§ 5.52 p.m.
§ Baroness WOOTTON of ABINGERMy Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, that the House do now resolve itself into Committee.—(Baroness Wootton of Abinger.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The VISCOUNT HOOD in the Chair.]
§ Clause 1 [Marriage between relations by affinity not to be void]:
§ [Amendment No.1 not moved.]
§
The Lord Bishop of LONDON moved Amendment No.2:
Page 1, line 8, at end insert ("but if at the date on which the marriage of a man with any of the persons mentioned in subsection (2)(a) below, or of a woman with any of the persons mentioned in subsection (2)(b) below, is solemnized either of the parties to the marriage is under the age of twenty-one, the marriage shall be void unless the Court has given its consent to the solemnization of the marriage.
( ) In determining whether to give such consent the Court shall have regard to all the circumstances of the case, including the following matters, that is to say:
( ) Nothing in the preceding provisions shall be taken as affecting section 2 of the Marriage Act 1949 (marriage of persons under sixteen void) or section 3 thereof (consents required to the marriage of certain other unions).
( ) For the purposes of the section, "the Court" means the High Court, the county court
798
of the district in which any applicant resides or a court of summary jurisdiction having jurisdiction in the place in which any applicant resides and rules of court may be made for enabling applications under this section—
( ) Nothing in this section shall dispense with the necessity of obtaining the consent of the High Court to the marriage of a ward f court.").
§ The right reverend Prelate said: I have the honour, in the name of myself and the noble Lord, Lord Hunt of Fawley, to move the Amendment which stands in our names on the Marshalled List. In the very interesting debate which we had on the Second Reading of this Bill sponsored by the noble Baroness, Lady Wootton of Abinger, I sensed that there was more agreement between those who voted one way and those who voted another than might have appeared on the surface. I think the debate 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. So this Bill having received a Second Reading, I and my friends in consultation with the noble Baroness, Lady Wootton, have been endeavouring to find some way whereby we can reach agreement about the limitations that should be placed upon marriages of this nature. It is in the light of that research which has been going on since the Second Reading that I now move this Amendment that stands in our names.
§ The first thing that I should like to draw to your Lordships' attention is that we have done our best to ensure that our Amendment is not retrospective. After I had tabled the first Amendment I was told that quite possibly it was retrospective and that therefore, quite inadvertently, we might have brought within our restrictions, for instance, a marriage with a deceased wife's sister, which has been legal since the year 1907. It was no part of our intention to make anything that we 799 are proposing here look backwards in that way, and I am assured by competent draftsmen that the wording of the Amendment makes it quite clear that we are referring only to the degrees of affinity that are set out in the Bill.
§ The next question—and perhaps it is the most important—is to consider what should be (if any) the nature of the restrictions. I know the noble Baroness feels that there should be no restrictions and that all those who are named in her Bill should be free, without any more ado, to marry one another. Those of us who feel that there should be some constraints have been thinking very carefully as to what those contraints should be. On the one hand, there are some who think that all these possible marriages between those related by affinity should be subjected to the consideration of the courts. Others feel that the age limit should be put slightly lower; and on the other side there are those who hold that since the law now allows somebody of the age of 18 to marry without parental consent, that should be the age which should be put into the Bill, and that therefore the Bill would apply only to those who were under age in desiring to marry a relative as set out in the Bill.
§ I myself cannot accept that, in my view very low age, of 18, and therefore in this Amendment I am suggesting that the condition should be 21; that is to say, that anybody who wants to be a partner in a marriage between those related by affinity, one of whom is under 21, would need to have the permission of the court. I very much hope that this will meet the requirement of the noble Baroness because she has put to me that there are quite a number of old and senior and responsible people who want to get married within these degrees, and that it is therefore rather demeaning that they should have to go to the courts to get permission.
§ Baroness WOOTTON of ABINGERIf the right reverend Prelate will allow me, I am not perfectly clear whether he is proposing that the age limit should apply only to the affinities that are proposed to be legalised in this Bill or to all marriages by affinities.
The Lord Bishop of LONDONOnly to those that are set out in the Bill. So 800 I am proposing, therefore, that the limit should be 21, and that if either party is under 21 and wishes to marry within these degrees, he or she would have to get permission.
I have now had to ask where that permission should lie, and I believe that it should lie with the courts. Again the noble Baroness has expressed to me some misgiving about the desirability of sending people to the High Court. This seems to be making rather a business of something that could be quite simple, private and inexpensive. I accept the weight of the argument that she has put forward, and so I have taken from the Marriage Act 1949 the procedure that is now in operation regarding the permission for the marriage of anyone under the age of 18.
Thus, "the court" is defined in my Amendment as being either the High Court or the county court or the court of summary jurisdiction—that is the magistrates court—and that, whichever is most suitable and seemly, those who have to seek this permission can go to one of those three courts. Moreover, I have provided in the Amendment, as is provided in the Marriage Act, that it shall be possible for these courts to hear these cases in private so that there will be no undue publicity. Therefore, I hope that the definition that we give of the "court" is one which is simple, workable, and will not cause undue embarrassment to those who may be involved.
But obviously the court must have some criteria by which they will judge whether or not permission shall be given. Therefore, I have set out in the Amendment four conditions which the court must take into consideration. Having dealt with all the general circumstances of the case, the court must in particular pay attention to the degree of relationship between the parties to the proposed marriage. Thus, it may be quite improper, in their view, under certain circumstances for a stepfather to marry his stepdaughter, and therefore that would be one matter the court would take into consideration. Secondly, the court would take into consideration whether there has been any undue pressure such as creation of a divorce in order that one party may be able to marry another; thirdly, the court must be satisfied that there has been no undue influence exercised because of possible financial advantage as a result of the marriage; and, 801 fourthly, the interests of the children generally must be examined by the court before they give permission. It seems to me that those four conditions are reasonable and ones which could be assessed by the court before they decide whether such a marriage might take place.
The next subsection in the Amendment is a technical one which I have been advised to insert so that we do not by mistake repeal two sections of the Marriage Act referring to permissions that must be given and regarding the bar of marriages of persons under 16. Finally, I put in a subsection at the end to deal with the question of the ward of court. This is again in the Marriage Act. I think it is proper that the question of a marriage of award of court with somebody to whom that ward is related by affinity should be decided by the High Court.
I hope, therefore, that these Amendments will meet a good many of the misgivings that some of us have had about complete freedom of marriage between those related by affinity, and will also seem to be reasonable to the noble Baroness. I have, therefore, the honour to move the Amendment, and I hope that if I have left out anything the noble Lord, Lord Hunt of Fawley, whose name is also on this Amendment, will fill any gaps that there may be. I beg to move.
The DEPUTY CHAIRMAN of COMMITTEES (Viscount Hood)I think at this point I should observe that the final word on page 1 of the Marshalled List is a misprint; for the word "unions" one should read "minors".
