HL Deb 29 April 1981 vol 419 cc1248-66

Prohibited degrees of affinity for persons under 21

Mother of former wife; Father of former husband;
Daughter of former wife; Son of former husband;
Former wife of father; Former husband of mother;
Former wife of son; Former husband of daughter;

(2) There are hereby repealed—

  1. (a) in Part I of Schedule 1 to the Marriage Act 1949—
    1. (i) in the first column, the words from "Wife's mother" to "Daughter's son's wife"; and
    2. (ii) in the second column, the words from "Husband's father" to "Daughter's daughter's husband"; and
  2. (b) the Marriage (Enabling) Act 1960.

(3) Nothing in this section shall affect any marriage solemnized before the commencement of this Act.".").

The noble Baroness said: My Lords, I beg to move Amendment No. 2. I should like to say first of all that, as your Lordships will appreciate, the Government have always maintained an absolutely neutral attitude in relation to the objectives of the Bill, and I am most grateful for that. But there is one thing that no Government can stand; that is, that there should find its way on to the statute book any Bill which is expressed in the vulgar language of the ignorant layman. Therefore I am very grateful to the noble Lord, Lord Belstead, and to the noble and learned Lord the Lord Advocate, who have consulted me, and on my behalf have drafted amendments which will be couched not in the vulgar tongue, but in the specialist and select vocabulary and syntax used by parliamentary draftsmen. Therefore before going into any detail about the amendment—I do not propose to go into much detail—I should like to assure persons who are interested in the future of the Bill, who are anxious that it should succeed, and who might have a personal concern in it, that all these numerous words amount to exactly the same thing as the short formula that I had in my original Bill.

With a little tear for my simple original Bill as it emerged from Committee, I have pleasure in moving Amendment No. 2. I do not think that I need read out the words of the amendment, nor say anything other than that the amendment is desired, first, because it makes clear, which is indeed important, that the age limit of 21 applies only to this particular group of affinities which would be legalised by the Bill, and not to those that are already legalised. The table in the amendment shows what are the affinities. Your Lordships may feel that we have been a little overcautious, and that if someone wishes to marry his grandfather's widow, it is rather unnecessary to insist that both parties must be over the age of 21. So when your Lordships look at the list of affinities that are involved here, you will see that we have gone through it with very great care, not omitting grandfathers' widows, or grandfathers' divorcees, come to that.

The reason for doing this is that the 1949 Act is the umbrella under which it is desired, and would be convenient, for subsequent changes in the marriage law to be brought, since that really contains the substantive law on the solemnisation of marriage as it is at present. There is one other reason why the amendment is necessary: that it makes it clear that the provision applies only to marriages solemnised in this country. Otherwise difficulties might arise for persons not domiciled here who chose to come here in order to take advantage of a privilege which they might not have in their own countries. With those few words of explanation, I beg to move Amendment No. 2.

Lord Belstead

My Lords, I should like to thank the noble Baroness for what she has said concerning the advice which we have offered to her on the drafting of this amendment, but I should like to make it clear again that this does not mean in any way that the Government depart from their line of being neutral on the policy of this Bill. The only thing I should like to add as an explanation as to why the Government support this amendment at the technical level is that we think it is very desirable that any general alteration in the law relating to marriage, even if it is an alteration unlikely to affect many people, should be made in the main Act affecting this branch of the law in England and Wales. That, of course, is the 1949 Act; and this is what the amendment achieves. This, we believe, is the best way to change the law in this area, so that those concerned can most easily find out what the law would be if this Bill becomes an Act. That is all I would wish to add to what the noble Baroness, Lady Wootton, has said.

On Question, amendment agreed to.

Clause 2:

8.22 p.m.

The Lord Bishop of Norwich moved Amendment No. 3: Leave out Clause 2 and insert the following new clause:

("Marriage according to rites of the Church of England or the Church in Wales

. The following section shall be inserted after section 5 of the Marriage Act 1949:—

5A. No clergyman shall be obliged—

  1. (a) to solemnize a marriage between persons who are of the age of twenty-one or over which would be void under section 1(1A) of this Act if either of the persons to be married were under that age; or
  2. (b) to permit such a marriage to be solemnized in the church or chapel of which he is the minister.".")

The right reverend Prelate said: My Lords, your Lordships will remember that in previous discussions and debates on this subject in Committee the noble Lord, Lord Belstead, on behalf of the Government, drew attention to a possible defect in Clause 2; namely, that it would apply to people already permitted to marry by both statute and canon law. It is the old "deceased wife's sister" situation—I quote from Hansard, Lady Day 1981, column 1253. This new draft, which I have the honour to put before your Lordships and for which I hope to win your Lordships' approval, is really the conscience clause reshaped.

It has, your Lordships will notice, no reference to the Church in Wales, even though your Lordships should know that there is strong and growing opposition to this whole Bill in the Church in Wales as in the Church in England, as in the Church in Scotland, among the Deputies of the Jewish faith and in the Roman Catholic Church in Scotland and the Episcopal Church in Scotland. Nonetheless, there is no specific reference here to the Church in Wales, for this reason. It is because Section 78(1) of the Marriage Act 1949 defines "clergyman" as a clerk in Holy Orders of the Church of England", and Section 78(2) brings the Church in Wales within that definition. Thus, the Church in Wales is covered by the clause without it being necessary to refer to England and Wales specifically. I felt it right to make that point to your Lordships.

