parent—support of a kind which may be imperceptible because we have come to take it for granted, but it might nonetheless prove to have been important if not indispensable once it had been removed.
At the Committee stage of the Bill in the last Parliament and again today, the noble Baroness, Lady Wootton, following up a suggestion made by other noble Lords, held out the prospect of amending the Bill so as to introduce a special age limit to govern marriages to which the Bill would apply. The noble Baroness has referred to that possibility again today, and the possibility is there for any noble Lord to take up. The noble Lord, Lord Mishcon, has commended such a course. The noble Lord, Lord Houghton, has condemned it. For me any such Amendment would, of course, go some way to meet the concern which has been widely expressed about cases in which there is or has recently been a family 777 relationship. Whether it would go far enough to meet that concern your Lordships must decide.
Finally, may I agree with the view that has been expressed by Lord Boston today, that further examination of the main issue raised by the Bill or of any related question by any standing body like the Law Commission or by a committee of inquiry appointed ad hoc really would not help to clarify the matter or to make the decision of your Lordships' House any easier. Lastly, if your Lordships do decide to give the Bill a Second Reading, I shall be glad to co-operate with the noble Baroness, subject to the approval of the House, in effecting various technical and other amendments to the Bill of the kind which Lord Boston indicated in the debates on the Bill in the last Parliament.
§ 6.12 p.m.
§ Baroness WOOTTON of ABINGER
My Lords, I am most grateful to your Lordships for the kind words you have said about myself, and also for the very careful attention which those who have spoken have given to the contents of this Bill. Having had the advantage, as we all have, of being able to look at it twice on two separate occasions, I think perhaps it would be simplest if I take general points rather than more specific issues relating to the speeches of particular noble Lords.
There is this widespread fear that the Bill is hostile to the family. In my mind, it has no hostility to the family. It is intended to make it possible for respectable people, not married to anybody else, not wishing to have intercourse with their blood relations, otherwise absolutely ordinary respectable people, to marry and found families and to bring up legitimate children. I know that there are such people and I know that many of them suffer great deprivation, as has been quoted by some of your Lordships. I think this more than balances what has been said about the dangers to existing families.
Many of your Lordships speak as though my Bill would create sexual attractions or sexual temptations. It does not do that. The sexual temptations are there if the atttactive step-child is there and the husband casts lustful glances upon her. What my Bill does say is that in the last 778 resort he may marry her. The Morton Commission raised exactly the same points in relation to the deceased wife's sister, and they worked it the other way round, and I am inclined to agree with them. They said that the temptation was there, but the impossibility of marriage did not enable her to say, "Now you can marry me". It is possible that it works that way, that he will be more cautious, if he feels a sexual attraction, in how far he goes if he is afraid that, if, for instance, she becomes pregnant, he will be threatened with the obligation to marry her. I do not think we can argue that my Bill creates sexual attraction between step-fathers and step-daughters, which seems to have been behind a good deal of the argument today.
The right reverend Prelate the Bishop of Guildford ranged very widely again in defence of the family, in which I would be wholeheartedly with him. I am a great upholder of the successful and happy family. It does not always occur in the nuclear family, but where it does it is one of the most beautiful and delightful things on earth. I should like to see some people who are deprived of the opportunity, as I think quite unreasonably, allowed to enjoy it.
The noble Earl, Lord Lauderdale, also ranged very widely and made very sweeping statements, and some of these statements seem to have been implied in other speeches by other noble Lords. They spoke as though I was now proposing to abolish affinities de novo right from the beginning. The noble Earl, Lord Lauderdale, used the expression "wholesale". I am not doing anything wholesale. The wholesale abolition of affinities, or the nearly wholesale abolition of prohibition on affinities, has been made, and there are just these few outstanding cases which remain. The aunt, the niece, the grandparent, the nephew and so forth, the former spouses of all these have already been legitimated. He also put my poor little Bill against the whole practices of society in the world, which I think was rather effectively answered by the noble Earl, Lord Halsbury. He showed that the practices in relation to sex and marriage over the world are extremely varied. I think the noble Earl would find that he does not need to look further than Europe and certainly not further than the United 779 States to find that some of the things which he holds are general to society are not observed in those countries.
The noble Lord, Lord Mishcon, very kindly tried to elucidate the stance which had been taken by the right reverend Prelate the Bishop of London, whose absence today we very much regret. I, too, have been in correspondence with him, and I believe, as my noble friend said, that there was a mutual understanding on the subject of an age limit. If the House wanted an age limit at the age of 18 or 21 this would greatly facilitate the protection of the young, and would not be resisted by me. I should, however, resist any suggestion that additional requirements should be added to the age limit. My noble friend Lord Houghton did say that if an age limit was proposed by myself or anybody else he would oppose it. It will never be proposed by myself, and I will give the reasons for that if anybody else proposes it. But I would rather retain the age limit than lose the Bill. It is on those grounds that I have referred to that.