§ The MINISTER of STATE, HOME OFFICE (Lord Boston of Faversham)Perhaps I might apologise in advance for spending a few minutes on this particular Amendment. It is a most interesting and an important one, and perhaps your Lordships will forgive me for spending few minutes on it. The Amendment which the right reverend Prelate and the noble Lord, Lord Hunt of Fawley, have put down jointly differs in two respects from that which appeared in their names in earlier Notice Papers. First, it would require the consent of a court to a marriage allowed by the Bill only if either party was under the age of 21, and, secondly, it specifies certain matters to which a court dealing with an application for its consent 802 to such a marriage must have regard. The principle underlying the Amendment is that in certain cases the marriage of two people in a case where Parliament has in principle seen fit to allow marriage to take place, and where any consent of parent or guardian required by the general law is forthcoming, should nevertheless depend on the exercise in their favour of a discretion rested in a court. That would mean asking judges and magistrates to take on a very difficult task, and in my view an unsuitable one. The courts are often faced with difficult decisions, of course, but they take their decisions on the basis of evidence laid before them, with that evidence tested by the two opposing sides in the case. One is bound to ask what sort of evidence should the parties attempt to bring before the court in this sort of case, and who would be the opposing side to test it.
It is true that in some cases the courts are required to exercise a quasi-parental discretion; for example, in certain classes of case involving children, including cases where parental consent to marriage is refused. But there they have a guiding criterion in the interests of the young person involved. In this Amendment the criteria proposed are rather different and much more complex. None of them seems free from difficulty, and I suggest that the Committee should perhaps consider each of them carefully in turn. I will take them, if I may, in order.
First, there is the degree of relationship between the parties. The Amendment does not attempt to define the closeness of the relationship which should lead the court to refuse its consent. A provision applying only where one party is under the age of 21 is likely in practice most often to affect a proposed marriage between stepfather and stepdaughter. In this and indeed in any other case the court would be required to apply its mind to a question which Parliament in passing the Bill might be thought to have settled; namely, whether the degree of affinity which applied in the particular case should or should not be a bar to marriage.
Then there is the extent, if any, to which either of the parties have brought about the dissolution of a previous marriage. The use of this criterion would run counter to the trend of recent legislation 803 on divorce, abolishing the concept of the matrimonial offence, and to the abolition of actions for enticement. Part of the purposes of such changes was to avoid requiring the courts to apportion blame for the breakdown of a marriage. This criterion would reintroduce a requirement for a court to reach a judgment on the cause of the breakdown of a marriage, in circumstances where this task would be, if anything, more difficult than that under the old and unsatisfactory divorce law. The court could be required to identify the cause of the breakdown of a marriage which might have ended several years earlier, in circumstances where the question of causation involved a third party in addition to the two parties of the original marriage. In the Government's view, it would he most unwise to reintroduce a requirement, for that is what it would amount to, for the courts to reach a judgment on the fault, or lack of it, in this area of the law. It should also be borne in mind, in our submission, that the consent of the court would not be required for marriage between brother-in-law and sister-in-law, by virtue of the earlier Act of 1960, even when one party was under 21; that is a case where arguably the risk of enticement is greater because those concerned are closer in age.
Next comes the question of financial benefits resulting from the proposed marriage. In order to apply this criterion the court may need to conduct a wide-ranging inquiry into the terms of any existing financial arrangements. It may in any case be thought that such an inquiry would be stultified, since it would not be possible, for instance, to investigate the parties' prospects of bequests under the wills of persons not yet dead. This proposal raises all sorts of practical difficulties about the absence of any powers to conduct such inquiries, the possibility that the parties might not know of such prospects, or that such prospects might indeed change. But there is also the question of what weight the court should attach to any financial benefits which are in prospect. In my submission we need to ask ourselves: why should such benefits be allowed to outweigh objections to the proposed marriage on other, less material grounds?
Finally, we have the interests of any children concerned. This question might 804 not be too far removed from those which the courts may sometimes be required to decide in relation to guardianship and custody matters. But the end result of the decision; namely, whether a couple—neither of them necessarily a parent of the children concerned—may marry, is of a quite different nature.
It is evident from the wording of the Amendment—
shall have regard to all the circumstances of the case, including—that the discretion of the court is ultimately at large. That leads one to ask what account the court is to take of the expressed determination of the parties, if they are not permitted to marry, none the less to live together. I would further suggest to your Lordships that it is perhaps significant that, in relation to the marriage of brother-in-law and sister-in-law, where many of the same considerations may be thought to apply, no corresponding requirement of the leave of a court has been imposed, nor has its absences been previously regarded, as far as I am aware, as a defect in the law.I would also suggest that the need to apply for the consent of a court—even if the application is made to a local magistrates' court—would be likely to introduce a factor of complication and delay. It is true that, under the present law, magistrates' courts—and, less often, the county courts and the High Court—have to deal with applications to override refusal of parental consent to the marriage of a minor. Such applications are not usually, I understand, subject to any serious delay before a hearing can be arranged, though the period varies from one part of the country to another according to the pressure of court business; and they can usually be disposed of at a single, fairly short hearing. But applications for consent under the provisions of the Amendment would, in my submission, be of a rather different nature.
The matters on which the court would need to be informed would be more complex; the evidence would take longer both to assemble in advance and to present at the hearing, if, indeed, it were to be—as it would need to be—presented as evidence in the first place in the way that we are used to hearing it presented, in our courts. The court might well find it necessary in some cases to require further 805 information and to adjourn the hearing. So the result could very well be to cause a delay to people's marriage plans which they might reasonably feel to be oppressive and distressing.
The proposed Amendments introduced by the right reverend Prelate have so far enabled us to have a useful discussion of the practical difficulties of distinguishing in the Bill between acceptable and unacceptable marriages in the area with which the Bill is concerned. My advice to the Committee is that the Amendment before us would not provide a satisfactory way of doing so, and perhaps I can emphasise that I certainly intend no disrespect to the ingenuity of either the noble Lord or the right reverend Prelate. On the contrary, I am quite sure that, whatever view we take on this Amendment, we are all very grateful indeed to them for providing us with an opportunity to consider these important matters. But, in my view, such distinctions as these cannot satisfactorily be made consistent with the spirit of the Bill. In my submission, the task is not a suitable one for the courts; there are no procedural or other arrangements to enable facts to be established and it seems impossible to devise an adequate and consistent set of criteria for discriminating between particular cases falling within the scope of Clause 1. On the principle of the Bill, the Government are neutral, as I indicated at an earlier stage, but on this Amendment, for the reasons that I have given, my advice to the Committee is not to accept it.
Viscount LONGI should like to point out to the noble Lord, Lord Boston of Faversham, who has given us a great deal of information about the Government's point of view, that he has jumped in rather quickly because my noble friend and other Members of the Committee wanted to voice their opinion. I am not making a criticism, but what he has said has probably rather damaged some of the arguments of my noble friends. Perhaps my noble friends could now make a few comments, the right reverend Prelate the Bishop of London could wind up, and then the Government could come back on the arguments. However, by intervening at this moment I have the feeling that the noble Lord was somewhat jumping the gun. I am not making a criticism; I merely thought that he might have held back for a moment.