The only other alteration that the draftsmen have suggested to me is to change the word "compelled" in the original clause to "obliged", because the latter word is used in Section 8 of the 1949 Act. Your Lordships will not, therefore, want me to make a further speech on this. We have been most helped by the Home Office, and we are grateful to the Home Office for the help that they seek to give us when certain drafting defects appear. They have truly thought as I did, and we are grateful for it. I must say in passing that the Church is most grateful to Lord Belstead and his department for the assistance which has been given to us in the drafting of this particular amendment; but I propose it for the reasons that I have adumbrated, particularly the growing opposition to this whole Bill—and the Bill has had so little general publicity that, of course, the opposition is growing only slowly, because I think people had not fully realised the seriousness of it. But they are beginning to realise it now, and I am glad.

This is, therefore, a conscience clause of exceptional importance. As far as I know, the noble Baroness has not yet attempted to make official contact with the Church of England in its General Synod, nor with the official bodies of other Churches and religious organisations who are called upon and given permission to solemnise matrimony. It is particularly important, therefore, that we should give the fullest possible support to such a clause as this, which I hope and pray is now without defect so that the consciences of clergy are safeguarded.

It will also help to meet the very point that the noble Lord, Lord Boston of Faversham, has made—so that people really know the seriousness of the danger of entering into a marriage through ignorance which they then find is void, with all the distress and sorrow that could come from that. So in one way I rather welcome the fact that the speeches have been so full and clear from those who are in support of this Bill, because it is helping to alert many people to the serious problems which may be raised if this Bill ever becomes an Act. With that, and without taking further time, may I have permission to move the amended Clause 2 as it appears on the Marshalled List.

Baroness Wootton of Abinger

My Lords, so far as I am concerned there is nothing that I should deplore more than that any clergyman of the Church of England, or any minister of any other religious body, should be compelled to act against his conscience, and therefore I most gladly accept this amendment.

On Question, amendment agreed to.

8.26 p.m.

Baroness Wootton of Abinger moved Amendment No. 4: After Clause 2, insert the following new clause:

("Amendment of provisions of Marriage (Scotland) Act 1977 relating to marriages within forbidden degrees

.—(1) Section 2 of the Marriage (Scotland) Act 1977 (marriage of related persons) shall be amended as follows—

  1. (a) in subsection (1)—
    1. (i) after the words "column 1" there shall be inserted the words "of paragraphs 1 and 3"; and
    2. (ii) after the words "column 2" there shall be inserted the words "of paragraphs 1 and 3";
  2. (b) after subsection (1) there shall be inserted the following subsection—
(1A) A marriage between a man and any woman related to him in a degree specified in column 1 of paragraph 2 of Schedule 1 to this Act either of whom is under the age of 21 or between a woman and any man related to her in a degree specified in column 2 of paragraph 2 of that Schedule either of whom is under the age of 21 shall be void if solemnized—
  1. (a) in Scotland; or
  2. (b) at a time when either party is domiciled in Scotland."; and

(c) in subsection (3)—

  1. (i) after the word "person" where secondly occurring there shall be inserted "(i)"; and
  2. (ii) after the word "Act" there shall be inserted—"; or
  3. (ii) where neither person is under the age of 21, in a degree not specified in paragraph 1 or 3 of that Schedule".

(2) Nothing in this section shall affect any marriage solemnized or contracted before the commencement of this Act.").

The noble Baroness said: My Lords, Amendment No. 4 is the first of a number of amendments relating to Scotland. I should again like to thank the noble and learned Lord the Lord Advocate for having coped with the drafting of all the succeeding amendments in which Scotland is involved. So far as I am personally concerned, I should like to see this Bill become law in Scotland just as much as in this half of this island. I think that in these matters of purely personal behaviour it is very inappropriate that the boundary between England and Scotland should be the boundary between what is legal and what is not legal, marriages that are valid and marriages that would not be valid.

It is only a very few weeks ago that this House passed an amendment to a Scottish Bill which made the law relating to homosexuality in Scotland the same as it is in England. So long as the two laws were different, very unsatisfactory results followed, one being that homosexuality was still in all circumstances a crime in Scotland, but that, since it was not a crime just across the Border, the practice of prosecuting fell into disuse. It is very unsatisfactory, I think, to have on the statute book an action which is a crime but for which prosecutions are not undertaken. That, however, is merely by way of illustration, because there is no question of crime in this particular matter. I therefore wish to declare myself in favour of the principle of the application of the Bill to Scotland, and I hope that my noble and learned friend the Lord Advocate will explain the detail of Amendment No. 4, which is, I think, somewhat beyond my competence. I beg to move.

The Earl of Selkirk

My Lords, I hope that the noble Baroness will not press this amendment, and I want to say why. The right reverend Prelate said just now that people have not quite realised what are the implications of this Bill. Heaven knows! Nobody in Scotland has even heard of it; it only appeared yesterday. I object in principle to just appending something to a Bill at Report stage and saying that it applies to Scotland without there being the slightest opportunity to find out whether it is wanted or what the feeling about it is at all. This is a totally wrong principle. I know it has been done previously to some extent, but I have never seen such a blatant case as this before on any occasion, and I think it is quite wrong. The noble Baroness mentioned homosexuality. In due course we adjusted it; but with consent. But there is a grave objection to adding something to an English Bill which has never been discussed. We have had no opportunity to examine it.