I think we are very much back where we started, because we have done this twice and the arguments on both sides have been very much the same on each occasion. On the question of the public attitude, my inquiries of the public, as distinct from the letters sent to me, as to their attitude to step-parent marriages, have been very wide indeed; they have not been in any way related to persons I know intimately. They are not a scientifically selected sample, but they are not just people who have taken the initiative to write. It is no wonder the public do not want the law changed bceause the public think the law is as I am trying to put it. That seems to me an indication that the public would support this once they find that it is not so, that they are wrong. Indeed those who expressed the view that
§ it was so also thought that, as it was not permissible to make these marriages, the law ought to be altered.
§ Therefore, in the end it comes back to weighing hypothetical dangers—this has been the situation all along since 1907—against actual known unhappiness and deprivation. In the face of that history and of all that has been said tonight, I should certainly uphold that we regard unhappiness as the deciding factor.
§ I entirely support the view that particular religious bodies and sects—whether it be the Church of England or those of Jewish faith, or whether the authority is derived from Scripture or from any other access to divine authority—are entitled to make rules for their own members and that their own members have an obligation to observe those rules. But, in spite of the establishment of the Church of England in this country, it does not actually make the laws. The Synod may disapprove, but if it does disapprove it does not alter the fact that many people are not eligible to be members of the Synod because they are not members of the Church. In fact, I would hope that Churches will make laws unto themselves and that Parliament will make laws for the people. Therefore, I hope that your Lordships will deal with the matter in terms, not of Scripture—which may or may not be binding, but which is binding on those who believe it to be so binding—but of what your Lordships think is best for the community and for the family Above all, I hope that your Lordships will look at the matter with compassion for those who are at present suffering under the existing law.
§ 6.22 p.m.
§ On Question, Whether the Bill shall be now read 2a?
§ Their Lordships divided: Contents, 56; Not-Contents, 50.781
|Amory, V.||David, B.||Howie of Troon, L.|
|Ampthill, L.||Dowding, L.||Jacques, L.|
|Beaumont of Whitley, L.||Dunrossil, V.||Kilbracken, L.|
|Bowden, L.||Goronwy-Roberts, L.||Listowel, E.|
|Brockway, L.||Gregson, L.||Llewelyn-Davies of Hastoe, B.|
|Brougham and Vaux, L.||Hale, L.||McGregor of Durris, L.[Teller.]|
|Castle, L.||Hall, V.|
|Collison, L.||Hampton, L.||Mancroft, L.|
|Colwyn, L.||Henley, L.||Merrivale, L.|
|Cooper of Stockton Heath, L.||Hood, V.||Mischcon, L.|
|Craigavon, V.||Houghton of Sowerby, L.||Monson, L.|
|Noel-Baker, L.||St. Aldwyn, E.||Wallace of Coslany, L.|
|Northfield, L.||Sefton of Garston, L.||Wedderburn of Charlton, L.|
|Peart, L.||Stedman, B.||Wootton of Abinger, B.[Teller.]|
|Pitt of Hampstead, L.||Stewart of Alvechurch, B.|
|Ponsonby of Shulbrede, L.||Swansea, L.||Wynne-Jones, L.|
|Ritchie-Calder, L.||Tweeddale, M.|
|Robbins, L.||Vaizey, L.|
|Abinger, L.||Greenway, L.||Newall, L.|
|Amherst of Hackney, L.||Guildford, Bp.||Nugent of Guildford, L.|
|Balerno, L.||Halsbury, E. [Teller.]||Orr-Ewing, L.|
|Caithness, E.||Hanworth, V.||Robertson of Oakridge, L.|
|Canterbury, Abp.||Hornsby-Smith, B.||Romney, E.|
|Cathcart, E.||Hylton, L.||Salisbury, M.|
|Chesham, L.||Hylton-Foster, B.||Savile, L.|
|Clitheroe, L.||Ingleby, V.||Spens, L.|
|Colville Of Culross, V.||Ironside, V.||Stamp, L.|
|Crathorne, L.||Janner, L.||Stone, L.|
|Daventry, V.||Kimberley, E.||Strathclyde, L.|
|de Clifford, L.||Lauderdale, E.||Sudeley, L. [Teller.]|
|Eldon, E.||Longford, E.||Swinfen, L.|
|Ellenborough, L.||Lothian, M.||Torphichen, L.|
|Emmet of Amberley, B.||Loudoun, C.||Tweedsmuir, L.|
|Fisher of Camden, L.||Marley, L.||Vivian, L.|
|Fortescue, E.||Massereene and Ferrard, V.||Ward of North Tyneside, B.|
|Fraser of Kilmorack, L.||Monck, V.||Wilberforce, L.|
|Gainford, L.||Morris, L.|
The DEPUTY SPEAKER (Viscount Hood)
My Lords, there have voted, Contents, 56; Not-Contents, 50: so the Contents have it.