§ Lord BOSTON of FAVERSHAMI certainly apologise if anyone takes my intervention amiss. However, I understand that it is quite normal as regards Private Bills for a Government spokesman to intervene as soon as Amendments have been moved so as to give an indication of the Government's view. That is, in fact, a perfectly normal procedure.
§ 6.17 p.m.
§ Lord HUNT of FAWLEYI should like to support the right reverend Prelate the Bishop of London in moving this Amendment—and, through it, to support the Bill of the noble Baroness, Lady Wootton of Abinger—as this addition will insert some protection for young people. As the noble Baroness told us on a previous occasion, the Bill is intended to bring comfort and happiness to a number of distressed individuals. But many of us believe that it has potential dangers and that we shall be asking for trouble if we do not insert some safeguards.
In our country at present, there are increasing numbers of children and adolescents being brought up by step-parents in loco parentis. Those step-children are very much at risk in large mixed-up families—those with perhaps some of "his" children, some of "hers", and some of "their" children, all living together and growing up in the same home. Those children or young adults are still immature. They may think that they are in love, but in fact it is sometimes just "adolescent infatuation". In our present permissive society they are likely to cohabit, and I very much doubt whether anything we do will either prevent or encourage that. But, they do need some protection against marrying prematurely, unwisely and perhaps miserably, before they really know quite what it is all about. Such marriages may, only too easily, end in divorce. Some marriages between young step-relations are, of course, already allowed by British law, but that does not apply to them all; and those for which it does not are the more difficult and tricky ones to which our Amendment refers.
In our Second Reading debate many speakers mentioned the dangers that they thought might arise from the abolition by the Bill of the remaining prohibitions on these marriages. Most of the suggested 807 dangers involved the stability and security of family life and possible confusion and conflicts of interests, and distrust, between parents, their children and step-children. Strong terms were used by some speakers such as "almost a nightmare", "a mockery", "ridiculing the family", "eroding love in the family", "socially disruptive" and so on. Other speakers, however, such as the noble Lord, Lord Soper, and the right reverend Prelate the Bishop of Southwark, were less impressed by those horrifying and calamitous prospects for the couples concerned, their families, or for the principles that lie behind Christian marriage. In that debate opinions were fairly evenly divided on the Bill. Of the 12 speakers, six voted for a Second Reading and six against it. I said that I would vote for the Bill of the noble Baroness if she allowed some protection for young people to be introduced; but at that stage she gave me the impression that she was unwilling to accept that, because it was difficult to think up safeguards which did not encourage the very thing we wished to stop.
In a way that is true of nearly all precautions. As a medical man I like safeguards. Seventeen years ago I wrote an article on "Accidents in the Home", and I edited a book on "Prevention of Accidents". If one erects a banister on a steep and dangerous staircase, some adventurous boy will slide down it and break his leg. If one places a boiling saucepan or an electric socket out of reach of young children, one of them at some time may climb on a chair to see what it is. Other children will pull away a fireguard to explore behind it. Even a speed limit on a road will tempt some people to break it. But on the whole, such precautions give a considerable sense of security to many people and are usually well worthwhile.
The problem before us today is this: Is there any safeguard which we can introduce into the Bill of the noble Baroness to discourage or prevent these particular step-children making premature and often undesirable marriages? As the right reverend Prelate has told us, this Amendment proposes that when one of the couple is under the age of 21, a judge of the High Court in Chambers, a registrar of a County Court (subject to the right of appeal to a judge) or a magistrate should 808 be approached for an opinion and consent before the marriage can be solemnised. This Amendment is a compromise between not allowing these couples to marry at all—which is the position as our law stands at present—and allowing them to marry early, perhaps from the age of 16 with parental consent, which as it stands, the Bill of the noble Baroness would make possible.
After much consultation we have chosen 21 as the appropriate age, after which couples may choose for themselves what they want to do. We believe that this compromise is better than trying to introduce a fixed age limit before which these step-relations cannot marry at all, as I suggested during our Second Reading debate might be needed. This Amendment combines the help one could get from a court with the advantages of a flexible age restriction. The fact that these young couples will have to apply to a court at all may deter some of them for a while from wanting to marry.
In every case which comes before it such a court would be in a position to review the realities of the situation, taking into account a number of points. I agree with the right reverend Prelate that, if possible, such hearings should be given little publicity and, when requested, be held in camera whenever possible. As a doctor and a parent, and as a hypothetical step-father to a young girl who wanted to marry, I hope, too, that the court would take into account many human features of each case. To legislate for all these would be impossible; to much detail cannot be introduced it to an Amendment such as this, which must, therefore, be worded in a broad and general way. Our Amendment says:
the Court shall have regard to all the circumstances of the case".That is just what we want.In trying to answer some of the criticisms made by the noble Lord, Lord Boston of Faversham, I should like to enlarge a little on eight points, some of which may be developed as possible guidelines for a court at such a hearing. Four of them are touched on in our Amendment. Only one or two are likely to be significant at any one hearing. First, in making its decision about the appropriateness of a couple's marriage, the court could easily take into account their ages, especially if 809 there is a marked disparity of age between them—for instance, if the man is in his fifties and the girl is still in her teens. For younger couples the court could inquire whether or not consent form a parent, guardian or magistrate had been requested or granted.
Secondly, the court could decide whether or not the proposed marriage would upset the stability, welfare and happiness of the family or families involved, especially the children, and more especially those who are too young to speak for themselves. Thirdly, one would also like the court to weigh up what is known about the health of the couple. A recent severe mental or physical illness might be an important factor. Drink, drug addiction or a severe depressive illness might persuade the court to delay the wedding for a while. Fourthly, other important points might arise if the girl was pregnant, the extent to which the pregnancy had progressed and whether or not an abortion was contemplated. The future of a baby might have to be considered, including its legitimacy.
Fifthly, the circumstances of any previous divorce, involving either person, might have to be gone into, with the cause of the breakdown of that marriage and the grounds for the divorce. Sixthly, another question for the court might be whether either party was taking undue advantage of a previous parent/child or in loco parentis situation. Seventhly, one would like the court to determine whether or not there is any moral objection to the marriage. Lastly, as a final example, may I mention what is already in our Amendment, that the court might consider the disposition of property: did it appear that either party had an ulterior motive, such as a desire for property or money?
As a medical and not a legal man, I hope and believe that there must be many other points of great personal and human importance which could safely be left to a kind and sympathetic judge, registrar or magistrate. If, after taking them all into consideration, there appeared to be no serious objections to a marriage between these step-relations—one or both still being under the age of 21—the court would wisely and properly allow this marriage. Its main duty would not be to prohibit such marriages, but to control them. If it thought, however, that there were 810 sufficient contra-indications, it would be cautious and recommend that the marriage be postponed and reconsidered at a later date when conditions might have altered. This can easily happen; quite apart from the maturing couple possibly tiring of each other and changing their minds about marriage.
People may say that all this would cost money and take up the time of judges and courts. But I believe that many of the dangers that have been suggested as being inherent in the Bill of the noble Baroness could be avoided in this way by discouraging inappropriate and unhappy marriages. It will give some couples time to think out carefully what they are doing and allow others, who are really fond of one another, an early chance to start a full and normal married life, and whose children would be legitimate. I feel sure that the value of all this would far outweigh any contraindications or any costs involved.