I have tried to glance through this. Nobody can glance through it without going to the legal library. Reading this Bill as it stands means nothing. It is unfair to expect people to know what this Bill means without the opportunity of examining it. The noble Baroness said that we have a wonderful Lord Advocate. I agree; but this is not the way to pass legislation. We do not employ a couple of Lord Advocates and dispense with Parliament. Parliament must do this; and we ought to have a reasonable opportunity of seeing what is meant. This is the wrong way to do it. On that principle, we should ask the noble Baroness not to press it. She mentions the Gretna Green situation. This is a minor matter; there is not an awful lot of damage done there.

I will say something else. I am going to ask whether the drafting is right. I am asking in this sense. If you look at Clause 5 it deals with criminal law. I do not know why in Scotland you must enter into criminal law and in England you do not. I know nothing about English law, and not much about Scots law. In the proposed new Section 13(c) one reads: a man and any woman related to him in the degree specified in column 1 of paragraph 2…is not incest". What stands in paragraph 2? The son of a former wife. What is the son of a former wife? That is your son, possibly. I do not know. The law may say that this is not right if you take together paragraphs 1, 2 and 3 of Schedule 1, but if you single out paragraph 2 that can be given a separate interpretation. It is a ludicrous interpretation; but I do not think we should accept this amendment without further examination. I asked that we should go into Committee for this purpose. The noble Baroness did not want to do so. I appreciate her reason but we should not accept this. If there is a demand—and it is clear from the quotation I made from the three major Churches that there is no demand—we are well satisfied with a quite recent Act, the 1977 Act. This whole question was closely examined then. I have no reason to believe there is not satisfaction with that Act. For those reasons, I would ask the noble Baroness not to press this amendment.

The Earl of Lauderdale

My Lords, as we plod along with this Bill which delights some and is distasteful to others, we must respect the noble Baroness's continuing and granite firmness of purpose—which we can only admire. I think we are in a position where a beautiful and gracious lady has dimples of iron and her charm looks fair to beguile us into an enchanted quagmire. The fact is that we are now presented with a new Bill. First of all, we are presented with it without a Second Reading relevant to the matters now proposed. A later amendment which is relevent to the points arising under this amendment will change the Long Title and, if the noble Baroness gets her way on that later amendment, the Long Title will be altered radically and yet this will happen when this Bill has almost finished its course. Yet the Long Title sets out the purpose of the Bill and is what the Second Reading is supposed to be about; but we do not have a Second Reading.

Instead of a Bill of two clauses we now appear to have one of not less than five clauses and very much more than twice as long. Much of it is unintelligible. It is legislation by reference. How these poor young people spoken of by the noble Lord, Lord Boston of Faversham, and the noble Baroness, Lady Wootton, who are in this terrible emotional difficulty at the age of 22 or so are going to wade through this Bill and discover whether they are safe or not, I do not know. More serious still, Scotland is now being brought in overtly in place of what I am bound to say was a very unsatisfactory phrase (and I do not know why we let it go through): in or out of England and Wales". But these are revolutionary amendments as far as the Bill is concerned as we knew it up to a few days ago. Such revolutionary amendments on such a scale, at such a late stage, have certainly evoked surprise in many quarters and real anger in Scotland. Tampering with Scotland's marriage laws before Scottish opinion has had the time to digest the proposals and make itself heard may be a bold undertaking but hardly a wise one.

Aside from the Scottish Office, who has been consulted in time to make anything different from what is being done or proposed now? Has the Scottish Kirk been consulted? Has the Moderator of the General Assembly been consulted? Has the General Assembly's continuing structure been consulted? Has the Church and Nation Committee been consulted? And what about other facets of Scottish life? More than half of all marriages in Scotland take place within a church. That is true of the whole of the United Kingdom, but in Scotland it is well over a half. Has the Roman Catholic hierachy of Scotland been consulted? Has the Episcopal Church of Scotland been asked for its views? Has the Jewish community in Scotland been approached? What evidence is there that Scottish opinion wants this?

There is a facile argument—and I will bet anyone here tonight a pound that we shall have it from the Front Bench; and my bet will apply to only one person and not to everybody—that it is better to have the marriage laws the same North and South of the border. No doubt, in an ideal world, that would be so; but what is now suggested is that the Scottish marriage law should be adjusted to what was conceived in an English setting. Surely, it would be just as logical and fair to suggest that English law should conform with the highest standards of Scottish law. Why not? Or is it a question of numbers, that the English can vote down the Scots at any time? The argument that the purpose of this amendment is to bring Scotland into line with England is an argument which is shameful in the ears of every Scotsman. At this moment the principal Scottish newspaper is not printing. By gum! if it was, there would be columns about this. We have the Glasgow Herald, which is short of space plus the Aberdeen P and J; but at the moment the most important section of the Scottish press is silent. When Scotland is half denied at this moment its normal means of expression, it is proposed by Englishmen that Scottish law should be brought into line with the English. I would rather see English law brought in line with Scottish.

But in any case, the Scottish marriage law has done very well up to now. There has been no clamour to amend it. It has not reached my ears, and I have not met any Scotsman to whose ears the clamour has been borne. It is much to the contrary. There is evidence that the main Scottish Church leaders, who are widely divided on some points of theology—not, happily as greatly as they were and who, despite their theological differences, are greatly united in Christian love—have come out strongly indeed on this matter.