I believe that so long as the judicial considerations do not prove insuperable, this safeguarding Amendment might give the Bill a good chance of being accepted, if not by the present Government (because of lack of parliamentary time), perhaps by another Government later on. If noble Lords agree with the Amendment, I should like to suggest that we invite parliamentary Counsel to consider its legal implications very carefully, and, if necessary, to reword it so that we may discuss it again at the Report stage.
§ 6.30 p.m.
§ Lord HOUGHTON of SOWERBYI rise to oppose the Amendment. I do not think that your Lordships should criticise my noble friend the Minister of State for intervening as he did early in this debate in order to put weighty considerations before the Committee, which we must take into account in coming to a conclusion on this Amendment. This is not a contest where there are the strict rules of the game. This is a debate; this is a discussion. If there are substantial criticisms of a Motion before your Lordships' Committee which the Minister wishes us to take into account, it is far better that we should have them early rather than late.
With great respect to the noble Lord, Lord Hunt of Fawley, he has just delivered a speech which paid little or no 811 regard to the criticisms which my noble friend the Minister of State gave to the Committee only a little while ago. We have to adjust ourselves to the cut and thrust of debate; the different considerations that may be put before your Lordships at different stages in the discussion, and we must adapt ourselves to the changing trend of opinion, or of the intervention of criticisms. I think my noble friend the Minister did a great service. My own criticisms of this Amendment take a somewhat different form. I pay full regard to, and I am impressed with, the criticisms which my noble friend brought forward, but my objection to the Amendment is on more general grounds of policy. Here we have a proposal to remove some of the prohibitions on marriage within certain affinities. Although the proposals in the Bill make perhaps a wider sweep than has been the case on earlier occasions, nevertheless the considerations are similar.
Your Lordships' House was a persistent obstruction years ago to the removal of the ban on the marriage of a man to his deceased wife's sister. In fact, this House rejected that proposal so many times that Gilbert and Sullivan did a little doggerel about it:
That annual blister, marriage todeceased wife's sister".Indeed, it was not until the Government of the day thought this farce had gone on long enough, year after year, that eventually the Government said that a Bill on those lines should be passed. I believe it was only passed when the whole of the Bishops' Bench walked out and left it to the secular part of your Lordships' House to pass that change in the law.No attempt was made then, as my noble friend the Minister of State pointed out, to put any special protection upon those who might seek to get married when the ban was removed. It was assumed that if marriage is permitted, if it is lawful, then no special protection need be given to any citizen in regard to contracting such a marriage, unless on grounds of age that person is unlikely to know what he, or she is doing. We therefore have now a restraint upon the marriage of persons under the age of 18. But when the right was given to young people between the 812 ages of 18 and 21 to enter into marriage without parental consent, without the supervision of the courts, when they were as free as any other citizen of any age to contract a marriage, no restraints or checks were thought to be necessary in order to protect them. They were assumed at the age of 18 to be able to enter into business contracts, contractual relationships with other people, to contract a marriage, to be called up for the Army. Indeed, they had bestowed upon them the full rights of citizenship. This, I submit to the Committee, is the principle of the matter. Having been conceded the full rights of citizenship, then whatever the rights of citizenship are, they should be free to exercise them without the supervision of courts, whether magistrates' courts, Crown Courts, High Courts, or any other courts, except as provided for in the existing law.
We have to consider here whether we are entitled to erode the freedom of full citizenship of persons over the age of 18 in this special respect. It has not been done for any other respect. Is it to be done for this one? The case has to be made out very strongly for doing so if we are to be justified in accepting this Amendment. What are the grounds for special protection—that is the word used by the noble Lord, Lord Hunt of Fawley—to be given to young people who may be about to contract a marriage within the affinities which we propose to extend freely to everybody else in the matter of marriage? Is it assumed—it may be; or it may be thought—that because of the relationship between persons within these affinities, and the proximity in the domestic household, or elsewhere, there must be some special safeguard to prevent young people from embarking on a marriage which might be undesirable, or even disastrous? Well, who is to say? This, of course, comes to the point raised by my noble friend, when he was considering whether the Amendment was satisfactory, of whether to refer the decision on all these cases to the judicial system. I take the view that judges are in no better position to decide what is a desirable marriage than is anybody else. These are extremely personal and intimate relationships, and I think it would be presumption on the part of a court to decide that a certain marriage was undesirable by reference to certain criteria, and that it 813 should therefore be banned. I think that this is a power that we should not put in the hands of the judiciary.
Certain marriages that may be contracted may turn out to be undesirable, or disastrous. That applies to all marriages without these affinities. There is plenty of evidence of disastrous marriages at the present time, unhappily and unfortunately, but we do not try to check the divorce rate by introducing marriage by examination, or marriage by consent of the State, or marriage by consent of anybody else. If citizens are going to exercise their rights as citizens, surely the better course is to encourage wisdom, a sense of responsibility, and education and awareness. This is the fullness of the life of a free citizen; not to be checked and restrained, not to be prevented when other citizens are free, on the ground that this particular person is not wise enough, or experienced enough, to embark on an experience which is freely given to other people who are of a slightly different age.
I submit, therefore, that to pass this Amendment virtually means that we reject the decision of Parliament to extend the full rights of citizenship to the age of 18 from the age of 21. It also means that we reject the precedents of the past where, when the affinities were extended, no special restraints or checks were put upon the exercise of the right of the citizen when that took place; and that applied not only to the marriage of a man to his deceased wife's sister but the other way round as well. On those general grounds of policy, I think that the Amendment should be rejected.
§ 6.40 p.m.
Viscount COLVILLE of CULROSSMy Lords, I do not so much want to follow the noble Lord, Lord Houghton of Sowerby, into the desirability of the Amendment on general policy grounds as upon the grounds of practicability. I understand the context in which it is moved, in that it is sought to present a safeguard between the bleakness, in some people's view, or the complete desirability of the Bill in its unadorned state, and the worries some noble Lords put forward on Second Reading and today. But there are difficulties in presenting this sort of task to the judiciary and I wish to underline some of 814 the points made by the noble Lord, Lord Boston of Faversham.
We have here a paradox. The courts are being asked to sanction the proposed marriage after having looked at certain matters. First of all, there is a paradox, in that either both parties to the marriage will wish to have it take place—in which case there is no incentive for anybody to present to the court any of the adverse factors—or alternatively somebody will wish to oppose the marriage—in which case we are likely to be in for an unpleasant affair involving a good deal of expense and, if one considers it for a moment, a good deal of reopening of past sores.
Let us consider what the courts might have to do. I suggest to my noble friend Lord Hunt of Fawley that it is not a practicable proposition simply to tell parliamentary Counsel to redraft this because either you have this as a matter of principle in the way of a safeguard—in which case I suggest that this House must say what the safeguards are—or else it must be left without any safeguard at all; I do not think we can leave a matter of this importance simply to parliamentary Counsel.