I have just had sent to me a copy of a telex—a statement put out on Monday evening. They only heard of this on Thursday night. That is pretty quick work for Scotland, where people take time to answer letters. This statement was put out on Monday evening and I quote from parts of it as it would be too long to read at length. The telex was sent to me issued jointly through the Church of Scotland, the Roman Catholic Press Office and the Press Officer of the Scottish Episcopal Church. I quote: Spokesmen for three Scottish Churches, the Church of Scotland, the Roman Catholic Church in Scotland, and the Scottish Episcopal Church have expressed concern over the social and moral implications of the Marriage (Enabling) Bill…In a joint statement issued on Monday night the right reverend Dr. William B. Johnston, Moderator of the Kirk's General Assembly, Archbishop Thomas Winning of the Roman Catholic Church in Scotland and the right reverend Michael Hare-Duke, Bishop of St. Andrew's in the Scottish Episcopal Church, deplored the Bill's undue haste and 'the attitude which treats Scotland as an appendage to English legislation'.". There is more of the same sort, but I shall not weary your Lordships too much. The statement goes on: Quite apart from the social and moral implications, which this Bill raises, as leading members of our three Churches, we deplore the attitude which…allows no time for a proper expression of opinion by the Churches or any other concerned bodies. Scottish views on family life are not necessarily the same as those South of the Border and need careful consideration". I hope that when I lose my £1 bet to whoever is going to take it up, and we hear from the Front Bench that it is convenient that Scottish law should be brought into line with England—convenient of course to the English proposers—that will be said with a muted voice and downcast look, because such an argument is unworthy.

I want to make a very serious suggestion to the noble Baroness. It would be far better to withdraw these amendments—indeed, far better to withdraw the Bill—if she really wants to avoid a humiliating clash on Third Reading which might dash the hopes of reviving the Bill in the next Session. If she were to withdraw the Bill now she could return in the next Session with a properly drafted Bill, allowing decent time for consideration and, above all, make possible next Session a realistic Second Reading on a coherent context, which we are denied at the present time.

8.44 p.m.

Lady Saltoun

My Lords, I agree with every word of the magnificent speeches which the noble Earls, Lord Selkirk and Lord Lauderdale, have just made. They have taken most of my words out of my mouth. This Bill was, I believe, originally conceived by the noble Baroness, Lady Wootton, as a Bill applying to England and Wales only. Then, on the suggestion of the noble Lord, Lord Belstead, at Second Reading, it has been amended to apply to Scotland as well.

The Scots in the main know nothing of what is to be foisted on to them through this Bill. They have not had time. The amendment of the noble Baroness reached me only on Saturday and I do not suppose that it reached most other Scots Peers any earlier. That is four days ago. Ever since I can remember—and long before I can remember—British Governments have been in the habit of treating Scotland as a backward province of England inhabited by backward savages who dressed in tartan and woad. The result has been Scottish nationalism. This amendment is God's or the Devil's (according to your opinion) gift to the Scottish nationalists. Surely the way to deal with this situation is to see what happens to the Bill as applying to England and Wales without this amendment. Then, if it becomes law, bring in a separate Bill concerning Scotland which the Scots will have proper time to consider. My Lords, I beg all of you to oppose this amendment.

8.46 p.m.

Lord Mackay of Clashfern

My Lords, I think that I can claim that I yield to no one in respect for the Scottish legal system and its distinctive principles. There is no question of this amendment having been drafted to bring Scotland's law into line with the law in England and Wales. The present position is that no part of this Bill is the law of England and Wales nor of Scotland. The suggestion that the Bill might go ahead so far as England and Wales are concerned, and then the matter should be considered whether it should be applied to Scotland, would, I should have thought, lead to exactly the situation that is being described: Scotland being treated as an appendage of England and Wales which should follow in the light of what happens here. Surely it is right that in considering whether you should have this Bill at all your Lordships should consider whether it should apply to Scotland as well as to England and Wales.

So far as the Government are concerned—as the noble Baroness, Lady Wootton, made clear and my noble friend Lord Belstead has made clear on many occasions—they are, as is traditional in matters of this sort, entirely neutral on the merits of this Bill. This assistance to draft these amendments has been given to the noble Baroness, Lady Wootton, because we believe that on a matter of this sort it is important that the law of England and Wales and Scotland should be the same. However, we are not suggesting that it should be in accordance with what the noble Baroness, Lady Wootton, is proposing. That is a matter for your Lordships to decide. But we say that in a matter of this kind it would be highly inconvenient, and indeed very wrong, that the law of Scotland and the law of England and Wales should be different.

The Earl of Lauderdale

My Lords, would the noble Lord allow me to interrupt? Is it not the case that the laws of the two countries are different now? My noble friend has been a distinguished practitioner in the law. The laws are different now and we have got on very well.

Lord Mackay of Clashfern

My Lords, the situation is that on the prohibited degrees arising from affinity the law of Scotland and the law of England and Wales are at present the same. There is only a very marginal difference between the law of Scotland and the law of England and Wales on the prohibited degrees altogether.

As the noble Earl knows very well, there are many differences between the law of Scotland and the law of England and Wales—differences in concept, structure, and so on. In some areas it may not be very important that the effects of the law should be the same. In certain other areas it is important. So far as we are concerned, the way that we see it is this: if this Bill were passed in the form in which it is proposed without what I call the Scottish amendments, couples who are permitted to marry in England and Wales as a result of the provisions of the Bill would find if either of them was domiciled in Scotland that their marriage in England and Wales would be void in Scotland by virtue of Section 2(1)(b) of the Marriage (Scotland) Act 1977 to which my noble friend Lord Selkirk referred. That is one obvious difficulty. Persons domiciled in England and Wales who are entitled to marry under the Bill would not be entitled to marry in Scotland because such a marriage would be void under Section 2(1)(a) of the 1977 Act.