There are certain matters of fact in the Amendment which were enumerated by my noble friend and about which there is no great difficulty; the ages and the degree of relationship between the parties are simple to establish. Paragraph (b) refers to the cause of the dissolution of a previous marriage, and here comes my paradox. The two parties who are applying to the court would no doubt wish to avoid any discussion of what happened by way of dissolution of a previous marriage in which either of them had been involved beforehand. The tendency since the beginning of this decade has been to get away from the causes of breakdown of marriage; the whole point is that it breaks down. One may need occasionally to go into conduct when it comes to financial provisions, but one does not go into conduct when dealing with the actual dissolution of the marriage itself. If that is to be resurrected on an occasion such as this, are previous spouses to be brought in? They have never had their say on most of these occasions. Will they be invited to take part in these hearings and, if so, who will pay for them? I seriously 815 believe that this would reopen wounds which by that time one have hoped might have closed or rate been partly forgotten.
Under paragraph (c) there are the financial benefits. In a contested case—and one would assume, on the face of it, that this is not—there are methods whereby affidavits of means can be brought before the court, but in whose interest would it be in the present case to introduce affidavits of means or to check, on cross-examination if necessary, that the affidavits of means produced were accurate? Unless somebody is being positively disadvantaged, there would be no possible guarantee that the court had been told the truth and it would be very difficult for the court, and I should have thought improper, to seek to find out for itself.
Then there are the interests of the children and, Lord Hunt suggested, the stability of families. This immediately produces a situation—we discussed it not long ago in terms of domestic proceedings and magistrates' courts law—where, in not very dissimilar circumstances, one starts to have to bring in the social services of the local authority, or the equivalent in Scotland, or Northern Ireland, and reports are brought before the court; and on that occasion we had to make substantial procedural provisions whereby hearsay evidence could be handled, and so on.
There is none of that in this provision. Do we really want—and I believe that, with this wording, we should have to—to have people appearing before the registrar or magistrate to represent the rest of the family or the children whose stability is to be considered? How is this to be arranged? Is it desirable on an occasion such as this that the court should be forced—because it would be—to inquire into the interests of any other children and thereby bring counsel, solicitors or social workers into what I imagine the movers of the Amendment consider to be a very simple hearing? The very least that would be involved are substantial rules of court, substantial magistrates' court and county court rules and a good deal of thought. Then there will be the question of payments for all these further people's representation that must be taken into account.
816 It is all very well to say that these matters should be heard in camera—and, as they are family matters, in the first instance they will be because that is the normal procedure—but one of the difficulties of hearing matters of this sort in camera is that there is a great problem in providing for a similar approach before different tribunals. We must have some method whereby a certain consistency can be induced across the country. Of course this happens in the end because there are appeals and the matter goes up to a higher court; probably in this case it would be the Court of Appeal before the matter was ventilated publicly. Again, do noble Lords believe that these kinds of issue should be discussed in public in the Court of Appeal in order to supply consistency over a large number of subordinate courts across the land? Is that the right way to deal with it when, after all, they have only to wait until the youngest person is 21 and then they do not need the apparatus anyway.
I am not suggesting that one should not try to find a compromise, but as Lord Boston said, I envisage for judges and magistrates very substantial practical difficulties with which they would not of their own account have the power to deal. They could not force people to produce the information which would enable them to fulfil these tasks; they would have to try to persuade others to come and bring their advisers with them and pay their advisers, and there would be delay and a good deal of unpleasantness. I know the right reverend Prelate will not have intended all that to happen, but I am afraid it is the way it tends to happen in the courts and I do not see how one gets round it.
§ 6.48 p.m.
§ Lord McGREGOR of DURRISMy Lords, I welcome the spirit of the Amendment brought forward by the right reverend Prelate and the noble Lord, Lord Hunt of Fawley, and therefore hope they will not regard me as ungrateful if I mention a further difficulty which I have, although it is a difficulty which I think could easily be cured. The right reverend Prelate began with the High Court and then extended the jurisdiction to the county and magistrates' courts. There has in recent years been growing support for and discussion of the desirability of 817 establishing family courts. One of the main grounds of the proponents of these courts is to get rid of the overlapping jurisdictions which are commonly agreed to be a most undesirable feature of our family law.
The effect of the Amendment, with the three jurisdictions, would be to add further overlapping at a time when people are trying to get rid of it, and I would very much hope that, in whatever form the Amendment may subsequently appear, the right reverend Prelate and Lord Hunt will look at the reports which have appeared in recent years. I hope they will look, for example, at what was said on this issue in the report of the Committee on One-Parent Families. I hope that they will look at what was said in the two reports on family courts of Judge Graham Hall. I hope that they will look at the report of the research sub-committee of Conservative lawyers on family courts, which laid heavy stress on this point. Finally, I hope that they will look at the report of the Law Society sub-committee on family courts, published three or four day ago. It would be most desirable to avoid adding to the present disabilities.
§ 6.50 p.m.
§ Lord MISHCONI wish to address your Lordships briefly, not upon the basis of any procedural matter, but on a point of principle. With great respect to the right reverend Prelate and the noble Lord, Lord Hunt of Fawley, the Amendment attempts the worst of all possible worlds. It does so for the following reason. Either your Lordships will decide as a question of principle that there is nothing unseemly in a marriage of this kind, or you will not. If your Lordships decide that there is nothing unseemly, I would beg you not to embark upon a procedure where young people and older people, in order to get a legitimate consent to a marriage, are forced to appear before a court of law, whether in private or in public, and there go into matters of financial advantage or disadvantage, with all the unpleasantness associated with that, or into questions of conduct in a marriage which has unfortunately ended in divorce; and there I follow the Minister in what he said.
Apart from the difficulties which have been mentioned, there is obviously another 818 one. Most of us who practise the law and deal with matrimonial cases beg of people to hide the matrimonial past and, in a civilised spirit, to go through the procedure which is now common form and have a divorce by consent. This means that where a court is told that this has happened and there is a divorce by consent with no question of conduct upon any file at all, the court would presumably find it binding upon it, in order that it can carry out its duties, to call back before it the spouses now divorced and try to go into the question of why, despite the fact that they consented to a divorce, the marriage broke up. That would be an impossible, a lamentable procedure, quite apart from the fact that there would be put upon such people a stain of some impropriety, of some unusual feature of their marriage which, if your Lordships pass the Bill, as I understand it, you would be seeking to avoid.
I can understand someone opposing the Bill root and branch. There are in this country some religious sects who will not permit marriage within these affinities, or some of them, whatever your Lordships do. But if your Lordships pass what is proposed, but still want some protection for the young, I would beg you to have the courage to say that no such marriage shall take place where one of the parties is under 21. If your Lordships stop there I can find both logic and some psychological balm. Make it that, if that is a protection that your Lordships still feel is required. But if the Bill is to be passed, and if your Lordships agree with it in principle, I would beg of you not to put upon it the imprint not only of something which is unclean, but also something which obliges people to go to courts of law—places where I and some others who have spoken in the debate find ourselves at home, but to which most people feel they go only if they are accused of something or are in an unfortunate, unwelcome dispute.
§ 6.57 p.m.
§ Baroness WOOTTON of ABINGERFirst, I want to thank the right reverend Prelate for having made a very great concession to my views in that he limited his restrictions on the marriages in question to persons under a certain age. I say this because I hold very strongly that it is undignified and improper that any 819 restriction of this kind should be imposed upon older people. However, I still feel—and I think that the right reverend Prelate recognised this—that it is a mistake (as my noble friend has just said) to differentiate between various conditions of marriage; either the people involved should be allowed to marry, or they should not be allowed to marry.
The noble Lord, Lord Hunt of Fawley, produced an alarming catalogue of reasons why they should not marry, of which all except one I think might be held to be arguments against early marriages, not arguments against marriages of stepchildren and step-parents. Addiction to drugs or drink, and matters of that kind might be an objection to marriage in any event, but are not a special objection to the marriage of a step-child.
There have been a number of hints of dark dangers, but I do not think that anyone has come out into the open to say what the dark dangers are; except, incidentally, that Lord Hunt referred to persons who have been in loco parentis. I see, and sympathise with, the image that has been in the minds of a number of your Lordships, and I have gathered this view from conversations with some of your Lordships before the Bill reached this stage. Some of your Lordships see arriving in a family a step-child whose arrival they assume to be a result of divorce, having forgotten about death and widowhood. They may see this step-child as a young adolescent girl who is very attractive. They see a risk, which I recognise to be a risk, that the male head of the family may be attracted to the girl and that a sexual relationship may arise. I admit that that is a danger to the stability of the family, but I do not think that the danger is created by the Bill. The Bill has nothing whatever to do with the attraction which results in a sexual relationship. It merely says whether the relationship should lead to marriage, and I belive that in some respects the Bill would discourage that relationship. I say that because if there was such a relationship, the man would always have at the back of his mind the thought that the girl can afterwards turn round and say, "Now you can marry me". So on the whole, I believe that the Bill would create an obstacle to such 820 relations, rather than encourage them, though I do not imagine that in the emotional condition such practical details weigh so large.
I would point out that this danger exists in families in any case. One does not serve for 20 years as chairman of a juvenile court without being aware that the fathers of families are sometimes attracted to their daughters, and not merely to their step-daughters. It so happens that during those 20 years I do not think that I encountered a single case in which a man had a sexual relationship with a step-daughter, but there were quite a number in which men had sexual relations with their daughters. The stepdaughter situation is, of course, much more uncommon, and so such incidents are less likely to happen.
It seems to me that the practical objections which have been raised by my noble friend Lord Boston and by the noble Viscount, Lord Colville, are very real. Here are these young people who, unlike their contemporaries who do not happen to be step-children, wish to marry and are obliged to go before a court which is going to make the most detailed examination into whether they have contributed to the breakdown of the previous marriage. You can contribute to the breakdown of somebody else's marriage in an enormous number of ways—by pestering them, and not merely by committing adultery or committing what used to be matrimonial offences. The minutiae into which the court would have to go—and in many cases the court would mean one person—are, I think, absolutely endless. So, much though I respect the desire of the right reverend Prelate and the noble Lord, Lord Hunt, to guard against these dark dangers, I think the dark dangers are something which will not be guarded against by attaching all these conditions to marriage. I think that the fact that the Bill legalises marriage is an entirely different proposition.
At this stage, I think that perhaps I will not take the matter further. The rest of what I have to say is more relevant, I think, to other Amendments. But I still feel that there should not be investigations. If it is a question whether there should be a limit on age, that is a different matter; but there should not be this kind of detailed investigation, with the practical 821 difficulties which arise from the overlapping jurisdictions of the courts. At this stage, therefore, I will leave it at that.
§ 7.2 p.m.
§ Lord ROBERTSON of OAKRIDGEThe experiment that is proposed in the Amendment moved by the right reverend Prelate has, in a similar fashion, been attempted in New Zealand, and some details have come into my possession today as to how they have tried to do that. I cannot inform your Lordships' Committee about how, in the long run, that has worked out; but there the position is that where the marriage would be prohibited as being within the degrees of affinity prohibited by the Marriage Act 1955, in their case, the parties may apply to the Supreme Court for consent to their marriage, and the court, if it is satisfied that neither party to the intended marriage has by his or her conduct caused or contributed to the termination of any previous marriage of the other party, may make a dispensing order which will enable the marriage to take place. They have a complete and absolute discretion as to how to proceed.
The five principles which have emerged as those on which they proceed appear to be: first, the relationship between the two people concerned and whether, in particular—and I think this is a very important point—there has been any relationship in the nature of guardian or ward, or whether one acted in loco parentis; secondly, whether the marriage would be abhorrent to public opinion; thirdly, whether it would be in the best interest of public morality; fourthly, as is in the Amendment, whether there is any ulterior financial motive; and, lastly, what would be the consequences in respect of the birth of children. I think these are matters which perhaps, if it is decided to accept this Amendment, could usefully be considered at a later stage.
The other thing I should like to say follows on from something that the right reverend Prelate said in his opening remarks. He said that no fundamental religious issue was at stake. With the very greatest respect, I should like to raise a question mark on this, and I do so, not only on the authority of the Levitical laws but also on what was said by St. Paul, who was one of the great leaders of the early 822 Church. In writing to the Corinthians—it is 1 Corinthians, chapter 5—he said:
I hear that there have been acts of immorality among you, of a nature that you would not expect even among heathens, that a man has been living with his step-mother".That was his view, the view of one of the great leaders of the early Church, and I think it emphasises that at that stage, and I think for many of us now, there is in fact a fundamental principle at stake. Whether or not your Lordships' Committee should override that principle is, of course, a matter to be considered; but I feel that if one does override a principle like that one is on dangerous ground, and that safeguards will be needed. This Amendment is an obvious attempt to introduce such a safeguard. My own feeling is that if we cannot find practical safeguards of the nature of that contained in this Amendment, then we should think very carefully before sending the Bill to another place.
§ Baroness WOOTTON of ABINGERI gather that the noble Lord thinks that it is immoral for a young person to live with his step-mother. That is exactly what this Bill is trying to prevent, because the present position, by preventing a marriage between the parties, is encouraging the parties to live together without marriage. In that respect, if they cannot marry, I grant you, it is a threat to family life—and they are in fact doing this. I have particulars of a number of couples who, in despair, because they may not marry, are living together. They are not blood relations, they have no other marital ties and they earnestly wish to marry, but they are not allowed to marry by this law because they are relations by affinity. They therefore live together without marriage, and they produce illegitimate children who can never be legitimated by the subsequent marriage of their parents. If St. Paul, Leviticus, or whoever it was, disapproves of living with your stepmother, that is exactly what the present situation encourages.
§ Lord ROBERTSON of OAKRIDGEI am grateful to the noble Baroness for raising this matter, because I think it illustrates that there are practical points that have to be considered in relation to religious principles, and this is what I feel we are here to do.
§ 7.16 p.m.