It seems to us that from the point of view of technical drafting these are difficulties with which it would be right for the noble Baroness, Lady Wootton, to cope in her Bill and the purpose of these amendments is to enable her to do that. But I want to make it as clear as I possibly can that we are in no way committed to having this as the law of Scotland, nor are we committed to having it as the law of England and Wales. That is a matter for your Lordships and one on which the Government take no stand.

The Earl of Selkirk

My Lords, may I ask my noble and learned friend one question? Why was not this question brought up on Second Reading in the first place? What I am objecting to is the "tagging", and the noble and learned Lord the Lord Advocate is supporting "tagging" at Report stage. I am surprised that he does.

Lord Mackay of Clashfern

My Lords, I want to make it as clear as I can that I am not supporting anything about this Bill at all, but am pointing out what the difficulties are in relation to the Bill if some amendments of this kind are not put into it. I am not supporting this at all. It is the Bill of the noble Baroness, Lady Wootton, and we have given her certain assistance in relation to these particular clauses because of the difficulties to which I have referred.

Before doing so, my right honourable friend the Secretary of State took the precaution of inviting the views of the three largest Churches in Scotland—the Church of Scotland, the Roman Catholic Church and the Episcopal Church in Scotland—by a letter which I think went out about the 13th of March. We understood it was unlikely that the views of the Churches could be made available much before the end of April, but in the light of that situation we felt it right to provide this assistance to the noble Baroness, Lady Wootton, in order that this particular point should be focussed at this stage in your Lordships' House and not left treating Scotland as an appendage. We felt that your Lordships should realise now what the problem is and should have in mind that, unless you are going to create difficulties of the sort here referred to, then either there is no such Bill, or, if there is such a Bill, the Scottish position should be taken into account.

The Earl of Lauderdale

My Lords, I am sorry to ask my noble and learned friend to give way again because he is so gracious in giving way, but he says that the invitation went out on 13th March and the Scottish Office learned that the Churches could not formulate an opinion before 30th April. I must ask him: then why the hurry? Why not wait until they had got the consultations and then table amendments or recommend amendments to be tabled? There is no great hurry about this. What is the hurry? What my noble and learned friend has said merely underlines an unseemly haste which does not do credit to the situation. It is something which, if I may say so, is quite unlike the Scottish Office—usually the Scottish Office is very slow. Now they are rushing ahead like a racing motor car and really I cannot see why they could not have waited for the reaction of the Churches.

Lord Wells-Pestell

My Lords, before the noble and learned Lord replies, may I remind the House that this is a Report stage and, strictly speaking, noble Lords can speak only once on an amendment although there is provision, provided it is not abused, to ask questions. Only the mover of an amendment may speak twice.

Lord Mackay of Clashfern

My Lords, I am obliged. I have taken it that these interventions were intended as questions and have tried to treat them accordingly.

Lord Wells-Pestell

My Lords, it is a long question.

Lord Mackay of Clashfern

My Lords, some questions are longer than others but it does not make them any less questions. So far as haste is concerned, may I say that when the principle of the Bill was approved by your Lordships on Second Reading, the Scottish Office and the Secretary of State for Scotland thought it right to take some action. The Bill is not in our control. I have said more than once, and I say it again, that it is the noble Baroness's Bill and here we are at the Report stage. We thought these matters should be focussed at this stage rather than later and, as my noble and learned friend Lord Selkirk and my noble friend Lord Lauderdale have said, prominent leaders of the Churches have made their views plain. Your Lordships have these views now and possibly the tabling of these amendments by the noble Baroness has brought this matter very sharply to their attention so that the matter of whether this should be the law in the United Kingdom is one which is now being actively considered in Scotland.

Lord Boston of Faversham

My Lords, I am very grateful to the noble and learned Lord the Lord Advocate for giving way and I hesitate to intervene in his speech along with others, but I wonder whether he has considered the fact that your Lordships were forewarned of the possible need to consider amendments of this Bill because of the differences between Scottish law and that of England and Wales, during the Second Reading speech by the noble Lord, Lord Belstead, on 25th February last. The noble Lord referred specifically to the possible need for amendments, and indeed he referred not only to the marriage laws but to the law of incest as it differs in Scotland from the law in England and Wales as well. So I wonder whether the noble and learned Lord the Lord Advocate would not agree that it is the case that your Lordships were forewarned about these matters long since and were also forewarned about the possible need to consider matters of this kind as long ago as February 1979, at an earlier stage of one of my noble friend's Bills.

Lord Mackay of Clashfern

My Lords, if I might answer that question, certainly I was well aware that my noble friend Lord Belstead drew to your Lordships' attention on Second Reading the question with regard to the effect of this Bill as distinguishing the position in Scotland from that in England and Wales. These amendments, as I think is clear from what has gone before, have certainly focused attention on this point in a way in which my noble friend's speech on Second Reading, with all respect to him, does not appear to have done—because the addresses by my noble friends on the matter have been fuller perhaps on this occasion than they were at Second Reading.

May I also say a word or two about the method of draftsmanship that has been used?—because it has been suggested that these are amendments by reference. The situation is that in this respect the Scottish legal draftsmen have endeavoured to follow the recommendations of the committee of my noble friend Lord Renton on the Preparation of Legislation, and the idea has been to prepare amendments which fit into the existing statute. Therefore, if they became law the Marriage (Scotland) Act 1977, as amended, would be a free-standing statute with these amendments in, and the young couples who have been referred to would have the whole of the relevant provisions in front of them in the statute's revised form. Therefore, from the point of view of drafting, I think that these amendments, with the user in view, are very much drafted in the proper way.

The only other thing I should like to say is that my noble and learned friend Lord Selkirk drew attention to Amendment No. 5 and its effect on the law of incest. Perhaps I might take the opportunity of seeking to explain that in due course rather than dealing with it now, but it seems necessary to have regard to the effect of this Bill on the law of incest and to make some provision for the avoidance of doubt in that direction. Perhaps, at the risk of wearying your Lordships, I should emphasise that, although I have become involved in this discussion in a way that appears defensive of the amendments, I certainly do not wish to do that. These are the noble Baroness's amendments, which have been prepared with our assistance—

The Lord Bishop of Norwich

My Lords, before the noble and learned Lord sits down finally, may I ask him one question? He told us, I think, that on 13th March the Scottish Office wrote to the Established Church of Scotland. Could he, or his noble colleague who is sitting beside him, let us know the date—because it so closely affects the Established Church of England—on which the Government wrote to the general secretary of the Church's General Synod, to inform him of this Bill and to consider the advice of the Church of England?

Lord Mackay of Clashfern

I am sorry, my Lords. I do not have the information, and I think that my noble friend also does not have it at hand. I think it may have been anticipated that, because of the right reverend Prelates' position in this House, differing from the position of the Moderator of the Church of Scotland, the right reverend Prelates would know about the Bill, without the necessity of the Home Office communicating. But that might not be the explanation.

The Lord Bishop of Norwich

My Lords, I would remind the noble and learned Lord that the Church of England is not as prelatical a Church. It is now a very synodical Church.

Lord Ferrier

My Lords, in case the intervention of my noble friend Lord Lauderdale cannot be construed as a question, I, speaking for the first time on this amendment, should like to say that I feel as he did in his question, and inquire why we could not have waited after 30th April. I feel rather as the noble Lady, Lady Saltoun, felt on the subject of this amendment.

Lord Mottistone

My Lords, if I may, I should like to ask my noble friends on the Front Bench, or somewhere else, this question. All the arguments which have been put for including an amendment relating to Scotland would, surely, apply equally to Northern Ireland. I am a little puzzled as to why that has not been included also in this Bill, for the same tidying-up reasons.

Baroness Wootton of Abinger

My Lords, I should like to make one or two points. I consulted the Government Front Bench about amendments that would be necessary, and was advised that the amendments relating to Scotland would be more conveniently introduced at Report stage than at Committee stage. I was prepared to have them at either stage. That is why the amendments have appeared at Report stage. I had to wait upon them for the drafting of the amendments.

I should also like to say that the law relating to marriages with relatives of one's spouse was extended for the first time in 1907. It was then extended in 1930 or 1931 and extended again in 1960. On each of those occasions, Scotland was included with England and, so far as I know, without any protest at all. My Bill sought to add the two outstanding lines of affinities, to which the prohibition of marriage still obtains. All these others were acceptable in Scotland and it was, I think, quite reasonable to assume that these extensions would also be acceptable. Therefore, I merely asked that I might have advice about the drafting of the appropriate amendments.

9.4 p.m.

On Question, Whether the said Amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 28; Not-Contents, 21.

CONTENTS
Blease, L. Mountevans, L.
Boston of Faversham, L. Northfield, L.
Brockway, L. Oram, L.
Collison, L. Ponsonby of Shulbrede, L. [Teller.]
David, B.
Davies of Leek, L. Ritchie-Calder, L.
Hale, L. Robbins, L.
Jacques, L. Stewart of Alvechurch, B.
Jeger, B. Stewart of Fulham, L.
Lawrence, L. Taylor of Gryfe, L.
Lee of Newton, L. Taylor of Mansfield, L.
Listowel, E. Underhill, L.
Lockwood, B. Wells-Pestell, L.
McGregor of Durris, L. [Teller.] Winstanley, L.
Wootton of Abinger, B.
NOT-CONTENTS
Auckland, L. Halsbury, E.
Barrington, V. Hereford, Bp.
Brougham and Vaux, L. Lauderdale, E. [Teller.]
Cathcart, E. Lindsey and Abingdon, E.
de Clifford, L. Mottistone, L.
Exeter, Bp. Norwich, Bp.
Faithfull, B. Saltoun, Ly. [Teller.]
Ferrier, L. Selkirk, E.
Gainford, L. Torphichen, L.
Greenway, L. Vickers, B.
Greenwood of Rossendale, L.

Resolved in the affirmative, and amendment agreed to accordingly.

9.12 p.m.

Baroness Wootton of Abinger moved Amendment No. 5: After Clause 2, insert the following new clause:

("Law of incest in Scotland

. For section 13 of the Criminal Procedure (Scotland) Act 1938 (amendment of the law as to incest) there shall be substituted the following section— 13. For the avoidance of doubt it is hereby declared that sexual intercourse between—

  1. (a) a man and any woman related to him in a degree other than one specified in column 1 of Schedule 1 to the Marriage (Scotland) Act 1977;
  2. (b) a woman and any man related to her in a degree other than one specified in column 2 of that Schedule;
  3. (c) a man and any woman related to him in a degree specified in column 1 of paragraph 2 of that Schedule, neither of whom is under the age of 21;
    4. 1262
  4. (d) a woman and any man related to her in a degree specified in column 2 of paragraph 2 of that Schedule, neither of whom is under the age of 21,
is not incest.".").