Viscount LONGI should first like to apologise to the noble Lord, Lord Boston, for having jumped up in haste because I was so frightened that my noble friend Lord Hunt would not get his word in. So I apologise to him for that. When we received this Bill for the first time, I do not think many of us, during discussions outside the Chamber, realised at that time, on first looking at the Bill, how sensitive it was. I remember picking up the Bill and walking out of my office thinking, "There is nothing wrong with this; all is well". I remember walking down the corridor, a cold shiver going down my spine, and thinking, "Get back to your office; there is something very sensitive about this Bill".
Of course, anything to do with the family, anything to do with marriage, divorce and so on, is very sensitive indeed. I suppose all the lawyers—my noble friend Lord Colville and others—have discussed divorce, and so on. They have all discussed the fact that they could get the remedy right. I have never found the new divorce laws right. I do not myself collect divorce laws, but there is still hardship there; and now we are moving on to the further situation by picking up the Marriage (Enabling) Bill. Sensitive, yes; and listening in this Chamber to the discussion on this Amendment moved by the right reverend Prelate the Lord Bishop of London, I have heard little about the family. I have heard about what will happen if the parties have to go to a court, and what will not happen, how it can work and how it cannot work. Yet in fact what we have been trying to establish through this Amendment standing in the names of the right reverend Prelate and my noble friend Lord Hunt is a safeguard in case something might possibly go wrong. In the case of previous Bills, and so on, everyone in your Lordships' House has always said, "Nothing ever goes wrong; all is well". Then, the next moment, a year or two later, something having happened, something in the Act has had to be corrected.
What we are looking at in this, then, is some authority to govern a particular side of the family. I quite agree (and the noble Baroness knows my thoughts on this) that, if I have got my ages right, anybody of the older generation (he being 824 someone aged 65) could well marry his step-daughter, who might be 35 or 40. That would be quite in order; there is nothing wrong with that. They should then be "of right mind" and able to do that. That age group does not worry me.
The sensitive area is the younger generation and the possibility of establishing a safeguard there. I heard the noble Lord, Lord Houghton, saying that we had had conscription at 18 and that the age of coming of age had been lowered and so on. But the situation that we are concerned with is that of a family in which a young girl is to marry her stepfather. The family may have a tremendous row over this and there is no power outside the family (as there is now: a priest, the head of the greater family, et cetera) to control it. If the Bill goes through, the only safeguard is within the group. If there is a row, who can help? I can understand that it is a difficult situation in which to ask for a ruling from a judge in the High Court. My noble friend dealt with such a situation. But during the debate in this Committee, I have heard no suggestion how to counteract or safeguard it. It is easy to talk, easy to destroy but not to construct something.
I am amazed that we cannot find a remedy to safeguard the younger generation—and by that I mean those under 21—in regard to the Amendment of the right reverend Prelate. If I may say so to the right reverend Prelate and to my noble friend, I am not happy that we have the right solution. There must be some solution. At the moment I am lost. In my weakness and confusion, may I suggest that if the right reverend Prelate were to withdraw his Amendment as at present drafted, we could go into a huddle to try to find such a safeguard for the younger generation and then come back at the next stage of the Bill with a proper solution. It seems to me that we have not yet got the answer. The Amendment is too strong and the courts perhaps cannot deal with it. I am not a lawyer. I hope that in adopting this perhaps turncoat position we could possibly find a solution for the protection of the younger generation. We may not be able to do so, but I should like to go into this again at another stage of the Bill. We do not have the right answer at this stage.
§ Lord MISHCONWill the noble Viscount permit me to remind him that one safeguard was suggested? That was the broad safeguard of no such marriage taking place until the age of 21—full stop. Will the noble Viscount deal with this and say why he objects to it?
§ Baroness WOOTTON of ABINGERThe suggestion was that the parties were to be at least 21.
Viscount LONGIf the two parties have to be 21 or over, then it is all right. It is the 21-and-under group that I am worried about.
§ Lord MISHCONPerhaps I may apologise to the noble Viscount for not having made myself clear. He said that nobody suggested in the course of this debate any way of protecting those who were young. He defined "young" as under 21. In the course of my remarks—and I believe that this also came from other noble Lords who participated—the suggestion was made that rather than have these impracticable (and, we thought, psychologically wrong) conditions, why not go all out for protecting the very young age group that the noble Viscount talked about by saying that such marriages are to be permitted generally but are not to be allowed if one of the parties is under the age of 21—full stop?
§ 7.15 p.m.
Viscount BARRINGTONAs one of the speakers who reluctantly objected to this—and I mention this point only because it arises out of what the noble Lord has said and with which I strongly sympathise—I believe that a plain Amendment that the age should be altered from 18 to 21 would be much simpler to get through. The noble Lord, Lord Houghton, said in his speech that no other case existed in this country where those free rights which normally one gets at 18 are not given until 21. I speak under correction, but I think that the noble Earl, Lord Arran, in his homosexual Bill made such a distinction. It was argued about a good deal and I remember there was a discussion about whether it should not be for consenting adults of 18, 21 or 25. 826 The late Lord Montgomery of Alamein produced a manuscript Amendment (which he did not press) saying that he thought the age ought to be 85. I do not feel strongly about Amendments of that kind, but I think there is a special case here if we believe—as many of us do believe and as I tried to express when I spoke—that the interests of the children are very important. But I think it might be considered either at a later stage or outside the House.
Another point is relevant. The noble Lord, Lord Boston of Faversham (who I thought gave a helpful view of Government opinion earlier on), raised as one objection against making it legal to marry one's step-daughter the fact that this does not apply to one's sister-in-law. I think I am right in saying that one is allowed to marry one's sister-in-law without any age constraints. There seems to me a fundamental distinction in the matter of in loco parentis. I am not a parent but I have been, in a sense, in loco parentis because I have four nephews and nieces who were born during the last war. They cannot remember their father. I was their uncle and lived in the same house. They did not regard me as a father, but I was aware of some of the intimate relations which children have towards a father which they would not have, for example, to an aunt—and they had many aunts as well as this indifferent uncle.
I think that these two things are worth bearing in mind in so far as there have emerged dark hints of possible seduction. It seems more likely that a young lady who had married, say, an elderly widower might reasonably feel that she would prefer the step-son who has now grown up. That is more likely than her preferring a brother-in-law. I know this is hypothetical, but those two points are important if our aim in this Bill, as I think it is, is not only to help people who want to marry and are unreasonably prevented from doing so, but to help children and to give them this feeling of satisfaction, of knowing where they are, particularly in these days when divorces are so prevalent.
Viscount LONGI must apologise to the noble Lord, Lord Mischcon, for being so dense just now. If I may say so, I think he has offered a great solution. I apologise because I said that nobody in the Committee had offered a solution as to 827 what we should do. There is no doubt that the noble Lord has offered something I am wondering whether the noble Baroness and the right reverend Prelate have taken on board what the noble Lord has said because after this Committee stage we may be able to look at this again without a very complicated Amendment.
§ Lord MISHCONThe noble Lord has spoken with his usual courtesy and had no need to apologise at all.
§ Baroness WOOTTON of ABINGERI should he perfectly willing, if the right reverend Prelate will withdraw his Amendment, to come back at the next stage with an Amendment providing that marriages with the affinities that this Bill proposes to legalise should not be valid if one of the parties is under 21. I should prefer 18 because that fits with the general age of majority, but I would certainly not bother over two or three years. If an age limit were set, I would be perfectly happy to accept that.