The noble Baroness said: My Lords, I beg to move Amendment No. 5. It is chiefly concerned with the law of incest in Scotland which differs from the law of incest in England. I do not propose myself to go into details, as my learned colleagues will doubtless do so better. However, I should like to express my regret that I cannot deal with it, because I ought to be an expert. Not so long since I received a letter from one of the many students who ask me to assist them in the preparation of their theses for their degrees. It is true that this student was of Asian origin and that therefore his command of the English language may not have been perfect. However, the letter began: Dear Lady Wootton, I hear you are very much well versed in incest". On that ground I feel that I ought to apologise twice over for not dealing with the details of this new clause, although I have studied it. I beg to move.

Lord Mottistone

My Lords, before other noble Lords speak perhaps I might have an answer to the question which I asked in relation to the last amendment: Why, if all this argument is advanced for amending the law of Scotland, is there no provision in the Bill for amending the law of Northern Ireland? It seems to me that exactly the same arguments apply, particularly over the "Reverse Gretna" argument. I do not see why Northern Ireland is not given treatment equally as unfair and unreasonable as that for Scotland.

Baroness Wootton of Abinger

The difference between statutes that relate only to England and Wales and statutes that relate also to Northern Ireland is very substantial. Each case is considered on its merits, but normally new statutes of this kind are not extended to Northern Ireland, my Lords.

The Lord Bishop of Norwich

My Lords, forgive me for wearying your Lordships late in the evening, but this is an even more important amendment than the last one, and although I take the point that it may not be entirely proper for an English Prelate to talk much about Scotland I must remind the House that on Second Reading the noble Baroness made a very clear commitment on this matter. I quote from Hansard of the 25th February. The noble Baroness said: It is important to emphasise that this [Bill] has nothing to do with incest. I have been accused by people who ought to know better (since they are apparently in charge of a local radio station) of doing propaganda for the legislation of incest. There is nothing in this Bill which affects the present law about incest".—[Official Report, 25/2/81, col. 1115.] That is the clear statement of the proposer of this Bill on the 25th February, which appears to be entirely negatived by this amendment. Therefore it seems that the amendment should be not only resisted but that it is apparently improper.

The Earl of Lauderdale

My Lords, the noble Baroness was complaining a little earlier that at a later hour of the night her memory sometimes forsakes her; but I think she is jolly good and I should like to give her three cheers for the way she battles on. However, having said that, I must also say that no doubt she has now learned that problems worthy of attack have a knack of hitting back. The tabling of this amendment confers one positive, if countervailing advantage, which is that by seeking to amend and ease the Scottish law on incest she has now focused on the heart of the matter. I was going to read out the quotation which my noble friend the right reverend Prelate has just read out, so that need not be repeated. The noble Baroness did say that there was nothing about incest, and she did say that her opponents and, by implication, unfair critics were accusing her, as it were, of dabbling in incest and of legalising it through this Bill. Now, of course, she is forced to admit that the crime of incest does lie at the heart of what she is trying to do. The tables of kindred and affinity in fact mark the outside boundaries enabling the desexualised circle within which sexual relations are legally incestuous or sexual desires are morally incestuous in their approach in the wider sense.

Therefore this Bill is about easing those boundaries, and, no matter on what eminent advice she is acting, by proposing to ease the Scottish law of incest, when there is not even any known desire in Scotland for this to be done, her case that the Bill has nothing to do with incest collapses altogether. So this is a Bill about incest, which is a nasty subject. It is about pretending that some of what was incest hitherto is no longer to be so. As a Bill about incest it is a Bill about shame. My Lords, Man is a beast when shame stands off him Modesty once banished, never returns". Once again I would appeal to the noble Baroness, unless she wants to go down to a really humiliating defeat on Third Reading, to reconsider what she is doing. The Divisions tonight have shown that the two sides are almost neck and neck, and since we have had since only last Thursday we have not had time to rally the support that her noble friends spontaneously give on her side; but that will not be so if the Bill goes to a Third Reading.

So I appeal to the noble Baroness, if she wants to see this Bill get a fair run, that she should withdraw at least this amendment or, better still, withdraw the Bill, to come back in the new Session in the autumn and allow us to have a proper Second Reading on a proper Bill, but not to inflict this monstrosity upon us just now. If the noble Baroness does not withdraw this amendment I hope noble Lords will support me in the Division Lobby. We should like to remember the noble Baroness—and I am sure we shall—as a great and gallant champion of sober and farsighted reform, but on the showing of this Bill I am afraid we might have to remember her as one born to make chaos cosmic.

Lord Boston of Faversham

My Lords, I had not intended to intervene on this matter concerning Scottish law, and I do not intend to do so on the details of Scottish law because those, I am quite sure, will be explained to us by the noble and learned Lord the Lord Advocate, who is so familiar with Scottish law. But I do feel it is necessary to intervene to make this one point. I think that those noble Lords who have criticised my noble friend for the reference she made in her Second Reading speech on 25th February this year about the question of incest do so, if not unfairly, certainly misguidedly, because, if I may say so, it is perfectly clear from the context in which she was speaking that she was referring to the circumstances as they apply under the law at the moment in England and Wales. Indeed the Bill at that stage, as it then stood, said, and the Bill which is before your Lordships at the moment still says, that it does not apply to Scotland and Northern Ireland.