§ Viscount INGLEBYMay I briefly come in at this point to support this Amendment. The idea of a step-father marrying a step-daughter comes as something of a shock to most of us, although I accept the argument of the noble Baroness that there are special circumstances where there may be nothing against it. We have all been rather boxing in the dark on this one. People have been rather prognosticating what might or might not happen if this Amendment was passed. Although most of us have not had time to study it, New Zealand has 24 years of experience of something similar to the proposal in this Amendment. Their Marriage Act of 1955 has a very similar clause in it. I have only particulars of New Zealand's cases which reached me this afternoon, but I suggest that before coming to a decision on this we would do well to study that experience. Under that particular Act all cases within the prescribed affinities have to have the permission of the Supreme Court; there is no age limit. I suggest that before we consider this question again it would be helpful to us all to study their experience.
The Lord Bishop of LONDONI am most grateful to noble Lords who have taken part in this debate. I do not want to prolong it unnecessarily, nor do 828 I want to make any enemies unnecessarily; but I must remark that most of the objections to my Amendment have come from lawyers. I have the greatest respect and affection for the legal profession and I find the company of men of the law most congenial. I count it as one of my greatest honours to be an honorary member of their profession. I hope that they will not take it amiss when I say that they have a genius for making things difficult. Those of us who come in the sancta simplicitas of wanting to apply sanctified common sense to a situation get rather depressed when lawyers come and point to all the difficulties and see problems round every corner. I know that it is their profession to do so and their duty to do so. I shall not go into these points further because I do not want to complicate the matter any more.
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 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 greatest 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.
I do not think it can be all that difficult to go to the court when for instance one has to go to the court if one wants to marry between the ages of 16 and 18. Presumably they have to make a value judgment on the situation and they have their rights as citizens completely barred if they want to be married under the age of 16. Therefore, I thought I was doing something that would have commended itself to the Committee in making some way through, via the advice of the courts, if people wanted to be married under the age of 21. If however I have the support of noble Lords and, when it comes again, they will give that support, I am very happy to withdraw this Amendment, and I hope that the noble Lord, Lord Hunt of Fawley, will agree on the understanding that we shall have that support when we bring the matter back again on Report stage.
§ Baroness WOOTTON of ABINGERI am not giving an absolute undertaking to accept 21. I shall accept 18 and I will probably accept 21.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos.3 to 5 not moved.]
§ On Question, Whether Clause 1 shall be agreed to?
§ 7.27 p.m.
§ Lord BOSTON of FAVERSHAMI do not intend to detain the Committee for more than a few moments, but I felt it necessary to intervene at this point. The Committee may recall that towards the end of my speech in the Second Reading debate I mentioned that, if the Bill was given a Second Reading, the Government would wish to see some Amendments made mainly of a technical nature. Because the technicalities of marriage law are somewhat complex—and we have been experiencing some of the complexities of these matters this afternoon in the very valuable discussion that we have had—I regret that it has not been possible to have the proposed Amendments drafted in a satisfactory form in time for consideration today. If I may, I shall bring them forward at Report stage. My noble friend Lady Wootton has been kind enough to tell me that the deferment of proposed Government Amendments until Report stage will not cause her any great inconvenience. I hope the Committee are willing to take an equally indulgent view.
Very briefly, it may be helpful if summarise the matters on which it seems to the Government that Clause 1 of the Bill is in need of amendment. Similarly, when we come to Clause 2 I propose to mention one brief point on that on which we are considering an Amendment. The first point—perhaps not quite a technical one—concerns the application of the Bill to Scotland. This was one of the points that 1 mentioned in the course of my Second Reading speech. I should be happy at this stage to outline in a little more detail the particular point concerning the extension to Scotland if it were felt by the Committee to be desirable, but in view of the time, unless the Committee wishes to have a clearer indication, it may not be necessary for me to go into the point but simply to mention it. If that is acceptable—and I am most grateful to the Committee—the other two main points concern 830 marriages contracted in this country where parties are domiciled overseas and the obvious case of marriages contracted overseas where parties are domiciled in this country. There is more and it would be possible, even in the absence of detailed drafts to say, but again the Committee may feel that the confirmation that they will be brought forward in proposed amendments at the Report stage is sufficient.
There are a couple of more minor matters of an equally technical nature, one of which would involve the redrafting of Clause 1, but none of the substance which your Lordships have already put into Clause 1 will be in any way affected. If it is not necessary for me to say more about that now but spell it out in detail when we come to Report stage, I shall do that.
§ Clause 1 agreed to.
§ On Question, Whether Clause 2 shall stand part of the Bill?
§ Lord BOSTON of FAVERSHAMEven more briefly than before, I should like just to mention to the Committee that there is one point on which the Government may wish to propose an Amendment to Clause 2 at the Report stage. This is in addition to the extension of the Bill to Scotland which I mentioned just now. We are considering whether it might be desirable to allow a short interval between the date on which the Bill receives Royal Assent and the date on which it comes into force, solely in order to provide time for some necessary administrative arrangements to be made. Perhaps I may indicate quite clearly at this particular juncture that I would emphasise to the Committee that there is no question here, if this proposed Amendment were acceptable to your Lordships, of leaving the date on which the Bill would come into effect to the discretion of Ministers. The interval between Royal Assent and the Bill coming into force would be specified in the Bill, if that were acceptable to your Lordships, and, with the Bill in its present form, we should expect this interval to be only a month or two.
The Lord Bishop of LONDONI am not sure whether I am quite in order, but may I ask the Minister for direction? Does he feel that the two subsections in my Amendment regarding Sections 2 and 3 831 of the Marriage Act and also the safeguard for wards of court would also have to be written into the Bill?
§ Lord BOSTON of FAVERSHAMI am afraid I am not sure about that at this stage. I think I should like to look at that to make quite certain about it. If that would be acceptable to the right reverend Prelate the Bishop of London, I will, if I may, either drop him a line or speak to him about these points as quickly as possible.
The Lord Bishop of LONDONI was told on good authority that we were in danger of doing something we did not intend to do unless we made reference to Sections 2 and 3 of the Marriage Act. As I see that in the Marriage Act 1949 there is specific reference to wards of court, I thought that this Bill should probably have some reference to them as well.
§ Lord BOSTON of FAVERSHAMI am very grateful indeed to the right reverend Prelate for having raised this point. I will certainly undertake to follow it up.
§ Clause 2 agreed to.
§ House resumed: Bill reported without amendment.
§ Baroness LLEWELYN-DAVIES of HASTOEMy Lords, since my noble friend Lady Stedman is not here, though I am sure she will be here in a minute or two, would the noble Earl like to proceed and we will take a note, or would he rather adjourn for five minutes?
§ The Earl of KINNOULLMy Lords, I should be happy to adjourn, if that is the wish of the House.
§ 7.35 p.m.
§ House adjourned during pleasure.
§ 7.40 p.m.
§ House resumed.