I do not want to weary your Lordships by making an extensive quotation from my noble friend's speech, but I do think it is necessary just to refer to this part. She said in her speech, as noble Lords and the right reverend Prelate the Bishop of Norwich mentioned: There is nothing in this Bill which affects the present law about incest". But she went on to say this: Incest, as your Lordships know…"— I leave out some words which are unnecessary— is a crime carrying a very heavy penalty. It is only applicable to persons having sexual intercourse with persons who are blood related. Persons who are not blood related, even if they were stepfather and stepdaughter, and who engage in sexual intercourse are open to no legal action whatever; and they can go on like that (as the law now stands) just as much as can any two persons who are totally unconnected in any way by matrimony or otherwise—total strangers".—[Official Report, 25/2/81; col. 1115.] It is perfectly clear—and I do feel that it is necessary to emphasise this once again—that the context in which my noble friend Lady Wootton was speaking was that of the law so far as it presently stands in relation to England and Wales, and relating to blood relations.

There is the further point to which I have already referred on an earlier amendment, which was made in his Second Reading speech on the same day by the noble Lord, Lord Belstead, for the Government, where he said at col. 1139: I am told that it would be necessary to amend the Scottish law on incest, which is somewhat more extensive than that obtaining in England and Wales". So I do, with great respect, feel that the position was made quite clear to your Lordships on that occasion.

Baroness Wootton of Abinger

My Lords, I am very much obliged to my noble friend for clearing up that point. May I appeal to noble Lords to make their speeches as short as possible. I have myself been ill and I am not able to continue very much longer. Most of the remaining amendments are in fact consequential. If speeches could be shortened, I should be grateful.

Lord Mackay of Clashfern

My Lords, I shall certainly try to respond to that invitation. The situation is that under Scottish law sexual intercourse between certain people related by affinity, for example stepparents and their stepchildren, is within the crime of incest. Yet people of that category will be permitted to marry, provided they are at least 21, if this Bill is approved with the provisions that have already been discussed. While it is unlikely that a court would hold that anyone who marries in pursuance of the Bill would be guilty of incest in consummating the marriage, there is more room for doubt as to the position of people who have sexual intercourse when not married. I am sure the House would agree that this is a matter with which, if the Bill is to apply to Scotland, the Bill should properly cope.

The principle of this clause was previously given statutory effect in Section 13 of the Criminal Procedure (Scotland) Act 1938 in relation to the alterations in the prohibited degrees that had been made by the statutes to which the noble Baroness, Lady Wootton, referred earlier. The new clause which has been drafted would amend the 1938 Act to square with the law of marriage in Scotland as it would be if this Bill were passed. This seems to be a proper consequence to take into account. Again, I am not commending it; I am simply saying to your Lordships that this is an issue with which the House requires to deal if it is to consider this matter properly.

The Earl of Selkirk

My Lords, before the noble and learned Lord sits down perhaps I might ask him a question. Do I understand from Section 13(c) that at the age of 20 it is incest and at the age of 21 it is marriage? Is that the right interpretation of Section 13(c)?

Lord Mackay of Clashfern

My Lords, as I understand the position, the Bill as amended allows people in the particular relationship with which the Bill deals to marry, provided that they have attained the age of 21; that is to say, if they are 21 years or over. The provision with regard to incest just mirrors that and says that they are permitted, if you like, to have sexual intercourse without being guilty of incest if they are within these degrees but are 21 or over. So it is a mirror image of the provision with regard to the power to marry.

The Earl of Selkirk

My Lords, I take it that under the age of 21 it is incest?

Lord Mackay of Clashfern

My Lords, yes, for these people so far as it would be incest now; because under the age of 21 they are not empowered by the Bill to marry.

Lord Boston of Faversham

In Scotland, my Lords.

Lord Mackay of Clashfern

My Lords, they are not empowered by the Bill to marry and as regards Scotland it would be incest, and therefore, the provision of the Bill requires to deal with it in that sense.

Lord Torphichen

My Lords, that is what is commonly termed a "lash-up".

On Question, Amendment agreed to.

Clause 3 [Short Title, citation and extent]:

9.27 p.m.

Baroness Wootton of Abinger moved Amendment No. 6:

Page 2, line 24, leave out from beginning to ("1981") in line 25 and insert ("1981. ( ) This Act and the Marriage Acts 1949 to 1959, the Marriage (Wales and Monmouthshire) Act 1962 and the Marriage (Registrar General's Licence) Act 1970 may be cited together as the Marriage Acts 1949 to 1981. ( ) This Act and the Marriage (Scotland) Act 1977 may be cited together as the Marriage (Scotland) Acts 1977 and").

The noble Baroness said: My Lords, this amendment is consequential on what we have already passed. I beg to move.

On Question, amendment agreed to.

Baroness Wootton of Abinger moved Amendment No. 7:

Page 2, line 25, at end insert— ("( ) This Act shall come into force at the end of the period of two months beginning with the date on which it is passed.").

The noble Baroness said: My Lords, Amendment No. 7 is an amendment for the Act not to come into force until two months from the date on which it is passed. The reason for that is administrative convenience in order to enable the registrars throughout the country to be informed. I beg to move.

On Question, amendment agreed to.

Baroness Wootton of Abinger moved Amendments Nos. 8 and 9:

Page 2, line 26, leave out ("Scotland or") In the Title, line 1, leave out from first ("to") to end of line 2 and insert ("make further provision with regard to the marriage of persons related by affinity; to amend section 13 of the Criminal Procedure (Scotland) Act 1938; and for connected purposes.").

The noble Baroness said: My Lords, perhaps I may move Amendments Nos. 8 and 9 en bloc because they are both consequential on what we have already passed. With the leave of the House, I beg to move Amendments Nos. 8 and 9 en bloc.

On Question, amendments agreed to.